UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                         No. 98-4601

DARRELL ROBERTS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                           No. 98-4610
WILLIAM EARL WILLIAMS, a/k/a
Willie Earl Williams,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                         No. 98-4655

SAMUEL ROBERTS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-97-35)

Argued: April 3, 2000

Decided: April 26, 2000
Before LUTTIG and MOTZ, Circuit Judges, and
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Rudolph Alexander Ashton, III, MCCOTTER, MCAFEE
& ASHTON, P.L.L.C., New Bern, North Carolina, for Appellant Dar-
rell Roberts; James M. Ayers, II, New Bern, North Carolina, for
Appellant Williams; John Douglas McCullough, STUBBS & PER-
DUE, P.A., Raleigh, North Carolina, for Appellant Samuel Roberts.
John Howarth Bennett, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendants-appellants Darrell Roberts, William Earl Williams, and
Samuel Roberts appeal from their convictions and sentences for vari-
ous narcotics-related offenses. For the reasons stated herein, we
affirm.

I.

Darrell Roberts, William Williams, and Samuel Roberts partici-
pated in the sale or possession of crack cocaine in Kinston, North

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Carolina, on several occasions. First, William Williams was video-
taped selling $2,400 worth of crack cocaine to a paid undercover
informant, George Washington. The video camera, hidden in Wash-
ington's van, also recorded the earlier conversations that Washington
and Williams had had about the transaction as they drove around Kin-
ston in search of Williams' brother (Wendell), from whom Williams
procured the crack. Second, after earlier negotiating the sale of $1,200
worth of crack cocaine to Washington, Darrell Roberts was audi-
otaped directing Washington towards another individual who handed
Washington an ounce of crack cocaine. Third, Samuel Roberts was
apprehended on two separate occasions with 20.5 grams of crack
cocaine and $1,580 in cash in his possession, and then with 0.7 grams
of crack cocaine, after fleeing unsuccessfully from Kinston officers.
Fourth, Samuel Roberts was observed repeatedly walking across the
street to a shrub and returning to transact business with several cus-
tomers; the shrub was later found to contain a brown paper bag filled
with baggies of crack cocaine.

A jury found all three defendants guilty of various narcotics distri-
bution and possession offenses set forth in 21 U.S.C. §§ 841 and 844.
William Williams was also found guilty of conspiring to distribute,
and possessing with intent to distribute, cocaine base, in violation of
21 U.S.C. § 846. The district court sentenced Darrell and Samuel
Roberts to 144 and 360 months of imprisonment, respectively, and
William Williams to life imprisonment.

II.

William Williams and Darrell Roberts contend on appeal that the
district court abused its discretion in denying their motions for sever-
ance under Fed. R. Crim. P. 14, which provides as follows:

          If it appears that a defendant or the government is preju-
          diced by a joinder of offenses or of defendants in an indict-
          ment or information or by such joinder for trial together, the
          court may order an election or separate trials of counts,
          grant a severance of defendants or provide whatever other
          relief justice requires. [. . .]

Id. (emphasis added). Specifically, they contend that, after the district
court granted judgments of acquittal to Darrell and Samuel Roberts

                     3
on the conspiracy charge at the close of the government's case, the
court erroneously failed to order separate trials for each of them. They
argue that the dismissal of the conspiracy charge demonstrated that
none of them should have been joined together in the same indict-
ment, because the common conspiracy allegation was the only allega-
tion that the defendants "participated in the same act or transaction or
in the same series of acts or transactions constituting an offense or
offenses," Fed. R. Crim. P. 8(b). As a consequence of such misjoin-
der, Williams and Roberts argue, they were unfairly prejudiced, since
the jury may have confused or transferred evidence of one defen-
dant's guilt to another.

We conclude that the district court did not abuse its discretion in
denying appellants' motions for severance because appellants have
failed to show that they suffered prejudice from the district court's
denial of their severance motions. As the text of the Rule suggests,
and as we have previously held, "[a] defendant must show prejudice
in order for the court's ruling [denying a severance] to constitute an
abuse of discretion." United States v. Porter, 821 F.2d 968, 972 (4th
Cir. 1987) (citing United States v. Phillips, 664 F.2d 971, 1016-17
(5th Cir. 1981)), cert. denied, 485 U.S. 934 (1988). And here, we are
convinced by our review of the transcript of the proceedings below
that "[n]o prejudice exists," since the jury was obviously able to
"make individual guilt determinations by following the court's cau-
tionary instructions, appraising the independent evidence against each
defendant." Porter, 821 F.2d at 972.

As in Porter, the district court here did carefully instruct the jury
to appraise the evidence with respect to each defendant separately:

          [B]e careful to give separate, separate consideration to the
          evidence supporting each charge against each individual
          Defendant. In considering each charge separately, do not
          think of the Defendants as a group or assume that because
          one Defendant may be found guilty of a particular charge
          that another must also be guilty. Instead you should only
          return a verdict of guilty on any charge if the evidence
          proves all of the elements of that particular charge against
          that individual Defendant beyond a reasonable doubt.

                    4
J.A. 403 (emphases added). Moreover, as in Porter, it is evident that
the jury followed the court's instruction, and "meticulously sifted the
evidence" as to each defendant. Porter, 821 F.2d at 972. For instance,
a fourth co-defendant not before this court, Wendell Williams, was
acquitted of one count, and the jury hung as to another. And the jury
found Samuel Roberts guilty on Count VII of only the lesser included
offense of simple possession.*

III.

All three appellants make numerous additional claims, all of which
we conclude are meritless. First, they argue that the testimony of sev-
eral government witnesses, particularly George Washington, should
have been excluded, because it was allegedly obtained in violation of
18 U.S.C. § 201(c)(2), which prohibits giving"anything of value to
any person" in exchange for his testimony. In United States v. Rich-
ardson, 195 F.3d 192 (4th Cir. 1999), cert . denied, 120 S. Ct. 837
(2000), we squarely rejected this argument, and we do so again today
for the same reasons that we set forth in Richardson. See id. at 195-
97.

Second, William Williams argues that his conspiracy conviction
should be overturned because there is insufficient evidence to support
it and because it violates the "Sears rule," which provides that one
cannot be convicted of conspiring only with a government agent. See
_________________________________________________________________
*We read appellants' discussion in their brief of Fed. R. Crim. P. 8(b),
which prescribes the standard for joining defendants in the same indict-
ment, as nothing more than an attempt to provide an additional reason for
concluding that the district court erred under Fed. R. Crim. P. 14. As
such, it does not alter our conclusion that the district court did not abuse
its discretion under Rule 14, since the requisite prejudice was not shown.
See supra.

Even were we to construe appellants' discussion of Rule 8(b) as stat-
ing a claim of error independent of the district court's denial of severance
under Rule 14, we would deem such a Rule 8(b) objection to be waived.
It has been waived, because it was not raised prior to trial, as required
by Fed. R. Crim. P. 12(b)(2). See Fed. R. Crim. P. 12(f). Even if it were
not waived, we would conclude, based on our careful review of the
record, that any such error that may have occurred was harmless.

                     5
United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985). We
reject this argument as meritless, because the record contains ample
evidence that William Williams conspired with at least Wendell Wil-
liams, who was not a government agent. And we conclude that it is
irrelevant that neither Wendell Williams nor Darrell or Samuel Rob-
erts were convicted of conspiracy, because, as we previously held in
United States v. Thomas, 900 F.2d 37 (4th Cir. 1990), the acquittal
of even a sole co-conspirator does not require reversal of the other
defendant's conspiracy conviction. See id. at 40.

Third, Darrell Roberts challenges the sufficiency of the evidence in
support of his conviction for distribution, on the ground that "the
alleged sale [of cocaine to Washington] was a totally uncorroborated
event." Appellants' Br. at 20. We reject this contention as well.
Although Washington actually received the drugs from someone other
than Roberts, the jury heard Roberts on an audiotape directing Wash-
ington towards that person, and Washington testified that earlier that
day he had arranged the transaction with Roberts.

Fourth, Samuel Roberts challenges the sufficiency of the evidence
in support of his convictions for possession with intent to distribute
cocaine base. We conclude that these challenges are also without
merit. As to Count VI, the police recovered over 20 grams of crack
cocaine, along with $1,580 in cash, from a jacket worn by Samuel
Roberts at the time of his arrest. And as to Count VIII, the police had,
for several hours prior to arresting Samuel Roberts, observed Roberts
repeatedly walking across the street to the same shrub, where separate
baggies of crack cocaine were later recovered, and returning to trans-
act business with several customers.

Fifth, all three appellants contend for the first time on appeal that
they were improperly sentenced, because not all cocaine base is crack
and the lab reports indicated only that the drugs were "cocaine base,"
without specifying whether they were also crack. Reviewing for plain
error, see United States v. Olano, 507 U.S. 725, 731-32 (1993), we
reject this contention. The trial record is replete with references to
"crack," and defendants have not suggested what kind of non-crack
cocaine base the drugs might otherwise have been.

                    6
CONCLUSION

For the reasons stated herein, we affirm the convictions and sen-
tences of Darrell Roberts, William Williams, and Samuel Roberts in
their entirety.

AFFIRMED

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