                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 02-3258
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Gerald Arnett Ghant,                    *
                                        *
           Appellant.                   *
      ___________
                                            Appeals from the United States
      No. 02-3262                           District Court for the
      ___________                           Eastern District of Arkansas.

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Gregory R. Nichols,                    *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 17, 2003

                                 Filed: August 6, 2003
                                  ___________
Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Gerald Ghant and Gregory Nichols appeal their convictions for conspiring to
distribute and to possess with intent to distribute more than five kilograms of cocaine.
See 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), § 846. We affirm the judgment of the
district court.1

                                          I.
       Both defendants contend that they were prejudiced by a variance between the
indictment and the government's proof at trial. According to the defendants, although
they were charged with one conspiracy occurring "[o]n or about September 1, 1994,
and continuing thereafter through July 15, 1998," the government's evidence
supported a finding of two separate conspiracies: one ending in late 1996 or early
1997, and one beginning in late 1997 or early 1998. "A variance results where a
single conspiracy is charged but the evidence at trial shows multiple conspiracies,"
United States v. Morales, 113 F.3d 116, 119 (8th Cir. 1997), but reversal is warranted
only if the variance infringed a defendant's substantial rights. See Berger v. United
States, 295 U.S. 78, 82 (1935); see also Fed. R. Crim. P. 52(a).

       Assuming, without deciding, that the evidence in the case would support a
finding of two conspiracies rather than one, we do not believe that the variance
prejudiced either of the defendants. A variance infringes on a defendant's substantial
rights, when "the defendant could not reasonably have anticipated from the
indictment the evidence to be presented against him ... the indictment is so vague that
there is a possibility of subsequent prosecution for the same offense; or ... the


      1
       The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.

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defendant was prejudiced by a [so-called] 'spillover' of evidence from one conspiracy
to another." United States v. Jones, 880 F.2d 55, 66 (8th Cir. 1989). Here the
defendants raise neither notice nor double-jeopardy concerns; they contend only that
they were prejudiced by a spillover of evidence from one conspiracy to another.

       We note initially that the two conspiracies referred to by the defendants both
occurred within the time period spanned by the indictment. "Time is not a material
element of a conspiracy charge," United States v. Turner, 975 F.2d 490, 494 (8th Cir.
1992), cert. denied, 506 U.S. 1082 (1993). Therefore, particularly where, as here,
there are no notice or double jeopardy issues, "a variance between the indictment date
and the proof at trial is not fatal so long as the acts charged were committed within
the statute of limitations period, and prior to the return date of the indictment." See
United States v. Stuckey, 220 F.3d 976, 982-83 (8th Cir. 2000). The defendants have
not raised a statute-of-limitations defense, and all of the charged activity occurred
before they were indicted.

      We must address, however, the question of whether the proof of more than one
conspiracy prejudiced the defendants. At trial the government offered evidence about
drug transactions involving Mr. Ghant that occurred between 1994 and 1996.
Mr. Nichols was not linked to this activity. According to the proof, Mr. Nichols was
involved only in the drug transactions that began in late 1997 or early 1998. The
evidence showed that during this second period, Mr. Nichols and another individual
brought cocaine from Texas to Little Rock for Mr. Ghant.

       We first consider Mr. Nichols's argument that the evidence of the earlier drug
transactions prejudiced the jury against him. Both the number of conspiracies
putatively proven and the number of defendants involved are crucial to determining
whether a variance is prejudicial. See United States v. Rosnow, 977 F.2d 399, 408
(8th Cir. 1992) (per curiam), cert. denied, 507 U.S. 990. In Berger, 295 U.S. at 82-
83, the Supreme Court found no prejudice where the defendants were charged with

                                         -3-
one conspiracy, but the government proved two conspiracies involving a total of four
defendants. As with Mr. Nichols, the proof in Berger would have supported a finding
that the petitioner was involved in only one of the two conspiracies. The Court found
no significant difference between those circumstances and a case in which all the
defendants are charged with two conspiracies, but the government fails to make out
a case against one defendant as to one of the conspiracies. See id. "Plainly enough,
[that defendant's] substantial rights would not have been affected." Id. at 83.

        Although the Court in Kotteakos v. United States, 328 U.S. 750, 776-77 (1946),
expressing concern that the defendants would suffer from "unwarranted imputation
of guilt from others' conduct," reversed their convictions based on a variance, the
circumstances were far different from those in the instant case. As the Court
observed in distinguishing Berger, "it is one thing to hold harmless the admission of
evidence [of other conspiracies], where only two conspiracies involving four persons
all told were proved, and an entirely different thing to apply the same rule where, as
here, only one conspiracy was charged, but eight separate ones were proved,
involving at the outset thirty-two defendants." Id. at 766. The "sheer difference in
numbers, both of defendants and of conspiracies proven, distinguishes the situation"
from that presented in Berger. Id.; see also Rosnow, 977 F.2d at 408.

       We do not believe that the present case is "a particularly 'complex' one or one
dealing with 'complicated or confusing' transactions." See United States v. Hall, 171
F.3d 1133, 1150-51 (8th Cir. 1999), cert. denied, 529 U.S. 1027 (2000) (quoting
Morales, 113 F.3d at 119-120). As in Berger, the indictment charged one conspiracy,
and the defendants contend that the government proved two. Only two defendants
were tried, and, although the government presented quite a few witnesses regarding
the early transactions, the questions posed to those witnesses made it clear to the jury
that Mr. Nichols did not take part in any drug activity from 1994 through 1996.
Because the evidence against Mr. Nichols was confined to a certain time period,
moreover, we believe that it was easier for the jury to compartmentalize that evidence.

                                          -4-
       Also, unlike what occurred in Kotteakos, the trial court here gave a cautionary
instruction, a circumstance that the cases have identified as significant. See
Kotteakos, 328 U.S. at 769-770; Rosnow, 977 F.2d at 407; United States v. Snider,
720 F.2d 985, 990 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984). The district
court directed the jury that if it found two separate conspiracies, it "must not consider
any of the evidence regarding the alleged conspiracy to distribute and possess to
distribute cocaine up to July 1997 against defendant Nichols." Considering all of the
circumstances, we conclude that Mr. Nichols was not prejudiced by any spillover of
evidence from the earlier cocaine conspiracy to the one in which he was implicated.

       Mr. Ghant also contends that he was prejudiced by the variance because if he
had been charged with only one conspiracy (his argument goes) evidence of the other
conspiracy would have been inadmissible. We conclude that Mr. Ghant's substantial
rights were not adversely affected.

       We note first that the evidence was sufficient to support a finding that if there
were two conspiracies, Mr. Ghant participated in both of them: The government
presented proof that Mr. Ghant distributed and purchased well over five kilograms
of cocaine from 1994 through 1996, as well as evidence that Mr. Ghant purchased
well over five kilograms of cocaine from Mr. Nichols and another individual in 1998.
We have stated that the chance of a " 'prejudicial spillover effect' from one conspiracy
to another .... if the defendant is a member of both conspiracies . . . is minimal, if not
nonexistent." United States v. Scott, 511 F.2d 15, 20 (8th Cir. 1975), cert. denied,
421 U.S. 1002 (1975); see also Jones, 880 F.2d at 66. Mr. Ghant has cited no case
in which, despite evidence that the defendant participated in all of the conspiracies,
a variance between the number of conspiracies charged and the number proven was
found to have prejudiced the defendant. We note, too, that the Court in Kotteakos
explained its finding of prejudice by referring to "the dangers for transference of guilt
from one to another across the line separating conspiracies, subconsciously or
otherwise," 328 U.S. at 774, and the "unwarranted imputation of guilt from others'

                                           -5-
conduct," 328 U.S. at 777. (Emphasis added). Here Mr. Ghant argues that he was
prejudiced by evidence of his own acts.

       We believe, in any event, that if Mr. Ghant had been tried for only one of the
allegedly two conspiracies, evidence of Mr. Ghant's participation in the other
conspiracy would have been admitted under Federal Rule of Evidence 404(b)
anyway. Under that rule, evidence of other crimes or wrongs is not admissible to
show the defendant's character but is admissible "for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Here, assuming that there were two separate conspiracies, they
were close in time and similar to each other, see United States v. Williams, 308 F.3d
833, 837 (8th Cir. 2002), and we believe that the evidence of Mr. Ghant's
participation in one would have been probative of his intent to participate in the other,
cf. United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1234 (8th Cir.1992).
Mr. Ghant also contends that the testimony of co-conspirators in the earlier
conspiracy about "deals among themselves" would have been excluded in his separate
trial on the 1998 conspiracy. But we believe that Rule 404(b) would have permitted
the admission of their testimony to show the scope of the previous drug conspiracy
involving Mr. Ghant.

                                          II.
       Mr. Ghant also challenges the multiple-conspiracy instruction given to the jury.
We review jury instructions for an abuse of discretion, see United States v. Beckman,
222 F.3d 512, 520 (8th Cir. 2000). Individual instructions are evaluated "in the
context of the entire charge," United States v. Pinque, 234 F.3d 374, 377 (8th Cir.
2000), cert. denied, 532 U.S. 1044 (2001), to determine whether the instructions
fairly and adequately submitted the issues in the case to the jury. See Beckman, 222
F.3d at 520.




                                          -6-
       Here, over the objection of the government, the district court instructed the jury
on multiple conspiracies, but the court refused to give the instruction that Mr. Ghant
requested. Mr. Ghant challenges paragraph four of the court's multiple-conspiracy
instruction, which cautioned the jury that if it found that two conspiracies existed, it
should "not consider any of the evidence regarding the alleged conspiracy to
distribute and possess to distribute cocaine up to July 1997 against defendant
Nichols." According to Mr. Ghant, this instruction "may have suggested to the jury
that there was no issue concerning Mr. Ghant's guilt in both conspiracies." We
disagree. This paragraph told the jury only what evidence it was to consider, and we
do not believe that it implied that Mr. Ghant was guilty of any crime.

       We believe, moreover, that the trial court had good reason to refer only to
Mr. Nichols in drafting this paragraph of the instruction, which addressed the
concerns expressed in Kotteakos that a defendant might be prejudiced by evidence
against another defendant involved in a different conspiracy. The district court did
not refer to Mr. Ghant in paragraph four of the instruction because the same concerns
regarding a spillover effect were not present as to him.

       We also observe that the first three paragraphs of Instruction 7-A noted that the
defendants were charged with being members of "a single conspiracy," and then
directed the jury to decide whether there was one conspiracy or "two separate
conspiracies" and to acquit either defendant if it did not find that he "was a member
of the single conspiracy charged in the indictment." Although we believe that
Instruction 7-A contradicts itself by requiring the jury to acquit if it did not find a
single conspiracy, while simultaneously instructing it to consider only certain
evidence if it found two conspiracies, the defendants do not raise an objection to that
effect, and we do not see any necessity here to engage sua sponte in plain error
review. We view the instructions as a whole, see Pinque, 234 F.3d at 377, and we
note that the jury was instructed that in order to return a guilty verdict it must
unanimously find each defendant guilty beyond a reasonable doubt of the conspiracy

                                          -7-
charged in the indictment. As we have already noted, if there were two conspiracies
proven they both occurred during the time period spanned by the indictment, and the
defendants do not contend that they were denied notice or are in danger of being
subjected to double jeopardy. Under the circumstances, we believe that the direction
to the jury to acquit if it did not find a single conspiracy actually favored the
defendants and increased the burden on the government beyond that required by law.

                                          III.
       Mr. Nichols contends that the district court should have granted his motion for
a severance. To succeed on this point, Mr. Nichols must show that the court's failure
to grant his motion was an abuse of discretion that resulted in "clear prejudice." See
United States v. Washington, 318 F.3d 845, 858 (8th Cir.2003).

       A defendant can demonstrate that the denial of a severance motion resulted in
clear prejudice by showing either that the co-defendants' defenses were irreconcilable
or that the jury could not "compartmentalize the evidence as it relates to the separate
defendants." Id. Mr. Nichols does not argue that his defense was irreconcilable with
Mr. Ghant's; he argues only that the jury could not compartmentalize the extensive
evidence offered against Mr. Ghant from the evidence offered against him.

       In assessing the jury's ability to compartmentalize the evidence against joint
defendants, we consider the complexity of the case, whether any of the defendants
was acquitted, and the adequacy of the jury instructions and admonitions to the jury.
See United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003), cert. denied,
123 S. Ct. 2263 (2003). As we have said, we do not believe that this was a
particularly complex case. Also, although no one was acquitted, there were only two
defendants involved in the trial, and the evidence against Mr. Nichols, as the
defendants' variance argument acknowledges, was limited to a distinct time period.




                                         -8-
       We note, moreover, that in addition to the cautionary instruction as to
Mr. Nichols that we have already alluded to, the jury was instructed to "keep in mind
that [it] must give separate consideration to the evidence about each individual
defendant. Each defendant is entitled to be treated separately, and you must return
a separate verdict for each defendant." Cf. United States v. Kehoe, 310 F.3d 579, 590
(8th Cir. 2002), cert. denied, 123 S. Ct. 2112 (2003). Despite the different degree of
involvement on the part of each of the defendants, we believe that the jury would
have been able to compartmentalize the evidence against Mr. Nichols. See United
States v. Kuenstler, 325 F.3d 1015, 1024 (8th Cir. 2003). Therefore we conclude that
the trial court did not abuse its discretion in denying the motion to sever.

                                        IV.
      Accordingly, we affirm the district court's judgment.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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