UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4762

MICHAEL WAYNE LONES,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4790

JOHN VINCENT BAUMGARTEN, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4791

ANTHONY QUINN BAUMGARTEN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4792

JOHN VINCENT BAUMGARTEN, SR.,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-97-298-CCB, CR-96-483-CCB)

Submitted: January 31, 2000

Decided: February 17, 2000

Before MURNAGHAN and MICHAEL, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Anton J.S. Keating, Baltimore, Maryland; Alan Bussard, Towson,
Maryland; Peter D. Ward, Baltimore, Maryland; Howard Margulies,
Baltimore, Maryland, for Appellants. Lynne A. Battaglia, United
States Attorney, Andrea L. Smith, Assistant United States Attorney,
M. Virginia Miles, Special Assistant United States Attorney, Balti-
more, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Michael Lones, John V. Baumgarten, Jr., Anthony Q. Baumgarten,
and John V. Baumgarten, Sr. appeal their convictions and sentences

                    2
for conspiracy to distribute and to possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846 (1994). Each Appellant raises
numerous claims. Finding no error, we affirm.

I.

First, Appellants claim that the district court improperly admitted
hearsay by coconspirators. To admit a coconspirator's out-of-court
statement under Fed. R. Evid. 801(d)(2)(E), the Government must
demonstrate the existence of the conspiracy by evidence extrinsic to
the hearsay statements. See United States v. Stroupe, 538 F.2d 1063,
1065 (4th Cir. 1976). Without identifying specific statements, Appel-
lants contend that the only non-hearsay evidence supporting a con-
spiracy was either coconspirator testimony or independent evidence
of a non-incriminating nature. According to Appellants, absent further
corroborating evidence, the hearsay statements, which were offered
through coconspirator witnesses, were inadmissible.

Appellants' argument evinces a misunderstanding of the rule.
While corroboration is required for the admission of coconspirator
hearsay, direct testimony at trial is extrinsic to the hearsay statements,
even if that testimony is given by coconspirators. See United States
v. Portela, 167 F.3d 687, 703 (1st Cir.), cert. denied, 68 U.S.L.W.
3232 (U.S. Oct. 4, 1999) (No. 99-5795). In addition, Appellants also
admit that there was independent evidence which although not
incriminating on its face tended to further corroborate the in-court tes-
timony and out-of-court hearsay showing that the Baumgartens ran an
extensive cocaine distribution operation. Furthermore, even if certain
statements were inadmissible, the extensive testimony by coconspira-
tors as to their personal observations rendered any such statements
cumulative. Thus, the admission of these statements, if error at all,
was merely harmless. See United States v. Ince , 21 F.3d 576, 582 (4th
Cir. 1994) (providing standard).

II.

Appellants next contend that the district court erroneously admitted
evidence of other crimes allegedly committed by them. Over objec-
tion, the district court admitted evidence of: (1) a drug conspiracy
which included the Baumgartens that existed prior to the charged date

                     3
of the instant conspiracy; (2) John, Sr.'s prior conviction and his suc-
cessful scheme to have a witness perjure himself at John, Sr.'s previ-
ous trial; (3) the Baumgartens' plan to have a Government witness
killed so that he would not testify against them; (4) a post-conspiracy
drug transaction between Luke and Lones; and (5) the fact that Lones
met John, Sr. in prison. Appellants claim that admission of this evi-
dence violated Fed. R. Evid. 404(b).

This court reviews the district court's decision to admit evidence
of bad acts under Rule 404(b) for abuse of discretion. See United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991). Rule 404(b) deci-
sions are not reversed unless they are "arbitrary or irrational." United
States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). Rule 404(b)
provides for exclusion of prior bad acts evidence that is relevant only
to the issue of character. It does not require exclusion of evidence
offered to establish opportunity, motive, intent, preparation, plan,
knowledge, identity, or absence of mistake. See Fed. R. Evid. 404(b);
United States v. Bailey, 990 F.2d 119, 122 (4th Cir. 1993).

First, the drug activity prior to the start of the charged conspiracy
provided the context for the instant crime and explained the relation-
ships between the various co-conspirators. See United States v.
McMillon, 14 F.3d 948, 955 (4th Cir. 1994) (evidence is admissible
if it helps explain how the illegal relationship between the participants
developed). In addition, the district court gave limiting instructions to
the jury with reference to these drug transactions, repeatedly remind-
ing the jury that the Defendants were not charged with these crimes.
Second, evidence of John, Sr.'s prior conviction was merely cumula-
tive to the other evidence of prior drug activity. In addition, it
explained John, Sr.'s absence for a period of time while John, Jr. and
Anthony ran the "business." Moreover, the evidence of John, Sr.'s
subornation of perjury at his previous trial illuminated the relationship
between John, Sr. and the Government witness, who was a member
of the conspiracy. In addition, it provided a context for the continued
harassment by the Baumgartens of potential witnesses and was rele-
vant to prove John, Sr.'s knowledge and intent.

Third, the scheme between John, Jr., Tony, and John Luke to have
a Government witness killed was an act in furtherance of the conspir-
acy. Thus, it was not Rule 404(b) evidence. See United States v. Chin,

                    4
83 F.3d 83, 88 (4th Cir. 1996) (stating that in a drug conspiracy, con-
versations regarding murder-for-hire were intrinsic to the alleged
crime and thus were excludable under Rule 404(b)). Fourth, the post-
conspiracy cocaine deal (a controlled buy) between Lones and Luke
was offered for the purpose of establishing Lones' identity and illus-
trating the close relationship Lones had with the Baumgartens.

Finally, the evidence that Lones was in prison was inadvertently
elicited during direct examination of John, Sr. The court gave an
immediate limiting instruction, stating that the jury should draw no
conclusions as to where Lones was in 1988 and that the only point of
the question was to establish when John, Sr. and Lones met. Because
the court's instruction dissipated any potential prejudice, the district
court's failure to grant a mistrial after this testimony was not "arbi-
trary or irrational." Based on the foregoing, we find that the district
court did not abuse its discretion in admitting the evidence of prior
bad acts.

III.

All four defendants allege prejudice in being tried with each other.
Lones asserts that the vast majority of the evidence concerned only
the Baumgartens and that he was prejudiced by the jury's exposure
to innumerable details that were unrelated to him. John, Sr. contends
that he was prejudiced by admission of the post-indictment drug
transaction between Lones and Luke and the plot by Luke, John, Jr.,
and Anthony to kill a federal witness. Finally, John, Jr. and Anthony
argue that they were prejudiced by admission of John, Sr.'s prior con-
viction and evidence regarding Lones.

Federal Rule of Criminal Procedure 14 allows the court to sever a
defendant for trial if it appears that the defendant is prejudiced by
joinder and justice requires such action. However, the mere showing
of prejudice does not necessitate severance. See Zafiro v. United
States, 506 U.S. 534, 538-39 (1993). Once charges against multiple
defendants are joined, the decision to sever a trial lies within the trial
court's sound discretion, and its decision will not be overturned
absent an abuse of that discretion. See United States v. Haney, 914
F.2d 602, 606 (4th Cir. 1990). A refusal to sever constitutes an abuse
of discretion only where it deprives a defendant of a fair trial and

                     5
results in a miscarriage of justice. See United States v. Chorman, 910
F.2d 102, 114 (4th Cir. 1990). Severance is usually not granted when
there was an alleged criminal conspiracy among the defendants. See
Haney, 914 F.2d at 606; United States v. Parodi, 703 F.2d 768, 779
(4th Cir. 1983).

Regarding Lones, we have previously held that severance will not
be granted when the claim is based on the disparity between the evi-
dence against different defendants absent a "strong showing of preju-
dice." Chorman, 910 F.2d at 114. Disparity in the evidence
introduced against different parties is a proper ground for severance
only in "the most extreme case." United States v. Mitchell, 733 F.2d
327, 331 (4th Cir. 1984). While most of the evidence adduced at trial
centered on the Baumgartens, much of it would still have been admis-
sible against Lones since all defendants were charged as members of
the same conspiracy. Therefore, because Lones does not show that his
is an exceptional case where the jury would be unable to compart-
mentalize the evidence and consider each defendant separately, we
hold that the district court did not abuse its discretion in denying
Lones' motion for severance.

The Baumgartens' case is much weaker. The majority of the evi-
dence of which they complain would have been admissible, even in
separate trials, as acts done in furtherance of the conspiracy. To the
extent certain evidence would have been excluded had the Baumgar-
tens been tried separately, the district court gave repeated limiting
instructions. In addition, the evidence was overwhelming against each
of the Baumgartens, and so, they are unable to show any prejudice
from their joint trial.

IV.

Appellants next allege that the denial of their motion for a continu-
ance prevented them from adequately preparing a defense because
their expert did not have sufficient time to prepare. We find that the
district court properly balanced the defense's needs with the interests
of the Government and the witnesses in commencing an already long-
delayed trial. Thus, the district court did not abuse its discretion. See
Franken v. United States, 248 F.2d 789 (4th Cir. 1957) (standard of
review). In addition, Appellants have failed to make a particularized

                     6
showing of prejudice. Thus, any error in denying a longer continuance
was harmless. See Fed. R. Crim. P. 52(a).

V.

Appellants next argue that the Government violated 18 U.S.C.
§ 201(c)(2) (1994), by offering lenient plea bargains and/or money to
cooperating co-conspirators. This argument was definitively rejected
by United States v. Richardson, 195 F.3d 192 (4th Cir. 1999), cert.
denied, ___ U.S. ___, 2000 WL 12507 (U.S. Jan. 10, 2000) (No. 99-
7186), which held that § 201(c)(2) does not apply to government offi-
cials acting pursuant to statutory authority. As such, this claim is
meritless.

VI.

Appellants next argue that the Government committed prosecu-
torial misconduct by threatening defense witnesses with prosecution
and asking improper questions. Prior to trial, Appellants informed the
trial court and the Government of their intention to call several wit-
nesses, including Joseph Brady, Danny Miller, and Robert C. Nokes.
Brady and Nokes appeared with counsel and repeatedly asserted the
Fifth Amendment privilege against self-incrimination. Miller was
never called by the defense.

Various types of governmental and judicial interference have been
found to deprive the criminal defendant of the right to present his own
witnesses to establish a defense. See Webb v. Texas, 409 U.S. 95, 98
(1972) (defense witness effectively driven off witness stand by
remarks of trial judge regarding penalties for perjury); United States
v. MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982) (U.S. Attorney tele-
phoned defendant's girlfriend's attorney to advise him to remind his
client that if she testified at trial she could be reindicted on dropped
charges). However, it is not improper per se for a prosecuting attorney
to advise prospective witnesses of the penalties for testifying falsely
or the ramifications of incriminating oneself. See United States v.
Teague, 737 F.2d 378, 384 (4th Cir. 1984).

After a close review of the record, we find that the actions by the
Government stayed well within acceptable limits in warning potential

                    7
witnesses of the possible ramifications of testifying. In addition, other
than wanting to give their "confederates an immunity bath," Appel-
lants have shown no basis to justify a grant of immunity to their wit-
nesses. See In re Kilgo, 484 F.2d 1215, 1222 (4th Cir. 1973). Because
the prosecutor's conduct gave rise to no legitimate constitutional
complaint, Appellants are not entitled to relief.

Next, Appellants assert that the Government erred by asking a
defense expert whether money lent to the Baumgartens from family
members could have initially belonged to the Baumgartens. That is,
the Government asked if the family members could have been
involved in a money laundering scheme. In addition, the Government
asked John, Sr. on cross examination the whereabouts of one of his
relatives who had lent him money. The district court gave remedial
instructions to the jury after each of these incidents, stating that the
burden of proof remained with the Government and that there was no
evidence that the Baumgartens had given their relatives money that
was then loaned back to them.

In order to sustain a claim of prosecutorial misconduct, Appellants
must show improper remarks by the Government that prejudicially
affected Appellants' substantial rights. See United States v. Curry,
993 F.2d 43, 45 (4th Cir. 1993). Based on the limiting instructions
and the overwhelming evidence in this case, even if the Government's
questions were improper, we hold that Appellants were not preju-
diced.

VII.

John, Sr. alleges error in a four level role enhancement as an orga-
nizer or leader under U.S. Sentencing Guidelines Manual § 3B1.1
(1997). John, Jr., challenges his three level role enhancement as a
manager or supervisor under § 3B1.1. The determination that the
defendant played an aggravating role in the offense is essentially a
factual question reviewable for clear error. See United States v.
Sheffer, 896 F.2d 842, 846 (4th Cir. 1990).

John, Sr. argues that the evidence against him by cooperating
coconspirators was uncorroborated. However, this evidence was

                    8
accepted by the jury, and thus, the use of the same evidence to deter-
mine John, Sr.'s role in the offense was not clear error.

John, Jr. contends that he, at most, recruited people for the conspir-
acy and let people store drugs at his home. He asserts that this was
not sufficient for a role enhancement. However, Luke testified that
John, Jr. fronted him money to secure cocaine for the conspiracy,
shared in the profits, plotted with Luke and Anthony to kill a govern-
ment witness, and instructed various members of the conspiracy.
Thus, we find that the district court's leadership enhancements were
not clearly erroneous.

VIII.

Finally, John, Sr. challenges the district court's enhancement for
obstruction of justice. The district court enhanced John, Sr.'s sen-
tence, because it found that John, Sr. committed perjury during his
trial. The enhancement for obstruction of justice may properly be
based on perjurious testimony. See USSG§ 3C1.1, comment. (n.3)
(1997). At sentencing in the present case, the district court pointed out
two specific instances of perjury and expressly found that John, Sr.'s
testimony was false, deliberate, and material. These findings were
sufficient as a matter of law to support the enhancement and were not
clearly erroneous. See United States v. Castner , 50 F.3d 1267, 1279
(4th Cir. 1995).

Consequently, we affirm Appellants' convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

                    9
