                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4137



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERMAINE TAYLOR,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (3:05-cr-00191-REP)


Submitted:   February 5, 2007          Decided:     February 16, 2007


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


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, Richmond, Virginia, for Appellant.    Chuck
Rosenberg, United States Attorney, Michael C. Wallace, Sr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jermaine Taylor was indicted on two charges of possession of

a controlled substance with intent to distribute. He was tried and

convicted of both offenses in a single jury trial. Although Taylor

concedes   that   the   two   offenses   were   properly   joined   in   the

indictment, he argues that the district court erred in denying his

motion to sever them for trial.     Finding no abuse of discretion, we

affirm.


                                    I.

     The Government charged Taylor with two violations of 21 U.S.C.

§ 841 (2000):     first, that on or about June 28, 2004, he possessed

cocaine hydrochloride with the intent to distribute, and second,

that on or about August 20, 2004, he possessed cocaine base with

the intent to distribute.

     On both occasions, Taylor was apprehended while driving a

vehicle registered to someone else.       On June 28, Taylor had a small

quantity of cocaine in his pocket; officers discovered a larger

amount of cocaine during an inventory search of the vehicle he was

driving.   Taylor volunteered to the arresting officer that he was

a cocaine user.     On August 20, officers found cocaine base in the

glove box of the vehicle Taylor drove.          On that occasion, Taylor

denied that the cocaine was his, but said he would “take the

weight” so that the passenger in the vehicle with him would not be

charged.

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     The two offenses were joined for trial under Federal Rule of

Criminal Procedure 8(a).          Before his trial commenced, Taylor moved

to sever Count One from Count Two, pursuant to Federal Rule of

Criminal Procedure 14(a), arguing that he would be prejudiced if

tried for both offenses at the same trial.*                    The district court

denied Taylor’s motion, relying, in part, upon a finding that

evidence of each charged offense would be admissible in a trial on

the other under Federal Rule of Evidence 404(b).                       Therefore, the

district     court     reasoned,      Taylor     would      not   be     additionally

prejudiced by having the two offenses jointly tried.

     A jury tried and convicted him of both crimes.                           The court

sentenced    him     to     162   months    on   each       count,     to    be   served

concurrently.        Taylor timely appealed, arguing that the district

court’s    refusal     to   sever    the    offenses     for   trial        resulted   in

prejudice to Taylor.


                                           II.

     Under Rule 8(a), two offenses may properly be joined in an

indictment    “if     the    offenses      charged     --    whether        felonies   or

misdemeanors or both -- are of the same or similar character . . .”

Fed. R. Crim. P. 8(a).              Once joined, however, offenses may be

severed for trial if joinder “appears to prejudice a defendant or



     *
      Taylor did not then, nor does he now, argue that the offenses
were improperly joined in the same indictment. See Fed. R. Crim.
P. 8(a).

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the government.”   Fed. R. Crim. P. 14(a).   A ruling on a motion to

sever is “committed to the discretion of the district court.”

United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976).

     “A defendant making a motion for severance pursuant to Rule 14

has the burden of demonstrating a strong showing of prejudice.”

United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984).   In

considering a severance motion, the trial court balances any

possible prejudice to the accused “against the interests of the

efficient administration of justice.”   United States v. Cole, 857

F.2d 971, 974 (4th Cir. 1988).    In particular, when offenses are

joined based upon their “same or similar character,” the trial

court should consider three possible sources of prejudice:

     (1) the jury may confuse and cumulate the evidence, and
     convict the defendant of one or both crimes when it would
     not convict him of either if it could keep the evidence
     properly segregated; (2) the defendant may be confounded
     in presenting defenses, as where he desires to assert his
     privilege against self-incrimination with respect to one
     crime but not the other; or (3) the jury may conclude
     that the defendant is guilty of one crime and then find
     him guilty of the other because of his criminal
     disposition.

Foutz, 540 F.2d at 736.   The fact that joinder may make for a more

difficult defense or that a separate trial might increase the

defendant’s chance of acquittal are not sufficient grounds for

severance.   Goldman, 750 F.2d at 1225.      At the same time, if

“evidence of the joined crimes ‘would be mutually admissible for

legitimate purposes in separate trials for each offense,’” the

possibility of prejudice to the defendant from a joint trial “is

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greatly diminished.”      Cole, 857 F.2d at 974 (quoting United States

v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977)).

       On appeal, we review a district court’s denial of a motion to

sever for abuse of discretion.       United States v. Mackins, 315 F.3d

399, 412 (4th Cir. 2003).         An abuse of discretion will only be

found upon a showing of “clear abuse affecting substantial rights

of the accused.”        Jamar, 561 F.2d at 1106.       We have previously

noted that it “will be rare” that offenses properly joined under

Rule 8(a) will nevertheless require severance under Rule 14(a).

United States v. Cardwell, 433 F.3d 378, 387 (4th Cir. 2005).              This

is not one of those “rare” cases.

       In the present case, the district court properly determined

that   evidence    of   each   charged   drug   offense     would   have   been

admissible in a trial on the other under Federal Rule of Evidence

404(b).   The similarity of the conduct alleged -- Taylor’s alleged

modus operandi -- and the closeness in time of the two offenses

would tend to show Taylor’s knowledge and intent, as well as an

absence of mistake or accident; both are permissible purposes for

admission of evidence under Rule 404(b).         See, e.g., United States

v. Tanner, 61 F.3d 231, 237 (4th Cir. 1995) (holding prior acts of

illegal   drug    distribution    admissible    to   show   modus   operandi,

knowledge, and absence of mistake).        Additionally, when the joined

offenses allege similar criminal conduct undertaken during a short

time frame, as here, this supports a court’s decision not to sever


                                     5
properly joined offenses. See United States v. Acker, 52 F.3d 509,

514 (4th Cir. 1995) (“In cases where the offenses are identical, or

strikingly similar in the method of operation and occur over a

short period of time, it is not an abuse of discretion to deny

severance.”).

       Furthermore, even were we to believe that some prejudice may

have accrued to Taylor from a joint trial on these offenses, the

district court specifically instructed the jury, at the close of

all of the evidence, that: “[e]ach alleged offense and any evidence

that relates to that offense should be considered separately by

you.   And the fact that you find the defendant guilty or not guilty

of one of the offenses charged should not control your verdict as

to any other offense charged against him.”        This instruction

provides further evidence that any potential prejudice from a joint

trial on the two offenses did not materialize into actuality.   See

Cardwell, 433 F.3d at 388.

       To succeed on appeal, Taylor must show that the court’s

refusal to sever was a “clear abuse affecting [his] substantial

rights.”    Jamar, 561 F.2d at 1106.     In light of the district

court’s thorough consideration of the possible sources of prejudice

to Taylor from a joint trial, and the limiting instruction given,

we find no such abuse of discretion.




                                  6
                              III.

     For the foregoing reasons, we affirm.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before us and argument would not aid in

the decisional process.

                                                          AFFIRMED




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