UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4738

CARL BENIT COOPER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Chief District Judge.
(CR-95-206)

Argued: October 3, 1997

Decided: January 28, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and BOYLE,
Chief United States District Judge for the Eastern District of North
Carolina, sitting by designation.

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Affirmed by unpublished opinion. Chief Judge Boyle wrote the opin-
ion, in which Judge Niemeyer and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael S. Seekings, Charleston, South Carolina, for
Appellant. Brucie Howe Hendricks, Assistant United States Attorney,
Charleston, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

BOYLE, Chief District Judge:

A jury convicted Carl Benit Cooper of conspiracy to commit bank
robbery in violation of 18 U.S.C. § 371, bank robbery on September
24, 1994 in violation of 18 U.S.C. § 2113(b) and 18 U.S.C. § 2, armed
bank robbery on October 11, 1994 in violation of 18 U.S.C. § 2113(a)
and (d) and 18 U.S.C. § 2, using or carrying a firearm in the commis-
sion of a crime of violence in violation of 18 U.S.C. § 924(c) for the
October 11 robbery and bankruptcy fraud in violation of 18 U.S.C.
§ 152 (concealment of assets). Cooper appeals his conviction on
grounds that: (1) the bankruptcy fraud and bank robbery charges were
improperly joined; (2) the district court erred in failing to grant his
motion to sever the trial; (3) there was insufficient evidence to convict
him of using or carrying a firearm during the commission of a crime
of violence; and (4) the district court erred in denying his Motion to
Exclude "Prior Bad Acts" evidence. We affirm.

FACTS

After retiring from the Army in 1993, Cooper moved to Summer-
ville, South Carolina with his wife where they purchased a retirement
home. Soon thereafter, Cooper began working for Pinkerton Security
repairing NationsBank ATM machines. However, financial problems
compelled Cooper and his wife to file for Chapter 13 bankruptcy pro-
tection in 1994. The bankruptcy trustee allowed Cooper and his wife
to keep their retirement home but required them to report all dispos-
able income to the trustee for the payment of creditors. Disregarding
the precepts of their bankruptcy plan, Cooper and his wife made lump
sum or double mortgage payments in July and August, 1994 without
informing the trustee. They also continued to make substantial repairs
and improvements to their home exceeding $13,000 in cost and often
paid the suppliers and materialmen in full for their work. Neither the
improvements made nor the money used to fund these improvements
was reported to the trustee.

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Shortly after Cooper's bankruptcy, NationsBank began suffering
losses from its South Carolina ATM's. These losses were in excess
of $207,000. Pinkerton logs linked the times and locations of the
losses to circumstances when Cooper serviced or otherwise had
access to those ATMs. These losses were not reported as robberies
but were documented by Pinkerton as unaccounted-for shortages. On
October 11, 1994, during what appeared to be a routine service call,
Wilfred Rivers and an unindicted accomplice robbed Cooper and his
partner, Nathan Williams, at gunpoint. Williams was bound by duct
tape, handcuffed and forced into the Pinkerton van while Cooper,
appearing frightened, gave Rivers and his accomplice over $47,000
from the ATM. A video camera on the ATM captured the robbery in
progress.

Despite Cooper's apparent resistance during the robbery, the FBI's
investigation linked Cooper to the robbery by virtue of his relation-
ship with Rivers. The ATM video of the robbery showed that Cooper
never acknowledged knowing Rivers when they encountered each
other that night. Cooper also initially denied knowing Rivers and
maintained his innocence during FBI questioning on November 9,
1994. After approximately 15-20 minutes of additional questioning,
Cooper recanted and admitted that he and Rivers were friends and
neighbors. Cooper also admitted that he recognized the car Rivers
drove to the robbery site as his (Rivers) wife's car. This evidence
proved to be the cornerstone of the government's conspiracy charge
and theory that the October 11 robbery had been a"staged" robbery
arranged by Cooper and Rivers.

Cooper and Rivers were subsequently indicted on January 11, 1995
on counts of conspiracy to commit armed bank robbery, bank rob-
bery, armed bank robbery, and use of a firearm during a crime of vio-
lence. On March 5, 1995, a Superseding Indictment was returned
adding three counts of criminal bankruptcy fraud against Cooper and
his wife. Although two of these counts were dismissed by the govern-
ment prior to trial, Cooper was tried on one count of fraudulently con-
cealing assets from the bankruptcy trustee. On June 1, 1995, Cooper
filed his Motion to Sever the bankruptcy charge from the robbery
charges, which the court denied. A jury trial was then held and
Cooper was convicted on all counts.

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DISCUSSION

1. Joinder of Bankruptcy Fraud and Bank Robbery Charges

Cooper first claims that the government's indictment improperly
joined the bankruptcy fraud and bank robbery charges thereby depriv-
ing him of the opportunity to present testimony and witnesses in his
defense. We disagree. Rule 8(a) of the Federal Rules of Criminal Pro-
cedure provides that separate offenses may be joined if they constitute
parts of a common scheme, that is, if they involve acts united by some
"substantial identity of facts or participants", United States v. Porter,
821 F.2d 968, 972 (4th Cir.), cert. denied, 485 U.S. 934 (1988), or if
the evidence supporting the separate counts overlaps so that the same
evidence would be admissible at separate trials, United States v.
Amato, 15 F.3d 230, 237 (2d Cir.), aff'd on rehearing, 32 F.3d 704
(1994).

The evidence clearly demonstrates that the bankruptcy fraud and
bank robbery charges were parts of a common scheme. Cooper's plan
involved stealing money from the ATM's he serviced and, with the
intent to use this money to repair and improve his home, concealing
these assets from the bankruptcy trustee. One offense stemmed from
the other. His bankruptcy provided an impetus for the bank robberies
which in turn gave rise to his bankruptcy fraud. There is also a signifi-
cant overlap in evidence regarding Cooper's motive for committing
both the bank robberies and bankruptcy fraud. Cooper had an oppor-
tunity to acquire significant sums of money from his access to the
ATMs and a plan for using and concealing those assets from the
bankruptcy trustee. For these reasons, we conclude that initial joinder
was proper under Rule 8.

2. Denial of Motion to Sever

Cooper argues that the district court abused its discretion by failing
to grant his motion to sever, impeding his ability to present an effec-
tive defense. This argument is without merit. Notwithstanding proper
joinder under Rule 8(a) and a recognition that Rule 8 "authorizes
some prejudice" against a defendant, United States v. Turoff, 853 F.2d
1037, 1043 (2d Cir. 1988), Rule 14 of the Federal Rules of Criminal
Procedure provides that, if a defendant is substantially prejudiced by

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joinder of offenses, a district court may order separate trials. Fed. R.
Crim. P. 14. Determining whether to sever a trial involves weighing
trial efficiency considerations against the possible unfairness to a
defendant. See United States v. Santoni, 585 F.2d 667, 674 (4th Cir.),
cert. denied, 440 U.S. 910 (1979). A court's decision denying sever-
ance is reviewed under an "abuse of discretion" standard and will be
disturbed only upon showing that a miscarriage of justice resulted. Id.

The district court did not abuse its discretion in denying the defen-
dant's motion to sever. The possibility of prejudice to Cooper at trial
was greatly diminished by the substantial overlap of evidence. See
United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). Charac-
terizing any remaining prejudice as "substantial" would be mere con-
jecture in light of Cooper's failure to specifically identify the content
of his prospective testimony. A bald assertion that the trial court's
denial of his severance motion prevented him from testifying regard-
ing one charge because it would have incriminated him on the other
is insufficient by itself to show manifest injustice. See United States
v. Larouche, 896 F.2d 815, 831 n6 (4th Cir. 1990). This analysis, cou-
pled with the district court's cautionary charge to the jury, suggests
Cooper was not substantially prejudiced by the joint trial.

3. Sufficiency of Evidence on § 924(c) Charge

Cooper next questions the sufficiency of the government's evi-
dence on his 18 U.S.C. § 924(c) charge. A conviction will be upheld
on appeal "if there is substantial evidence, taking the view most
favorable to the Government, to support . . . the conviction." United
States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997) (quoting Glasser
v. United States, 315 U.S. 60, 80 (1942)).

Cooper was charged with violating 18 U.S.C. § 924 for Rivers' use
of a firearm during the October 11 armed robbery. Foreseeable acts
committed in furtherance of a conspiracy are attributable to co-
conspirators. See Pinkerton v. United States, 328 U.S. 640 (1946).
The government was required to prove not only that Rivers used a
firearm during or in relation to the armed bank robbery,* but also that
Cooper could reasonably foresee such use.
_________________________________________________________________
*Satisfying the "during or in relation to" element of § 924(c) simulta-
neously satisfies the "in furtherance" prong of the Pinkerton test.

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It is undisputed that Rivers, Cooper's co-conspirator in the October
11 armed robbery, "actively employed" a firearm during the commis-
sion of that offense, satisfying § 924(c) and the Supreme Court's defi-
nition of "use" in Bailey v. United States , 116 S.Ct. 501, 508 (1995).
The question is whether Cooper reasonably foresaw such use. Cooper
claims that the evidence only established his intent to stage a "safe"
robbery involving the use of handcuffs, not firearms and that there-
fore, he did not contemplate Rivers' use of a firearm during the rob-
bery. This argument fails in light of the substantial evidence adduced
at trial.

Even if Rivers' use of a firearm during the staged robbery was not
specifically planned, it was certainly foreseeable to Cooper, particu-
larly in light of the fact that (1) Cooper knew his partner Williams
carried a service revolver at all times and would be willing to use it
if necessary, and (2) the genuineness of the robbery would more read-
ily be called into question if Cooper and his partner were robbed by
two men armed only with handcuffs. We conclude that this evidence,
viewed in a light most favorable to the prosecution, supports Cooper's
conviction on this charge.

4. Admission of Rule 404(b) Evidence

Cooper argues that the district court committed reversible error by
admitting Calvin Tucker's testimony regarding instances of past lar-
ceny. We disagree. Rule 404(b) of the Federal Rules of Evidence pro-
vides that evidence of prior crimes, wrongs or acts is admissible to
prove "motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . ." but not to prove a
defendant's character in order to show he acted in conformity with the
charged offense. Fed. R. Evid. 404(b). This Circuit has adopted an
"inclusive" interpretation of Rule 404(b) so that all necessary and reli-
able evidence of prior bad acts is admissible except that which is
offered to prove propensity or criminal disposition. United States v.
Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).

Tucker testified that he accompanied Cooper when they stole lum-
ber from construction sites for use on Cooper's home. Contrary to
what Cooper alleges, Tucker's testimony was not offered to prove his
character but to support the government's theory that Cooper was des-

                     6
perate to hold onto and improve his retirement home by any means
available, including robbing ATMs, concealing assets and stealing
construction supplies to avoid out-of-pocket costs. His testimony was
not cumulative or redundant, rather it helped to create an additional
link in the government's chain of events establishing Cooper's
scheme.

Even if "prior bad acts" evidence satisfies Rule 404(b), it may still
be excluded under Rule 403 if its probative value is substantially out-
weighed by its prejudicial effect. Fed. R. Evid. 403. The evidence
here was probative of the government's theory that Cooper was pre-
pared to break the law to realize his ambition of completing his retire-
ment home despite his bankruptcy. Extensive evidence presented at
trial regarding Cooper's role in the bank robberies, including actual
footage of the robbery by the ATM video camera and Cooper's con-
flicting statements during FBI interrogation, makes it improbable that
Tucker's testimony was unduly prejudicial under the circumstances.
Finally, introduction of Tucker's testimony, although prejudicial inso-
far as it inculpated Cooper, did not substantially and unfairly sway the
jury in light of the limiting instructions given by the court obviating
any residual prejudice. See United States v. Aramony, 88 F.3d 1369,
1378 (4th Cir. 1996), cert. denied, 117 S.Ct. 1842 (1997). Accord-
ingly, the district court did not abuse its discretion in admitting this
evidence.

CONCLUSION

Finding no error, we affirm the conviction.

AFFIRMED

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