                                 ___________

                                 No. 95-2916
                                 ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Gerald Lakeith Williams,              *
                                      *
           Appellant.                 *
                                 ___________

                                 No. 95-2917
                                 ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      * Appeals from the United
     v.                               * States District Court for the
                                      * District of Minnesota.
Carlos Vignali, Jr., also             *
known as C-Low,                       *
                                      *
           Appellant.                 *
                                 ___________

                                 No. 95-2920
                                 ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     *
     v.                              *
                                     *
Todd Louis Hopson, also known        *
as Ted Shia, also known as           *
Snoop,                               *
                                     *
           Appellant.                *

                                 ___________

                        Submitted:    June 12, 1996

                        Filed:    October 1, 1996
                                 ___________

Before BOWMAN, HEANEY, and BEAM, Circuit Judges.
BEAM, Circuit Judge.


      Appellants were charged, along with twenty-eight others, with being
part of a massive drug trafficking network that shipped cocaine from Los
Angeles, California, to Minneapolis, Minnesota.             Gerald Williams appeals
the sentence imposed by the district court.1                Todd Hopson and Carlos
Vignali challenge their convictions and the district court's denial of
their motions for new trial.     We affirm.


I.   BACKGROUND


      On November 9, 1993, several months of investigation of a drug
trafficking ring culminated in raids on several locations and arrests of
a number of suspected drug dealers.         The arrests continued over the next
several months.    In the end, thirty-one defendants were charged with
various narcotics-related offenses in a thirty-four count indictment.


      Williams reached a plea agreement with the government.             The agreement
required Williams to plead guilty to conspiring to manufacture, possess and
distribute cocaine; using and carrying a firearm in relation to a drug
trafficking   crime;   and   aiding   and    abetting   a    financial    transaction
affecting interstate commerce.    Williams further agreed to cooperate with
law enforcement in investigating and prosecuting drug-related activity.
The government in turn promised to recommend a three-level credit under the
United States Sentencing Guidelines for acceptance of responsibility and
committed to move for a downward departure at sentencing.          The parties did
not reach an agreement regarding any adjustment of Williams' sentence for
his role in the drug network




      1
     The Honorable David S. Doty, United States District Judge for
the District of Minnesota.

                                       -2-
pursuant to Guideline section 3B1.1(a).              The district court applied a four-
level leadership enhancement and sentenced Williams to a total of 180
months in prison.2


       Williams' agreement with the prosecution prompted a flurry of guilty
pleas, and in the end, all but four of the original thirty-one defendants
pled   guilty      to    various   drug-related      offenses.       The   remaining   four,
including Hopson and Vignali, were tried jointly in a trial that lasted for
approximately six weeks.


       Hopson      was    convicted   of   conspiring      to    manufacture,    posses    and
distribute cocaine; aiding and abetting the use of a facility in interstate
commerce with the intent to distribute cocaine; aiding and abetting the
possession of cocaine with the intent to distribute; and aiding and
abetting     the    use    of   communication       facilities    for   the   commission    of
felonies.


       The   jury       found   Vignali    guilty    on   three   counts:     conspiring    to
manufacture, possess and distribute cocaine; aiding and abetting the use
of a facility in interstate commerce with the intent to distribute cocaine;
and aiding and abetting the use of communication facilities for the
commission of felonies.            Vignali was acquitted on Count 10, a charge of
aiding and abetting the use of a facility in interstate commerce with the
intent to distribute cocaine occurring on or about October 20, 1993.


       Both Hopson and Vignali assert reversible error in numerous rulings.
Additionally, both argue that the court erred in denying their motions for
a new trial.




       2
      Williams was sentenced to two concurrent 120 month terms for
Counts 1 (the conspiracy count) and 9 (the money laundering count)
of the superseding indictment and a consecutive sentence of 60
months under Count 5 (the section 924(c) count).

                                             -3-
II.   DISCUSSION


      A.      Williams' Leadership Enhancement


      Williams argues that the district court should not have enhanced his
sentence for his leadership role in the conspiracy pursuant to Guideline
section 3B1.1(a).    We conclude that this issue is not reviewable, because
Williams' sentence still represents a downward departure from the sentence
that would have resulted if he had prevailed on this point.3    See United
States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995).


      In any event, Williams' argument fails on the merits.       Williams
clearly "directed or procured the aid of underlings," and was responsible
for organizing others for the purposes of carrying out crimes.      United
States v. Rowley, 975 F.2d 1357, 1364 n. 7 (8th Cir. 1992).       Williams
himself admitted that he was one of the "big players" in the drug
conspiracy.    The district court specifically found that Williams had more
than a dozen subordinates.    We review a district court's factual findings
in sentencing for clear error and give due deference to the district
court's application of the Guidelines to the facts.       United States v.
McKinney, 88 F.3d 551, 556 (8th Cir. 1996).        Certainly, distinctions
between leaders and other coconspirators are not always clear.      United
States v. Delpit, No. 95-2539, slip op. at 36 (8th Cir. Aug. 28, 1996).
However, we find enhancement entirely appropriate in Williams' case.




      3
      The trial court calculated a total offense level of 39 and a
criminal history of category IV, which leads to a sentence of 360
months to life. A four-level reduction in Williams' total offense
level would produce a sentencing range of 235 to 293 months.

                                     -4-
        B.   Denial of Vignali's Severance Motion


        Before trial, Vignali made a severance motion, arguing that his role
in the conspiracy did not begin until 1993, while the others were involved
as early as 1980.    The district court denied that motion.


        We will affirm the denial of a severance motion absent an abuse of
discretion causing clear prejudice.    United States v. Darden, 70 F.3d 1507,
1526 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449 (1996).         Indicted
coconspirators should ordinarily be tried together, especially where proof
of the conspiracy overlaps.    United States v. Pou, 953 F.2d 363, 368 (8th
Cir.), cert. denied, 504 U.S. 926 (1992).    Not every defendant joined must
have participated in every offense charged.     United States v. Jones, 880
F.2d 55, 62-63 (8th Cir. 1989).


        We agree with the district court that joinder was proper in this
case.    Each defendant was charged with at least one substantive count of
violating narcotics laws or related offenses, and all were charged jointly
in Count 1 with conspiracy to distribute cocaine.       Further, Vignali was
charged in Counts 10 and 16 with aiding and abetting several other
defendants in the commission of substantive narcotics offenses.    Vignali's
case met the requirements of Rule 8 of the Federal Rules of Criminal
Procedure.


        Even when Rule 8 permits joinder, a trial court may sever cases to
protect defendants' fair trial rights.      Fed. R. Crim. P. 14; Darden, 70
F.3d at 1527.    However, we observe a strong presumption against severing
properly joined cases.      Delpit, slip op. at 10.      The key inquiry in
determining whether to try defendants jointly is whether the jury can
compartmentalize the evidence against each defendant.       United States v.
Nevils, 897 F.2d 300, 305 (8th Cir.), cert. denied, 498 U.S. 844 (1990);
United




                                      -5-
States v. Willis, 940 F.2d 1136, 1138 (8th Cir. 1991), cert denied, 507
U.S. 971 (1993).     The concern of Nevils and Willis is that a jury might
throw up its hands and convict everyone.   This does not describe Vignali's
jury.    To the contrary, it acquitted one defendant and convicted Vignali
himself of some, but not all counts.          A jury's conviction of some
defendants and acquittal of others is a strong indication that it was able
to separate evidence of different charges against different defendants.
Delpit, slip op. at 11.    We thus find the district court correctly denied
Vignali's motion to sever.


        C.    Comments Made by Defense Counsel During Opening Statements


        Each of the defendants was represented by separate counsel at trial.
In his opening statement, Vignali's counsel repeatedly characterized this
case as one about "a black drug dealing network."   Trial Tr. vol. I at 113,
115.      He then concluded, "My client is not. . . . His father [is] from
Argentina, his mother [is] from Puerto Rico. . . . "    Trial Tr. vol. I at
114.    Vignali's co-defendants were all African-American.   Counsel for the
other three defendants moved for a mistrial.     The trial court denied the
motions but gave the jury a cautionary statement that the defendants' race
should play no role in determination of their guilt or innocence.     Hopson
now argues that the comments by Vignali's attorney were so prejudicial that
he is entitled to a new trial.


        A defendant is entitled to a new trial based on attorney misconduct
if:     1) the remarks or conduct were in fact improper; and 2) the remarks
or conduct have prejudicially affected the defendant's substantial rights
so as to deprive him or her of a fair trial.    United States v. Janis, 831
F.2d 773, 778 (8th Cir. 1987), cert. denied, 484 U.S. 1073 (1988).         If
either one of these elements is not established, a defendant is not
entitled to relief.




                                     -6-
United States v. White, 969 F.2d 681, 683 (8th Cir. 1992).     Since the trial
court observed the mood of the jury and the tone of the remarks, its
decisions should be accorded substantial deference.          United States v.
Hernandez, 865 F.2d 925, 928 (7th Cir. 1989).


     We need not consider the propriety of defense counsel's remarks
because Hopson cannot demonstrate prejudice.   The jury's verdict indicates
that it rejected any implicit invitation to use race as a proxy for guilt.
Claude Phillips, an African-American, was the only defendant acquitted on
all counts.    Vignali, an Hispanic, was convicted on three of four counts.
 Thus, Hopson cannot demonstrate prejudice.


     D.       Comments Made to the Jury by the Trial Court


     Toward the end of trial, the jury was released for a long weekend.
Closing arguments were scheduled to begin the following Monday.        Before
discharging the jury for the weekend, the court advised the jury of the
upcoming trial schedule.    Included in those remarks, was the following:


     What I want to tell you also is this: Most of the facts are now
     before you. I told you at the beginning of this trial quite
     some time ago that you should keep your mind open, make sure
     you listen to all the facts and try to keep them in balance,
     but not to make up your mind. At this point, even though all
     the facts aren't in, I am going to tell you that you can start
     trying to sort through the facts, as you think about this over
     the week end, and try to get it put into your mind -- because
     I don't think the testimony you are going to hear is going to
     be earthshaking in the sense that it is going to turn your
     decision one way or the other; it may, so keep that thought in
     mind, it might have that effect -- but I think you can start
     putting your thoughts together now as to where the facts are in
     this case -- obviously there is final argument yet, and there
     is the instruction of the court yet, so don't make up your mind
     - just the facts, is what I am talking about.




                                     -7-
Trial Tr. vol. XIX at 138-39.


     After the jury was escorted out, defense counsel objected to the
court's remarks, arguing that they implied that jurors should make up their
minds before hearing the remainder of the evidence and argument.          The court
agreed to give a cautionary instruction when the jury returned on Monday,
and, contrary to defendants' assertion on appeal, did in fact give such a
warning.


     Hopson     and   Vignali   argue   that   the   court's   remarks   constitute
reversible error.     In support of that claim, both defendants cite United
States v. Williams, 635 F.2d 744 (8th Cir. 1980).               Upon examination,
however, Williams does not support the weight defendants place upon it.
We held in Williams that it was reversible error to allow a deadlocked jury
to separate overnight without any admonition to keep their deliberations
secret and refrain from having outside communication concerning the case.
Id. at 746.   That is not what transpired in this case.


     Unlike Williams, this jury was not released in the midst of their
deliberations, the time of highest risk of improper outside influence.          The
cases cited by defendants all express concern about early deliberation by
jurors, because of potential juror reluctance at changing opinions once
they are expressed in front of others.         See, e.g., Winebrenner v. United
States, 147 F.2d 322, 328 (8th Cir.), cert. denied 325 U.S. 863 (1945).
The jury was repeatedly admonished to keep an open mind and to avoid any
outside influences.       United States v. Weatherd, 699 F.2d 959, 962 (8th
Cir. 1983) (admonitions given to jury at other breaks during the trial
sufficient to apprise jurors not to discuss case).                The defendants'
speculation about what could have happened in the jury room is not evidence
of prejudice.    While we express no opinion on the propriety of the trial
court's comments, the defendants were not prejudiced.              Therefore, the
defendants here are not entitled to




                                        -8-
a new trial on this issue.    Williams, 635 F.2d at 746 (failure to caution
the jury before separation may be harmless error).


     E.       "Vouching" by the Prosecution in Closing Arguments


     Vignali next asserts that the prosecution improperly vouched for its
witnesses.    In closing argument the prosecutor rebutted defense allegations
of witness perjury by noting that the witnesses had not yet been sentenced
for their roles in the conspiracy.    It is true that "[a]ttempts to bolster
a witness by vouching for his credibility are normally improper."      United
States v. Jackson, 915 F.2d 359, 361 (8th Cir. 1990) (quoting United States
v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977)).    In order to prevail on this
claim, a defendant must establish that:      1) the statements were in fact
offensive; and 2) that the remarks were so offensive so as to prevent a
fair trial.    United States v. Boyce, 797 F.2d 691, 694 (8th Cir. 1986).


     Initially, we are not convinced that the complained-of remarks
constituted vouching.     An argument will be deemed improper vouching when
it "puts the prosecutor's own credibility before the jury [or] carr[ies an]
inference of outside knowledge."     United States v. Dawkins, 562 F.2d 567,
569 (8th Cir. 1977).    A careful review of the record convinces us that the
comments here did neither.    The prosecutor in this case did not personally
vouch for the truthfulness of the witnesses' testimony, nor is there any
intimation of information outside the scope of the trial.          See United
States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993).


     Furthermore, in order to prevail on this issue, a defendant "must
demonstrate . . .      that the improper remarks prejudicially affected his
substantive rights."     United States v. Skarda, 845 F.2d 1508, 1511 (8th
Cir. 1988).    We conclude that the prosecutor's remarks, if improper, did
not render Vignali's trial fundamentally unfair.      As the district court
noted, there was considerable




                                      -9-
evidence of Vignali's guilt.        Moreover, after the disputed remarks,         the
trial court gave the jury a cautionary instruction.        See Eldridge, 984 F.2d
at 947. (cautionary instruction mitigated any prejudice suffered as a
result of prosecutorial vouching.)


     In    any    event,   these   comments   were   justified    by   the   repeated
allegation by the defense that the government knowingly introduced false
testimony.       "Where the prosecutor, his witnesses, or the work of the
government agents is attacked [by defense counsel], the District Attorney
is entitled to make a fair response and rebuttal."         United States v. Lee,
743 F.2d 1240, 1253 (8th Cir. 1984).          Vignali is not entitled to relief
based on this claim.


     F.      Alleged Juror Misconduct


     Finally, Vignali complains that the district court's handling of his
allegations of juror misconduct was inappropriate.         During trial, Vignali
testified about his association with a rap album entitled "Gang Related."
Based on post-trial juror interviews, Vignali claimed that some jurors had
asked their children about the content and character of this music.               The
district court held a limited evidentiary hearing to determine whether any
extraneous information was improperly brought to the jury's attention.
Every juror examined denied that any extraneous information about rap music
was discussed or influenced deliberations in any way.            Vignali now argues
that the investigation was inadequate in that the jurors were neither sworn
nor cross-examined.


     "The district court has broad discretion in handling allegations of
juror misconduct and its decision will be affirmed absent an abuse of
discretion."      United States v. Williams, 77 F.3d 1098, 1100 (8th Cir.
1996).    Allegations of juror exposure to extraneous information may require
an investigation by the trial court.          United States v. Swinton, 75 F.3d
374, 381-82 (8th Cir. 1996).        However, Vignali's assertion that such an
investigation




                                       -10-
must allow him the opportunity to confront jurors is not supported by our
case law.   In fact, we have previously found unsworn juror interviews like
those conducted here to be an adequate inquiry into allegations of juror
misconduct.    United States v. Blumeyer, 62 F.3d 1013, 1015 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1263 (1996).   The district court did not abuse its
discretion in handling the allegations of juror misconduct.


       G.     Other Claimed Errors


       Finally, we turn to other issues raised by Hopson and Vignali in this
appeal: the trial court's exclusion of certain evidence; the district
court's failure to conduct an evidentiary hearing regarding evidence which
defendants characterize as newly discovered and its denial of defendants'
new trial motions based on a witness' inconsistent post-trial statements.
We have carefully reviewed the district court's decisions on these matters
and we conclude that it ruled correctly in each instance.    With respect to
these issues, we agree with the well-reasoned opinions of the district
court.


III.   CONCLUSION


       For the reasons discussed above, we affirm the district       court's
judgments on the defendants' appeals.       We likewise affirm the sentence
imposed on Williams by the district court.


       A true copy.


              Attest:


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




                                     -11-
