UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4471

DAMON JONES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-94-441-PJM)

Submitted: December 3, 1996

Decided: December 23, 1996

Before HALL, ERVIN, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Brooke Murdock, FERGUSON, SCHETELICH, HEFFERNAN &
MURDOCK, P.A., Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Maury S. Epner, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Damon D. Jones was convicted by a jury of one count each of
armed bank robbery (18 U.S.C. § 2113(d) (1994)) and interference
with commerce by robbery (18 U.S.C. § 1951 (1994)) and two counts
of using a firearm in a crime of violence (18 U.S.C.§ 924(c) (1994)).
The evidence showed that Appellant and two friends, Malik Nero and
Calvin Barnes, robbed the Citizens Bank of Maryland in November
1992. Appellant, Barnes, Nero, and an out of town friend identified
only as Tony also robbed an armored car courier in January 1994.
After Barnes was arrested for an unrelated robbery, he implicated the
other members of the group, agreed to act as an informant, and even-
tually testified against Appellant.

Appellant was also arrested on two separate occasions for unrelated
offenses. After the first arrest, Barnes, wearing a concealed tape
recorder, met with Appellant and discussed the bank and armored car
robberies. Appellant made statements during this discussion which
implicated him in the robberies. After the second arrest, Appellant
was interviewed by FBI Special Agents Luciano and Coffey. The
interview lasted approximately fifteen to thirty minutes. The agents
testified that they told Appellant from the start that they were there
only to discuss the bank and armored car robberies and not anything
about the offense for which Appellant was currently in jail. Appellant
was then orally advised of his Miranda rights.1 Appellant stated that
he understood his rights and was willing to speak to the agents. How-
ever, when Luciano presented Appellant with a written waiver form,
Appellant refused to sign it, saying that he knew what he was doing,
that he was guilty and would have to spend some time in jail for it,
and that he just wanted a lawyer present to protect his interests. The
agents immediately terminated the interview and began to pick up
_________________________________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).

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their things. Then, Appellant, on his own and without any prompting,
stated that he had become a born again Christian, knew that what he
had done was wrong, and repeated that he was guilty. The agents then
left the room.

On appeal, Appellant argues that the district court erred in denying
his motions to sever the bank robbery counts from the armored car
robbery counts and to suppress the statements made to Luciano and
Coffey. Appellant also argues that the trial judge erred in his response
to a jury question concerning Barnes' plea agreement and in giving
a supplemental instruction to the jury after the jury indicated it could
not reach a verdict on the bank robbery counts. Finding no error, we
affirm.

Joinder of offenses is the rule, not the exception, and a trial judge's
decision to deny a motion to sever will only be overturned upon a
"showing of clear prejudice or abuse of discretion." United States v.
Acker, 52 F.3d 509, 514 (4th Cir. 1995). In the present case, Appel-
lant fails to make such a showing. We hold that the offenses were
properly joined pursuant to Fed. R. Crim. P. 8(a) because they were
of the same or similar character. The evidence supports the trial
judge's determination that Barnes' testimony directly implicated
Appellant in both robberies and that the same nucleus of actors
planned and executed both crimes. Moreover, the Government's evi-
dence concerning the tape recorded conversation between Appellant
and Barnes and Appellant's statements to Luciano and Coffey argu-
ably implicated Appellant in both robberies. We find that the present
case is distinguishable from United States v. Foutz, 540 F.2d 733 (4th
Cir. 1976), where this court held that joinder was improper because
there was no direct evidence linking the defendant to both crimes, the
evidence presented on one offense would not have been admissible in
a trial on the other offense, and the only evidence presented to show
a similarity was the fact that the same bank was robbed both times.

Once the offenses are properly joined under Rule 8(a), the trial
judge has the discretion to sever the offenses if there is a showing of
substantial prejudice pursuant to Fed. R. Crim. P. 14. United States
v. Haney, 914 F.2d 602, 606 (4th Cir. 1990); United States v.
Goldman, 750 F.2d 1221, 1224 (4th Cir. 1984); Foutz, 540 F.2d at
736. In the present case, Appellant fails to make such a showing.

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While Appellant argues that he was confounded in his defenses, he
fails to show "that he has both important testimony to give concerning
one count and a strong need to refrain from testifying on the other."
Goldman, 750 F.2d at 1225; see also United States v. Martin, 18 F.3d
1515, 1519 (10th Cir.), cert. denied, #6D 6D6D# U.S. ___, 63 U.S.L.W. 3232,
63 U.S.L.W. 3262 (U.S. Oct. 3, 1994) (No. 94-41); United States v.
Smith, 919 F.2d 67 (8th Cir. 1990). Simply stating that there may be
a conflict is not sufficient. Id. Accordingly, we find that the trial judge
did not abuse his discretion in denying Appellant's motion to sever.

Appellant argued at trial that his statements to Luciano and Coffey
should be suppressed because they were obtained in violation of his
Sixth Amendment right to counsel and Edwards v. Arizona, 451 U.S.
477 (1981). Specifically, Appellant maintains that the agents sat wait-
ing in silence until Appellant felt compelled to make further com-
ments after Appellant had refused to sign the written waiver form and
invoked his right to counsel.

The record does not support Appellant's argument. Both agents tes-
tified that as soon as Appellant made his request for counsel, they ter-
minated the interview in accordance with Edwards . While defense
counsel attempted to argue that there were "pregnant pauses" in the
interview, which "forced" Appellant to make further comments, this
was explicitly denied by Luciano. The record supports the trial
judge's determinations that the testimony of the agents was more
credible and that Appellant's comments were spontaneous and
uncoerced. Therefore, the judge did not abuse his discretion in deny-
ing the motion to suppress.

At some point during deliberations, the jury sent a note to the trial
judge asking him to explain the plea agreement between Barnes and
the Government.2 After discussing the issue with counsel, the trial
judge referred the jury to the Government exhibit containing the plea
agreement itself.
_________________________________________________________________

2 The jury's question might have been based on testimony elicited from
Barnes concerning his interpretation of the plea agreement and defense
counsel's argument on this interpretation.

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The decision to give, or not to give, a jury instruction and the con-
tent of that instruction are reviewed for an abuse of discretion. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995); United States v.
Russell, 971 F.2d 1098, 1107 (4th Cir. 1992), cert. denied, 506 U.S.
1066 (1993). Moreover, the instruction must be viewed in the context
of the trial as a whole. United States v. Park , 421 U.S. 658, 674-75
(1975); United States v. United Medical & Surgical Supply Corp.,
989 F.2d 1390, 1406-07 (4th Cir. 1993).

In the present case, the trial judge did not abuse his discretion by
instructing the jury to refer to the plea agreement. The jury wanted to
know what the agreement was between Barnes and the Government.
As the judge clearly pointed out in his discussions with counsel on
this issue, the only enforceable agreement was that which was con-
tained within the body of the plea agreement. The interpretations of
Barnes and counsel were fair argument, but they did not represent the
binding agreement.

After deliberating for approximately five hours, the jury sent a note
to the trial judge stating that it had reached a decision as to the
armored car robbery counts, but that it was undecided as to the bank
robbery counts. After discussing the issue with counsel, the trial judge
gave a proper modified Allen charge.3 See United States v. Sawyers,
423 F.2d 1335 (4th Cir. 1970). At approximately 4:00 p.m., ninety
minutes after receiving the first Allen charge, the jury sent a second
note to the trial judge again stating that it was undecided as to the
bank robbery counts. After discussing the issue again with counsel,
the trial judge instructed the jury that, in his opinion, they had not
deliberated long enough to decide that they were deadlocked, that he
would excuse them for the day, and that they should return the next
morning to continue deliberations. Sometime after noon the next day,
the jury returned with guilty verdicts on the bank robbery and
armored car robbery counts.

The same standard of review applies to this instruction as for the
instruction concerning the plea agreement. Moreover, this court has
upheld Allen-type instructions as long as they were "fair, neutral, and
balanced." Burgos, 55 F.3d at 936; Carter v. Burch, 34 F.3d 257, 264
_________________________________________________________________
3 Allen v. United States, 164 U.S. 492 (1896).

                    5
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3613 (U.S.
Feb. 21, 1995) (No. 94-1058). In addition, a trial judge "has consider-
able discretion and is in the best position to gauge whether a jury is
deadlocked or able to proceed further with its deliberations." United
States v. Seeright, 978 F.2d 842, 850 (4th Cir. 1992).

Again, viewing the instruction in the context of the trial as a whole,
the trial judge did not abuse his discretion in giving the supplemental
instruction. Appellant's trial lasted five days and involved several
counts. The jury had only deliberated for five hours when it first noti-
fied the judge that it could not reach a decision. After giving the first
Allen charge, the judge told counsel that he did not expect the jury to
reach a decision prior to 4:30 p.m., the time he had previously told
the jury they could go home for the day. Taken in context with the
first Allen charge, there is nothing in the supplemental instruction that
even subtly suggests that "jurors surrender their conscientious convic-
tions." Burgos, 55 F.3d at 939; see also Carter, 34 F.3d at 265. The
trial judge was not trying to coerce the jury into reaching a particular
verdict. Rather, the language of the instruction, coupled with the
judge's discussions with counsel, clearly suggests that the judge's pri-
mary concern was that the jurors might simply be giving up too soon.
This court has held that "[u]nder such circumstances as these, a quick
acquiescence to an indication of difficulty in arriving at a verdict
would have, we think, been contrary to the district judge's duty to
exert every reasonable effort to keep the criminal dockets current."
Sawyers, 423 F.2d at 1340.

We therefore affirm the findings and sentence of the district court.
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

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