                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-2195
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                              ERIC PAUL EMMANUEL,

                                                     Appellant
                                    _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (M.D. Pa. No. 10-cr-00043-2)
                    District Judge: Honorable William W. Caldwell
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 1, 2012

            Before: FUENTES, FISHER, and GREENBERG, Circuit Judges

                           (Opinion Filed: October 18, 2012)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

FUENTES, Circuit Judge:

      Eric Paul Emmanuel appeals from his conviction at trial for distribution and

possession with intent to distribute 1,000 kilograms or more of marijuana, and of

conspiracy to commit that same crime. Emmanuel also appeals his sentence of 121



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months in prison. Regarding his conviction, Emmanuel argues that the District Court

erred in failing to sever his trial from that of his co-defendant, Stanley Narcisse. As to

his sentence, Emmanuel argues that the District Court erred in refusing to apply the

“safety valve” provision of the Sentencing Guidelines. For the reasons that follow, we

will affirm both his conviction and his sentence.

                                                  I.

       Because we write primarily for the parties, who are well acquainted with this case,

we recite only the facts essential to our disposition of this appeal. On January 31, 2010,

Pennsylvania State Police Trooper Brian Livingston stopped Emmanuel on I-81 North in

Dauphin County, Pennsylvania after a tractor trailer he was operating failed to stop for a

truck weigh station. Co-defendant Stanley Narcisse was a passenger in the tractor, which

was registered to Emmanuel. Livingston asked for and was given permission to search

the tractor trailer.1 The subsequent search of the trailer uncovered six wooden crates

which contained approximately 6,500 pounds of marijuana.

       On February 17, 2010, a grand jury returned a two-count indictment charging

Emmanuel and Narcisse with (1) engaging in a conspiracy to distribute and possess with

intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846,

and (2) actual distribution and possession with intent to distribute 1,000 kilograms or

more of marijuana in violation of 21 U.S.C. § 841(a)(1). The indictment alleged that the



1
 The legality of the stop and search of the tractor trailer was the subject of a suppression
motion and a supplemental suppression motion. Following a hearing the District Court
denied these motions, and its ruling has not been challenged in this appeal.

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criminal activity charged began at an unknown time and continued through

approximately January 31, 2010.

       On August 25, 2010, the Government filed a notice seeking to introduce evidence

of other crimes under Fed. R. Evid. 404(b). Specifically, the Government sought to

introduce evidence that, on May 13, 2009, a tractor trailer operated by Narcisse had been

stopped by law enforcement officials in Arizona and was found to contain approximately

1,000 pounds of marijuana. In its notice, the Government argued that “[e]vidence of the

Arizona stop and seizure is within the scope of the charged conspiracy, and, as such, is

admissible in a trial of the above-captioned case.” App. 24. On September 1, 2010, the

grand jury issued a superseding indictment against Emmanuel and Narcisse adding a new

charge for interstate transportation of stolen property in violation of 18 U.S.C. § 2314. In

addition, the superseding indictment alleged that the criminal activity charged began in

approximately May 2009, and continued through approximately January 31, 2010. On

November 1, 2010, Emmanuel filed a motion to sever trial, arguing that the introduction

of evidence regarding the incident in Arizona involving Narcisse would “unduly

prejudice him and compromise his right to a fair and impartial trial.” App. 35. The

motion was denied by the District Court in an Order dated November 4, 2010.

       Days before trial, Emmanuel was offered a plea deal in return for his truthful and

complete cooperation in the matter. To this end, he attended a proffer session with the

Government, during which he stated, among other things, that he was not aware that there

was 6,500 pounds of marijuana in the tractor trailer. Following the proffer session, the

Government withdrew its plea offer.


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       During the trial, which commenced on November 10, 2010, evidence was

introduced regarding the May 2009 stop and seizure in Arizona involving Narcisse.

Evidence was also introduced that revealed that many of the documents produced by

Emmanuel and Narcisse during the January 2010 stop and seizure in Pennsylvania –

including the bill of lading and the drivers’ logbooks – were fraudulent. On November

12, 2010, the jury returned a verdict finding Emmanuel guilty of distribution and

possession with intent to distribute 1,000 kilograms or more of marijuana, and of

conspiracy to commit that same crime, but acquitting him on the offense of interstate

transportation of stolen property. Narcisse was convicted on all three counts.

       At the sentencing hearing held on April 29, 2011, Emmanuel argued that he was

entitled to a “safety valve” variance under 18 U.S.C. § 3553(f) based on his proffer

session with the Government. The Government responded that the safety valve did not

apply “because the statement that was provided by the defendant prior to trial was neither

truthful nor complete . . . .” App. 422. After hearing testimony regarding the proffer

session, the District Court determined that the safety valve variance was not applicable

and sentenced Emmanuel to 121 months in prison.

                                            II.

                                            A.

       Emmanuel argues that the District Court erred in denying his motion for

severance. He claims that the admission at trial of evidence regarding the Arizona stop

and seizure involving Narcisse allowed the jury to impermissibly conclude that

Emmanuel had knowledge that marijuana was in the trailer he was operating in


                                            4
Pennsylvania. Appellee argues that this evidence was admissible because the incident

occurred within the time frame that was referenced in the superseding indictment and was

part of the conspiracy charged.2

       This Court reviews the denial of a pre-trial motion to sever for abuse of discretion.

United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001). Even if a district court abuses its

discretion in denying a motion to sever, the defendant must show “clear and substantial

prejudice resulting in a manifestly unfair trial” to obtain a reversal. United States v.

Console, 13 F.3d 641, 655 (3d Cir. 1993) (internal citation and emphasis omitted).

       Under Fed. R. Crim. P. 8(b), two or more defendants may be charged in the same

indictment if “they are alleged to have participated in the same act or transaction, or in

the same series of acts or transactions, constituting an offense or offenses.” Generally,

there is “a preference in the federal system for joint trials of defendants who are indicted

together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). A district court may sever

defendants for trial, however, if consolidation “appears to prejudice a defendant.” Fed.

R. Crim. P. 14(a).

       The Supreme Court has stated that “a district court should grant a severance under

Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a reliable judgment about

guilt or innocence.” Zafiro, 506 U.S. at 539. The “denial of severance is committed to



2
 The United States District Court for the Middle District of Pennsylvania had subject
matter jurisdiction of this criminal case pursuant to 18 U.S.C § 3231. This Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              5
the sound discretion of the trial judge.” United States v. Eufrasio, 935 F.2d 553, 568 (3d

Cir. 1991) (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)).

         Here, evidence of the incident in Arizona would likely have been admissible at

Emmanuel’s trial even if he had been tried separately. This is the case because

Narcisse’s prior criminal conduct was alleged to have been a part of Emmanuel and

Narcisse’s ongoing conspiracy to transport large quantities of marijuana across the

country in tractor trailer trucks. Evidence of overt acts in furtherance of the conspiracy

committed by one’s co-conspirators is admissible evidence in one’s own trial. Hart, 273

F.3d at 370. Thus, Emmanuel has failed to establish prejudice, and his claim based on

the District Court’s denial of his motion to sever must be rejected.

                                             B.

         Emmanuel also argues that he is entitled to a new sentencing hearing because the

District Court erred in its application of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), the

“safety valve” variance. A district court’s factual conclusions regarding the safety valve

factors are reviewed for clear error. United States v. Sabir, 117 F.3d 750, 752 (3d Cir.

1997).

         The safety valve variance allows a court to impose a sentence without regard to

any statutory minimum if it determines that the defendant meets the criteria in 18 U.S.C.

§ 3553(f)(1)-(5). See U.S.S.G. § 5C1.2. A defendant bears the burden of establishing by

a preponderance of the evidence that each of the safety valve criteria apply in his case.

Sabir, 117 F.3d at 754. The only criterion at issue here is that listed in § 3553(f)(5),

which states:


                                              6
       [N]ot later than the time of the sentencing hearing, the defendant has
       truthfully provided to the Government all information and evidence the
       defendant has concerning the offense or offenses that were part of the same
       course of conduct or of a common scheme or plan, but the fact that the
       defendant has no relevant or useful other information to provide or that the
       Government is already aware of the information shall not preclude a
       determination by the court that the defendant has complied with this
       requirement.

18 U.S.C. § 3553.

       Emmanuel failed to establish by a preponderance of the evidence that prior to the

time of trial he had truthfully provided to the government all information and evidence he

had concerning the offenses. During the proffer session he told the Government that he

was unaware that there were 6,500 pounds of marijuana in the tractor trailer that he was

operating. However, his account was contrary to the Government’s evidence and to the

verdict returned by the jury. As the District Court stated,

       They didn’t believe you. And the evidence is pretty overwhelming. You
       and Mr. Narcisse were in this together. You know, it was your tractor.
       You can’t have 6,500 pounds of marijuana in your trailer without knowing
       that the trailer was stolen. The logs were -- somebody was monkeying with
       the logs. I just don’t think the safety valve is appropriate here at all.

App. 417-18. We find no clear error in this determination.

                                            III.

       Accordingly, we will affirm the Order and Judgment of the District Court.




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