                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 11-3077
                                  _______________

                          UNITED STATES OF AMERICA

                                          v.

                                 BRYAN K. RUSSO,

                                            Appellant
                                  _______________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-09-cr-00211-001)
      District Judges: Hon. Donetta W. Ambrose and Hon. Thomas M. Hardiman*
                                   _______________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 19, 2012
                                _______________


        Before: AMBRO, GREENAWAY, JR., and TASHIMA,**Circuit Judges

                               (Filed: January 17, 2013)


*
      Hon. Thomas M. Hardiman, Circuit Judge, United States Court of Appeals for the
Third Circuit, sitting by designation.
**
      Hon. A. Wallace Tashima, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
                                    _______________

                                       OPINION
                                    _______________

TASHIMA, Circuit Judge

       Appellant Bryan Russo appeals his conviction on one count of wire fraud

following a jury trial. Appellant argues that the wire fraud count was improperly joined

under Rule 8(a) of the Federal Rules of Criminal Procedure with the remaining three

counts of the Superseding Indictment. Alternatively, Appellant contends that the District

Court abused its discretion in declining to sever the counts pursuant to Rule 14(a) of the

Federal Rules of Criminal Procedure. We have jurisdiction under 28 U.S.C. § 1291, and

we will affirm.

                                             I.

       In 2001, Appellant and two associates purchased the Chesapeake Steak & Seafood

Restaurant (the “Chesapeake”). By 2005, the Chesapeake had filed for Chapter 11

bankruptcy. Following the bankruptcy filing, Appellant’s mother, Karen Russo, arranged

to purchase the restaurant, but Appellant continued to manage its daily operations.

       In early 2006, the Chesapeake continued to experience financial difficulties and

was in need of working capital. It was at this point that the transaction underlying the

wire fraud conviction occurred. Appellant was referred to Dennis Lint, a loan broker and

former police officer. Lint arranged for Karen Russo to obtain financing from Financial


                                             2
Pacific Leasing, LLC (“Financial Pacific”) under a complicated equipment leasing

agreement. Financial Pacific was told that the agreement would operate in the following

manner: Financial Pacific would pay $32,000 to purchase 160 chairs from a company

called TNT Equipment, and TNT Equipment would deliver the chairs to the Chesapeake.

The Chesapeake would then lease the chairs from Financial Pacific with the option of

purchasing the chairs at the end of the lease period.

       There is no dispute that the representations made to Financial Pacific were false in

that TNT Equipment never delivered the chairs to the Chesapeake. The Government

takes the position that the chairs never existed, while Appellant contends that the chairs

were already owned by Karen Russo and in the Chesapeake’s inventory prior to the

arrangement with Financial Pacific.1 Regardless, the Government elicited testimony from

both Lint and an official with Financial Pacific that Appellant perpetuated the scheme by

falsely confirming in a telephone call with Financial Pacific that the chairs had been

delivered from TNT Equipment to the Chesapeake. It was only after this phone

confirmation that Financial Pacific granted final approval of the agreement. Lint testified


1
       Appellant contends that the transaction took the form of a sale/leaseback
arrangement in that the Chesapeake first entered a paper transaction to sell the chairs to
TNT Equipment, and then leased the chairs back from Financial Pacific after Financial
Pacific purchased them from TNT Equipment. Appellant does not contend, however, that
Financial Pacific was aware of the original “sale” from the Chesapeake to TNT
Equipment.

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that Appellant also advanced the scheme by providing Lint with a falsified income tax

return for Karen Russo, which Lint submitted to Financial Pacific in support of the

financing application. Ultimately, Financial Pacific issued a payment of $32,000 to TNT

Equipment, and TNT Equipment remitted $28,428 of this amount back to the

Chesapeake.

       Despite this additional capital, the Chesapeake continued to struggle and

eventually closed in December 2006. By this point, the mortgage lender for the property

had already initiated foreclosure proceedings and a sheriff’s sale was scheduled for

January 8, 2007. After Karen Russo notified the lender of efforts being made to locate a

buyer for the property, the sale was postponed until February 5, 2007. On the evening of

January 30, 2007, a fire burned the Chesapeake to the ground. The fire was later

determined to be incendiary. Appellant submitted a claim to the Chesapeake’s insurance

carrier, Mid-Continent Insurance Company (“Mid-Continent”) and, after an extensive

investigation, Mid-Continent agreed to pay the claim.

                                            II.

       In June 2009, Appellant was charged with one count of arson, in violation of 18

U.S.C. § 844(i), and two counts of mail fraud, in violation of 18 U.S.C. § 1341, with the

latter two counts stemming from the insurance claim made to Mid-Continent. In August

2009, the Government filed a Superseding Indictment, which added a charge of wire

                                            4
fraud, under 18 U.S.C. §§ 1343 & 2, in connection with the lease arrangement with

Financial Pacific.

       In a pretrial motion, Appellant moved to sever the wire fraud count from the other

counts of the Superseding Indictment, arguing that joinder was improper under Rule 8(a),

or in the alternative, that severance was warranted pursuant to Rule 14(a) because

prejudice would result from a consolidated trial on the counts. Judge Ambrose, then

presiding over the case, denied Appellant’s motion. A four-day trial commenced on

January 18, 2011, presided over by Circuit Judge Hardiman, sitting by designation. At

the close of trial, Appellant moved for a mistrial, citing the same misjoinder and

severance grounds put forward in his pretrial motion. Judge Hardiman denied the motion.

The jury returned a verdict of guilty on the wire fraud count, but not guilty on the arson

and mail fraud counts.2 Appellant was subsequently sentenced by Judge Ambrose to five

years’ probation with eight months’ home detention.

       On appeal, Appellant renews his argument that the wire fraud count was

erroneously joined with the other counts of the Superseding Indictment; alternatively, he

contends that it should have been severed from those counts as a matter of discretion.




2
         The Government had voluntarily dismissed one of the two mail fraud counts prior
to trial.

                                             5
                                            III.

       We review de novo a district court’s determination concerning the joinder of

counts pursuant to Rule 8. United States v. Jimenez, 513 F.3d 62, 82 (3d Cir. 2008).

Rule 8(a) provides that:

       The indictment or information may charge a defendant in separate counts
       with 2 or more offenses if the offenses charged – whether felonies or
       misdemeanors or both – are of the same or similar character, or are based on
       the same act or transaction, or are connected with or constitute parts of a
       common scheme or plan.

Fed. R. Crim. P. 8(a). Appellant disputes that the transaction with Financial Pacific is “of

the same or similar character” or part “of a common scheme or plan” with the arson and

mail fraud allegations underlying the other counts of the Superseding Indictment.

       We find it to be a close decision whether the counts were properly joined in this

action. We are mindful that “[t]he joinder of the defendant’s offenses is consistent with

the purpose of [Rule 8] to promote economy of judicial and prosecutorial resources,”

United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987) (citing United States v. Werner,

620 F.2d 922, 928 (2d Cir. 1980)), but the connection between the counts in this case is

tenuous. The government argues that the charges are related because, in an examination

conducted by Mid-Continent following the fire, Appellant listed the chairs supposedly

received from TNT Equipment as among the restaurant’s inventory when the fire

occurred, which the government suggests is probative of Appellant’s intent to defraud



                                             6
Mid-Continent. Yet, this connection between the counts was not described in the mail

fraud allegations in the Superseding Indictment, nor was it pursued at trial. Nevertheless,

we need not reach a firm resolution as to whether the counts were improperly joined,

because, even assuming that they were, the error was plainly harmless. Cf. Jimenez, 513

F.3d at 83.

       Misjoinder warrants reversal of a conviction “only if the misjoinder results in

actual prejudice because it had substantial and injurious effect or influence in determining

the jury’s verdict.” Id. (internal quotation marks omitted). Factors that bear on prejudice

in this context include whether there is overwhelming evidence of the defendant’s guilt,

whether the evidence used to establish one of the counts would have been admissible on

the trial of the other counts, whether the jury received proper limiting instructions, and

whether the jury’s verdict indicates that it was able to compartmentalize the charges. See

United States v. Lane, 474 U.S. 438, 450 (1986); Jimenez, 513 F.3d at 83.

       Here, there is overwhelming evidence of Appellant’s knowing participation in the

wire fraud scheme. In particular, there was credible testimony from multiple witnesses

that Appellant falsely confirmed in a phone conversation with Financial Pacific that TNT

Equipment had delivered chairs to the Chesapeake. The District Court also gave an

appropriate limiting instruction to the jury, instructing it that it must separately consider

the evidence for each offense and not allow its verdict on any offense to influence its

decision on the others. We presume that a jury follows such instructions and therefore


                                               7
view the instructions as “persuasive evidence” that the joinder of counts did not prejudice

Appellant. United States v. Walker, 657 F.3d 160, 171 (3d Cir. 2011) (quoting United

States v. Lore, 430 F.3d 190, 206 (3d Cir. 2005)). Finally, the jury’s acquittal of

Appellant on the arson and mail fraud counts is a compelling indication that it was able to

compartmentalize these charges from the wire fraud count. See Jimenez, 513 F.3d at 83.

Based on the totality of these factors, we conclude that Appellant did not suffer actual

prejudice as a result of any misjoinder.


                                            IV.

       For the same reasons, we reject Appellant’s alternative argument that, if the counts

did meet the requirements for joinder under Rule 8, the District Court abused its

discretion in declining to sever them pursuant to Rule 14.3 “While Rule 8 requires

severance where [counts] were improperly joined, Rule 14 permits a district court to sever

properly joined [counts] and order a separate trial where a consolidated trial appears to

prejudice the defendant.” Walker, 657 F.3d at 170 (internal quotation marks omitted).

Appellant has failed to “pinpoint clear and substantial prejudice resulting in an unfair

3
       Rule 14 provides:

       If the joinder of offenses or defendants in an indictment, an information,
       or a consolidation for trial appears to prejudice a defendant or the
       government, the court may order separate trials of counts, sever the
       defendants’ trials, or provide any other relief that justice requires.

Fed. R. Crim. P. 14(a).

                                             8
trial,” which is his burden in order to sustain an abuse of discretion claim under Rule 14.

United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (internal quotation marks

omitted); see also United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991).

                                             V.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             9
