UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                       No. 98-4927

DAVID JONES, a/k/a Davey,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                         No. 99-4031
D'SHANNA YVONNE RANDALL, a/k/a
Deshanna Cowles, a/k/a Shannon,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                       No. 99-4032

KERRY GORDON HOGGE,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-98-10)

Submitted: September 30, 1999

Decided: October 19, 1999
Before WILKINS, WILLIAMS, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Walter C. Whitt, Jr., LAW OFFICES OF WALTER C. WHITT, JR.,
P.C., Hampton, Virginia; Stephen A. Hudgins, Newport News, Vir-
ginia; Stephen J. Weisbrod, Hampton, Virginia, for Appellants. Helen
F. Fahey, United States Attorney, Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David Jones, D'Shanna Randall, and Kerry Hogge appeal from
their convictions and sentences for various drug and firearms viola-
tions. We affirm.

Appellants first contend that the district court abused its discretion
in denying their motion for mistrial on the basis of improper conver-
sations between Government witnesses in the holding cell while they
awaited their turn to testify. We review this claim for an abuse of dis-
cretion. See United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.),
cert. denied, 117 S. Ct. 2525 (1997). In United States v. Cropp, 127
F.3d 354 (4th Cir. 1997), cert. denied, 118 S. Ct. 898 (1998), this
court cited three acceptable remedies for violations of a sequestration
order: (1) sanction of the witness; (2) instructing the jury that it may
consider the violation in regards to the issue of credibility; or (3)

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exclusion of the witness' testimony. See 127 F.3d at 363. In this case,
the district court chose to instruct the jurors that they could consider
the violation when deciding how much credibility to afford witness
testimony. Specifically, the court instructed the jury that it:

          should receive [the government's witnesses'] testimony with
          great caution. You give it such weight as you deem appro-
          priate. Maybe you shouldn't believe any of it, some of it or
          all of it, that you should review their testimony very care-
          fully in view of the fact that they have been in the same
          holding cell for several days and there has been some dis-
          cussion about this case.

(J.A. at 1079-80.) In addition, the court instructed the jury not to con-
sider the testimony of one of the witnesses.1 The court also, upon the
jury's request during deliberations, walked the jury through the hold-
ing cell where the prisoner witnesses were held during the trial.

Because the district court's curative measures specifically com-
plied with two remedies approved by this court in Cropp, and because
the witnesses' testimony did not materially differ from that presented
before the grand jury, we conclude that court did not abuse its discre-
tion in denying the Appellants' motion for mistrial. See Dorlouis, 107
F.3d at 257. For the same reasons, we find that the district court did
not abuse its discretion in determining that the interests of justice did
not require a grant of a new trial. See Fed. R. Crim. P. 33; United
States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992) (providing
standard).2
_________________________________________________________________
1 In reaching its decision on the motion for mistrial, the district court
noted that the Appellants were provided with grand jury transcripts of the
testimony of each witness, and that they failed to demonstrate how any
of the witnesses had changed their testimony in any material respect.
Only one witness failed to testify before the grand jury, and the court
instructed the jury to disregard the testimony of this witness.
2 The Appellants portray this issue as one involving presentation of per-
jured evidence. They fail, however, to produce any evidence that the tes-
timony presented was actually perjured. To the contrary, they do not
attack the Government's or the district court's determinations that the
witnesses' testimony did not materially differ from that which they pre-

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Appellants next assert that the district court erred in determining
the amount of drugs properly attributable to each Appellant. A district
court's factual finding of the relevant quantity of drugs at sentencing
is reviewed for clear error. See 18 U.S.C.§ 3742(e) (1994); United
States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996); United States v.
Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992). Because quantity is
not a substantive element of the offense, but is merely a sentencing
factor, the Government need only prove the quantity by a preponder-
ance of the evidence. See United States v. Goff , 907 F.2d 1441, 1444
(4th Cir. 1990). In calculating drug amounts, the Guidelines do not
require scientific or statistical precision; rather, the court may con-
sider any relevant information, provided that the information has suf-
ficient indicia of reliability to support its probable accuracy. See
Uwaeme, 975 F.2d at 1021.

An appellant objecting to a district court's determination of drug
quantity has an affirmative duty to show that the information is inac-
curate or unreliable. See United States v. Terry , 916 F.2d 157, 162
(4th Cir. 1990) ("A mere objection to the finding in the presentence
report is not sufficient. [An appellant] has an affirmative duty to make
a showing that the information in the presentence report is unreliable,
and articulate the reasons why the facts contained therein are untrue
or inaccurate."). Jones and Randall argue only that the evidence of
quantities contained in the presentence report is inherently unreliable
given the fact that the witnesses were conversing in the holding cell.
They did not present this argument below. Rather, Randall withdrew
her challenge to the quantity of drugs attributed to her in the presen-
tence report, and Jones argued only that the Government's witnesses
were unreliable because they were convicted felons. Assuming that
Jones' challenge below is sufficient to preserve the challenge he pres-
ently brings, the credibility of witnesses is the domain of the sentenc-
ing judge. See United States v. Falesbork, 5 F.3d 715, 721-22 (4th
Cir. 1993). Although the court made no specific statement regarding
_________________________________________________________________

sented before the grand jury. Moreover, the parties and the court specifi-
cally brought the issues of the sequestration violation and possible per-
jury of the witnesses to the jury's attention, and the court instructed the
jury that it could consider this violation and the possibility of perjury in
deciding how much to credit the witnesses' testimony.

                     4
credibility, it did state that it was adopting the findings of the presen-
tence report because that report laid out all of the dates, times, places,
and the amount of drugs involved in the case and because the judge
was present throughout trial and heard the testimony of the witnesses
regarding drug amounts. We find this a sufficient statement that the
district court found that testimony to be credible, especially where the
court, in conjunction with Appellants' motion for mistrial based upon
improper witness conversation, specifically discussed witness credi-
bility and the fact that there appeared to be no significant changes
between the witnesses' testimony at trial and their testimony before
the grand jury. Accordingly, we conclude that the district court did
not clearly err in determining the amount of drugs attributable to
Jones and that there is no plain error in its determination of the
amount of drugs attributable to Randall.

Hogge raises a separate challenge to the district court's determina-
tion of drug quantity. Specifically, he argues that a large portion of
the cocaine attributable to him is based upon the strength of the testi-
mony of one witness--Gaylon Lightfoot. Hogge argues that reliance
on Lightfoot's testimony constitutes clear error because Lightfoot's
own testimony indicates that his memory is poor. Hogge thus argues
that Lightfoot's testimony, without substantial corroboration, does not
fulfill the requirements of specificity and reliability necessary to sup-
port his sentence. Reference to the sentencing transcript reveals that
the district court made a clear credibility determination in regard to
Lightfoot's testimony. Addressing Hogge's argument, the court
stated, "[w]hile the defendant challenges the credibility of Gaylon
Lightfoot, the court finds there's adequate evidence in the record to
corroborate Gaylon Lightfoot's testimony." (J.A. at 1560.) The cor-
roborative evidence to which the court referred consisted of state-
ments from buyers regarding how much cocaine they had purchased
from Hogge, cocaine actually seen by testifying officers, and Hogge's
own record books. Given this credibility determination, which is not
reviewable on appeal, we conclude that the district court did not
clearly err in determining the amount of drugs attributable to Hogge
on the basis of Lightfoot's testimony.

Finally, Hogge contends that the district court erred in denying his
motion for severance. Although conceding that the district court's
denial of such a motion will be overturned only in the case of a clear

                     5
abuse of discretion, Hogge argues that such an abuse was present
because, aside from the testimony of one witness, the evidence
against him was mutually exclusive from the evidence against Jones
and Randall. This one witness was Gaylon Lightfoot, who testified
that he saw Jones at Hogge's house on one occasion and that the two
discussed a future drug transaction that apparently never materialized.
Although the jury convicted Hogge of conspiring to distribute drugs
with Jones, the district court granted Hogge's motion for acquittal on
this count.

Federal Rule of Criminal Procedure 8(b) allows for the joinder of
defendants in an indictment if they are alleged to have participated in
the same series of acts or transactions constituting an offense. Con-
versely, Fed. R. Crim. P. 14 allows the court to sever a defendant for
trial if it appears that the defendant is prejudiced by such a joinder
and justice requires such action. The mere showing of prejudice does
not necessitate severance. See United States v. Zafiro, 506 U.S. 534,
538-39 (1993). Rather, the district court is vested with the discretion
as to what, if any, relief is appropriate for any potential prejudice
resulting from a joint trial. See id. This Court therefore reviews a dis-
trict court's refusal to grant a motion for severance for an abuse of
discretion. See United States v. West, 877 F.2d 281, 287-88 (4th Cir.
1989) ("The grant or denial of a motion for severance or mistrial is
within the trial court's discretion and will not be overturned absent a
clear abuse of that discretion.").

An abuse of this discretion occurs "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. A defendant does not
demonstrate an abuse of discretion merely by showing that he would
have a better chance of acquittal in a separate trial. See id. at 540.
Rather, he must demonstrate that the resulting trial was so prejudicial
that it resulted in a miscarriage of justice. See United States v.
Brugman, 655 F.2d 540, 543 (4th Cir. 1981).

Hogge appears to argue that he was prejudiced because he was con-
victed of a conspiracy charge on which he was later acquitted by the
court and that it is impossible to tell whether the jury based its deci-
sion on the remaining charges on the testimony of the witnesses deal-

                     6
ing solely with the actions of Jones and Randall. The Government
argues that, although the district court did grant Hogge's motion for
acquittal of the conspiracy conviction, this decision was based upon
the court's opinion that the Government did not prove a conspiracy
between Hogge and Jones, but rather proved only a buyer-seller
arrangement.

Although Hogge's attorney correctly noted that Lightfoot was
essentially the only witness to connect Hogge to Jones and that the
district court did dismiss the conspiracy count against Hogge on the
basis that the evidence demonstrated only a buyer-seller relationship,
we find that the evidence against Hogge for the counts upon which
he was convicted was simply overwhelming. Several witnesses, some
of whom testified for the defense, testified that they frequently visited
Hogge's house and purchased a wide variety of drugs from him. A
law enforcement officer also testified that, during a valid search of
Hogge's home, both drugs and drug paraphernalia were recovered.
This evidence constituted essentially the entire second half of the
Government's case and thus is more likely to have been in the jury's
mind when it retired to deliberate. Moreover, the case was not so
complex that the jury could not separate the evidence as to each
defendant, and Hogge's attorney specifically elicited from each of the
witnesses testifying against Jones and Randall that they did not know
Hogge and had never seen him. Given the strength of the evidence
against Hogge, his attorney's effective cross-examination, and the fact
that the district court dismissed the conspiracy charge against Hogge,
we find that there is no concern of spill-over evidence and that there
is no showing that the trial and conviction were so prejudicial as to
have resulted in a miscarriage of justice. See United States v. Hayden,
85 F.3d 153, 160-61 (4th Cir. 1996) (finding no prejudice upon deter-
mination that the jury could make an individual finding of guilt and
any spill-over effect from evidence admitted against co-defendant did
not prejudice defendant).

Accordingly, we affirm Appellants' convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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