           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                            June 5, 2008

                                       No. 07-30630                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

DEVAUGHAN SMITH

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CR-00325


Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       Devaughan Smith was convicted in a jury trial on one count of selling
crack and on one count of using a telephone in connection with a murder-for-hire
plot. On appeal, Smith contends that his drug and murder-for-hire charges
should not have been tried together; that the jury should have been required to
make a unanimous finding as to whose murder he allegedly planned; and that
he should have had more time to prepare pre-trial after the government



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 07-30630

unexpectedly added the drug count in a superseding indictment. For the reasons
that follow, we affirm.
       1.       Smith first argues that his drug and murder-for-hire charges never
                should have been tried together. Smith argues that the two counts
                did not meet the test for joinder under Rule 8(a) of the Federal
                Rules of Criminal Procedure.1 And he argues that even if the
                charges could have been joined together, they shouldn’t have been
                because Rule 14(a) of the Federal Rules of Criminal Procedure
                required severance.2 The district court rejected both arguments in
                denying Smith’s motion to sever. We review the denial of a motion
                to sever for an abuse of discretion, and we will not reverse the
                district court’s decision “unless there is ‘clear, specific and
                compelling prejudice that resulted in an unfair trial.’”3 This places
                a “heavy burden” on the defendant.4              Smith has not met that
                burden.
                       There was a logical relationship between Boyd’s role as the
                informant in the August 16 crack sale and the victim Smith sought
                to have killed. Furthermore, Smith cannot show that his defense to
                his drug charge was so prejudiced by having the murder-for-hire


       1
         Rule 8(a) provides: “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.”
       2
          Rule 14(a) 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.”
       3
         United States v. Singh, 261 F.3d 530, 533 (5th Cir. 2001) (quoting United States v.
Bullock, 71 F.3d 171, 174 (5th Cir. 1995)) .
       4
           United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980).

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                                       No. 07-30630

              charge tried at the same time as to result in an unfair trial. The
              gist of Smith’s claim is that by trying the two charges together, the
              government was allowed to introduce rampant evidence of Smith’s
              drug dealing. That evidence was only relevant to Smith’s murder-
              for-hire charge, Smith argues, and it would have been inadmissible
              in a trial that dealt solely with his drug charge. Because the jury
              heard evidence of his drug dealing, Smith concludes, it is likely that
              the jury did not convict him on the drug count based on the evidence
              that the government adduced pertaining specifically to his August
              16 drug sale, but instead made an improper inference that because
              Smith is a drug dealer, he must have dealt drugs on August 16.
                     The government, however, was able to produce strong
              evidence of Smith’s guilt on the drug charge through Detective
              Treigle’s testimony. That strong evidence sharply cuts against
              Smith’s claim that the allegedly improper evidence of drug dealing
              affected the jury’s verdict on his drug charge.5               Moreover, the
              district court was able to lessen the potential unfairly prejudicial
              impact of the drug dealing by instructing the jury of its limited
              relevance.6 Thus, Smith cannot show that he was denied a fair trial.
       2.     Smith next contends that the jury should have been required to
              make a unanimous finding as to whose murder he allegedly
              planned. According to Smith, the evidence was equivocal whether



       5
         See United States v. Wise, 221 F.3d 140, 153 (5th Cir. 2000) (determining that a
prosecutor’s improper statements were not so prejudicial as to require a new trial in light of,
among other things, the strong evidence of the defendant’s guilt and the judge’s limiting
instructions).
       6
         United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995) (“Any possible prejudice
[from improper joinder] could be cured with proper instructions and juries are presumed to
follow their instructions.”).

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                          No. 07-30630

     Smith wanted Boyd dead, Brown dead, or both of them dead. The
     jury was not required to make any finding (unanimous or otherwise)
     regarding who Smith intended to kill. Because Smith did not object
     to the jury instruction’s on this basis, our review is for plain error.
     There was no plain error here.
           Smith was charged under 18 U.S.C. § 1958(a), which provides
     the following:
           Whoever . . . uses or causes another (including the
           intended victim) to use . . . any facility of interstate or
           foreign commerce, with intent that a murder be
           committed in violation of the laws of any State or the
           United States as consideration for the receipt of, or as
           consideration for a promise or agreement to pay,
           anything of pecuniary value . . . .
     This language tracks the language in the jury charge.
           Smith is not clear about which portion of the statutory
     language would require a finding on the identity of the victim. It
     would appear that he teases this requirement out of the portion of
     the statutory language that states that the defendant must have an
     “intent that a murder be committed in violation of the laws of any
     State or the United States . . . .” But to the extent that this
     language does require a finding on the identity of the victim, the
     jury was instructed on that precise language and found Smith
     guilty. In other words, to the extent that statutory language can be
     read to require a finding on the victim’s identity, since the jury was
     presented with this very language and unanimously found the
     defendant guilty, the jury implicitly unanimously agreed on the
     identity of the victim.
3.   Smith’s last contention is that the district court erred when it
     denied his motion for a continuance after the government filed a


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                                           No. 07-30630

                   superseding indictment that added the drug charge based on the
                   events that took place at the August 16 drug sale. “Trial judges have
                   broad discretion in deciding requests for continuances, and we
                   review only for an abuse of that discretion resulting in serious
                   prejudice.”7 There was no abuse of discretion here.
                          Smith first argues that he was entitled to a continuance
                   because he needed more time to investigate the evidence
                   surrounding the August 16 drug sale. During the suppression
                   hearing, however, Smith was given the opportunity to explore the
                   incident with the government’s witness. Moreover, Smith had been
                   given notice, even before the superseding indictment had been filed,
                   that the August 16 drug sale would be raised during trial. Given
                   that, the district court was within its discretion to deny the motion
                   for continuance.
                          Smith also argues that he was entitled to a continuance
                   because on the day of the trial, he told the court he wished to retain
                   private counsel but that private counsel would need additional time
                   to prepare. Smith argues that denying him the continuance had the
                   effect of denying him his constitutional right to counsel of his choice.
                   Given that Smith did not explain to the district court why he wished
                   to retain new counsel or why he waited until the morning of trial to
                   bring this up, the district court was within its discretion to deny the
                   motion for continuance.         Moreover, Smith was not denied his
                   constitutional right to counsel given the last-second nature of his




          7
              United States v. German, 486 F.3d 849, 854 (5th Cir.), cert. denied, 128 S. Ct. 649
(2007).

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                                      No. 07-30630

              invocation of his right and given his lack of explanation to the
              district court for his tardy request.8
AFFIRMED. Motion to supplement the record is DENIED.




       8
         See Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988) (noting
that a defendant’s constitutional right to counsel of his choice is not boundless).

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