United States v. Jones

Filed: January 31, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-4720(L)
(CR-98-48-WMN)

United States of America,

Plaintiff - Appellee,

versus

John Edward Jones, Jr., et al.,

Defendants - Appellants.

O R D E R

The court further amends its opinion filed September 6, 2001,

and modified December 18, 2001, as follows:

On page 2, section 5 -- counsel’s name is corrected to read

“Sol Zalel Rosen.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 Filed: December 18, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-4720(L)
(CR-98-48-WMN)

United States of America,

Plaintiff - Appellee,

versus

John Edward Jones, Jr., etc., et al.,

Defendants - Appellants.

O R D E R

The court amends its opinion filed September 6, 2001, as

follows:

On page 4, footnote 2 is deleted, and is replaced with the

following:

2 Jones also maintains on appeal that the district court
erred by failing to instruct the jury on the lesser-
included offense of misdemeanor possession of marijuana.
It appears that Jones did not request a lesser-included
offense instruction, nor did he object to the district
court’s failure to give such an instruction. According-
ly, we review for plain error under the standards set
forth in United States v. Olano, 507 U.S. 725,732-37
(1993). A defendant is not automatically entitled to a
lesser-included offense instruction. See United States
v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997). Rather,
the trial court should give the instruction only if “the
proof of the element that differentiates the two offenses
[is] sufficiently in dispute that the jury could ratio-
nally find the defendant guilty of the lesser offense but
not guilty of the greater offense.” Id. Even if we
assume that the district court committed plain error in
failing to give a lesser-included offense instruction on
simple possession of marijuana, Jones cannot establish
that the error affected his substantial rights. See
Olano, 507 U.S. at 734. As we explain in part II, there
was ample evidence to support the jury’s finding that
Jones was guilty of conspiring to distribute drugs. For
example, one witness testified that he bought heroin from
Jones. In contrast, the only evidence to support a
verdict of simple possession was the relatively small
quantity of drugs actually seized and Jones’s testimony
at trial that he was “embarrassed” to be in federal court
for “three bags of reefer” because “[i]f [he] was in
drugs, [he would] be selling drugs, not no nickel and
dime case like they got [him] on here.” If the jury had
credited Jones’s testimony and had been willing to infer
a lack of intent to distribute from the amount of drugs
seized, it would have voted to acquit him. Instead, it
convicted him of conspiring to distribute drugs. As a
result, Jones cannot establish that the outcome of his
trial would have been different if the jury had been
instructed on the lesser-included offense of simple
possession of marijuana. See id. His jury instruction
argument therefore fails.

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 Rehearing granted, December 18, 2001 for the limited purpose of amending opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 99-4720
JOHN EDWARD JONES, JR., a/k/a
Liddy,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 99-4752
JAMES ADDISON CROMER, a/k/a
Brother,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Petitioner-Appellee,

v. No. 99-4775

JOYCE YVONNE COTTOM,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 99-4776

AARON LILES,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-98-48-WMN)

Argued: May 9, 2001

Decided: September 6, 2001

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant Jones;
W. Michel Pierson, PIERSON, PIERSON & NOLAN, Baltimore,
Maryland, for Appellant Cromer; Harry D. McKnett, Columbia,
Maryland, for Appellant Cottom; Marc Seguinot, SMITH &
GREENE, L.L.C., Fairfax, Virginia, for Appellant Liles. Andrea L.
Smith, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Stephen M. Schenning, United States Attor-
ney, Jane M. Erisman, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

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

_________________________________________________________________

OPINION

PER CURIAM:

John Jones (a/k/a Liddy), James Cromer (a/k/a Brother), Joyce Cot-
tom, and Aaron Liles raise several challenges to their convictions and

2
sentences under 21 U.S.C. § 846 for conspiracy to distribute narcot-
ics. As to Jones, we affirm his conviction but remand for resentencing
in accordance with the statutory maximum sentence for conspiracy to
distribute marijuana. As to Cromer, Cottom, and Liles, we affirm their
convictions and sentences.

I.

The government's theory of the case is that in 1997 and 1998 Jones
ran a drug and contraband distribution ring inside the Baltimore City
Detention Center (BCDC) while he was an inmate at BCDC. The con-
traband included heroin, marijuana, cocaine, cigarettes, and cash.
Cromer was an inmate housed in another area of BCDC who assisted
Jones in the distribution. Jones's girlfriend, Cottom, helped Jones
from outside BCDC by arranging for the contraband to be delivered
to Jones and by receiving payments from the friends and family of the
inmates who were the customers. Liles, the boyfriend of Cottom's
granddaughter, assisted Cottom in collecting the money. Much of the
government's evidence at trial consisted of recorded conversations
obtained through a wiretap of Cottom's telephone between December
1997 and February 1998.

Jones, Cromer, Cottom, and Liles were indicted for conspiracy to
distribute heroin and marijuana in violation of 21 U.S.C. § 846.1 The
1
indictment did not specify drug quantity. In addition, the government
sought forfeiture of Cottom's house and car. The jury was asked to
return a general verdict on whether the defendants were guilty of con-
spiracy to distribute narcotics, without specifying the type (marijuana
or heroin). The jury found all four defendants guilty. The court
imposed the following sentences of imprisonment: 210 months for
Jones; 57 months for Cromer; 33 months for Cottom; and 30 months
for Liles. In addition, Cottom's house and car were forfeited to the
government.

II.

Defendants make various arguments in challenging their convic-
_________________________________________________________________

1 Other counts were not submitted to the jury.

3
tions and sentences. The first two issues are raised by more than one
of the defendants: (1) all four argue that the trial court erred in allow-
ing the jury to return a general verdict that did not specify drug type;
and (2) Jones, Cromer, and Liles raise a sufficiency of the evidence
argument. The remaining issues are defendant-specific. Jones argues
that the district court's factual findings on drug quantity violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), and improperly relied
on a government informant's testimony.2 Cromer argues that the gov-
2
ernment's closing argument deprived him of a fair trial. Cottom main-
tains that the district court erred during sentencing in considering her
involvement in heroin distribution and in ordering a forfeiture of her
house. Liles argues that he should have been tried separately from the
other defendants. We address these issues in turn.

A.

The first issue is whether the general verdict affects the validity of
the defendants' sentences. The defendants requested a special verdict,
which would have allowed the jury to specify whether they were con-
victing the defendants of a heroin conspiracy, a marijuana conspiracy,
or both. The judge denied the request, and the jury returned a general
verdict that did not specify drug type. Such a general verdict pre-
cludes the district court "from imposing a sentence in excess of the
statutory maximum for the least-punished object on which the con-
spiracy conviction could have been based." United States v. Rhynes,
196 F.3d 207, 238 (4th Cir. 1999), vacated in part on other grounds,
218 F.3d 310 (4th Cir. 2000) (en banc). See also United States v.
Bowens, 224 F.3d 302, 314 (4th Cir. 2000).

In this case the "least-punished object" of the conspiracy is mari-
juana distribution. If the quantity involved does not exceed 50 kilo-
grams, this offense carries a maximum term of imprisonment of five
years, but if the defendant has a prior conviction for a felony drug
offense, the statutory maximum is ten years imprisonment. See 21
U.S.C. § 841(b)(1)(D). Cromer, Cottom, and Liles received sentences
_________________________________________________________________

2 Jones also maintains on appeal that the district court erred by
failing to instruct the jury on the lesser-included offense of mis-
demeanor possession of marijuana. It appears that Jones did not
request a lesser-included offense instruction, nor did he object to the
district court’s failure to give such an instruction. Accordingly, we
review for plain error under the standards set forth in United States v.
Olano, 507 U.S. 725,732-37 (1993). A defendant is not automatically
entitled to a lesser-included offense instruction. See United States v.
Wright, 131 F.3d 1111, 1112 (4th Cir. 1997). Rather, the trial court
should give the instruction only if “the proof of the element that
differentiates the two offenses [is] sufficiently in dispute that the
jury could rationally find the defendant guilty of the lesser offense
but not guilty of the greater offense.” Id. Even if we assume that
the district court committed plain error in failing to give a lesser-
included offense instruction on simple possession of marijuana,
Jones cannot establish that the error affected his substantial rights.
See Olano, 507 U.S. at 734. As we explain in part II, there was
ample evidence to support the jury’s finding that Jones was guilty
of conspiring to distribute drugs. For example, one witness testi-
fied that he bought heroin from Jones. In contrast, the only evi-
dence to support a verdict of simple possession was the relatively
small quantity of drugs actually seized and Jones’s testimony at
trial that he was “embarrassed” to be in federal court for “three
bags of reefer” because “[i]f [he] was in drugs, [he would] be
selling drugs, not no nickel and dime case like they got [him] on
here.” If the jury had credited Jones’s testimony and had been
willing to infer a lack of intent to distribute from the amount of
drugs seized, it would have voted to acquit him. Instead, it con-
victed him of conspiring to distribute drugs. As a result, Jones
cannot establish that the outcome of his trial would have been
different if the jury had been instructed on the lesser-included
offense of simple possession of marijuana. See id. His jury in-
struction argument therefore fails.

4
of less than five years imprisonment. Therefore, the general verdict
does not affect their sentences. Jones, however, received a sentence
of 210 months imprisonment. The government filed an information
indicating that Jones has at least one prior felony drug conviction.
Therefore, the effect of the general verdict is that Jones's term of
imprisonment cannot exceed 10 years. The government has conceded
this error and has chosen the option of having Jones resentenced for
conspiracy to distribute marijuana instead of retrying him for conspir-
acy to distribute heroin. See Rhynes, 196 F.3d at 240 (explaining that
government can retry defendant or have him resentenced). Accord-
ingly, we vacate Jones's sentence and remand to the district court for
imposition of a sentence that does not exceed the ten-year statutory
maximum set out in § 841(b)(1)(D).

B.

Jones, Cromer, and Liles argue that the government presented
insufficient evidence to sustain their convictions. "The verdict of a
jury must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). To prove that Jones, Cromer, and
Liles were guilty of conspiracy to distribute narcotics, the government
must establish that: "(1) an agreement to possess [narcotics] with
intent to distribute existed between two or more persons; (2) the
defendant[s] knew of the conspiracy; and (3) the defendant[s] know-
ingly and voluntarily became a part of this conspiracy." United States
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). "These elements can be
shown by circumstantial evidence such as [defendant's] relationship
with other members of the conspiracy, the length of this association,
his attitude, conduct, and the nature of the conspiracy." United States
v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984).

1.

Starting with Jones, we hold that the evidence was sufficient for a
jury to find him guilty of conspiracy to distribute narcotics. George
Timothy Hawkins, a BCDC guard, testified that beginning in late
1997, he began picking up marijuana and heroin from Cottom and
delivering it to Calvin Bradshaw, an inmate in BCDC who was
indicted along with the defendants in this case. On one occasion,

5
Hawkins was having a dispute with Bradshaw concerning how much
money Hawkins was owed for a drug delivery. In order to settle the
dispute, Jones gave Hawkins the money he was demanding. Troy
Langley, a BCDC inmate, testified that he bought heroin from Brad-
shaw and from Jones. Willie Davis, another BCDC inmate, testified
that several inmates obtained marijuana and heroin from Jones. Davis
also explained the system of inmates' family members paying for the
drugs by bringing money to a drop-off house.

The wiretapped conversations further confirm Jones's substantial
involvement in the conspiracy. One conversation can be interpreted
as Cottom explaining to Jones how much marijuana she obtained for
him. She says, "I got what you asked for." Jones then inquires into the
quantity: "I'm talking `bout what they give you. I know it wasn't like
what the furniture man3 give you.. . . [Y]ou ain't got no scale or noth-
3
ing?" Cottom estimates that it is "like a, a half of an `O.'" Jones then
tells Cottom to "take that back" because the marijuana suppliers
"lied." When Cottom refuses, Jones says, "I say they lying baby. Less
you, less you don't know, know how to test it. You shoulda `cause
you been, you know." Jones testified that he was talking about herbal
tea, but it was reasonable for the jury to discredit his testimony and
conclude that he was actually talking about marijuana. Another con-
versation on that same day can be interpreted as Jones asking Cottom
how much heroin Bey-Bey4 gave her. Jones asks whether "[i]t's a
4
handful . . . . I mean like, uh, big ball or something. . . . Like a golf
ball." Cottom answers, "A little more than that I guess, you know.
Cause it's not shaped like a ball is shape . . . ." In addition, there are
_________________________________________________________________

3 The evidence showed that the "furniture man" is Rodney Parham,
who in addition to owning a furniture store is a marijuana dealer. Mari-
juana was found in the store. In one wiretapped conversation, Cottom
told Liles that she would be buying marijuana from "Rodney" with the
money Liles picked up for her. Furthermore, there are many conversa-
tions in which Cottom is ordering various pieces of furniture from
Parham for Jones. The jury could have reasonably concluded that the
large amount of furniture Jones was ordering was unbelievable and that
instead, furniture was the code word for drugs.

4 The evidence showed that Bey-Bey is Angelo Howard, a heroin
dealer. Bags of heroin were found at Howard's house, as well as packag-
ing and cutting materials with heroin residue.

6
conversations that can be interpreted as Cottom telling Jones which
inmates' friends or family dropped off money for drugs. In those con-
versations, Cottom is listing names followed by dollar amounts, for
example, "Marshall Hall. Twenty. Donte Stokes twenty. Ty a hun-
dred." The testimony combined with the wiretap evidence is sufficient
to sustain Jones's conviction.

2.

Turning next to Cromer, we hold that viewed in the light most
favorable to the government, the evidence was sufficient for a rational
jury to find Cromer guilty of a conspiracy to distribute narcotics. The
wiretap evidence reveals Cromer's participation in the conspiracy.
There are many conversations that the jury could have interpreted as
evidence of Cromer's debt to Jones for the drugs that Cromer was dis-
tributing in BCDC. Christopher Bradshaw, a BCDC inmate who was
indicted along with the defendants, asked Cottom about whether Cro-
mer's wife gave Cottom the $140 that Cromer owed Jones, and Brad-
shaw added that Cromer "really owedest us more than that." Jones
complained to Cottom about $400 that Cromer owed Jones. Jones
also told Cottom that Cromer owed him $3000 and that Cromer was
trying to obtain $2000 as a partial repayment. Cottom once told Jones
that Cromer and his wife are arguing "[p]robably `cause he telling her
to give it [the money] to you and she probably wondering where she
going to get it from." The jury could have rationally concluded that
the large amount of money involved was used to purchase drugs for
distribution as opposed to buying drugs for personal use or buying
cigarettes for distribution.

In addition, there is a conversation in which Jones is complaining
to Cottom that Cromer did not fulfill his duties in distributing drugs
to an inmate. Jones said, "Brother [Cromer] ain't take care of that
dude, and I ask Brother if he wanted me to take care. . . and he said
he was going to do it. . . . Ah, the boy asked me today. And I told
him and then I ask him in front of Brother, yesterday I said look, you
want me to take care of that Brother?" The conversations also show
that Jones cannot decide whether to hand over to Cromer the drug dis-
tribution business after Jones leaves BCDC. In mid-December 1997
Jones said, "[W]hen I leave, I just tell Brother to do everything for
me," and "I already set that up with a, with Brother on that, does it

7
when I leave you know." By late December, however, Jones said
"Look, I ain't gonna be here. I'm trying to go ahead and make quick
deals `cause I don't want to leave and then depend on somebody else
to do it. . . . That's what I'm saying. And Brother I ain't gonna trust
him." Another conversation that reflects Cromer's participation in the
conspiracy involves Cromer talking to Cottom about a drug customer
named Omar. Cottom is complaining to Jones about having to deal
with Omar and tells him that Cromer's wife said that Jones instructed
the women to handle Omar together. Cromer then enters the conver-
sation to tell Cottom that his wife has misunderstood Jones's instruc-
tions.

Willie Davis's testimony further supports Cromer's conviction.
Davis testified that he saw Calvin Bradshaw hand Cromer a package
wrapped in clear tape. During this exchange, Davis heard Bradshaw
say, "Liddy [Jones] told me to give you your pack, this is yours,
Liddy told me to give it to you." Although Davis did not see what was
inside the package, the jury could have inferred that the package con-
tained drugs. Such an inference is reasonable given the testimony that
Jones and Bradshaw were selling narcotics and the wiretap evidence
showing Jones's and Cromer's involvement in the conspiracy. The
cumulative impact of the testimony and the conversations renders the
jury's verdict as to Cromer sustainable.

3.

The evidence was also sufficient to convict Liles of conspiracy to
distribute narcotics. The government's evidence against Liles con-
sisted of wiretapped conversations between Cottom and Liles. In
these conversations Cottom is instructing Liles to pick up money and
drugs for her, and she makes it clear that she will use the money he
picks up to purchase drugs. For instance, Cottom tells Liles she needs
him to pick up "them funny cigarettes" and "two hundred dollars" for
her. When Liles asks her whether she means "blunts," she says,
"Yeah, what they put . . . you know." Another time, after Cottom tells
Liles where to make the pick-ups, Liles asks, "Did, um, you talk to
um, `Titty?'" Cottom responds, "Yeah . . . if I ain't heard from him
by the time ya'll get over here to go do it, I'll just ah, get that ah, the
half, you know? . . . Not the half but . . . the quarter." Cottom also
said once, "[L]ater on when I get hold of, ah, Rodney [Parham] . ..

8
with the money you got, I'm have to put some more and go get, you
know. . . . The reefer. . . . Oh, I don't mean to say that on the phone."
Liles responded, "I mean I knew what you were talking about." It is
reasonable to assume that the slang words Cottom used were drug
terms. There is also a conversation between Cottom and Jones that
reveals Liles's involvement in the conspiracy. Cottom says that she
sent Liles on a pick-up for someone named Manny. Liles was sup-
posed to collect money but instead the person gave him "[w]hat Bey-
Bey had." Because there was evidence that Bey-Bey was a heroin
dealer, it is reasonable to assume that heroin is what "Bey-Bey had."
All of these conversations support Liles's conviction in this case.

C.

We now move to the issues that only apply to Jones. The first is
whether Jones's conviction and sentence are in error because of the
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). The Apprendi Court held, "Other than the fact of a prior con-
viction, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Id. at 490. For purposes of 21 U.S.C.
§ 846, "Apprendi dictates that in order to authorize the imposition of
a sentence exceeding the maximum allowable without a jury finding
of a specific threshold drug quantity, the specific threshold quantity
must be treated as an element of an aggravated drug trafficking
offense." United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001)
(en banc). The statutory maximum sentence for conspiracy to distrib-
ute marijuana without a jury finding of a specific threshold quantity
of marijuana is five years imprisonment; the maximum sentence is ten
years imprisonment if the defendant has a prior felony drug convic-
tion. See § 841(b)(1)(D). The jury did not make a finding of a thresh-
old amount of marijuana. Therefore, the maximum term of
imprisonment Jones faces is 10 years because he has at least one prior
felony drug conviction. As explained in part II.A., the general verdict
in this case also limits Jones's term of imprisonment to 10 years, and
we are remanding for resentencing so that his sentence complies with
this limit. After resentencing, Jones's sentence will also comply with
Apprendi.

Jones's second argument is that the district court erred in calculat-
ing the drug amount because of its reliance during sentencing on the

9
testimony of Ronald Williams, a BCDC inmate. "Insofar as the proper
application of the [Sentencing] Guidelines turns predominantly on
one or more findings of fact, we review the district court's findings
for clear error." United States v. Williams, 253 F.3d 789, 791-92 (4th
Cir. 2001). Except for calling Williams a "shadowy character of dubi-
ous qualifications," Jones gives no reason why the district court's fac-
tual findings are clearly erroneous. Jones also calls Williams an
"expert witness" and claims that the district court failed to follow the
rules governing admissibility of expert testimony. Williams, however,
was not an expert witness. He was a lay witness testifying about his
personal observation of the drug activity at BCDC. See Fed. R. Evid.
701 (explaining that a lay witness's opinion testimony "is limited to
those opinions or inferences which are . . . rationally based on the per-
ception of the witness"). Therefore, the district court did not have to
treat Williams as an expert witness.

D.

Cromer contends that the government's closing argument deprived
him of a fair trial. During the rebuttal portion of its closing argument,
the government referred to a part of a telephone conversation between
Jones and Cottom in which Jones claims that Cromer owes him
$3000. Cromer maintains that this reference is improper because that
portion of the wiretap had not been played to the jury during trial, nor
had the government mentioned it in the initial portion of its closing
argument. In order to establish that the prosecutor's argument "so
infected the trial with unfairness as to make the resulting conviction
a denial of due process," Cromer must show that: (1) the remarks
were improper; and (2) the remarks "prejudicially affected [his] sub-
stantial rights so as to deprive [him] of a fair trial." United States v.
Wilson, 135 F.3d 291, 297 (4th Cir. 1998) (second alteration in origi-
nal) (internal quotation marks and citations omitted). In this case, the
government's remarks during closing argument were not improper.
Although Jones's statement concerning the $3000 had not been men-
tioned before, the audiotape containing that statement was a trial
exhibit and the jury had access to it during its deliberations. Because
we find that the remarks were not improper, we do not have to
address the prejudice prong of the analysis.

10
E.

Cottom argues that because the jury returned a general verdict, the
district court erred in considering the quantity of any drug other than
marijuana for purposes of sentencing. Cottom miscomprehends the
impact of the general verdict and the sentencing process. As discussed
earlier, the general verdict caps Cottom's term of imprisonment at
five years, the maximum statutory sentence for a conspiracy to dis-
tribute marijuana. However, a defendant's sentence is determined on
the basis of all relevant conduct, that is, "all acts and omissions com-
mitted, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant." U.S. Sentencing Guidelines Man-
ual § 1B1.3(a)(1)(A) (2000). In the case of "jointly undertaken crimi-
nal activity," the sentencing court also considers "all reasonably
foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity." Id. § 1B1.3(a)(1)(B). "The principles
and limits of sentencing accountability . . . are not always the same
as the principles and limits of criminal liability." Id. cmt. n.1. There-
fore, the district court did not err in considering evidence of heroin
distribution by Cottom and her coconspirators in calculating Cottom's
sentence, which was set under the statutory maximum.

Cottom also maintains that the forfeiture of her house should be set
aside because of the sentencing error. Cottom's sentence, which we
hold is not in error, was set pursuant to a base offense level of 20. An
offense level of 20 corresponds to a fine range of $7500 to $75,000.
See id. § 5E1.2(c)(3). Cottom had approximately $20,000 worth of
equity in her house. The forfeiture of the house is commensurate with
the fine level. Therefore, we reject Cottom's argument that the forfei-
ture of her house was improper.

F.

Liles argues that the district court erred in denying his motion to
sever his trial from that of his codefendants. We review a ruling on
a motion to sever for abuse of discretion. See United States v. Ford,
88 F.3d 1350, 1361 (4th Cir. 1996). Liles maintains that it was
improper to indict him along with Jones, Cromer, and Cottom and
therefore improper to try him along with them. "Two or more defen-
dants may be charged in the same indictment or information if they

11
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." Fed. R. Crim. P. 8(b). If the defendants are joined in a sin-
gle indictment, they may be tried together. See Fed. R. Crim. P. 13.
In fact, a joint trial is preferable in such a situation. See Zafiro v.
United States, 506 U.S. 534, 537 (1993). In this case, the indictment
charged the defendants with conspiracy to distribute marijuana and
heroin. As explained in part II.B., the evidence showed that such a
conspiracy existed and that Liles participated in it. This conspiracy
involved a series of transactions for which Liles could be indicted and
tried along with Jones, Cromer, and Cottom. See also Ford, 88 F.3d
at 1361 ("For reasons of efficiency and judicial economy, courts pre-
fer to try joint-conspirators together.").

Liles also argues that his motion to sever should have been granted
because of the complexity of the case, which made it difficult for the
jury to compartmentalize the evidence as it related to the four defen-
dants. Pursuant to Fed. R. Crim P. 14, the district court may order
separate trials if it appears that the defendant will be prejudiced by a
joint trial. As explained by the Supreme Court, "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 defen-
dants, or prevent the jury from making a reliable judgment about guilt
or innocence." Zafiro, 506 U.S. at 539. Liles fails to point to a spe-
cific trial right that was compromised by the joint trial. Although
Liles may have played a smaller role in the conspiracy than some of
the other defendants, the record gives us no reason to believe that the
jury could not sort out the differences between the defendants. Fur-
thermore, the district court instructed the jury to consider each defen-
dant separately and not allow the verdict as to one defendant control
the verdict as to another. Such an instruction assists in "cur[ing] any
risk of prejudice." Id.

Accordingly, we conclude that the district court did not abuse its
discretion in denying Liles's motion to sever.

III.

In conclusion, we vacate Jones's sentence and remand for resen-
tencing in accordance with the statutory maximum for the least-

12
punished object of the conspiracy (distribution of marijuana). In all
other respects, we affirm the convictions and sentences of the defen-
dants.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

13