Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-25-2008
USA v. Scott
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4335
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Scott" (2008). 2008 Decisions. Paper 1535.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1535
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4335
____________
UNITED STATES OF AMERICA
v.
TARELL SCOTT, a/k/a AMSU WALTON,
Appellant.
____________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00113)
District Judge: Legrome D. Davis
____________
Submitted Under Third Circuit LAR 34.1(a)
December 10, 2007
Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.
(Filed: February 25, 2008 )
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Appellant Tarell Scott challenges his conviction on several drug-related charges,
arguing that the District Court erred when it denied his pretrial motions for misjoinder
and severance. We will affirm.
I.
Because we write for the parties, we recount only the facts essential to our
decision. The gravamen of Scott’s appeal is that the District Court erred in conducting
one trial on drug and weapons charges that arose out of different transactions at different
times. Scott was charged with four counts related to dealings with his co-defendant,
Milton Shabazz, in late 2004 and April 2005.1 Scott also was charged with three drug and
weapons violations arising out of a February 16, 2005 incident that did not involve
Shabazz.2 Before trial, Scott argued that the counts arising out of the February 16, 2005
incident were misjoined pursuant to Rule 8 and should be severed pursuant to Rule 14 of
the Federal Rules of Criminal Procedure. The District Court denied the motion and Scott
was convicted on those counts, but he was acquitted on all four counts related to Shabazz.
II.
Scott claims that the District Court committed legal error when it denied his
motion for misjoinder under Rule 8. This argument fails for at least three independent
reasons. First, although the parties focus their briefs on Rule 8(a), our precedents
demonstrate that Rule 8(b) controls multi-defendant cases. United States v. Irizarry, 341
1
Count II (conspiracy to distribute more than 50 grams of crack); Count III
(distribution of cocaine); Count IV (distribution of cocaine); and Count V (attempted
distribution of more than 50 grams of cocaine).
2
Count VI (possession of crack with intent to distribute); Count VIII (possession
of a firearm in furtherance of a drug-trafficking crime); and Count X (felon in possession
of a firearm).
2
F.3d 273, 287 (3d Cir. 2003). Scott failed to brief this issue and “[i]t is well settled that
an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver
of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).3
Second, even assuming that Scott presented a viable argument under Rule 8(a), it is
beyond cavil that the drug and weapons charges stemming from Scott’s February 2005
arrest for distribution of crack cocaine are of “similar character” to the drug charges
stemming from his activities with Shabazz. See Fed. R. Crim. P. 8(a). Finally, had the
District Court erred in denying Scott’s Rule 8 motion, it would have been harmless error
because Scott cannot show prejudice. See Irizarry, 341 F.3d at 287.4
Scott next argues that even if joinder had been proper, the District Court abused its
discretion in trying him on both the 2004 and 2005 conduct. When “the joinder of
offenses . . . 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 . . .
3
Although Scott twice references Rule 8 without identifying either subsection of
that rule, each of his substantive arguments is confined to Rule 8(a). “[A] passing
reference to an issue will not suffice to bring that issue before this court.” United States
v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006).
4
Scott’s dealings with Shabazz would have been admissible under Rule 404(b) of
the Federal Rules of Evidence. See, e.g., United States v. Boone, 279 F.3d at 163, 187
(3d Cir. 2002); see also United States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001).
Moreover, the evidence of Scott’s guilt was overwhelming. See Comer v. Schriro, 480
F.3d 960, 985 (9th Cir. 2007) (en banc) (citing authorities for the proposition that
erroneous misjoinder is not prejudicial when there is strong evidence of guilt, such
evidence would be cross-admissible, and where the jury is given a limiting instruction).
3
or provide any other relief that justice requires.” See Fed. R. Crim. P. 14(a); see also
Zafiro v. United States, 506 U.S. 534, 538 (1993). On appeal, we
must first determine from the record, as it existed when the motion was
made, what trial developments were then reasonably foreseeable, and in that
light decide whether the district court abused its discretion in denying the
severance motion. We must also balance the public interest in joint trials
against the possibility of prejudicial joinder. Princip[les] of judicial
economy often favor a joint trial when a conspiracy is charged.
See United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (citations omitted). The
Supreme Court has expressed a preference for joint trials for defendants who are indicted
together. See Zafiro, 506 U.S. at 537. “An appellant’s burden is heavy: he must
demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.” United
States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991) (citation, alterations, and internal
quotation marks omitted). “It is not sufficient for [an appellant] merely to allege that
severance would have improved his chances for acquittal.” Id. (citation omitted).
The record in this case demonstrates that even if the District Court abused its
discretion in denying Scott’s Rule 14 motion for a severance, Scott cannot meet his heavy
burden of demonstrating “clear and substantial prejudice” from the joint trial of the
offenses against him. See id. We reach this conclusion for several reasons. First, the
District Court gave the jury proper instructions to enable it to compartmentalize the
evidence, not only between Scott and Shabazz, but among the individual counts. Such
instructions have been held to cure any prejudice. See United States v. Lore, 430 F.3d
190, 205-06 (3d Cir. 2005). Second, we presume that the jury followed these instructions,
4
see id. at 206, and the verdict fortifies that presumption in this case. By convicting Scott
only on the February 2005 conduct while acquitting him of the late 2004 and April 2005
conduct, the jury demonstrated that it compartmentalized the evidence. See United States
v. Sandini, 888 F.2d 300, 307 (3d Cir. 1989). Third, we have held that the cross-
admissibility of Rule 404(b) evidence militates against a finding of prejudice. See United
States v. Gorecki, 813 F.2d 40, 42-43 (3d Cir. 1987). Finally, we note that the evidence
against Scott on the charges of which he was convicted was strong, if not overwhelming.
As his own attorney admitted, the evidence against Scott was “much stronger with regard
to the February . . . 2005 case.” Thus, we cannot say that Scott has met his heavy burden
of proving “clear and substantial prejudice.” See Eufrasio, 935 F.2d at 568.
III.
For the foregoing reasons, we will affirm the order of the District Court.
5