UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4430

SHIRLEY JONES,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4434

SHEILA JONES,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4437

ELLA JONES,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-95-19)

Argued: January 31, 1997

Decided: March 21, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ,

Circuit Judges.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas William Kupec, MICHAEL & KUPEC, Clarksburg, West Virginia; Stephen Sean Murphy, Morgantown, West Virginia, for Appellants. William D. Wilmoth, United States Attorney,

Wheeling, West Virginia, for Appellee. ON BRIEF: Patricia H.

Stiller, Morgantown, West Virginia, for Appellant Shirley Jones.

Thomas O. Mucklow, Assistant United States Attorney, Wheeling,

West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Shirley Jones, Ella Jones, and Sheila Jones of

distribution and sale of crack cocaine and related food stamp fraud.

They

appeal, asserting several trial and pre-trial errors. Finding no

reversible error, we affirm.

I.

Shirley, Ella, and Sheila Jones each sold crack cocaine to Veronica

("Sissy") Jones. Ella Jones was Sissy's aunt and the source of all

the

drugs at issue here; Shirley and Sheila Jones were Sissy's cousins.

At

the time of the sales, Sissy acted as a confidential informant for

the

local police department, which provided her equipment to tape

record

the sales. Those tapes and Sissy's testimony constituted most of

the

evidence at trial.

2
In the face of vigorous cross-examination by defense counsel on

her drug habits, her propensity for lying, and her statements in

church

and to her mother that she had not bought the drugs from her relatives, Sissy affirmed that she bought cocaine from Ella and Sheila

in

exchange for food stamps and from Shirley for cash. Sissy emphatically asserted that "I am not lying myself out of this." "I am

being

honest to everyone here," she continued, and"[n]o one put nothing

in

my mouth to say such and so to no one." She explained that "[t]hey

already called me a snitch and everything at home. . . . They don't

want them to go to jail." Defense counsel specifically explored the

circumstances under which Sissy had become an informant: police

had picked her up for prostitution, and had told her she had the

choice

of going to prison or assisting them in drug enforcement efforts.

When she agreed to cooperate she was not charged with the prostitution offense.

After the jury had convicted each of the defendants, Sissy

recanted.

The district court, nevertheless, refused to grant a new trial.

This

appeal followed.

II.

Defendants' principal claim on appeal is that Sissy's recantation

required a new trial.

Shortly after trial when defense lawyers learned that Sissy had

admitted to lying at the trial, they sent a private investigator to

Sissy's

home to videotape her recantation. Sissy asked for a lawyer, but

the

investigator told her not to worry, the interview would only help

her;

he also suggested that the police had acted wrongly in enlisting

her

as an informant. Defense counsel submitted the resulting videotape

to

the district court.

This new information prompted a hearing, during which the

defense called Sissy as a witness. Court-appointed defense counsel

advised Sissy to exercise her Fifth Amendment rights and not admit

to perjury. Except for responding "No" when asked whether she had

purchased drugs from Ella, she refused to answer any questions that

contradicted her trial testimony. But Sissy's pastor (her uncle by

marriage) testified that Sissy had confessed during an open church
service

3
to lying during the trial. After a detailed analysis, the court

determined that Sissy's trial testimony had been truthful, and the

recantation coerced by Sissy's family. The court therefore denied the

defense

motion for a new trial.

Two months later, the court received an audio tape that Sissy had

made to corroborate the earlier videotaped recantation. The court

held

another evidentiary hearing at which Sissy testified that she had

never

purchased drugs from any of the three defendants. She also

testified

that she had taken crack cocaine the morning before her appearance

at trial. Sissy explained that she had felt coerced by police

officers to

act as an informant and to attempt to purchase drugs from her relatives. She admitted, however, that she never informed the officers

that

she was not telling the truth about the taped encounters. Finally,

she

said her family had not exerted any pressure on her regarding the

trial.

The district court found that the recantation was substantive, (not

impeaching), material evidence, which defendants, exercising

reasonable diligence, could not have produced at trial and that, if true,

would

probably result in an acquittal. However, after weighing all the

evidence, the court was "convinced as the fact finder that [the later]

testimony is not credible and that the testimony at trial was credible

and,

therefore, there is nothing before this court that has convinced it

that

it should set aside the conviction of these three defendants and

order

a new trial in the case."

We review the lower court's refusal to grant a new trial for abuse

of discretion. United States v. Bynum, 3 F.3d 769, 773 (4th Cir.

1993).

The test in this circuit operates at two levels. First, there is a

general

test applicable to all types of newly-discovered evidence. "[A]

motion

for a new trial should be granted only if (1) the evidence is newly

discovered, (2) the movant exercised due diligence in discovering the
evidence, (3) the evidence is not merely cumulative or impeaching,

(4) the evidence is material to the issues, and (5) the evidence

would

probably result in an acquittal at a new trial." Id. at 774. The

district

court's findings indicate that Sissy's new testimony, if true,

satisfied

all of these requirements.

However, when the newly-discovered evidence is a witness' recantation, the court must apply an additional test."[A] new trial

should

4
be granted when: (a) [t]he court is reasonably well satisfied that

the

testimony given by a material witness is false[;] (b) [t]hat

without it

the jury might have reached a different conclusion (emphasis in

original)[; and] (c) [t]hat the party seeking the new trial was taken by

surprise when the false testimony was given and was unable to meet it

or did not know of its falsity until after the trial." United

States v.

Wallace, 528 F.2d 863, 866 (4th Cir. 1976) (citing Larrison v.

United

States, 24 F.2d 82, 87-88 (7th Cir. 1928)); United States v.

Carmichael, 726 F.2d 158 (4th Cir. 1984) (relying on Wallace factors). So long as trial testimony was true, a later recantation

cannot

justify a new trial.

The trial court made extensive comparisons of Sissy's differing

statements, meticulously analyzing her possible motivations and her

demeanor during her various appearances in court. Cf. United States

v. Carmichael, 726 F.2d at 159-60 (upholding district court finding

of false recantation where lower court made detailed review of

credibility factors). Ultimately, the court found Sissy's recantation

not to

be credible. "Findings of the district court made on a motion for

a

new trial based on newly discovered evidence should not be

disturbed

except for most extraordinary circumstances and unless it clearly

appears they are not supported by any evidence." Carmichael, 726

F.2d at 160. Here the trial court's findings that Sissy gave

credible

testimony at trial and not afterwards were supported by substantial

evidence. Because "[t]he failure to meet any of the [Wallace]

requirements is fatal," id. at 159, the court properly refused to grant a

new

trial.

III.

Shirley Jones contends that the district court erred in denying her

motion for severance. She relies on the fact that there was no tape

recording (the tape ran out) of the only crime for which she was

charged or convicted -- sale of crack to Sissy-- and that this sale

took place almost a month before most of the other charges in the

indictment and, unlike the other sales, was for cash and not food

stamps.

Defendants may only be joined in an indictment "if they are alleged
to have participated in the same act or transaction or in the same

5
series of acts or transactions constituting an offense or

offenses." Fed.

R. Crim. P. 8(b). In United States v. Whitehead , 539 F.2d 1023

(4th

Cir. 1976), we held that "[w]here the only nexus between two defendants joined for trial is their participation in similar offenses,

on different dates, with a common third defendant, the`same transaction'

or `series of transactions' test of Rule 8(b) is not satisfied and

joinder

is impermissible." Id. at 1026. Similarly, in United States v.

Chinchic,

655 F.2d 547 (4th Cir. 1981), we concluded that the trial of two

defendants should have been severed when the evidence indicated

that one defendant participated in a robbery with a certain group

of

individuals and the other defendant participated in a different

robbery

with that same group of individuals. See also United States v.

Lane,

474 U.S. 438, 450 (1986); Schaffer v. United States, 362 U.S. 511

(1960).

To join defendants in an indictment, the Government need not

"show that each defendant participated in every act or transaction

in

the series," or charge each defendant in each count. United States

v.

Santoni, 585 F.2d 667, 673 (4th Cir. 1978). However, it must

provide

evidence that all the drug sales were "so interconnected in time,

place

and manner as to constitute a common scheme or plan." Id. The government failed to do so here. Accordingly, the district court erred

in

refusing to grant Shirley's motion for severance. However, our

finding of misjoinder is subject to harmless error analysis. Lane, 474

U.S.

at 449. Shirley asserts that the "spillover effect" of the evidence

against her co-defendants prejudiced her. 1

"When there are few defendants and the trial court is aware of the

potential for prejudice, `the risk of transference of guilt over

the border of admissibility [may be] reduced to the minimum' by carefully

crafted limiting instructions with a strict charge to consider the

guilt

or innocence of each defendant independently. We cannot necessarily

`assume that the jury misunderstood or disobeyed' such

instructions."

Lane, 474 U.S. at 450 n.13 (alteration in original) (citations

omitted).
_________________________________________________________________

1 Shirley also claims that if Ella had not been simultaneously

facing

food stamp fraud charges, Ella would have testified that she never

sold

drugs to Shirley. However Shirley never made this claim in her

motion

for severance. Accordingly, it can hardly provide a basis for

concluding

that the denial of that motion was reversible error.

6
Here the district court carefully instructed the jury to examine

the evidence against each defendant individually. The court emphasized

that

"you must weigh the evidence as to each defendant separately, and

you may only find an individual defendant guilty of an offense . .

. if

the evidence presented with regard to said defendant establishes

guilt

beyond a reasonable doubt. You are not to infer that a particular

defendant is guilty of an offense as charged merely because you

believe one or more of the other defendants is guilty of a criminal

offense." Moreover, the tapes used against Ella and Sheila were

neither clear nor explicit--the jury relied heavily on the testimony

of

Sissy Jones. Therefore, the admission of the tape recorded evidence

against the other defendants did not have a "substantial and

injurious

effect" on Shirley's conviction. See Lane, 474 U.S. at 449. The

error

in refusing to grant the severance motion was harmless.

IV.

Defendants' remaining arguments are meritless.

First, they assert that the Government's failure to provide them

requested information regarding Sissy's medical treatment

constituted

reversible error. As defendants knew, Sissy suffered from a seizure

disorder that required her to take several medications; she had

also

been hospitalized because of her addiction to crack cocaine.

Suspecting Sissy was the Government's informant, defendants requested her

"medicinal and mental records." Although the Government never provided them, defendants obtained the records on their own initiative

before Sissy testified. Defendants assert that the Government's

failure

to produce the records violated their rights under Brady v.

Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150,

154 (1972). To prevail on such claims, a defendant must demonstrate

that "had the evidence been disclosed to the defense, the result of

the

proceeding would have been different." United States v. Hoyte, 51

F.3d at 1242 (citing United States v. Bagley, 473 U.S. 667, 682

(1985)).

Here, the defense obtained the records at the beginning of trial

and

cross-examined Sissy extensively on her drug abuse and psychiatric
problems. It is thus impossible to conclude that the Government's

failure to disclose the records meant that the "result of the

proceeding

7
would have been different." Although defendants claim that they

were

prejudiced because they did not obtain the records earlier, that

claim

must be rejected in view of the fact that the defendants did

receive the

records before Sissy testified and effectively cross-examined Sissy

regarding the records' content and accuracy. 2

Finally, defendants assert that the use of transcripts of the taped

meeting during trial was error. They claim that the tapes were

unintelligible and so the jury treated the transcripts themselves as

evidence.

The decision "to allow the use of transcripts to aid in the

presentation

of tape recorded evidence is within the district court's sound

discretion." United States v. Collazo, 732 F.2d 1200, 1203 (4th Cir.

1984).

In Collazo, we found that "repeated cautionary instructions cured

any

prejudice that might have resulted from discrepancies between tape

and transcript." See also United States v. Capers, 61 F.3d 1100,

1106

(4th Cir. 1995) (finding government transcript allowable as aid to

tape

when cross-examination possible, defense could have submitted their

own version, and court gave limiting instruction). Here, the court

repeatedly instructed the jury to rely on the tapes, not the

transcripts.

The defense was permitted to cross-examine government witnesses on

potential inaccuracies in transcription. In light of the standard

set in

Collazo and Capers, the district court did not abuse its discretion

in

allowing the government to use the transcripts.

AFFIRMED

_________________________________________________________________

2 Defendants' objection to the government's failure to deliver

transcripts of the taped meetings until four days prior to trial is, as

the district

court found, meritless for similar reasons.

8