___________

No. 95-2829

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Kenneth Howard Koskela, *

*

Appellant. *

___________

 Submitted: March 12, 1996

 Filed: June 10, 1996

___________

Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Kenneth Howard Koskela appeals his conviction for conspiracy, theft

of firearms, and being a felon in possession of a firearm in violation of

18 U.S.C. §§ 371, 922, and 924. We affirm.

I.

In February 1994, Floyd Shulze, who was free on bond from previous

federal firearms violations, conceived a plan to burglarize the Dakota

Lawman Supply Company (Dakota Lawman), a federally licensed firearms dealer

in Bismarck, North Dakota. Shulze proposed this scheme to Koskela and

Susan Dokken, Shulze's girlfriend, as a means to replenish their exhausted

cocaine supply. Both Shulze and Koskela had prior burglary convictions.

At 10:24 p.m., on February 24, 1994, a 911 operator received an

emergency call from a man who would not give his name. The caller falsely

reported a car accident east of Bismarck. Shortly 
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after that call, Dakota Lawman, located on the west side of Bismarck, was

burglarized and sixty handguns were stolen. 

Shulze and Koskela were tried together on a ten-count indictment.

Shulze was charged with all ten counts, Koskela with four -- theft of

firearms, conspiracy, being a felon in possession of a firearm, and being

a felon in possession of a semi-automatic weapon. In accordance with her

plea agreement, Dokken testified to the details of the burglary. She

stated that on the night of the burglary Shulze stole a white pickup truck

while she and Koskela waited in Shulze's van. Koskela and Shulze then

drove the pickup to Dakota Lawman while Dokken waited in the van at a

rendezvous point outside Bismarck. Approximately fifteen minutes later,

Shulze and Koskela arrived. Shulze drove the stolen pickup into a snow

bank and then loaded four to five duffle bags from the pickup into the van.

The group then returned to their hotel, where they examined the stolen

firearms. 

Dokken further testified that she, Shulze, and Koskela next rented

a Pontiac Grand Am and drove to Colorado, where Shulze met with a third

party while Koskela and Dokken waited in a bar. When Dokken and Koskela

returned to their hotel room, they noticed that the duffle bags were gone.

Shulze explained that he had traded the guns for six or seven ounces of

cocaine. Shulze gave Dokken and Koskela a portion of the cocaine for their

part in the burglary. The three then returned to Fargo, North Dakota,

where Koskela split from the group. Two firearms were brought back from

Colorado; Koskela kept one and Shulze the other. 

Dokken's testimony was corroborated by several witnesses, including

Koskela's uncle, who testified that the voice on the 911 call sounded like

Koskela's, and Koskela's friend, who testified that after the burglary he

saw a gun in a bag of clothes belonging to Koskela and that he and Koskela

had had a conversation in which Koskela admitted involvement in the

burglary.
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As the jurors were retiring to deliberate, Shulze picked up a water

pitcher from the defense table, yelled "you'd better [expletive] convict

us both," and threw the pitcher at the jury, striking one juror on the arm.

The prosecutor requested that the court instruct the jury to disregard the

incident; Koskela's counsel moved for a mistrial. 

Immediately following this incident, and in the absence of counsel

and the defendants, the district judge entered the jury room and instructed

the jury as follows:

Please, try to put that out of your mind. I am concerned that

you might be so upset at what was done and said that you will

prejudice the other defendant in this action. And, if

possible, please keep in mind that this is a high-tension

process for a defendant who has had to sit and listen to

counsel describe and listen to me lay out rules of law, and I

am -- I'm almost begging you to put this out of your mind so

that the incident does not taint the result and cause a problem

to me in the future. So, please, understand the tension that

people are under and possibly also understand that sometimes

people do things for a purpose that we don't always appreciate.

The jury convicted Koskela on the charges of theft of firearms,

conspiracy, and being a felon in possession of a firearm. It acquitted him

on the charge of being a felon in possession of a semi-automatic weapon.

The district court denied Koskela's motion for a new trial based on

Shulze's outburst and the district court's instruction to the jury in

Koskela's absence.

II.

The decision whether to grant a mistrial is committed to the sound

discretion of the district court, and we will reverse only if we find an

abuse of discretion resulting in clear prejudice. United States v. Miller,

995 F.2d 865, 866 (8th Cir.), cert. denied, 114 S. Ct. 618 (1993).
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Koskela's claims of prejudice are two-fold. First he argues that he

was prejudiced by Shulze's statement and conduct. As a general rule, a

cautionary instruction advising the jury not to allow a disruptive codefendant's behavior to impact the decision regarding other defendants

affords sufficient protection against undue prejudice. See United States

v. Brown, 605 F.2d 389, 392 (8th Cir. 1979), cert. denied, 444 U.S. 972

(1979); United States v. Smith, 578 F.2d 1227, 1236 (8th Cir. 1978)

(cautionary instruction was sufficient to prevent any prejudice caused by

co-defendant's interjections throughout trial that testimony was "a

[expletive] lie" and that proceedings were "kangaroo court"); United States

v. Marshall, 458 F.2d 446, 448-452 (2d Cir. 1972) (cautionary instruction

sufficient to cure prejudice when defendant hurled a water pitcher at the

prosecutor, threw a chair toward the jury, cut his wrists with a razor

blade, and directed obscenities and accusations toward the court,

witnesses, and the prosecutor). We must assume that the jury followed such

an instruction. See United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.

1995) (jury is presumed to have followed judge's instructions). In this

case, the district court's instruction cautioning the jury to disregard the

incident was adequate to mitigate any potential prejudice. Moreover, the

jury's acquittal of Koskela on one count indicates that the incident was

not so overwhelming so as to render the jury incapable of properly

considering each charge against each defendant. See United States v.

Caldwell, ___ F.3d ___, ___ (8th Cir. 1996), No. 95-3155, slip op. at 4

(May 3, 1996).

Koskela's next contention concerns the method rather than the

substance of the district court's instruction. Specifically, he argues

that the district court's ex parte communication with the jury was

prejudicial error. Indeed, communications between judge and jury in the

absence of the defendant and his counsel are improper and presumptively

prejudicial. This presumption may be overcome, however, by a clear

indication of an absence of prejudice. United States v. Dockter, 58 F.3d

1284, 1287 (8th Cir. 
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1995), cert. denied, 116 S. Ct. 932 (1996). Without question, the district

court's cautionary instruction in this case should have been given in the

presence of the defendants, their attorneys, and the prosecutor. We have

frequently held that it is error to instruct the jury outside the presence

of the defendant and counsel. Thus, the district court erred in so doing.

The nature of the instruction was not prejudicial, however. Indeed, the

instruction's purpose and presumed effect were to prevent any potential

prejudice. Cf. Dockter, 58 F.3d at 1288 (finding no prejudice in court's

ex parte instruction to jury concerning the meaning of "knowingly," when

instruction provided accurate description of the law). We conclude,

therefore, that the error was not prejudicial but was harmless, and that

the district court did not err in denying the motion for new trial.

III.

Koskela next claims that the district court erred in refusing to

bifurcate the felon-in-possession charge. Specifically, Koskela urged the

court to exclude evidence of his prior criminal record until the jury first

found that he had possessed a firearm. We reject this argument. See

United States v. Dean, 76 F.3d 329, 332 (10th Cir. 1996) (holding that

defendant is not entitled to bifurcation of felon-in-possession charge);

United States v. Jacobs, 44 F.3d 1219, 1222 (3d Cir.) (same), cert. denied,

115 S. Ct. 1835 (1995); United States v. Birdsong, 982 F.2d 481, 482 (11th

Cir.) (same), cert. denied, 508 U.S. 980 (1993); see also United States v.

Milton, 52 F.3d 78, 80-81 (4th Cir.) (holding that bifurcation of felon-inpossession charge is impermissible), cert. denied, 116 S. Ct. 222 (1995);

United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993) (same); United

States v. Collamore, 868 F.2d 24, 28 (1st Cir. 1989) (same). 
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IV.

We next address Koskela's claim that the district court erred in

denying his motion for severance of his trial from Shulze's. To obtain a

reversal, Koskela must show that the district court abused its discretion

in denying the severance motion and that the refusal resulted in severe or

compelling prejudice. United States v. Rimell, 21 F.3d 281, 289 (8th

Cir.), cert. denied, 115 S. Ct. 453 (1994). Severe prejudice occurs when

a defendant is deprived of an appreciable chance for an acquittal, a chance

that he would have had in a severed trial. United States v. Blum, 65 F.3d

1436, 1443 (8th Cir. 1995), cert. denied, 116 S. Ct. 824 (1996). 

Koskela points to the disparity in the evidence, arguing that the far

more damaging evidence against Shulze spilled over to taint the jury's

consideration of Koskela's guilt. We have held that conspiracy defendants

generally should be tried together; a simple disparity in the weight of the

evidence against two defendants does not entitle one to severance. United

States v. Pecina, 956 F.2d 186, 188 (8th Cir. 1992). Rather, to establish

prejudice Koskela must prove either that his defense was irreconcilable

with Shulze's or that the jury was incapable of compartmentalizing the

evidence as it related to the two defendants. United States v. Gutberlet,

939 F.2d 643, 645 (8th Cir. 1991). 

We find no prejudice in this case. Koskela's defense that if he

participated at all it was as a drug-addicted pawn, blindly following

Shulze's directions in order to obtain more drugs, is not irreconcilable

with Shulze's apparent defense of actual innocence. In fact, Shulze's

attorney attempted to cast doubt on the defendants' guilt by offering a

theory that Dakota Lawman employees were responsible for the firearms

theft. If anything, Shulze's defense bolstered Koskela's claim of

innocence. Koskela has also failed to convince us that the jury was

incapable of compartmentalizing the evidence. As we have stated

previously, 
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Koskela's acquittal on one count demonstrates that the overwhelming

evidence against Shulze did not prevent the jury from carefully considering

each claim against each defendant. See United States v. Long, 977 F.2d

1264, 1274 (8th Cir. 1992) (acquittal on one count demonstrates jury's

ability to compartmentalize evidence). Moreover, as we discuss below, the

record reveals ample evidence supporting Koskela's conviction on each

count. Thus, the district court did not abuse its discretion in refusing

to grant Koskela's severance motion. 

V.

Koskela argues that the evidence is insufficient to sustain his

conviction. On appeal, we review the evidence in the light most favorable

to the government, giving it the benefit of all reasonable inferences that

may be drawn from the evidence. See United States v. Quintanilla, 25 F.3d

694, 699 (8th Cir.), cert. denied, 115 S. Ct. 457 (1994).

After reviewing the record in light of this standard, we find more

than sufficient evidence to support Koskela's conviction on each count.

Dokken's testimony tied Koskela to each step of the conspiracy. Although

she did not see Koskela break into Dakota Lawman, her testimony that

Koskela was present when the plan was discussed, that he accompanied Shulze

to Dakota Lawman on the night of the burglary, that he arrived shortly

thereafter with a truck full of stolen firearms, and that he was

compensated with cocaine for his role in the burglary was sufficient to

allow the jury to infer that Koskela conspired to break into Dakota Lawman

and steal firearms, and that, at the very least, he aided and abetted the

theft. See 18 U.S.C. §§ 2 (aider and abettor punishable as principal).

Moreover, this is not a case of uncorroborated co-defendant testimony. In

addition to the testimony of Koskela's friend and Koskela's uncle, the

details of Dokken's testimony were supported by abundant evidence. For

example, a motel employee 
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testified that Koskela registered at the motel identified by Dokken; a

friend of Shulze's testified to having rented a Grand Am for Shulze; and

a stolen white pickup truck was discovered as Dokken had described.

Finally, although no direct evidence was offered that Koskela possessed any

of the sixty stolen firearms, sufficient circumstantial evidence supported

a finding of constructive or joint possession, if not actual possession.

See United States v. Boykin, 986 F.2d 270, 274 (8th Cir.) (conviction under

§ 922(g) can be based on constructive or joint possession), cert. denied,

114 S. Ct. 241 (1993). 

VI.

Koskela's final argument that his sentence was improperly enhanced

as an armed career offender pursuant to 18 U.S.C. § 924(e) is foreclosed

by Dockter, 58 F.3d at 1289. 

Koskela's conviction and sentence are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.