___________ 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 H oward Koskela appeals his conviction for conspiracy, theft of firearms, and bein g a felon in possession of a firearm in violation of 18 U.S.C. §§ 371, 922, and 924. We affirm.

I.

In Febr uary 1994, Floyd Shulze, who was free on bond from previou s federa l firearms violations, conceived a plan to burglarize the Dakot a Lawman Supply Company (Dakota Lawman), a federally licensed firearms deale r in Bi smarck, North Dakota. Shulze proposed this scheme to Koskela an d 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 a n 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, Dako ta 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

. Shu lze was charged with all ten counts, Koskela with four -- theft o f 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 agree ment, Dokken testified to the details of the burglary. Sh e 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 the n drove the pickup to Dakota Lawman while Dokken waited in the van at a rendezvous point outside Bismarck. Approximately fifteen minutes later, Shulze an d Koskela arrived. Shulze drove the stolen pickup into a sno w bank and then loaded four to five duffle bags from the pickup into the van

. The g roup then returned to their hotel, where they examined the stole n firearms.

Dokken further testified that she, Shulze, and Koskela next rente d
a Ponti ac Grand Am and drove to Colorado, where Shulze met with a thir d 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 o f cocaine. Shulze gave Dokken and Koskela a portion of the cocaine for thei r 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 Koskel a's friend, who testified that after the burglary he saw a gun in a bag of clothes belonging to Koske la and that he and Koskela had had a conversation in which Koskela admitted involvement in th e burglary.

### -3- As the ju rors 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 counse l and the defendants, the district judge entered the jury room and instructe d 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 pre judice the other defendant in this action. And, i f pos sible, please keep in mind that this is a high-tensio n proces s for a defendant who has had to sit and listen t o 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 s o that the incident does not taint the result and cau se a problem to me in the future. So, please, understand the tension that people are under and possibly also understand that sometime s 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 hi m
on the charge of being a felon in possession of a semi-automatic weapon. The distr ict court denied Koskela's motion for a new trial based o n Shulze' s outburst and the district court's instruction to the jury i n Koskela's absence.

II.

The dec ision whether to grant a mistrial is committed to the soun d 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).

### -4- Koskela's claims of prejudice are tw o-fold. First he argues that he
was preju diced by Shulze's statement and conduct. As a general rule, a cautionary instruction advising the jury not to allow a disruptive co

defe ndant's behavior to impact the decision regarding other defendant s affords sufficient pr otection against undue prejudice. See United States

v. Brow n , 605 F.2d 389, 392 (8th Cir. 1979), cert. denied , 444 U.S. 97 2 (1979); U nited States v. Smith , 578 F.2d 1227, 1236 (8th Cir. 1978 ) (cautionary instructi on 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 State s v. Marshall , 458 F.2d 446, 448-452 (2d Cir. 1972) (cautionary instruction sufficient to cure pr ejudice when defendant hurled a water pitcher at the prosecutor, threw a chair toward the jury, cut his wrists with a razo r bla de, and directed obscenities and accusations toward the court , witnesses, and the prosecutor). We must assume that the jury followed suc h
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 th e 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 properl y conside ring each charge against each defendant. See United States v

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

Koskela's next contention concerns the method rather than th e substa nce of the district court's instruction. Specifically, he argue s that the district court's ex parte communication with the jury wa s prejudicial error. Indeed, communications between judge and jury in the abs ence of the defendant and his counsel are improper and presumptivel y prejudicial. This presumption may be overcome, however, by a clea r indication of an abse nce 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 distric t court's cautionary in struction in this case should have been given in the presence of the defen dants, 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 distric t court erred in so doing. The nature of the instruction was not prejudicial, however. Indeed, the instru ction's purpose and presumed effect were to prevent any potentia l prejudice. Cf. Dockt er , 58 F.3d at 1288 (finding no prejudice in court's
ex parte instruction to jury concerning the meaning of "knowingly," when instru ction 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.

Ko skela next claims that the district court erred in refusing t o bifurcate the felon-in-possession charge. Speci fically, Koskela urged the court to exclude evidence of his prior criminal record until the jury firs t found tha t he had possessed a firearm. We reject this argument. Se e United States v. Dean , 76 F.3d 329, 332 (10th Cir. 1996) (holding tha t 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. Birdson g , 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-in

possession charge is impermissible), cert. denied , 116 S. Ct. 222 (1995); United St ates v. Barker , 1 F.3d 957, 959 (9th Cir. 1993) (same); Unite d States v. Collamore , 868 F.2d 24, 28 (1st Cir. 1989) (same).

### -6- IV.

We next address Koskela's claim that the district court erred i n denying his motion fo r severance of his trial from Shulze's. To obtain a reversal, Koskela mus t show that the district court abused its discretion in denying the severance motion and that the ref usal resulted in severe or compelling prejudice. United States v. Rimell , 21 F.3d 281, 289 (8t h Cir.), cert. denied , 115 S. Ct. 453 (1994). Severe prejudice occurs when
a defendant is deprived of an appreciable chance for an acquittal, a chanc e that he would have had in a severed trial. Unit ed 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 t he 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 th e evidence against two defendants does not entitle one to severance. United States v. Pecina , 956 F.2d 186, 188 (8th Cir. 19 92). Rather, to establish prejud ice Koskela must prove either that his defense was irreconcilabl e with Shulze's or that the jury was incapable of compartmentalizing th e evidence as it related to the two defendants. U nited States v. Gutberlet , 939 F.2d 643, 645 (8th Cir. 1991).

We find no prejudice in this case. Koskela's defense that if h e partici pated at all it was as a drug-addicted pawn, blindly followin g 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 firearm s theft. If anything, Shulze's defense bolstered Koskela's claim o f innoce nce. Koskela has also failed to convince us that the jury wa s incapa ble of compartmentalizing the evidence. As we have state d previously,

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Koske la's acquittal on one count demonstrates that the overwhelmin g evidence against Shulze did not prevent the jury from carefully considerin g each clai m against each defendant. See United States v. Long , 977 F.2 d 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 eac h count. Thus, the dis trict court did not abuse its discretion in refusing to grant Koskela's severance motion.

V.

Koskela argues that the evidence is insufficient to sustain hi s conviction. On appeal, we review the evidence i n the light most favorable to the government, giving it the benefit of all reasonable inferences that may be drawn from the evidence. See United Stat es v. Quintanilla , 25 F.3d 694, 699 (8th Cir.), cert. denied , 115 S. Ct. 457 (1994).

After r eviewing the record in light of this standard, we find mor e than s ufficient evidence to support Koskela's conviction on each count

. Dokken's testimony ti ed Koskela to each step of the conspiracy. Although she did not see Koskela break into Dakota Lawman, her testimony tha t Koskela was present when the plan was discussed, that he accompanied Shulz e to Dakota Lawman on the night of the burglary, that he arrived shortl y th ereafter with a truck full of stolen firearms, and that he wa s compensated with cocaine for his role in the burglary was sufficient t o allow the jury to infer that Koskela conspired t o break into Dakota Lawman and steal firearms, a nd that, at the very least, he aided and abetted the theft. S ee 18 U.S.C. §§ 2 (aider and abettor punishable as principal)

. Moreover, this is not a case of uncorroborated c o-defendant testimony. In addition to the testimony of Koskela's friend and Koskela's uncle, th e det ails of Dokken's testimony were supported by abundant evidence. Fo r 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 an y of the sixty stolen firearms, sufficient circums tantial 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 unde r § 922(g) can be based on constructive or joint possession), cert. denied , 114 S. Ct. 241 (1993).

VI.

Ko skela's final argument that his sentence was improperly enhance d
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.