* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30630

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DEVAUGHAN SMITH

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:06-CR-00325

Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

Devaughan Smith was convicted in a jury trial on one count of selling

crack and on one count of using a telephone in connection with a murder-for-hire

plot. On appeal, Smith contends that his drug and murder-for-hire charges

should not have been tried together; that the jury should have been required to

make a unanimous finding as to whose murder he allegedly planned; and that

he should have had more time to prepare pre-trial after the government

United States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2008

Charles R. Fulbruge III

Clerk
No. 07-30630

1 Rule 8(a) provides: “The indictment or information may charge a defendant in

separate counts with 2 or more offenses if the offenses charged—whether felonies or

misdemeanors or both—are of the same or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a common scheme or plan.”

2 Rule 14(a) provides: “If the joinder of offenses or defendants 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, sever the defendants’ trials, or provide any other

relief that justice requires.”

3 United States v. Singh, 261 F.3d 530, 533 (5th Cir. 2001) (quoting United States v.

Bullock, 71 F.3d 171, 174 (5th Cir. 1995)) . 

4 United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980).

2

unexpectedly added the drug countin a superseding indictment. For the reasons

that follow, we affirm.

1. Smith first argues that his drug and murder-for-hire charges never

should have been tried together. Smith argues that the two counts

did not meet the test for joinder under Rule 8(a) of the Federal

Rules of Criminal Procedure.1 And he argues that even if the

charges could have been joined together, they shouldn’t have been

because Rule 14(a) of the Federal Rules of Criminal Procedure

required severance.2 The district court rejected both arguments in

denying Smith’s motion to sever. We review the denial of a motion

to sever for an abuse of discretion, and we will not reverse the

district court’s decision “unless there is ‘clear, specific and

compelling prejudice that resulted in an unfair trial.’”3 This places

a “heavy burden” on the defendant.4 Smith has not met that

burden. 

There was a logical relationship between Boyd’s role as the

informant in the August 16 crack sale and the victim Smith sought

to have killed. Furthermore, Smith cannot show that his defense to

his drug charge was so prejudiced by having the murder-for-hire
No. 07-30630

5 See United States v. Wise, 221 F.3d 140, 153 (5th Cir. 2000) (determining that a

prosecutor’s improper statements were not so prejudicial as to require a new trial in light of,

among other things, the strong evidence of the defendant’s guilt and the judge’s limiting

instructions). 

6 United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995) (“Any possible prejudice

[from improper joinder] could be cured with proper instructions and juries are presumed to

follow their instructions.”). 

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charge tried at the same time as to result in an unfair trial. The

gist of Smith’s claim is that by trying the two charges together, the

government was allowed to introduce rampant evidence of Smith’s

drug dealing. That evidence was only relevant to Smith’s murderfor-hire charge, Smith argues, and it would have been inadmissible

in a trial that dealt solely with his drug charge. Because the jury

heard evidence of his drug dealing, Smith concludes, it is likely that

the jury did not convict him on the drug count based on the evidence

that the government adduced pertaining specifically to his August

16 drug sale, but instead made an improper inference that because

Smith is a drug dealer, he must have dealt drugs on August 16. 

The government, however, was able to produce strong

evidence of Smith’s guilt on the drug charge through Detective

Treigle’s testimony. That strong evidence sharply cuts against

Smith’s claim that the allegedly improper evidence of drug dealing

affected the jury’s verdict on his drug charge.5 Moreover, the

district court was able to lessen the potential unfairly prejudicial

impact of the drug dealing by instructing the jury of its limited

relevance.6 Thus, Smith cannot show that he was denied a fair trial.

2. Smith next contends that the jury should have been required to

make a unanimous finding as to whose murder he allegedly

planned. According to Smith, the evidence was equivocal whether
No. 07-30630

4

Smith wanted Boyd dead, Brown dead, or both of them dead. The

jury was not required to make any finding (unanimous or otherwise)

regarding who Smith intended to kill. Because Smith did not object

to the jury instruction’s on this basis, our review is for plain error.

There was no plain error here. 

Smith was charged under 18 U.S.C. § 1958(a), which provides

the following:

Whoever . . . uses or causes another (including the

intended victim) to use . . . any facility of interstate or

foreign commerce, with intent that a murder be

committed in violation of the laws of any State or the

United States as consideration for the receipt of, or as

consideration for a promise or agreement to pay,

anything of pecuniary value . . . .

This language tracks the language in the jury charge. 

Smith is not clear about which portion of the statutory

language would require a finding on the identity of the victim. It

would appear that he teases this requirement out of the portion of

the statutory language that states that the defendant must have an

“intent that a murder be committed in violation of the laws of any

State or the United States . . . .” But to the extent that this

language does require a finding on the identity of the victim, the

jury was instructed on that precise language and found Smith

guilty. In other words, to the extent that statutory language can be

read to require a finding on the victim’s identity, since the jury was

presented with this very language and unanimously found the

defendant guilty, the jury implicitly unanimously agreed on the

identity of the victim. 

3. Smith’s last contention is that the district court erred when it

denied his motion for a continuance after the government filed a
No. 07-30630

7 United States v. German, 486 F.3d 849, 854 (5th Cir.), cert. denied, 128 S. Ct. 649

(2007).

5

superseding indictment that added the drug charge based on the

events thattook place atthe August 16 drug sale.“Trial judges have

broad discretion in deciding requests for continuances, and we

review only for an abuse of that discretion resulting in serious

prejudice.”7 There was no abuse of discretion here. 

Smith first argues that he was entitled to a continuance

because he needed more time to investigate the evidence

surrounding the August 16 drug sale. During the suppression

hearing, however, Smith was given the opportunity to explore the

incident with the government’s witness. Moreover, Smith had been

given notice, even before the superseding indictment had been filed,

that the August 16 drug sale would be raised during trial. Given

that, the district court was within its discretion to deny the motion

for continuance. 

Smith also argues that he was entitled to a continuance

because on the day of the trial, he told the court he wished to retain

private counsel but that private counsel would need additional time

to prepare. Smith argues that denying him the continuance had the

effect of denying him his constitutional rightto counsel of his choice.

Given that Smith did not explain to the district court why he wished

to retain new counsel or why he waited until the morning of trial to

bring this up, the district court was within its discretion to deny the

motion for continuance. Moreover, Smith was not denied his

constitutional right to counsel given the last-second nature of his
No. 07-30630

8 See Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988) (noting

that a defendant’s constitutional right to counsel of his choice is not boundless). 

6

invocation of his right and given his lack of explanation to the

district court for his tardy request.8

AFFIRMED. Motion to supplement the record is DENIED.