### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2816

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Jimmy Vaughn, also known as * Jimmy Thompson, * * Appellant. *

___________ Submitted: February 10, 1997 Filed: April 17, 1997

___________ Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. 1

___________ BOWMAN, Circuit Judge.
Following a trial by jury, Jimmy Vau ghn was convicted of five counts of possessing with intent to distribute, and two counts of attempting to possess with intent t o distribute, controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994).

### The Honorable Donald J. Stohr, United States District Judge 2 

### for the Eastern District of Missouri.
-2- The District Court sentenced him to 240 months in prison. Vau ghn appeals, 2 and we affirm.

Because Vaughn does not challenge th e sufficiency of the evidence to supp ort his conviction, we need not relate in great detail the fact s underlying his case. Vaughn was convicted of possessing or attempting to possess different com binations of cocaine, cocaine base, and marijuana on four different occasions: February 1993, June 1994, May 1995, and Februar y 199 6. For sentencing purposes, the District Court attributed to Vaugh n approximately six kilograms of marijuana, two kilograms of cocaine, and 17 0 grams of cocaine base.
Vaughn’s first point on appeal concerns the application of the Speedy Trial Act ’s timing provisions, 18 U.S.C. § 3161 (1994). Vaughn wa s originally indicted on June 30, 1995, on two cou nts relating to possession of drugs in May 1995. Throughout the remainder of 1995, Vaughn retained two different private attorneys and obtained several continuances of his scheduled trial date. In November 1995, the court appointed a publi c def ender to represent Vaughn because his second retained attorney had a conflict of interest. On February 1, 1996, the grand jury returned a firs t superseding indictment against Vaughn, adding charges relating to incident s in June 1994 and Febr uary 1993. The trial was further postponed to April 1, 1996.

### -3- While Vaughn was free on bond, he wa s arrested again on February 23, 1996, for additional drug offenses. A second superseding indictmen t including these new charges followed on February 29, and Vaughn wa s arraigned on the new charges on March 5. A new retained attorney entered
an appearance on Vaughn’s behalf on March 19 and moved to continue th e trial date, citing the need for time to prepare for trial. As the April 1 trial date approached, counsel also raised the Speedy Trial Act objectio n we consider here. The District Court denied Vau ghn’s motion, and the case proceeded to trial, where Vaughn was convicted.
The parti cular subsection of the Speedy Trial Act with which we are concerned here provides: “Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date
on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.” 18 U.S.C. § 3161(c)(2) (1994)

. Vaughn argues that he did not appear through counsel in response to the ne w charges in the second superseding indictment until he was arraigned o n March 5, and he should not have been required to go to trial on April 1, less than thirty days later. We disagree.

A defendant is “not automatically entitled to a thirty-da y continuance” upon the filing of a superseding indictment. United States v. Simpson , 979 F.2d 1282, 1287 (8th Cir. 1992) (involving addition of new charge to indictment before trial), cert. denied , 507 U.S. 943 (1993); see also United States v. Rojas-Contreras , 474 U.S. 231, 234 (1985) (involving minor correction of indictment before trial); United States v. Punelli , 89 2 F.2d 1364, 1369 (8th

### -4-

Cir. 1 990) (involving addition of new charges to indictment befor e retri al); United States v. Reynolds , 781 F.2d 135, 137 (8th Cir. 1986 ) (invo lving housekeeping amendment to indictment before retrial). A dist rict court has discretion to grant a continuance if the “ends o f justice” so require. 18 U.S.C. § 3161(h)(8)(A) (1994). We have previousl y recognized that a district court is not required to exercise its discretio n to grant a continuanc e unless the defendant would be prejudiced by a lack of time to prepare to meet the new charges in the superseding indictment. See Si mpson , 979 F.2d at 1287; Punelli , 892 F.2d at 1369; cf. Rojas

Contreras , 474 U.S. at 240-41 (Blackmun, J., concurring in the judgment) (“[A] continuance should be granted where there is a meaningful possibilit y that a superseding in dictment will require an alteration or adjustment in the planned defense.”).

We cannot conclude that the District Court abused its discretion in refusing to allow Vaughn another continuance of the trial. We note that Vaughn’ s trial did not start until twenty-seven days after his lates t arraignment and thirty-two days after the grand jury returned the latest indictmen t. We also recognize that Vaughn has not specified any way i n which he was prejudiced by the District Court’s action; he argues only tha t the new charges made the case more complex and that there was a possibilit y that his planned defense would have to be altered. But Vaughn now has bee n to trial and has been convicted. If he cannot now demonstrate actua l prejudice as a result of the District Court’s order, we can hardly conclud e that the District Court abused its discretion in issuing that order.

### -5- Nor does the last-minute appearance of Vaughn’s new retained at torney affect our analysis. The District Court took this issue into account and concluded that it did not tip the balance in fav or of another continuance:

The b elated entry of the retained counsel no w rep resenting defendant in no way supports a request for a continuance, given the length of these proceedings, the Court’s prev ious generosity to defendant in connection with hi s attempt s to retain counsel of his choosing, and counsel’ s knowled ge of the trial setting at the time of his entry o f appeara nce. Competent appointed counsel was in place an d prepared to try the case on the assigned docket.

Order at 7. In any event, a review of the trial transcript reveals that Vaughn’s new counsel was prepared to handle the charges of February 1996:
cou nsel effectively cross-examined the government’s witnesses an d introd uced testimony, including testimony of an agent of the Dru g Enforcement Agency, t hat was inconsistent with the government’s evidence. In light of these factors, we cannot agree with Vaughn that the appearance of new counsel requir es us to conclude that the District Court abused its discretion in denying a continuance.

Vaughn ra ises a double-jeopardy argument based on the forfeiture of $19,777 seized during his May 1995 arrest. He claims that he dropped his objection s to that forfeiture as part of an agreement with a polic e detective, who allegedly told Vaughn that he wou ld not be prosecuted if he assi sted the police and did not contest the forfeiture action. Thi s argument is foreclosed by United States v. Urser y , 116 S. Ct. 2135 (1996), in which the

### Vaughn also argues that the District Court’s conversion of 3 

### forfeited cash into equivalent drug quantities for sentencing purposes constituted double jeopardy. This argument is meritless, not only because it is wrong in principle following Ursery , but also because the District Court made no such conversion since it would not have affected Vaughn’s base offense level anyway.
-6- Supreme Court held that in rem civil forfeiture does not constitut e punishment for purposes of the Double Jeopardy Clause. See id. at 2142. Beca use Vaughn was not punished in the earlier forfeiture action, i t follows that his conviction in the instant case did not constitute a secon d punishment for the same offense. 3

Vaughn’s next argument is that the District Court erred in denyin g his motion to disqualify the United States Attorney’s office. Vaughn’ s theory below was that the Assistant United States Attorney was privy to a prior inconsistent statement made by a police officer and thereby became a material witness as to the officer’s credibility; as a material witness in the case, the Assi stant United States Attorney could not also serve as prosecutor. The District Court concluded that t his issue was moot because the officer admitted making the prior inconsistent statement, and we agree

. On appeal, Vaughn presents a different theory of disqualification, arguing that the Assistant United States Attorney was aware of the deal Vaugh n allegedly made with a police detective regarding the forfeiture of $19,777 and was therefore a material witness on that issue. Vaughn did not presen t this argument to the District Court, so it is not properly before us, and if he had, the Distri ct Court’s factual finding that no such deal existed would have ended the matter, subject only to appellate review for clea r error, which we do not find on this

### -7-

record. The argument is thus doubly doomed, and it affords Vaughn no basi s for relief.

Vaughn al so complains that the District Court abused its discretion in ad mitting evidence that he had accumulated assets that he placed i n other individuals’ names. We conclude that admi ssion of this evidence was error, but it was harmless error.
The evidence that Vaughn disguised his assets could be admissib le for
one of two purposes: as direct evidence of the crimes with which Vaughn
was charge d, or as evidence that Vaughn was engaged in other unsavor y activities at some other time. We conclude that neither of these purposes can justify admission of this evidence in the circumstances of this case.
Near the beginning of the trial, the government presented four women, each of whom testified that Vaughn took her to a car dealer (or a motorcycle dealer, in one case), where he purchased a vehicle but asked he r to title it in her name. Afterwards, each testified, she rarely if ever
saw the v ehicle again. All of these transactions took place befor e February 1993, the da te of the first possession incident involved in this case, and the vehicles involved had no discernib le connection to the drugs Vaughn was charged with possessing. (Accordingl y, we are unable to fathom any way in which this evidence was directly probative of an issue in this case.) The prosecuto r evidently planned to have a police officer testify that drug dealers commonly title assets in other s’ names, but he neglected to elici t that testimony. As we see it, this evidence could have bee n relevant only to show that in the

### If the mistitled assets are integral to the offenses for 4 

### which the defendant is on trial, evidence about mistitling may be relevant and admissible. See United States v. Daniels , 723 F.2d 31, 32-33 (8th Cir. 1983) (per curiam) (holding that, where defendant was charged with possession of drugs found in car and apartment nominally belonging to another person, police officer could testify that drug dealers commonly use “front men”; testimony “helped the jury understand why Daniels was being charged for possession of narcotics in property held in another’s name”). -8- past Vaughn had engaged in conduct typical of drug dealers; this might hel p to persuade the jury that Vaughn was guilty of the drug crimes with which he was charged. View ed in this manner, the evidence is classic character or propensity evidence. 4
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes , wrongs, or acts is not admissible to prove t he character of a person in order to show action i n conformity therewith. It may, however, be admissib le for other purp oses, such as proof of motive, opportunity, intent , preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
For the trial court t o admit evidence of a bad act under Rule 404(b), the evidence must be relevant to a material issue raised at trial; the act mus t be similar in kind to and not overly remote in time from the crime charged ; there must be sufficient evidence to support a finding by the jury that th e defendant committed the act; and the potential prejudice of the evidence must not substantially outweigh its probative va lue. See United States v. DeAn gelo , 13 F.3d 1228, 1231 (8th Cir.), cert. denied , 512 U.S. 122 4 (1994). We review the District Court’s decision to admit evidence under Rule 404(b) for abuse of discretion, and we will find an abuse of

### -9-

discreti on only if it is clear that the evidence had no bearing on an y issues involved in the case. See id. at 1232.

As we h ave said, the evidence that Vaughn placed assets in others ’
na mes is not direct evidence as to any issue in his trial. Th e govern ment’s position, however, appears to be that this evidence i s circum stantial evidence tending to prove Vaughn guilty of the charge d offenses. The argume nt is based on the factual premise that drug dealers freq uently mistitle assets to conceal ill-gotten gains; because Vaugh n mistitled assets, it may be inferred that he is a drug dealer, and the jur y is invited to draw that inference in considering whether he is guilty of the drug trafficking crimes for which he is being tried.

Evidence of past drug trafficking may be relevant to show intent to distribute, knowledge that the substances in the defendant’s possession ar e drugs, or the absence of a mistake or accident that the drugs are in the defendant’s possession. See, e.g. , United State s v. Thomas , 58 F.3d 1318, 1321 (8th Cir. 1995) (holding that evidence of prior drug transactions is generally admissible under Rule 404(b) if defendant places state of mind in issue). The government, however, presented no evidence of any prio r drug deals by Vaughn, and the evidence of Vaughn’s past mistitling o f assets creates at best only a weak inference that he has trafficked i n drugs in the past. I t follows that the probative value of this evidence, if any, i s very little, and its potential for unfair prejudice is high

. We therefore conclude that the District Court abused its discretion b y admitting the evidence that Vaughn placed vehicl es in the names of others.

### -10- We nevertheless believe that the admission of this evidence wa s harmless error. The government presented substa ntial evidence of Vaughn’s posses sion of controlled substances on each occasion cited in th e indictment, and the quantities of the drugs alon e clearly demonstrated his intent to distribute them. Moreover, the prosec utor did not emphasize the evidence of mistitled assets in his argument to the jury. Finally, taking the evidence as a whole, we cannot conclude that any unfair prejudice to Vaughn as a result of the admission of this propensity evidence wa s signif icant, in light of other, admissible evidence tending to reflec t poorly on Vaughn’s character. In particular, we believe the jury was much more likely to draw n egative inferences about Vaughn’s character from the nature of the charges themselves--four arrests for possession o f substantial quantitie s of drugs within a three-year period, including one such arrest when he w as out on bond awaiting trial on the other charges-- than it was from the evidence of Vaughn’s efforts to camouflage his assets

. See United States v. Sutton , 41 F.3d 1257, 1260 (8th Cir. 1994) (concludin g that a dmission of character evidence was harmless where defendant’s ba d character was established by admissible evidence), cert. denied , 115 S. Ct

. 1712 (1995). Considering all of these factors, we conclude that th e admi ssion of this evidence does not require the reversal of Vaughn’ s conviction, because we are satisfied that it “did not have ‘substantial an d injurious effect or influence in determining the jury’s verdict.’” United Sta tes v. Mihm , 13 F.3d 1200, 1205 (8th Cir. 1994) (quoting Brecht v

. Abrahamson , 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946))).

### Although Vaughn’s mother testified that she owned a gun, 5 

### she did not identify the .357 revolver as her own.
-11- Finally, Vaughn challenges the District Court’s two-level enhan cement of his sentence for p ossession of a firearm, pursuant to § 2D1.1(b)(1) of the sentencing guidelines. Vaughn argues that the government did not prov e
a connect ion between the seized firearm and the drug offenses. “A t sentencing, the burde n is on the government to show by a preponderance of the ev idence that a dangerous weapon was present and that it was no t clearly improbable that the weapon had a nexus with the criminal activity. ” United S tates v. Betz , 82 F.3d 205, 210 (8th Cir. 1996); see also U.S
. Sentencing Guidelines Manual § 2D1.1 commentary, n.3 (1995). We review an enhancement under § 2D1.1(b)(1) for clear error. See Betz , 82 F.3d at 210

.

When officers executed a search warrant for Vaughn’s mother’ s residence in May 1995, they found Vaughn and several other individual s counting m oney in the living room. In Vaughn’s bedroom, the officer s discovered approximately ninety-five grams of cocaine base and eighty gram s of cocaine, along with a loaded .357 revolver on a dresser. O fficers also 5 seized $19,777 in currency, some of which was in Vaughn’s bedroom and some of which was elsewher e in the house. In these circumstances, we conclude that the District Cou rt did not clearly err in finding a sufficient nexus between the firearm and the drug offenses, and thus the enhancement wa s proper. See United S tates v. McCracken , No. 96-2738, slip op. at 11 (8th Cir

. Apr. 2, 1997) (affirming enhancement where firearms and drugs wer e found in bedroom); United States v.

### -12-

Macklin , 104 F.3d 104 6, 1048 (8th Cir. 1997) (affirming enhancement where firearms, $16,000 in cash, and drugs were found in bedroom); Betz , 82 F.3d at 210-11 (affirming enhancement where firearms and $5600 in cash wer e found in house and drugs were found in shed).
Vaughn’s conviction and sentence are affirmed.

A true copy.

Attest:

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