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 Vaughn was convicted of five counts

of possessing with intent to distribute, and two counts of attempting to

possess with intent to 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.

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The District Court sentenced him to 240 months in prison. Vaughn appeals, 2

and we affirm.

Because Vaughn does not challenge the sufficiency of the evidence to

support his conviction, we need not relate in great detail the facts

underlying his case. Vaughn was convicted of possessing or attempting to

possess different combinations of cocaine, cocaine base, and marijuana on

four different occasions: February 1993, June 1994, May 1995, and February

1996. For sentencing purposes, the District Court attributed to Vaughn

approximately six kilograms of marijuana, two kilograms of cocaine, and 170

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 was

originally indicted on June 30, 1995, on two counts 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 public

defender to represent Vaughn because his second retained attorney had a

conflict of interest. On February 1, 1996, the grand jury returned a first

superseding indictment against Vaughn, adding charges relating to incidents

in June 1994 and February 1993. The trial was further postponed to April

1, 1996.
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While Vaughn was free on bond, he was arrested again on February 23,

1996, for additional drug offenses. A second superseding indictment

including these new charges followed on February 29, and Vaughn was

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 the

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 objection

we consider here. The District Court denied Vaughn’s motion, and the case

proceeded to trial, where Vaughn was convicted.

The particular 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 new

charges in the second superseding indictment until he was arraigned on

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-day

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, 892

F.2d 1364, 1369 (8th 
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Cir. 1990) (involving addition of new charges to indictment before

retrial); United States v. Reynolds, 781 F.2d 135, 137 (8th Cir. 1986)

(involving housekeeping amendment to indictment before retrial). A

district court has discretion to grant a continuance if the “ends of

justice” so require. 18 U.S.C. § 3161(h)(8)(A) (1994). We have previously

recognized that a district court is not required to exercise its discretion

to grant a continuance unless the defendant would be prejudiced by a lack

of time to prepare to meet the new charges in the superseding indictment.

See Simpson, 979 F.2d at 1287; Punelli, 892 F.2d at 1369; cf. RojasContreras, 474 U.S. at 240-41 (Blackmun, J., concurring in the judgment)

(“[A] continuance should be granted where there is a meaningful possibility

that a superseding indictment 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 latest

arraignment and thirty-two days after the grand jury returned the latest

indictment. We also recognize that Vaughn has not specified any way in

which he was prejudiced by the District Court’s action; he argues only that

the new charges made the case more complex and that there was a possibility

that his planned defense would have to be altered. But Vaughn now has been

to trial and has been convicted. If he cannot now demonstrate actual

prejudice as a result of the District Court’s order, we can hardly conclude

that the District Court abused its discretion in issuing that order.
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Nor does the last-minute appearance of Vaughn’s new retained attorney

affect our analysis. The District Court took this issue into account and

concluded that it did not tip the balance in favor of another continuance:

The belated entry of the retained counsel now

representing defendant in no way supports a request for a

continuance, given the length of these proceedings, the Court’s

previous generosity to defendant in connection with his

attempts to retain counsel of his choosing, and counsel’s

knowledge of the trial setting at the time of his entry of

appearance. Competent appointed counsel was in place and

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:

counsel effectively cross-examined the government’s witnesses and

introduced testimony, including testimony of an agent of the Drug

Enforcement Agency, that was inconsistent with the government’s evidence.

In light of these factors, we cannot agree with Vaughn that the appearance

of new counsel requires us to conclude that the District Court abused its

discretion in denying a continuance.

Vaughn raises a double-jeopardy argument based on the forfeiture of

$19,777 seized during his May 1995 arrest. He claims that he dropped his

objections to that forfeiture as part of an agreement with a police

detective, who allegedly told Vaughn that he would not be prosecuted if he

assisted the police and did not contest the forfeiture action. This

argument is foreclosed by United States v. Ursery, 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.

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Supreme Court held that in rem civil forfeiture does not constitute

punishment for purposes of the Double Jeopardy Clause. See id. at 2142.

Because Vaughn was not punished in the earlier forfeiture action, it

follows that his conviction in the instant case did not constitute a second

punishment for the same offense.3

Vaughn’s next argument is that the District Court erred in denying

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 Assistant United States Attorney could not also serve as

prosecutor. The District Court concluded that this 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 Vaughn

allegedly made with a police detective regarding the forfeiture of $19,777

and was therefore a material witness on that issue. Vaughn did not present

this argument to the District Court, so it is not properly before us, and

if he had, the District Court’s factual finding that no such deal existed

would have ended the matter, subject only to appellate review for clear

error, which we do not find on this 
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record. The argument is thus doubly doomed, and it affords Vaughn no basis

for relief.

Vaughn also complains that the District Court abused its discretion

in admitting evidence that he had accumulated assets that he placed in

other individuals’ names. We conclude that admission of this evidence was

error, but it was harmless error.

The evidence that Vaughn disguised his assets could be admissible for

one of two purposes: as direct evidence of the crimes with which Vaughn

was charged, or as evidence that Vaughn was engaged in other unsavory

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 her

to title it in her name. Afterwards, each testified, she rarely if ever

saw the vehicle again. All of these transactions took place before

February 1993, the date of the first possession incident involved in this

case, and the vehicles involved had no discernible connection to the drugs

Vaughn was charged with possessing. (Accordingly, we are unable to fathom

any way in which this evidence was directly probative of an issue in this

case.) The prosecutor evidently planned to have a police officer testify

that drug dealers commonly title assets in others’ names, but he neglected

to elicit that testimony. As we see it, this evidence could have been

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”).

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past Vaughn had engaged in conduct typical of drug dealers; this might help

to persuade the jury that Vaughn was guilty of the drug crimes with which

he was charged. Viewed 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 the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .

For the trial court to admit evidence of a bad act under Rule 404(b), the

evidence must be relevant to a material issue raised at trial; the act must

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 the

defendant committed the act; and the potential prejudice of the evidence

must not substantially outweigh its probative value. See United States v.

DeAngelo, 13 F.3d 1228, 1231 (8th Cir.), cert. denied, 512 U.S. 1224

(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 
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discretion only if it is clear that the evidence had no bearing on any

issues involved in the case. See id. at 1232.

As we have said, the evidence that Vaughn placed assets in others’

names is not direct evidence as to any issue in his trial. The

government’s position, however, appears to be that this evidence is

circumstantial evidence tending to prove Vaughn guilty of the charged

offenses. The argument is based on the factual premise that drug dealers

frequently mistitle assets to conceal ill-gotten gains; because Vaughn

mistitled assets, it may be inferred that he is a drug dealer, and the jury

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 are

drugs, or the absence of a mistake or accident that the drugs are in the

defendant’s possession. See, e.g., United States 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 prior

drug deals by Vaughn, and the evidence of Vaughn’s past mistitling of

assets creates at best only a weak inference that he has trafficked in

drugs in the past. It follows that the probative value of this evidence,

if any, is very little, and its potential for unfair prejudice is high.

We therefore conclude that the District Court abused its discretion by

admitting the evidence that Vaughn placed vehicles in the names of others.
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We nevertheless believe that the admission of this evidence was

harmless error. The government presented substantial evidence of Vaughn’s

possession of controlled substances on each occasion cited in the

indictment, and the quantities of the drugs alone clearly demonstrated his

intent to distribute them. Moreover, the prosecutor 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 was

significant, in light of other, admissible evidence tending to reflect

poorly on Vaughn’s character. In particular, we believe the jury was much

more likely to draw negative inferences about Vaughn’s character from the

nature of the charges themselves--four arrests for possession of

substantial quantities of drugs within a three-year period, including one

such arrest when he was 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) (concluding

that admission of character evidence was harmless where defendant’s bad

character was established by admissible evidence), cert. denied, 115 S. Ct.

1712 (1995). Considering all of these factors, we conclude that the

admission of this evidence does not require the reversal of Vaughn’s

conviction, because we are satisfied that it “did not have ‘substantial and

injurious effect or influence in determining the jury’s verdict.’” United

States 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.

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Finally, Vaughn challenges the District Court’s two-level enhancement

of his sentence for possession of a firearm, pursuant to § 2D1.1(b)(1) of

the sentencing guidelines. Vaughn argues that the government did not prove

a connection between the seized firearm and the drug offenses. “At

sentencing, the burden is on the government to show by a preponderance of

the evidence that a dangerous weapon was present and that it was not

clearly improbable that the weapon had a nexus with the criminal activity.”

United States 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 individuals

counting money in the living room. In Vaughn’s bedroom, the officers

discovered approximately ninety-five grams of cocaine base and eighty grams

of cocaine, along with a loaded .357 revolver on a dresser. Officers also 5

seized $19,777 in currency, some of which was in Vaughn’s bedroom and some

of which was elsewhere in the house. In these circumstances, we conclude

that the District Court did not clearly err in finding a sufficient nexus

between the firearm and the drug offenses, and thus the enhancement was

proper. See United States v. McCracken, No. 96-2738, slip op. at 11 (8th

Cir. Apr. 2, 1997) (affirming enhancement where firearms and drugs were

found in bedroom); United States v. 
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Macklin, 104 F.3d 1046, 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 were

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