___________ No. 95-2916

___________ United States of America, * * Appellee, * * v. * * Gerald Lakeith Williams, * * Appellant. *

___________ No. 95-2917

___________ United States of America, * * Appellee, * * Appeals from the United v. * States District Court for the * District of Minnesota. Carlos Vignali, Jr., also * known as C-Low, * * Appellant. *

___________ No. 95-2920

___________ United States of America, * * Appellee, * * v. * * Todd Louis Hopson, also known * as Ted Shia, also known as * Snoop, * * Appellant. *

___________ Submitted: June 12, 1996 Filed: October 1, 1996

___________ Before BOWMAN, HEANEY, and BEAM, Circuit Judges.

### The Honorable David S. Doty, United State s District Judge for 1 

### the District of Minnesota. -2- BEAM, Circuit Judge.
Appellant s were charged, along with twenty-eight others, with being part of a massive drug trafficking network that shipped cocaine from Los Angeles, California, to Minneapolis, Minnesota. Gerald Williams appeals the sentence imposed by the district court. Todd Hopson and Carlo s 1 Vignal i challenge their convictions and the district court's denial o f their motions for new trial. We affirm.

I. BACKGROUND

On Nov ember 9, 1993, several months of investigation of a dru g trafficking ring culminated in raids on several locations and arrests of
a number of suspected drug dealers. The arrests continued over the next
seve ral months. In the end, thirty-one defendants were charged wit h various narcotics-related offenses in a thirty-four count indictment.
Williams reached a plea agreement with the government. The agr eement required Williams to plead guilty to conspiring to manufacture, possess an d distr ibute cocaine; using and carrying a firearm in relation to a dru g trafficking crime; and aiding and abetting a financial transactio n affecting interstate commerce. Williams further agreed to cooperate with law e nforcement in investigating and prosecuting drug-related activity
. The government in turn promised to recommend a three-level credit under th e United States Sentencing Guidelines for acceptance of responsibility and committed to move for a downward departure at se ntencing. The parties did not reach an agreemen t regarding any adjustment of Williams' sentence for his role in the drug network

### Williams wa s sentenced to two concurrent 120 month terms for 2 

### Counts 1 (the conspiracy count ) and 9 (the money laundering count) of the superseding indictment and a consecutive sentence of 6 0 months under Count 5 (the section 924(c) count). -3- pursuant to Guideline section 3B1.1(a). The district court applied a four

level l eadership enhancement and sentenced Williams to a total of 18 0 months in prison. 2
Williams' agreement with the prosecu tion prompted a flurry of guilty pleas, and in the end , all but four of the original thirty-one defendants pled g uilty to various drug-related offenses. The remaining four , including Hopson and Vignali, were tried jointly in a trial that lasted fo r approximately six weeks.
Hopson was convicted of conspiring to manufacture, posses an d distribute cocaine; aiding and abetting the use of a facility in interstat e commerce with the intent to distribute cocaine; aiding and abetting th e possession of cocaine with the intent to distribute; and aiding an d abetti ng the use of communication facilities for the commission o f felonies.

The jury found Vignali guilty on three counts: conspiring t o manufacture, possess and distribute cocaine; aiding and abetting the use of a facility in interstate commerce with the intent to distribute cocaine ; and aiding and abetting the use of communication facilities for th e commissio nof felonies. Vignali was acquitted on Count 10, a charge o f aiding and abetting t he use of a facility in interstate commerce with the intent to distribute cocaine occurring on or about October 20, 1993.
Both Hopson and Vignali assert rever sible error in numerous rulings. Additionally, both argue that the court erred indenying their motions for a new trial.

### The trial c ourt calculated a total offense level of 39 and a 3 

### criminal history of category IV, which leads to a sentence of 360 months to life. A four-level reduction in Williams' total offense level would produce a sentencing range of 235 to 293 months. -4- II. DISCUSSION

A. Williams' Leadership Enhancement
Williams argues that the district co urt should not have enhanced his sentence for his leadership role in the conspiracy pursuant to Guideline section 3B1.1(a). We conclude that this issue is not reviewable, because Williams' sentence still represents a downward d eparture from the sentence that would have resulted if he had prevailed on this point. See Unite d 3 States v. Baker , 64 F.3d 439, 441 (8th Cir. 1995).

In any ev ent, Williams' argument fails on the merits. William s clearly "directed or procured the aid of underlings," and was responsible for o rganizing others for the purposes of carrying out crimes. Unite d States v. Rowley , 975 F.2d 1357, 1364 n. 7 (8th Cir. 1992). William s him self admitted that he was one of the "big players" in the dru g conspiracy. The dist rict court specifically found that Williams had more than a dozen subordin ates. We review a district court's factual findings in s entencing for clear error and give due deference to the distric t court's ap plication of the Guidelines to the facts. United States v
. McKi nney , 88 F.3d 551, 556 (8th Cir. 1996). Certainly, distinction s betweenleaders and other coconspirators are not always clear. Unite d States v. Delpit , No. 95-2539, slip op. at 36 (8th Cir. Aug. 28, 1996)
. However, we find enhancement entirely appropriate in Williams' case.

### -5- B. Denial of Vignali's Severance Motion
Before trial, Vignali made a severan ce motion, arguing that his role in the conspiracy did not begin until 1993, whil e the others were involved as early as 1980. The district court denied that motion.

We wil l affirm the denial of a severance motion absent an abuse o f discretion causing clear prejudice. United States v. Darden , 70 F.3d 1507 , 152 6 (8th Cir. 1995), cert. denied , 116 S. Ct. 1449 (1996). Indicte d coconspirators should ordinarily be tried togeth er, especially where proof of the conspiracy ove rlaps. United States v. Pou , 953 F.2d 363, 368 (8th Cir.), cert. denied , 504 U.S. 926 (1992). Not e very defendant joined must have participated in every offense charged. United States v. Jones , 880 F.2d 55, 62-63 (8th Cir. 1989).

We agr ee with the district court that joinder was proper in thi s case. Each defendant was charged with at least one substantive count of violating narcotics laws or related offenses, an d all were charged jointly inCount 1 with conspiracy to distribute cocaine. Further, Vignali wa s cha rged in Counts 10 and 16 with aiding and abetting several othe r defendants in the commission of substantive narc otics offenses. Vignali's
case m et the requirements of Rule 8 of the Federal Rules of Crimina l Procedure.

Even w hen Rule 8 permits joinder, a trial court may sever cases t o protect d efendants' fair trial rights. Fed. R. Crim. P. 14; Darden , 7 0 F.3d at 1527. However, we observe a strong presumption against severing properly jo ined cases. Delpit , slip op. at 10. The key inquiry i n determi ning whether to try defendants jointly is whether the jury ca n compar tmentalize the evidence against each defendant. United States v
. Nevils , 897 F.2d 300, 305 (8th Cir.), cert. denied , 498 U.S. 844 (1990); United

### -6-

States v. Willis , 940 F.2d 1136, 1138 (8th Cir. 1991), cert denied , 50 7 U.S. 971 (1993). The concern of Nevils and Willis is that a jury migh t throw up its hands and convict everyone. This d oes not describe Vignali's jury. To the contrary, it acquitted one defendant and convicted Vignali him self of some, but not all counts. A jury's conviction of som e defendants and acquittal of others is a strong i ndication that it was able to separate evidence of different charges against different defendants
. Delpit , slip op. at 1 1. We thus find the district court correctly denied Vignali's motion to sever.

C. Comments Made by Defense Counsel During Opening Statements
Each of the defendants was represent ed by separate counsel at trial. In his opening statem ent, Vignali's counsel repeatedly characterized this
case as one about "a black drug dealing network." Trial Tr. vol. I at 113 , 115. He then concluded, "My client is not. . . . His father [is] fro m Argentina, his mother [is] from Puerto Rico. . . . " Trial Tr. vol. I at 114. Vignali's co-de fendants were all African-American. Counsel for the other three defendants moved for a mistrial. The trial court denied the motions but gave the jury a cautionary statement that the defendants' race should play no role i n determination of their guilt or innocence. Hopson
now argues that the comments by Vignali's attorney were so prejudicial tha t he is entitled to a new trial.

A defenda nt is entitled to a new trial based on attorney misconduct if: 1) the remarks or conduct were in fact improper; and 2) the remarks or conduct have preju dicially affected the defendant's substantial rights so as to deprive him or her of a fair trial. United States v. Janis , 831 F.2d 773 , 778 (8th Cir. 1987), cert. denied , 484 U.S. 1073 (1988). I f either on e of these elements is not established, a defendant is no t entitled to relief.

### -7-

United States v. White , 969 F.2d 681, 683 (8th Cir. 1992). Since the tria l court obse rved the mood of the jury and the tone of the remarks, it s decisi ons should be accorded substantial deference. United States v
. Hernandez , 865 F.2d 925, 928 (7th Cir. 1989).

We need not consider the propriety of defense counsel's remark s because Hopson cannot demonstrate prejudice. Th e jury's verdict indicates that it rejected any implicit invitation to use race as a proxy for guilt. Claude Phillips, an A frican-American, was the only defendant acquitted on all counts. Vignali, an Hispanic, was convicted on three of four counts. Thus, Hopson cannot demonstrate prejudice.

D. Comments Made to the Jury by the Trial Court

Toward the end of trial, the jury was released for a long weekend
. Clo sing arguments were scheduled to begin the following Monday. Befor e dischargi ng the jury for the weekend, the court advised the jury of th e upcoming trial schedule. Included in those remarks, was the following:
What I want to tell you also is this: Most of the f acts are now before you. I told you at the beginning of this trial quit e some tim e ago that you should keep your mind open, make sur e you li sten to all the facts and try to keep them in balance , but not to make up your mind. At this point, even though all the facts aren't in, I am going to tell you that you can start trying to sort through t he facts, as you think about this over the week end, and try to get it put into your mind -- because I don't think the testimony you are going to hear is going to be eart hshaking in the sense that it is going to turn you r decision one way or the other; it may, so keep that thought in mind, it might have that effect -- but I think you can star t putting your thoughts together now as to where the facts are in this case -- obviously there is final argument yet, and there is the instruction of the court yet, so don't make up your mind - just the facts, is what I am talking about.

### -8-

Trial Tr. vol. XIX at 138-39.

Af ter the jury was escorted out, defense counsel objected to th e court's remarks, arguing that they implied that jurors should make up thei r minds before hearing the remainder of the evidence and argument. The cour t agreed to give a caut ionary instruction when the jury returned on Monday, and, contrary to defe ndants' assertion on appeal, did in fact give such a warning.
Hops on and Vignali argue that the court's remarks constitut e reversible error. In support of that claim, both defendants cite United Stat es v. Williams , 635 F.2d 744 (8th Cir. 1980). Upon examination , how ever, Williams does not support the weight defendants place upon it
. We held in Williams that it was reversible error to allow a deadlocked jur y to separate overnight without any admonition to keep their deliberations secret and refrain fr om having outside communication concerning the case. Id. at 746. That is not what transpired in this case.

Unlike Williams , this jury was not released in the midst of thei r deliberations, the time of highest risk of improper outside influence. Th e cases cited by defend ants all express concern about early deliberationby jurors , because of potential juror reluctance at changing opinions onc e theyare expressed in front of others. See , e.g. , Winebrenner v. United States , 1 47 F.2d 322, 328 (8th Cir.), cert. denied 325 U.S. 863 (1945)
. The jury was repeatedly admonished to keep an open mind and to avoid any outside i nfluences. United States v. Weatherd , 699 F.2d 959, 962 (8t h Cir. 1983) (admonitions given to jury at other breaks during the tria l suff icient to apprise jurors not to discuss case). The defendants ' speculation about what could have happened in the jury room is not evidenc e of prejudice. While we express no opinion on the propriety of the trial court' s comments, the defendants were not prejudiced. Therefore, th e defendants here are not entitled to

### -9-

a new trial on this i ssue. Williams , 635 F.2d at 746 (failure to caution the jury before separation may be harmless error).

E. "Vouching" by the Prosecution in Closing Arguments
Vignali next asserts that the prosec ution improperly vouched for its witnesses. In closing argument the prosecutor rebutted defense allegation s of witness perjury by noting that the witnesses had not yet been sentenced for their roles in the conspiracy. It is true t hat "[a]ttempts to bolster a witness by vouchingfor his credibility are normally improper." United States v. Jackson , 915 F.2d 359, 361 (8th Cir. 1990) (quoting United State s v. Ellis , 547 F.2d 863, 869 (5th Cir. 1977)). I n order to prevail on this claim, a defendant must establish that: 1) the statements were in fac t offensi ve; and 2) that the remarks were so offensive so as to prevent a fair trial. United States v. Boyce , 797 F.2d 691, 694 (8th Cir. 1986).

Initia lly, we are not convinced that the complained-of remark s constituted vouching. An argument will be deemed improper vouching when it "puts the prosecutor's own credibility before the jury [or] carr[ies an ] inference of outside knowledge." United States v. Dawkins , 562 F.2d 567, 569 (8th Cir. 1977). A careful review of the re cord convinces us that the comments here did neither. The prosecutor in th is case did not personally vouchfor the truthfulness of the witnesses' testimony, nor is there any intimation of information outside the scope of the trial. See Unite d States v. Eldridge , 984 F.2d 943, 947 (8th Cir. 1993).

Furth ermore, in order to prevail on this issue, a defendant "mus t demonstrate . . . that the improper remarks prejudicially affected hi s substantive rights." United States v. Skarda , 845 F.2d 1508, 1511 (8t h Cir. 1988). We conclude that the prosecutor's remarks, if improper, did not render Vignali's trial fundamentally unfair. As the district cour t noted, there was considerable

### -10-

evidence of Vignali's guilt. Moreover, after the disputed remarks, the trial court gave the jury a cautionary instruction. See Eldridge , 984 F.2 d at 947 . (cautionary instruction mitigated any prejudice suffered as a result of prosecutorial vouching.)

Inany event, these comments were justified by the repeate d allegation by the defense that the government knowingly introduced false test imony. "Where the prosecutor, his witnesses, or the work of th e government agents is attacked [by defense counsel], the District Attorney is entitled to make afair response and rebuttal." United States v. Lee , 743 F.2 d 1240, 1253 (8th Cir. 1984). Vignali is not entitled to relie f based on this claim.

F. Alleged Juror Misconduct
Finally, Vignali complains that the district court's handling of his allegations of juror misconduct was inappropriate. During trial, Vignali testified about his a ssociation with a rap album entitled "Gang Related." Based on post-trial juror interviews, Vignali cl aimed that some jurors had asked their children about the content and character of this music. The district court held a limited evidentiary hearin g to determine whether any extr aneous information was improperly brought to the jury's attention
. Every juror examined denied that any extraneous information about rap musi c was discussed or infl uenced deliberations in any way. Vignali now argues that the investigation was inadequate in that the jurors were neither swor n nor cross-examined.

"The dist rict court has broad discretion in handling allegations of juror misc onduct and its decision will be affirmed absent an abuse o f discretion ." United States v. Williams , 77 F.3d 1098, 1100 (8th Cir
. 1996). Allegations of juror exposure to extraneous information may requir e an invest igation by the trial court. United States v. Swinton , 75 F.3 d 374, 381-82 (8th Cir. 1996). However, Vignali's assertion that such a n investigation

### -11-

must allow him the op portunity to confront jurors is not supported by our case law. In fact, we have previously found uns worn juror interviews like those conducted here to be an adequate inquiry into allegations of juror misconduct. United States v. Blumeyer , 62 F.3d 1013, 1015 (8th Cir. 1995) , cert. denied , 116 S. Ct. 1263 (1996). The district court did not abuse it s discretion in handling the allegations of juror misconduct.

G. Other Claimed Errors
Finally, we turn to other issues raised by Hopson and Vignali i n this appeal : the trial court's exclusion of certain evidence; the distric t court's failure to conduct an evidentiary hearin g regarding evidence which defendants characteri ze as newly discovered and its denial of defendants' new trial motions bas ed on a witness' inconsistent post-trial statements. We have carefully reviewed the district court's decisions on these matters and we conclude that it ruled correctly in each instance. With respect to these issues, we agree with the well-reasoned opinions of the distric t court.

III. CONCLUSION

Fo r the reasons discussed above, we affirm the district court' s judgments on the defendants' appeals. We likewise affirm the sentenc e imposed on Williams by the district court.
A true copy.

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