___________

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 States District Judge for 1

the District of Minnesota.

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BEAM, Circuit Judge.

Appellants 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 Carlos

1

Vignali challenge their convictions and the district court's denial of

their motions for new trial. We affirm.

I. BACKGROUND

On November 9, 1993, several months of investigation of a drug

trafficking ring culminated in raids on several locations and arrests of

a number of suspected drug dealers. The arrests continued over the next

several months. In the end, thirty-one defendants were charged with

various narcotics-related offenses in a thirty-four count indictment. 

Williams reached a plea agreement with the government. The agreement

required Williams to plead guilty to conspiring to manufacture, possess and

distribute cocaine; using and carrying a firearm in relation to a drug

trafficking crime; and aiding and abetting a financial transaction

affecting interstate commerce. Williams further agreed to cooperate with

law enforcement in investigating and prosecuting drug-related activity.

The government in turn promised to recommend a three-level credit under the

United States Sentencing Guidelines for acceptance of responsibility and

committed to move for a downward departure at sentencing. The parties did

not reach an agreement regarding any adjustment of Williams' sentence for

his role in the drug network
 Williams was 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 60

months under Count 5 (the section 924(c) count).

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pursuant to Guideline section 3B1.1(a). The district court applied a fourlevel leadership enhancement and sentenced Williams to a total of 180

months in prison. 

2

Williams' agreement with the prosecution prompted a flurry of guilty

pleas, and in the end, all but four of the original thirty-one defendants

pled guilty to various drug-related offenses. The remaining four,

including Hopson and Vignali, were tried jointly in a trial that lasted for

approximately six weeks. 

Hopson was convicted of conspiring to manufacture, posses and

distribute cocaine; aiding and abetting the use of a facility in interstate

commerce with the intent to distribute cocaine; aiding and abetting the

possession of cocaine with the intent to distribute; and aiding and

abetting the use of communication facilities for the commission of

felonies. 

The jury found Vignali guilty on three counts: conspiring to

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 the

commission of felonies. Vignali was acquitted on Count 10, a charge of

aiding and abetting the 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 reversible error in numerous rulings.

Additionally, both argue that the court erred in denying their motions for

a new trial. 
 The trial court 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. 

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II. DISCUSSION

A. Williams' Leadership Enhancement 

Williams argues that the district court 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 departure from the sentence

that would have resulted if he had prevailed on this point. See United

3

States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995).

In any event, Williams' argument fails on the merits. Williams

clearly "directed or procured the aid of underlings," and was responsible

for organizing others for the purposes of carrying out crimes. United

States v. Rowley, 975 F.2d 1357, 1364 n. 7 (8th Cir. 1992). Williams

himself admitted that he was one of the "big players" in the drug

conspiracy. The district court specifically found that Williams had more

than a dozen subordinates. We review a district court's factual findings

in sentencing for clear error and give due deference to the district

court's application of the Guidelines to the facts. United States v.

McKinney, 88 F.3d 551, 556 (8th Cir. 1996). Certainly, distinctions

between leaders and other coconspirators are not always clear. United

States v. Delpit, No. 95-2539, slip op. at 36 (8th Cir. Aug. 28, 1996).

However, we find enhancement entirely appropriate in Williams' case. 
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B. Denial of Vignali's Severance Motion

Before trial, Vignali made a severance motion, arguing that his role

in the conspiracy did not begin until 1993, while the others were involved

as early as 1980. The district court denied that motion. 

We will affirm the denial of a severance motion absent an abuse of

discretion causing clear prejudice. United States v. Darden, 70 F.3d 1507,

1526 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449 (1996). Indicted

coconspirators should ordinarily be tried together, especially where proof

of the conspiracy overlaps. United States v. Pou, 953 F.2d 363, 368 (8th

Cir.), cert. denied, 504 U.S. 926 (1992). Not every defendant joined must

have participated in every offense charged. United States v. Jones, 880

F.2d 55, 62-63 (8th Cir. 1989).

We agree with the district court that joinder was proper in this

case. Each defendant was charged with at least one substantive count of

violating narcotics laws or related offenses, and all were charged jointly

in Count 1 with conspiracy to distribute cocaine. Further, Vignali was

charged in Counts 10 and 16 with aiding and abetting several other

defendants in the commission of substantive narcotics offenses. Vignali's

case met the requirements of Rule 8 of the Federal Rules of Criminal

Procedure.

Even when Rule 8 permits joinder, a trial court may sever cases to

protect defendants' fair trial rights. Fed. R. Crim. P. 14; Darden, 70

F.3d at 1527. However, we observe a strong presumption against severing

properly joined cases. Delpit, slip op. at 10. The key inquiry in

determining whether to try defendants jointly is whether the jury can

compartmentalize the evidence against each defendant. United States v.

Nevils, 897 F.2d 300, 305 (8th Cir.), cert. denied, 498 U.S. 844 (1990);

United
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States v. Willis, 940 F.2d 1136, 1138 (8th Cir. 1991), cert denied, 507

U.S. 971 (1993). The concern of Nevils and Willis is that a jury might

throw up its hands and convict everyone. This does not describe Vignali's

jury. To the contrary, it acquitted one defendant and convicted Vignali

himself of some, but not all counts. A jury's conviction of some

defendants and acquittal of others is a strong indication that it was able

to separate evidence of different charges against different defendants.

Delpit, slip op. at 11. 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 represented by separate counsel at trial.

In his opening statement, 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] from

Argentina, his mother [is] from Puerto Rico. . . . " Trial Tr. vol. I at

114. Vignali's co-defendants 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 in determination of their guilt or innocence. Hopson

now argues that the comments by Vignali's attorney were so prejudicial that

he is entitled to a new trial.

A defendant 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 prejudicially 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). If

either one of these elements is not established, a defendant is not

entitled to relief. 
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United States v. White, 969 F.2d 681, 683 (8th Cir. 1992). Since the trial

court observed the mood of the jury and the tone of the remarks, its

decisions 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 remarks

because Hopson cannot demonstrate prejudice. The jury's verdict indicates

that it rejected any implicit invitation to use race as a proxy for guilt.

Claude Phillips, an African-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.

Closing arguments were scheduled to begin the following Monday. Before

discharging the jury for the weekend, the court advised the jury of the

upcoming trial schedule. Included in those remarks, was the following:

What I want to tell you also is this: Most of the facts are now

before you. I told you at the beginning of this trial quite

some time ago that you should keep your mind open, make sure

you listen 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 the 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 earthshaking in the sense that it is going to turn your

decision one way or the other; it may, so keep that thought in

mind, it might have that effect -- but I think you can start

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.
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Trial Tr. vol. XIX at 138-39.

After the jury was escorted out, defense counsel objected to the

court's remarks, arguing that they implied that jurors should make up their

minds before hearing the remainder of the evidence and argument. The court

agreed to give a cautionary instruction when the jury returned on Monday,

and, contrary to defendants' assertion on appeal, did in fact give such a

warning.

Hopson and Vignali argue that the court's remarks constitute

reversible error. In support of that claim, both defendants cite United

States v. Williams, 635 F.2d 744 (8th Cir. 1980). Upon examination,

however, Williams does not support the weight defendants place upon it.

We held in Williams that it was reversible error to allow a deadlocked jury

to separate overnight without any admonition to keep their deliberations

secret and refrain from 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 their

deliberations, the time of highest risk of improper outside influence. The

cases cited by defendants all express concern about early deliberation by

jurors, because of potential juror reluctance at changing opinions once

they are expressed in front of others. See, e.g., Winebrenner v. United

States, 147 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 influences. United States v. Weatherd, 699 F.2d 959, 962 (8th

Cir. 1983) (admonitions given to jury at other breaks during the trial

sufficient to apprise jurors not to discuss case). The defendants'

speculation about what could have happened in the jury room is not evidence

of prejudice. While we express no opinion on the propriety of the trial

court's comments, the defendants were not prejudiced. Therefore, the

defendants here are not entitled to
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a new trial on this issue. 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 prosecution improperly vouched for its

witnesses. In closing argument the prosecutor rebutted defense allegations

of witness perjury by noting that the witnesses had not yet been sentenced

for their roles in the conspiracy. It is true that "[a]ttempts to bolster

a witness by vouching for his credibility are normally improper." United

States v. Jackson, 915 F.2d 359, 361 (8th Cir. 1990) (quoting United States

v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977)). In order to prevail on this

claim, a defendant must establish that: 1) the statements were in fact

offensive; 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). 

Initially, we are not convinced that the complained-of remarks

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 record convinces us that the

comments here did neither. The prosecutor in this case did not personally

vouch for the truthfulness of the witnesses' testimony, nor is there any

intimation of information outside the scope of the trial. See United

States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993).

Furthermore, in order to prevail on this issue, a defendant "must

demonstrate . . . that the improper remarks prejudicially affected his

substantive rights." United States v. Skarda, 845 F.2d 1508, 1511 (8th

Cir. 1988). We conclude that the prosecutor's remarks, if improper, did

not render Vignali's trial fundamentally unfair. As the district court

noted, there was considerable
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evidence of Vignali's guilt. Moreover, after the disputed remarks, the

trial court gave the jury a cautionary instruction. See Eldridge, 984 F.2d

at 947. (cautionary instruction mitigated any prejudice suffered as a

result of prosecutorial vouching.) 

In any event, these comments were justified by the repeated

allegation by the defense that the government knowingly introduced false

testimony. "Where the prosecutor, his witnesses, or the work of the

government agents is attacked [by defense counsel], the District Attorney

is entitled to make a fair response and rebuttal." United States v. Lee,

743 F.2d 1240, 1253 (8th Cir. 1984). Vignali is not entitled to relief

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 association with a rap album entitled "Gang Related."

Based on post-trial juror interviews, Vignali claimed that some jurors had

asked their children about the content and character of this music. The

district court held a limited evidentiary hearing to determine whether any

extraneous information was improperly brought to the jury's attention.

Every juror examined denied that any extraneous information about rap music

was discussed or influenced deliberations in any way. Vignali now argues

that the investigation was inadequate in that the jurors were neither sworn

nor cross-examined. 

"The district court has broad discretion in handling allegations of

juror misconduct and its decision will be affirmed absent an abuse of

discretion." United States v. Williams, 77 F.3d 1098, 1100 (8th Cir.

1996). Allegations of juror exposure to extraneous information may require

an investigation by the trial court. United States v. Swinton, 75 F.3d

374, 381-82 (8th Cir. 1996). However, Vignali's assertion that such an

investigation
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must allow him the opportunity to confront jurors is not supported by our

case law. In fact, we have previously found unsworn 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 its

discretion in handling the allegations of juror misconduct.

G. Other Claimed Errors

Finally, we turn to other issues raised by Hopson and Vignali in this

appeal: the trial court's exclusion of certain evidence; the district

court's failure to conduct an evidentiary hearing regarding evidence which

defendants characterize as newly discovered and its denial of defendants'

new trial motions based 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 district

court. 

III. CONCLUSION 

For the reasons discussed above, we affirm the district court's

judgments on the defendants' appeals. We likewise affirm the sentence

imposed on Williams by the district court.

A true copy.

Attest:

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