*

Honorable Edward Rafeedie, Senior U.S. District Judge for

the Central District of California, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6325.

UNITED STATES of America, Plaintiff-Appellee,

v.

Adrian TALLEY, Jimmy L. Pickett, Defendants-Appellants.

March 21, 1997.

Appeals from the United States District Court for the Middle

District of Alabama. (Nos. CR-94-121-N-2, CR-94-121-N-1), Harold

Albritton, III, District Judge.

Before BIRCH and DUBINA, Circuit Judges, and RAFEEDIE*

, Senior

District Judge.

PER CURIAM:

Adrian Talley and Jimmy L. Pickett appeal their convictions

for aiding and abetting one another in possession with intent to

distribute cocaine base in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1). They argue that the district court erred in (1)

denying their motions to sever because their defenses were mutually

antagonistic and (2) denying their motions to suppress evidence.

We affirm.

I. BACKGROUND

On April 7, 1994, Officer Neil McMahon received several

telephone calls regarding suspicious conduct by Talley and Pickett

from a confidential informant, Kenneth Smith, who had provided

reliable information in the past. Smith described the vehicle that

Talley and Pickett had parked outside a residence located at 2025-D

Terminal Road in Montgomery, Alabama. He reported that he saw
Talley and Pickett enter the residence and that he had seen Talley

remove approximately two ounces of cocaine from his pants. Smith

presumed that Talley and Pickett wanted Josephus Steel, a sometime

resident of the house, to "cook" the powder cocaine into cocaine

base or "crack" cocaine.

McMahon recruited other officers to assist him in surveillance

and verified that the vehicle identified by Smith as the one used

by Talley and Pickett was parked near the Terminal Road address.

Smith also reported that, when Talley and Pickett left the

residence, Talley had a bulge in his pants pocket. With this

information, the police officers followed the car used by Talley

and Pickett when they drove away and eventually stopped it. The

pat-down search of Talley revealed that he had 24.7 grams of

cocaine hydrochloride in his pants pocket. After the cocaine

hydrochloride was found on Talley, the officers searched the

vehicle. This search resulted in the recovery of 105.4 grams of

cocaine base on the passenger-side floorboard of the vehicle.

Both appellants testified at trial. Pickett stated that he

knew nothing about the drugs found in his car. He claimed that

Talley had accosted him and that, upon Talley's request, Pickett

had driven Talley to a house. Talley testified that he and Pickett

had planned to purchase powder cocaine; that they did buy some

powder cocaine shortly after which they were arrested; and that he

knew nothing about crack cocaine found in the car and had never

seen it before.

The jury found both Talley and Pickett guilty, and they were
 1

Talley and Pickett requested that they be allowed to

supplement their briefs on appeal if this court in a pending case

held that the disparate sentencing of offenses involving crack

cocaine and powder cocaine violated the Due Process Clause. We

have rejected that constitutional challenge. See United States

v. Sloan, 97 F.3d 1378 (11th Cir.1996). 

sentenced accordingly.1 This appeal ensued.

II. DISCUSSION

A. Denial of Motions to Sever

 Talley and Pickett argue that the district court erred in

denying their motions for severance. We review a district court's

decision to grant or to deny a motion for severance for abuse of

discretion. United States v. Strollar, 10 F.3d 1574, 1578 (11th

Cir.), cert. denied, 512 U.S. 1211, 114 S.Ct. 2688, 129 L.Ed.2d 820

(1994). Under Rule 8(b) of the Federal Rules of Criminal

Procedure, "[t]wo or more defendants may be charged in the same

indictment or information if they are alleged to have participated

in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses." Fed.R.Crim.P.

8(b). "There is a preference in the federal system for joint

trials of defendants who are indicted together." Zafiro v. United

States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317

(1993). Although joinder is proper under Rule 8(b), the district

court may order severance when either the defendant or the

government will be prejudiced. See Fed.R.Crim.P. 14 ("If it

appears that a defendant or the government is prejudiced by a

joinder of ... defendants ... for trial together, the court may

order an election or separate trials of counts, grant a severance

of defendants or provide whatever other relief justice requires.").
 2

In Rucker, this court held that

A defendant may prove compelling prejudice by

showing that he and his co-defendants advanced defenses

so antagonistic as to be "irreconcilable or mutually

exclusive." Severance is compelled "if the jury, in

order to believe the core of testimony offered on

behalf of [one] defendant, must necessarily disbelieve

the testimony offered on behalf of his co-defendant."

Rucker, 915 F.2d at 1513 (alteration in original) (citations

omitted). 

Relying on United States v. Rucker, 915 F.2d 1511 (11th

Cir.1990) (per curiam), Talley and Pickett argue that the district

court abused its discretion in refusing to sever their trials

because they interposed mutually antagonistic defenses. 2 Our

reasoning in Rucker, however, has been undercut severely by the

Supreme Court in Zafiro, where four defendants were convicted for

possession with intent to distribute illegal drugs. The government

agents in Zafiro observed defendants Garcia and Soto place a large

box in Soto's car and drive from Soto's bungalow to defendant

Zafiro's apartment. The agents followed Garcia and Soto as they

carried the box upstairs. When the agents identified themselves,

Garcia and Soto dropped the box, which contained fifty-five pounds

of cocaine, and ran into the apartment. The agents entered the

apartment and found the four defendants inside. The defendants

moved for severance because their defenses were mutually

antagonistic; each claimed that they did not know that the box

contained cocaine.

 In Zafiro, the Court held that mutually antagonistic defenses

are not prejudicial per se. "Rule 14 does not require severance

even if prejudice is shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district court's sound

discretion." Zafiro, 506 U.S. at 538-39, 113 S.Ct. at 938. The

Court held that, when defendants have been joined properly under

Rule 8(b), the district court should grant Rule 14 severance only

if (1) there exists "a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or" (2)

a joint trial would "prevent the jury from making a reliable

judgment about guilt or innocence." Id. at 539, 113 S.Ct. at 938.

The Court specifically noted that limiting instructions "often will

suffice to cure any risk of prejudice." Id.

 In Zafiro, the Court noted that the defendants, like Talley

and Pickett, did not articulate any specific instances of

prejudice. Instead, the defendants argued that their defenses,

consisting of claiming to be innocent and accusing the other of the

crime, prejudiced them because the jury would conclude either "(1)

that both defendants [were] lying and convict them both on that

basis, or (2) that at least one of the two must be guilty without

regard to whether the Government had proved its case beyond a

reasonable doubt." Id. at 540, 113 S.Ct. at 938. The Supreme

Court summarily rejected the alleged prejudice arising from

mutually antagonistic defenses that we recognized in Rucker by

clarifying that "it is well settled that defendants are not

entitled to severance merely because they may have a better chance

of acquittal in separate trials." Id. Thus, Zafiro undermined

Rucker insofar as Rucker held that mutually antagonistic defenses

compel severance.

The Court also held that any prejudice resulting from mutually
 3

The district court gave the following limiting instructions

regarding the jury's consideration of the evidence with respect

to Talley and Pickett:

As I told you previously, you must consider the

evidence in this case separately as to each defendant. 

It is as though there were two separate trials that you

are here considering. So, when I refer to the

defendant in these instructions I will be referring to

each defendant separately unless I indicate otherwise. 

And when you consider this case, you must consider the

evidence separately as to each defendant.

It will be your duty to decide whether the

government has proved beyond a reasonable doubt the

specific facts necessary to find the defendant guilty

of the crime or crimes charged in the indictment. You

must make your decision only on the basis of the

testimony and the other evidence presented here at

trial.

....

The indictment, or formal charge against the

defendant, is not evidence of guilt. Indeed, the

defendant is presumed by the law to be innocent. The

law does not require a defendant to prove his innocence

or to produce any evidence at all.... The government

has the burden of proving a defendant guilty beyond a

reasonable doubt and if it fails to do so you must find

the defendant not guilty.

....

Now, I have told you a separate crime or offense

is charged against one or more of the defendants in

each count of the indictment. Each offense and the

antagonistic defenses could be alleviated by proper limiting

instructions. Id. at 540-41, 113 S.Ct. at 939. The Court

additionally noted that prejudice from mutually antagonistic

defenses had not been suffered by the defendants because the

government had offered sufficient evidence as to each defendant.

Id. at 540, 113 S.Ct. at 939. In this case, the district court

gave appropriate limiting instructions which cured any prejudice

that may have resulted from failure to sever.3

 Furthermore, as in
evidence pertaining to it should be considered

separately. Also, the case of each defendant should be

considered separately and individually. The fact that

you may find one of the defendants guilty or not guilty

of the offense charged should not affect your verdict

as to any other offense or as to the other defendant.

R7-146, 147, 156. 

Zafiro, it is unlikely that the joinder of both defendants caused

the jury to convict them without regard to whether the government

had proved its case. We have reviewed the record and conclude that

the government offered more than sufficient evidence as to each

defendant. Specifically, the government presented evidence that

Talley and Pickett were seen going into a house known to be a site

where cocaine powder was transformed into cocaine base or crack

cocaine, that Talley was in possession of cocaine upon entering the

house, and that Talley and Pickett were arrested in possession of

crack cocaine. Accordingly, we conclude that the district court

did not abuse its discretion in denying Talley and Pickett's

motions to sever.

B. Suppression of Evidence

 Talley and Pickett argue that the cocaine base seized from

the automobile was inadmissible at trial because it was seized in

violation of the Fourth Amendment. They contend that the

confidential informant was so unreliable that Officer McMahon

reasonably could not rely on information received from him to form

probable cause to initiate the challenged search. In reviewing the

district court's disposition of a motion to suppress, we review its

findings of fact for clear error and its application of law to

those facts de novo. United States v. Diaz-Lizaraza, 981 F.2d
 4

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968). 

1216, 1220 (11th Cir.1993).

The government argues that the initial stop was an appropriate

investigative Terry4

 stop, which became an arrest based on probable

cause. The arrest permitted a valid search incident to arrest. We

reject this rationale and, instead, agree with the district court's

reasoned approach.

 A police officer may conduct a warrantless search of an

automobile if " "(1) there is probable cause to believe the vehicle

contains contraband or other evidence which is subject to seizure

under the law, and (2) exigent circumstances necessitate a search

or seizure.' " United States v. Campbell, 920 F.2d 793, 795 (11th

Cir.1991) (citation omitted); United States v. Banshee, 91 F.3d

99, 102 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.

752, 136 L.Ed.2d 689 (1997). Talley and Pickett do not contest the

exigent circumstances requirement; they argue that probable cause

was lacking.

Probable cause exists " "when the facts and circumstances

would lead a reasonably prudent [person] to believe that the

vehicle contains contraband.' " The Supreme Court echoed this

analysis when it adopted the totality of the circumstances

test for determining when information provided by an informant

rises to the level of probable cause. Illinois v. Gates, 462

U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543

(1983).

Campbell, 920 F.2d at 796 (alteration in original) (citations

omitted); see Ornelas v. United States, --- U.S. ----, ----, 116

S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996). We review determinations

of probable cause de novo, but we "review findings of historical

fact only for clear error and ... give due weight to inferences
drawn from those facts by resident judges and local law enforcement

officers." Ornelas, --- U.S. at ----, 116 S.Ct. at 1663.

The district court in this case properly focused on whether

the information provided by the confidential informant, Smith, when

combined with independent corroboration by the police, rose to the

level of probable cause. Smith described the vehicle used by

Talley and Pickett and its location to Officer McMahon. He also

informed that Talley possessed cocaine when he entered the

residence on Terminal Road, known to him to be a location for

making cocaine base or crack cocaine, and that Talley exited the

house with a bulge in his pants. Because the facts supplied by the

confidential informant were independently corroborated by the

police, we cannot determine that they are clearly erroneous. We

conclude that the information provided by the confidential

informant, when combined with the government's independent

corroboration, gave rise to probable cause to believe that the

vehicle driven by Pickett contained contraband and validated the

search of that vehicle and the consequent recovery of the cocaine

base located therein.

III. CONCLUSION

Because the district court correctly denied Talley and

Pickett's motions for severance as well as their suppression

motions, the convictions of Talley and Pickett are AFFIRMED.