UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4738

CARL BENIT COOPER,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Falcon B. Hawkins, Chief District Judge.

(CR-95-206)

Argued: October 3, 1997

Decided: January 28, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and BOYLE,

Chief United States District Judge for the Eastern District of North

Carolina, sitting by designation.

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Affirmed by unpublished opinion. Chief Judge Boyle wrote the opinion, in which Judge Niemeyer and Judge Hamilton joined.

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COUNSEL

ARGUED: Michael S. Seekings, Charleston, South Carolina, for

Appellant. Brucie Howe Hendricks, Assistant United States Attorney,

Charleston, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,

United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

BOYLE, Chief District Judge:

A jury convicted Carl Benit Cooper of conspiracy to commit bank

robbery in violation of 18 U.S.C. § 371, bank robbery on September

24, 1994 in violation of 18 U.S.C. § 2113(b) and 18 U.S.C. § 2, armed

bank robbery on October 11, 1994 in violation of 18 U.S.C. § 2113(a)

and (d) and 18 U.S.C. § 2, using or carrying a firearm in the commission of a crime of violence in violation of 18 U.S.C. § 924(c) for the

October 11 robbery and bankruptcy fraud in violation of 18 U.S.C.

§ 152 (concealment of assets). Cooper appeals his conviction on

grounds that: (1) the bankruptcy fraud and bank robbery charges were

improperly joined; (2) the district court erred in failing to grant his

motion to sever the trial; (3) there was insufficient evidence to convict

him of using or carrying a firearm during the commission of a crime

of violence; and (4) the district court erred in denying his Motion to

Exclude "Prior Bad Acts" evidence. We affirm.

FACTS

After retiring from the Army in 1993, Cooper moved to Summerville, South Carolina with his wife where they purchased a retirement

home. Soon thereafter, Cooper began working for Pinkerton Security

repairing NationsBank ATM machines. However, financial problems

compelled Cooper and his wife to file for Chapter 13 bankruptcy protection in 1994. The bankruptcy trustee allowed Cooper and his wife

to keep their retirement home but required them to report all disposable income to the trustee for the payment of creditors. Disregarding

the precepts of their bankruptcy plan, Cooper and his wife made lump

sum or double mortgage payments in July and August, 1994 without

informing the trustee. They also continued to make substantial repairs

and improvements to their home exceeding $13,000 in cost and often

paid the suppliers and materialmen in full for their work. Neither the

improvements made nor the money used to fund these improvements

was reported to the trustee.

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Shortly after Cooper's bankruptcy, NationsBank began suffering

losses from its South Carolina ATM's. These losses were in excess

of $207,000. Pinkerton logs linked the times and locations of the

losses to circumstances when Cooper serviced or otherwise had

access to those ATMs. These losses were not reported as robberies

but were documented by Pinkerton as unaccounted-for shortages. On

October 11, 1994, during what appeared to be a routine service call,

Wilfred Rivers and an unindicted accomplice robbed Cooper and his

partner, Nathan Williams, at gunpoint. Williams was bound by duct

tape, handcuffed and forced into the Pinkerton van while Cooper,

appearing frightened, gave Rivers and his accomplice over $47,000

from the ATM. A video camera on the ATM captured the robbery in

progress.

Despite Cooper's apparent resistance during the robbery, the FBI's

investigation linked Cooper to the robbery by virtue of his relationship with Rivers. The ATM video of the robbery showed that Cooper

never acknowledged knowing Rivers when they encountered each

other that night. Cooper also initially denied knowing Rivers and

maintained his innocence during FBI questioning on November 9,

1994. After approximately 15-20 minutes of additional questioning,

Cooper recanted and admitted that he and Rivers were friends and

neighbors. Cooper also admitted that he recognized the car Rivers

drove to the robbery site as his (Rivers) wife's car. This evidence

proved to be the cornerstone of the government's conspiracy charge

and theory that the October 11 robbery had been a"staged" robbery

arranged by Cooper and Rivers.

Cooper and Rivers were subsequently indicted on January 11, 1995

on counts of conspiracy to commit armed bank robbery, bank robbery, armed bank robbery, and use of a firearm during a crime of violence. On March 5, 1995, a Superseding Indictment was returned

adding three counts of criminal bankruptcy fraud against Cooper and

his wife. Although two of these counts were dismissed by the government prior to trial, Cooper was tried on one count of fraudulently concealing assets from the bankruptcy trustee. On June 1, 1995, Cooper

filed his Motion to Sever the bankruptcy charge from the robbery

charges, which the court denied. A jury trial was then held and

Cooper was convicted on all counts.

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DISCUSSION

1. Joinder of Bankruptcy Fraud and Bank Robbery Charges

Cooper first claims that the government's indictment improperly

joined the bankruptcy fraud and bank robbery charges thereby depriving him of the opportunity to present testimony and witnesses in his

defense. We disagree. Rule 8(a) of the Federal Rules of Criminal Procedure provides that separate offenses may be joined if they constitute

parts of a common scheme, that is, if they involve acts united by some

"substantial identity of facts or participants", United States v. Porter,

821 F.2d 968, 972 (4th Cir.), cert. denied, 485 U.S. 934 (1988), or if

the evidence supporting the separate counts overlaps so that the same

evidence would be admissible at separate trials, United States v.

Amato, 15 F.3d 230, 237 (2d Cir.), aff'd on rehearing, 32 F.3d 704

(1994).

The evidence clearly demonstrates that the bankruptcy fraud and

bank robbery charges were parts of a common scheme. Cooper's plan

involved stealing money from the ATM's he serviced and, with the

intent to use this money to repair and improve his home, concealing

these assets from the bankruptcy trustee. One offense stemmed from

the other. His bankruptcy provided an impetus for the bank robberies

which in turn gave rise to his bankruptcy fraud. There is also a significant overlap in evidence regarding Cooper's motive for committing

both the bank robberies and bankruptcy fraud. Cooper had an opportunity to acquire significant sums of money from his access to the

ATMs and a plan for using and concealing those assets from the

bankruptcy trustee. For these reasons, we conclude that initial joinder

was proper under Rule 8.

2. Denial of Motion to Sever

Cooper argues that the district court abused its discretion by failing

to grant his motion to sever, impeding his ability to present an effective defense. This argument is without merit. Notwithstanding proper

joinder under Rule 8(a) and a recognition that Rule 8 "authorizes

some prejudice" against a defendant, United States v. Turoff, 853 F.2d

1037, 1043 (2d Cir. 1988), Rule 14 of the Federal Rules of Criminal

Procedure provides that, if a defendant is substantially prejudiced by

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joinder of offenses, a district court may order separate trials. Fed. R.

Crim. P. 14. Determining whether to sever a trial involves weighing

trial efficiency considerations against the possible unfairness to a

defendant. See United States v. Santoni, 585 F.2d 667, 674 (4th Cir.),

cert. denied, 440 U.S. 910 (1979). A court's decision denying severance is reviewed under an "abuse of discretion" standard and will be

disturbed only upon showing that a miscarriage of justice resulted. Id.

The district court did not abuse its discretion in denying the defendant's motion to sever. The possibility of prejudice to Cooper at trial

was greatly diminished by the substantial overlap of evidence. See

United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). Characterizing any remaining prejudice as "substantial" would be mere conjecture in light of Cooper's failure to specifically identify the content

of his prospective testimony. A bald assertion that the trial court's

denial of his severance motion prevented him from testifying regarding one charge because it would have incriminated him on the other

is insufficient by itself to show manifest injustice. See United States

v. Larouche, 896 F.2d 815, 831 n6 (4th Cir. 1990). This analysis, coupled with the district court's cautionary charge to the jury, suggests

Cooper was not substantially prejudiced by the joint trial.

3. Sufficiency of Evidence on § 924(c) Charge

Cooper next questions the sufficiency of the government's evidence on his 18 U.S.C. § 924(c) charge. A conviction will be upheld

on appeal "if there is substantial evidence, taking the view most

favorable to the Government, to support . . . the conviction." United

States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997) (quoting Glasser

v. United States, 315 U.S. 60, 80 (1942)).

Cooper was charged with violating 18 U.S.C. § 924 for Rivers' use

of a firearm during the October 11 armed robbery. Foreseeable acts

committed in furtherance of a conspiracy are attributable to coconspirators. See Pinkerton v. United States, 328 U.S. 640 (1946).

The government was required to prove not only that Rivers used a

firearm during or in relation to the armed bank robbery,* but also that

Cooper could reasonably foresee such use.

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*Satisfying the "during or in relation to" element of § 924(c) simultaneously satisfies the "in furtherance" prong of the Pinkerton test.

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It is undisputed that Rivers, Cooper's co-conspirator in the October

11 armed robbery, "actively employed" a firearm during the commission of that offense, satisfying § 924(c) and the Supreme Court's definition of "use" in Bailey v. United States , 116 S.Ct. 501, 508 (1995).

The question is whether Cooper reasonably foresaw such use. Cooper

claims that the evidence only established his intent to stage a "safe"

robbery involving the use of handcuffs, not firearms and that therefore, he did not contemplate Rivers' use of a firearm during the robbery. This argument fails in light of the substantial evidence adduced

at trial.

Even if Rivers' use of a firearm during the staged robbery was not

specifically planned, it was certainly foreseeable to Cooper, particularly in light of the fact that (1) Cooper knew his partner Williams

carried a service revolver at all times and would be willing to use it

if necessary, and (2) the genuineness of the robbery would more readily be called into question if Cooper and his partner were robbed by

two men armed only with handcuffs. We conclude that this evidence,

viewed in a light most favorable to the prosecution, supports Cooper's

conviction on this charge.

4. Admission of Rule 404(b) Evidence

Cooper argues that the district court committed reversible error by

admitting Calvin Tucker's testimony regarding instances of past larceny. We disagree. Rule 404(b) of the Federal Rules of Evidence provides that evidence of prior crimes, wrongs or acts is admissible to

prove "motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . ." but not to prove a

defendant's character in order to show he acted in conformity with the

charged offense. Fed. R. Evid. 404(b). This Circuit has adopted an

"inclusive" interpretation of Rule 404(b) so that all necessary and reliable evidence of prior bad acts is admissible except that which is

offered to prove propensity or criminal disposition. United States v.

Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).

Tucker testified that he accompanied Cooper when they stole lumber from construction sites for use on Cooper's home. Contrary to

what Cooper alleges, Tucker's testimony was not offered to prove his

character but to support the government's theory that Cooper was des-

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perate to hold onto and improve his retirement home by any means

available, including robbing ATMs, concealing assets and stealing

construction supplies to avoid out-of-pocket costs. His testimony was

not cumulative or redundant, rather it helped to create an additional

link in the government's chain of events establishing Cooper's

scheme.

Even if "prior bad acts" evidence satisfies Rule 404(b), it may still

be excluded under Rule 403 if its probative value is substantially outweighed by its prejudicial effect. Fed. R. Evid. 403. The evidence

here was probative of the government's theory that Cooper was prepared to break the law to realize his ambition of completing his retirement home despite his bankruptcy. Extensive evidence presented at

trial regarding Cooper's role in the bank robberies, including actual

footage of the robbery by the ATM video camera and Cooper's conflicting statements during FBI interrogation, makes it improbable that

Tucker's testimony was unduly prejudicial under the circumstances.

Finally, introduction of Tucker's testimony, although prejudicial insofar as it inculpated Cooper, did not substantially and unfairly sway the

jury in light of the limiting instructions given by the court obviating

any residual prejudice. See United States v. Aramony, 88 F.3d 1369,

1378 (4th Cir. 1996), cert. denied, 117 S.Ct. 1842 (1997). Accordingly, the district court did not abuse its discretion in admitting this

evidence.

CONCLUSION

Finding no error, we affirm the conviction.

AFFIRMED

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