* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/20/96 TENTH CIRCUIT

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOHNNIE WAYNE ROGERS, Defendant-Appellant. No. 95-8069 (D.C. No. 95-CR-10-3) (D. Wyo.)

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ORDER AND JUDGMENT *

_____________________ John R. Green, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Cheyenne, Wyoming, for PlaintiffAppellee. Michael H. Reese of Wiederspahn, Lummis & Liepas, P .C., Cheyenne, Wyoming, for Defendant-Appellant.

_____________________ Before BALDOCK, BRORBY and BARRETT , Circuit Judges. Johnnie Wayne Rogers appeals his conviction after ajury verdict found him-2-

guilty of conspiracy to possess with intent to dist ribute and distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846. We grant Mr. Rogers' motion to supplement the record and affirm his conviction.

The government's theory at trial was that a conspir acy existed between Mr. Rogers and six others to distribute methamphetamine from on or about May 1994 through on or about December 7, 1994. Of the seven individuals charged in the conspiracy, four pleaded guilty, two were found gui lty by a jury and one was found not guilty by a jury. The district court den ied Mr. Rogers' motions for a new trial and sentenced him to seventy-eight months in prison, five years of supervised release and a special assessment of $50.

Mr. Rogers raises three issues on appeal: 1) was the evidence sufficient to obtain a criminal conviction for conspiracy to dist ribute a controlled substance; 2) did the entering of a plea agreement with the Unite d States by codefendant Steven Coin after Mr. Rogers' opening statement prejudice the jury against Mr. Rogers and deny him a fair trial; and 3) did the submissio n of a partially unredacted indictment where facts were referred to that were n ot in evidence prejudice the jury against Mr. Rogers?-3- I First, we address Mr. Rogers' claim the evidence pr esented at trial was insufficient to establish his guilt. In a challeng e to the sufficiency of the evidence,"we must review all the evidence, both dir ect and circumstantial, in the light most favorable to the government, and all rea sonable inferences and credibility choices must be made in support of the jury's verdict." United States
v. Evans , 970 F.2d 663, 671 (10th Cir. 1992), cert. denied, 507 U.S. 922 (1993).

In order to prove Mr. Rogers' involvement in a cons piracy in violation of 21 U.S.C. § 846, the government needed to show that1) he agreed with one or more persons to violate the law; 2) he knew of at l east the essential objectives of the conspiracy; 3) he knowingly and voluntarily bec ame a part of it; and 4) the alleged coconspirators were interdependent. United States v. Fox , 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 498 U.S. 874 (1990). The testimony of the numerous coconspirators who entered guilty pleas le aves no doubt that two or more persons agreed to violate the law and that the y were interdependent. The question here is whether the evidence is sufficientto establish that Mr. Rogers knew of the essential objectives of the conspiracy (to distribute methamphetamine) and knowingly and voluntarily beca me a part of it.-4-

The testimony of Appellant Rogers' brother and conf essed coconspirator, Dwight David Rogers, explicitly detailed Appellant Rogers' knowing and voluntary involvement in the conspiracy. Specifica lly, Dwight David Rogers testified that Appellant Rogers told him he was inv olved in a scheme of buying and selling methamphetamine with the other coconspi rators and that Dwight David Rogers had personally witnessed Mr. Rogers re ceiving methamphetamine shipments, distributing methamphetamine and arguing about how distribution of the drug and the money was being handled with othermembers of the conspiracy.

The government also introduced evidence that Mr. Ro gers traveled to Arizona with several of the other coconspirators to find out why certain sums of money used in the drug dealing were disappearing. There was also evidence that several of the coconspirators lived with him at var ious times and that he was instrumental in introducing some of them to each ot her. Another witness testified that he saw someone whom he believed to be Mr. Roge rs involved in the receipt of a box of methamphetamine which had been federal expressed from Arizona by one of the confessed coconspirators. Several witne sses also testified they had seen Mr. Rogers argue with Mr. Dwight David Rogers over missing drugs and money. An investigating agent also testified Mr. R ogers gave him conflicting stories when questioned about events involved in th e conspiracy.-5-

Mr. Rogers places great emphasis on the testimony o f confessed coconspirator Larry Straker who stated that he had never dealt drugs with Mr. Rogers. Mr. Straker's credibility was called into doubt, however, when the government introduced evidence of a close friendshi p between Mr. Straker's and Mr. Rogers' families as well as evidence that the o riginal testimony Mr. Straker gave to the investigating agents expressly included Mr. Rogers as being involved in the conspiracy. In light of the above, it is hi ghly probable the jury rejected Mr. Straker's testimony regrading Mr. Roger's involveme nt and believed Mr. Dwight David Rogers instead.

Mr. Rogers raises the following three grounds to support his claim of insufficiency of the evidence: 1) a general challe nge to the sufficiency of the evidence of the entire record; 2) because codefenda nt Steven Painovich was acquitted, the same evidence should also be conside red insufficient against Mr. Rogers; and 3) no evidence was produced that Mr. Ro gers distributed or intended to distribute methamphetamine. We first note the f act that the jury found one of his codefendants innocent does not require a simila r finding on behalf of Mr. Rogers. Mr. Painovich was charged with a differentrole in the conspiracy and the evidence against him was different from that pr esented against Mr. Rogers. Furthermore, there is no requirement that all alleg ed members of a conspiracy be-6-

convicted in order for the conspiracy to be proven. Before we will overturn a verdict for being inconsistent with that of a codef endant, all alleged coconspirators must be acquitted. United States v. Abbott Washroom Systems,
Inc. , 49 F.3d 619, 623 (10th Cir. 1995). This was clea rly not the case here. When we give all reasonable inferences and credibil ity determinations in favor of the jury's verdict, the record provides sufficient evidence to allow the jury to find beyond a reasonable doubt that Mr. Rogers knowinglyand voluntarily participated in the conspiracy to possess with intent to distrib ute and to distribute methamphetamine with the confessed and convicted co conspirators.

II Next we will address Mr. Rogers' contention the dis trict court erred in denying his request for a mistrial after his codefe ndant Steven Coin entered a guilty plea. Mr. Coin entered his plea during a co urt recess after the government and Mr. Rogers' attorney had given their opening st atements. Mr. Rogers claims Mr. Coin's guilty plea was highly prejudicial to hi m because Mr. Rogers and Mr. Coin are half-brothers and also because during the government's opening statements "several references were made to the rel ationships of Dwight David Rogers, Johnnie Wayne Rogers, Steven Coin, Kevin Co in and Matthew Coin."-7-

We review the district court's decision regarding w hether to grant a mistrial for abuse of discretion. United States v. Massey , 48 F.3d 1560, 1569 (10th Cir.), cert. denied, 115 S. Ct. 2628 (1995). When a codefendant pleads guilty, the district court "may inform the jury that a codefend ant has entered a plea of guilty, provided the jury is clearly instructed that such aplea cannot be considered as evidence of the guilt of the remaining defendant ordefendants." United States v. Earley , 482 F.2d 53, 58 (10th Cir.), cert. denied, 414 U.S. 1111 (1973). The importance of the instruction is to ensure that the jury does not use the codefendant's guilty plea as evidence of the remain ing defendants' guilt. See Massey , 48 F.3d at 1569; United States v. Baez , 703 F.2d 453, 455 (10th Cir. 1983). After denying defense counsel's requests fo r a mistrial, the district court gave the following instruction:

Members of the jury, you are instructed that Steven Coin, who was a defendant in this case, is no longer seated at counsel table as a defendant at this trial. You are not to draw any i nference from his absence nor consider it in any way. Mr. Coin testified for the government twelve days l ater without any additional instructions being given or any objection being rai sed by Mr. Rogers. At the close of the trial, the district court gave several jury instructions that addressed how they should treat the testimony of alleged coco nspirators who had pleaded guilty: Instruction No. 39-8- The testimony of an alleged accomplice, someone who said he participated with another person in the commission of a crime, must be examined and weighed by the jury with greater ca re than the testimony of a witness who did not participate in t he commission of that crime. Dwight David Rogers, Larry Straker and Steven Coin may be considered to be alleged accomplices in this case. The fact that an alleged accomplice has entered a p lea of guilty to the offense charged is not evidence of the guiltof any other person including the defendants. The jury must determine whether the testimony of an accomplice has been affected by self-interest, or b y an agreement he may have with the United States, or by his own inte rest in the outcome of this case, or by prejudice against the d efendants. Instruction No. 42A You have heard evidence that the witnesses Larry St raker, Steven Coin and Dwight David Rogers have pleaded gu ilty to crimes which arose out of the same events for [which] the Defendant[s] are on trial here. This evidence of their pleas of gui lty is admitted for very limited purposes. Specifically, the evidence is admitted so that you may assess the credibility of these witnesses as part of your duty in assessing the credibility of each and every witness who will appe ar in this case. Moreover, the evidence of their guilty pleas is als o admitted to show acknowledgment by them of participation in a crime charging them with conspiracy to possess with intent to distribut e and to distribute methamphetamine. Under no circumstances should the evidence of the p leas of Mr. Straker, Mr. Coin or Mr. Dwight David Rogers be used by you as evidence of the guilt of the Defendants, Alan Bruce Klein, Johnnie Wayne Rogers and Steven Edward Painovich.-9-

Mr. Rogers claims the above instructions were insuf ficient. We disagree. The district court clearly admonished the jury that it was not to view Mr. Coin's guilty plea as evidence of the remaining defendants' guilt . Furthermore, the heart of Mr. Rogers' argument really seems to be his concern that he was found "guilty by association." This concern of his is not something that could be corrected by a new trial. The fact that several of his brothers, half-brothers and his close friend have pleaded guilty to the conspiracy would remain the same. The district court did not abuse its discretion when it rejected Mr. R ogers' motion for a mistrial.

III Finally, we address Mr. Rogers' claim that it was e rror to submit the indictment to the jury without redaction of several facts not in evidence. In particular, Mr. Rogers objects to a portion of the indictment alleging that his codefendant, Alan Bruce Klein had approximately $19,0 00 in cash and a loaded semi-automatic handgun. The cash and handgun were never offered or received into evidence during the trial. Mr. Rogers does no t dispute any portions of the indictment pertaining to him but rather claims "Joh nnie Wayne Rogers has been prejudiced by the jury's consideration of an incomp lete redacted indictment."

In his brief, Mr. Rogers adopts Mr. Klein's argument on appeal that the-10-

indictment was prejudicial without raising any new grounds. We rejected Mr. Klein's argument regarding the partially unredacted indictment as harmless error in United States v. Klein , __ F.3d ___, No. 95-8076 (10th Cir. Aug. 20, 1996 ). However, even if we had found the language in the i ndictment prejudicial against Mr. Klein, this would not mandate a similar finding regarding Mr. Rogers. Mr. Rogers, has offered no evidence nor support for the theory that this prejudicial information about a codefendant had any prejudicial effect on him. We too find no such evidence nor support for such a theory. Th e jury in this case was clearly able to separate the evidence as to each codefendan t and base its decision on the specific evidence against each individual as reflec ted in its conviction of Mr. Klein and Mr. Rogers and its acquittal of Mr. Paino vich. See United States v. Edmonson , 962 F.2d 1535, 1545 (10th Cir. 1992) (finding jury's ability to separate evidence regarding codefendants reflected in verdic t). The district court did not abuse its discretion in denying Mr. Roger's motion for a mistrial.

For the reasons stated above, Mr. Rogers' convictio n is AFFIRMED

. Entered for the Court WADE BRORBY United States Circuit Judge