U.S. v. Yates, 83-2195

• Decision Date: 11 May 1984
• Docket Number: No. 83-2195,83-2195
• Citation: 734 F.2d 368
• Parties: UNITED STATES of America, Appellee, v. Russell James YATES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 368

734 F.2d 368

UNITED STATES of America, Appellee, v. Russell James YATES, Appellant.

No. 83-2195.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1984.

Decided May 11, 1984.

Robert Herman, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., Debra E. Herzog, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

ROSS, Circuit Judge.

Yates appeals from his convictions for (1) possession of heroin with the intent to distribute, 21 U.S.C. Sec. 841(a)(1), and (2) possession of a firearm by a convicted felon, 18 U.S.C. Sec. Appendix 1202(a)(1). Jurisdiction of this court is invoked pursuant to 28 U.S.C. Sec. 1291. Yates' primary contention on appeal is that the trial court abused its discretion by failing to order severance of the charges because the evidence of the prior drug felony, introduced as an element of the weapons charge, substantially prejudiced defendant's right to a fair trial on the current drug charge. We affirm the district court.

Facts

A search warrant was issued and executed by detectives on a St. Louis residence. The officers proceeded to a bedroom which was shared and occupied by defendant Yates and Doris Heard. The detectives seized a cellophane bag containing 38 capsules, a vial with 9 capsules, a vial and folded white envelope and sundry drug paraphernalia. Under the mattress, detectives found a .38 caliber Smith and Wesson revolver which resulted in the possession charge. ¹ Yates stated that he resided at this residence and that the bedroom he was found in was shared by him and Doris Heard.

Severance

During the trial the government introduced a prior conviction for possession of heroin with the intent to distribute as an element of the weapons charge. ² FED.R.CRIM.P. 8(a) states:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Yates argues, however, that the district court should have severed these offenses under FED.R.CRIM.P. 14. This rule provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder 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. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

Yates argues that this failure to sever the drug charge from the weapon charge is highly prejudicial and therefore grounds for reversal and cites United States v. Cook, 538 F.2d 1000 (3d Cir.1976) in support of his contention.

We find these contentions based on the circumstances of this case to be without merit. In order for a party to prevail on a claim that the count should have been severed, he must show clear prejudice and an abuse of discretion. United States v. Hastings, 577 F.2d 38 (8th Cir.1978); United States v. Losing, 560 F.2d 906 (8th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v. Jackson, 549 F.2d 517 523 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); United States v. Graham, 548 F.2d 1302, 1310-11 (8th Cir.1977). The district court retains considerable discretion in matters of severance. United States v. Bohr, 581 F.2d 1294 (8th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978); United States v. Smith, 578 F.2d 1227 (8th Cir.1978).

In the present case, however, Yates failed to properly object to the joinder of the offenses. When Yates moved to sever the offenses, the motion was based on an allegation that the indictment did not specify that the two counts charged arose from the same transaction not that joinder would result in clear prejudice. Furthermore, Yates did not object to the admission of this felony at...