United States of America, Plaintiff-appellee, v. Joseph Albert Jarrett, Sr., Defendant-appellant.united States of America, Plaintiff-appellee, v. Stephen Michael Gero, Defendant-appellant.united States of America, Plaintiff-appellee, v. Ronnie Wayne Neill, Defendant-appellant, 856 F.2d 187 (4th Cir. 1988)

Joseph Albert Jarrett, Sr., Stephen Michael Gero, and Ronnie Wayne Neill appeal their convictions of conspiracy to distribute cocaine, 21 U.S.C.A. Sec. 846 (West 1981), possession with intent to distribute cocaine, 21 U.S.C.A. Sec. 841(a) (1) (West 1981), and traveling in interstate commerce to promote drug distribution, 18 U.S.C.A. Sec. 1952(a) (3) (West 1984). We affirm.

The evidence viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80 (1942), demonstrates that in the summer of 1985 Clarence Caviness and Gene Todd were involved in distribution of cocaine in North Carolina, South Carolina and Florida. Initially Todd was the primary supplier in this drug enterprise. After Caviness became dissatisfied with this relationship he began purchasing from Jarrett. These relationships and the resulting chains of supply and distribution formed the framework of the conspiracy which resulted in these convictions.

On various occasions from August 1985 through August 1986, Caviness obtained cocaine from Jarrett in Florida, diluted it, and delivered it to his associate Eddie Boggs for distribution in North Carolina. He also continued to purchase cocaine from Todd which was distributed by Gero and Boggs in North and South Carolina, and by Jarrett in Florida. In January 1986 Caviness also began obtaining cocaine directly from John Reinman, Jarrett's supplier, which was distributed by Gero and Neill in South Carolina.

The conspiracy continued for a number of months but began to dissolve during the period from March to June 1986 due to the arrests of various members of the network. The conspiracy effectively ceased in August 1986 when Caviness was arrested. Thereafter, Reinman, Jarrett, Gero, and Neill were jointly indicted for conspiracy to distribute cocaine. Jarrett and Gero were charged in separate counts with traveling in interstate commerce to promote drug distribution and possession of cocaine with intent to distribute. Jarrett was also charged with traveling in interstate commerce to promote drug distribution and possession of cocaine with intent to distribute.

Jarrett, Gero, and Neill pled not guilty and their cases proceeded to trial. When Reinman failed to appear for trial he was tried in his absence with the other co-defendants. Caviness and Boggs testified for the government and all Defendants were found guilty as charged.

Defendants raise a number of issues, all of which are without merit.

Defendants argue that it was error for the district judge to deny their motion to sever their cases from that of Reinman because of prejudice arising from his absence in the proceedings. This motion was addressed to the discretion of the trial judge and we find no abuse of this discretion in denying the motion. United States v. Peterson, 524 F.2d 167, 185 (4th Cir. 1975), cert. denied, 424 U.S. 925, 423 U.S. 1088 (1976).

Defendants next argue that the district judge erred in refusing their requests to charge on the law of multiple conspiracies. Although a trial judge must instruct the jury on any theory of defense for which there is an evidentiary foundation, United States v. Hicks, 748 F.2d 854 (4th Cir. 1984), the facts here did not provide a basis for a charge concerning multiple conspiracies. See United States v. Dorta, 783 F.2d 1179, 1183-84 (4th Cir.), cert. denied, 477 U.S. 905 (1986); United States v. Hines, 717 F.2d 1481, 1489-90 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 1219 (1984). As in Hines, this case involved at most a single conspiracy with multiple tiers of organization. 717 F.2d at 1490. Defendants' claim that the indictment fatally varied from the proof at trial, because a series of conspiracies was established rather than one, is similarly without merit. Id.

Neill contends that the district judge erred in denying his motion for judgment of acquittal of the charge of conspiracy because his participation was limited to a single act without knowledge of the conspiracy. To the contrary, his knowing participation was evidenced by Caviness' testimony concerning Neill's role and conduct. He also contends that the testimony of Caviness, and Boggs' general testimony regarding arrangements made for the sale and delivery of the cocaine, did not satisfy the admissibility requirements for co-conspirator hearsay statements as enunciated in Bourjaily v. United States, 483 U.S. ----, 97 L. Ed. 144 (1987), which he argues requires independent evidence of his participation in the conspiracy prior to admission of the testimony of Caviness and Boggs. However, Neill concedes that "hearsay statements were not offered here to establish the existence of the conspiracy or Neill's connection," and that the conspiracy was established by direct testimony.

Gero argues that it was error for the district judge to deny his motions for judgment of acquittal of charges that he unlawfully possessed cocaine with Jarrett with intent to distribute on March 20, 1986, and that he traveled in interstate commerce in furtherance of drug trafficking activity. However, Gero essentially concedes that on that day he accompanied Jarrett from Florida to Caviness' apartment in North Carolina where Jarrett obtained drugs, and then returned to Florida. While Gero argues that he did not have knowledge sufficient to establish either constructive or actual possession of cocaine, viewed in the light most favorable to the government, the evidence was sufficient to support the jury verdicts as to both charges.

After carefully considering all of appellants' contentions, we conclude that the judgments entered pursuant to the jury verdicts should be affirmed.

AFFIRMED.