Unpublished Disposition, 923 F.2d 864 (9th Cir. 1988)

MEMORANDUM^** 

Defendant Barbara Hammond appeals her convictions for distributing crack cocaine in violation of 21 U.S.C. § 841(a) (1). She contends that the district court improperly denied her motion for severance from prejudicial joinder under F.R.Crim.P. 14. Because we find that the district court did not abuse its discretion in denying Hammond's motion, we affirm. See United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987).

To support her motion for severance, Hammond claims that she intended to testify that government agents had entrapped her into participating in the distribution of several ounces of cocaine. As part of this defense, she said, she would have testified that co-defendant Johnny Bentley had come to her residence on December 17, 1988 and distributed the cocaine. She did not do so, however, she contends, because Bentley had told her that he would have his people "take care" of her family if she testified. By denying her motion for severance, she contends, she was prevented from taking the stand and testifying in her own defense.

We find defendant's claim without merit. "To warrant severance, a defendant must demonstrate clear, manifest, or undue prejudice resulting from joinder." United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988). A trial court's determination will only be overturned if the defendant can show that a "joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial...." Patterson, 819 F.2d at 1501.

Hammond has made no such showing. Although she claims that her life would have been in danger if she had testified in a joint trial, the trial judge offered to alleviate such a threat by placing her and her family in a witness protection program if she were found innocent and in protective custody if she were found guilty. The trial judge thus took adequate steps to remove, to the extent possible, any prejudice resulting from joinder. Cf. United States v. Adams, 581 F.2d 193, 198 (9th Cir. 1978), cert. denied, 439 U.S. 1006 (1978). That a separate trial might have offered " 'a better chance of acquittal,' " id. (quoting United States v. Cella, 568 F.2d 1266, 1288 (9th Cir. 1978), is insufficient to reverse the district court's order denying Hammond's severance motion.

AFFIRMED.