United States of America, Plaintiff-appellee, v. Ana Balbuena, Defendant-appellant, 891 F.2d 287 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 891 F.2d 287 (4th Cir. 1989) Submitted: Sept. 22, 1989. Decided: Nov. 14, 1989

Charles G. Aschmann, Jr., Aschmann and Aschmann, on brief, for appellant.

Henry E. Hudson, United States Attorney, Roscoe C. Howard, Jr., Assistant United States Attorney, on brief, for appellee.

Before HARRISON L. WINTER, K.K. HALL and CHAPMAN, Circuit Judges.


Ana Balbuena appeals her convictions of distributing 50 grams or more of "crack" cocaine, in violation of 21 U.S.C. § 841; of using a telephone to facilitate a drug transaction, in violation of 21 U.S.C. § 843(b); and of attempting to distribute 50 grams or more of "crack" cocaine, in violation of 21 U.S.C. §§ 841, 846. We affirm.

Appellant raises only two assignments of error in the proceedings below. First, she contends that, although she and her codefendant were properly joined in the indictment, the trial court erred in refusing to grant her a separate trial. We disagree.

The decision whether or not to grant a motion to sever is one left to the sound discretion of the trial court and we will not disturb that discretion absent a showing of actual prejudice flowing from its abuse. United States v. Santoni, 585 F.2d 667, 674 (4th Cir. 1978), cert. denied, 440 U.S. 910 (1979). Appellant contends that as a minor participant in the drug distribution network led by her codefendant, she was prejudiced by the joinder because the jury was biased against her by the overwhelming evidence of her codefendant's guilt. We have rejected this argument before. When a jury has been properly instructed to consider the evidence of each defendant's guilt independently, disparity in the evidence of codefendants' guilt is rarely grounds for severance. United States v. Mitchell, 733 F.2d 327, 331 (4th Cir.), cert. denied, 469 U.S. 1039 (1984). In view of the unchallenged instructions given at trial, and the interests of judicial economy furthered by this joinder, we cannot find that the trial court abused its discretion in denying the severance motion.

Appellant's second challenge goes to the trial court's refusal to grant her pretrial release. We need not reach this issue, however, because appellant waived any error when she failed to appeal her denial of bail prior to trial. Id.

Accordingly, appellant's convictions are affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court.