opinion: UNITED STATES of America, Plaintiff-Appellee, v. Willard Richard SANDERS, Defendant-Appellant.
  No. 72-1026.
  United States Court of Appeals, Eighth Circuit.
  Submitted June 16, 1972.
  Decided July 26, 1972.
  William L. Kutmus, Des Moines, Iowa, for defendant-appellant.
  Allen L. Donielson, U. S. Atty., John B. Grier, Asst. U. S. Atty., Des Moines, Iowa, for plaintiff-appellee.
  Before LAY and BRIGHT, Circuit Judges, and DEVITT, District Judge.
  DEVITT, District Judge.
  Found guilty on each count of a four count indictment charging violation of the Federal Drug Statutes, defendant appeals from the conviction entered on three of these counts. Appellant claims error in the admission of hearsay testimony, insufficiency of the evidence, and improper joinder of offenses.
  Defendant was charged in Count I with dispensing and distributing a narcotic drug in violation of 26 U.S.C. § 4704(a); in Count II, with selling, bartering, or exchanging a narcotic drug in violation of 26 U.S.C. § 4705(a); in Count III with willfully and knowingly receiving, concealing and facilitating the transportation of a narcotic drug, a violation of 21 U.S.C. § 174; and in Count IV, with intentionally distributing a narcotic drug in contravention of 21 U. S.C. § 841(a) (1). The crimes charged in Counts I, II and III allegedly were committed on February 10, 1971. The crime charged in Count IV allegedly was committed on October 12, 1971. Defendant appeals from the conviction on the first three counts but does not appeal from conviction on the fourth.
  Two co-defendants, Joseph Alexander and Howard Anthony Gray, did not stand trial and subsequently pled guilty. Defendant was sentenced to concurrent terms of ten years on each of the four counts.
  The evidence concerning the commission of the crimes charged in the first three counts reveals that these crimes took place within a two hour period on February 10, 1971 in Des Moines, Iowa. The government sought to make its case with the assistance of an informant, Billie Joe Lincoln, and an undercover agent, Tyrone Von Yarn. The activities of these two were directed and supervised by Federal Narcotic Agents and surveillance teams from the Iowa Bureau of Narcotics.
  The evidence showed that on February 10 the government informant, the undercover agent and one co-defendant, Alexander, went to Joyce’s Lounge in Des Moines, Iowa and met there the defendant Sanders. Lincoln, who was previously acquainted with the defendant, approached the defendant and inquired about the purchase of some heroin. Sanders indicated that Lincoln could buy a half spoon for $300. Lincoln then advised Sanders that he would take a half spoon for that price and that he also wanted to introduce defendant to a friend, Von Yarn. The defendant said he would not deal with Von Yarn because he did not know him and if Von Yarn wished to deal at all he would have to deal with Joseph Alexander. Defendant told Lincoln to go to Alexander’s home at 1240 — 12th Street in Des Moines and that he would meet him there with the heroin.
  Lincoln, Von Yarn and Alexander then went to the Alexander house, some two blocks from Joyce’s Lounge. Defendant did not appear at Alexander’s home but co-defendant Gray appeared on the scene. Gray, Alexander, Lincoln and Von Yarn went into the kitchen where Lincoln was invited to test the heroin. He did and subsequently turned over to Gray $300, the agreed purchase price. The bottle containing the heroin was then given to Von Yarn and he and Lincoln left the Alexander residence.
  At trial Von Yarn, the government undercover agent, testified to the transactions which took place at Joyce’s Lounge and at the Alexander home. In addition, he testified as to the conversation between Billie Joe Lincoln and the defendant regarding the proposed sale of heroin. Each of the government’s principal witnesses, Lincoln and Von Yarn, was permitted over objection of defendant to testify as to the conversation Lincoln had with Alexander and to the conversation Alexander had with Von Yarn, the defendant not being present, regarding the defendant’s involvement in the alleged sale of heroin.
  Defendant claims that this testimony was hearsay and erroneously admitted. We do not agree. It is well settled that once a conspiracy, agency, or concert of action between the declarant and the defendant is independently shown, hearsay statements made in furtherance of the relationship are admissible. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), United States v. Krulewitch, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). This principle was recently restated by Judge Van Oosterhout for this circuit in United States v. Reed, 446 F.2d 1226 (8th Cir. 1971), and is the holding of the ease principally relied upon by defendant, United States v. Ragland, 375 F.2d 471 (2d Cir. 1967).
  The requirement for admissibility of this type of testimony is satisfied by showing likelihood of illicit association between the declarant and the defendant. Ragland, supra. If the issue is submitted to the jury, it is the responsibility of the jury to determine whether the evidence is credible and convincing beyond a reasonable doubt. United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945). In determining preliminary questions of fact relating to admissibility of hearsay evidence the trial judge has wide discretion and need be satisfied only that the independent evidence is credible and sufficient to support a finding of a joint undertaking. Ragland, supra, and cases there cited 375 F.2d at 477. The independent evidence of illicit association may be totally circumstantial. Bartlett v. United States, 166 F.2d 920, 925 (10th Cir. 1948).
  We are satisfied that the trial judge was fully justified in concluding from the testimony of Lincoln alone that there was sufficient evidence to establish the requisite likelihood of illicit association between the defendant and Alexander so as to justify the submission of the question to the jury. The trial judge submitted the matter to the jury by his instructions 10 and 11; and by its verdict the jury must be said to have found that there was a concert of action between defendant and Alexander. Clearly it was within the discretion of the trial court to admit the testimony subject to its being connected up by subsequent proof. Fabian v. United States, 358 F.2d 187, 192 (8th Cir. 1966) ; Reistroffer v. United States, 258 F.2d 379, 386, 388 (8th Cir. 1958). There was adequate factual basis in the record for the submission of the question to the jury and for the finding by the jury. We conclude that the admission of the testimony was proper. Reed, supra.
  The defendant also urges that the evidence was insufficient to sustain the verdict and that the court erred in overruling his motion for judgment of acquittal made at the end of the government’s case.
  In determining the sufficiency of the evidence to support the conviction we must view the evidence in the light most favorable to sustaining the jury verdict of guilty. As the prevailing party the government is entitled to the benefit of all reasonable inferences that tend to support the verdict. Langel v. United States, 451 F.2d 957, 961 (8th Cir. 1971).
  Whether the indictment charges the defendant as a principal, as urged by the government and as it appears to us, or as an aider and abettor, as urged by defendant, we are satisfied from a review of the transcript that there was sufficient evidence of defendant’s involvement in the offense to sustain a conviction. The testimony of Lincoln and Von Yarn, if believed by the jury, was sufficient to show defendant’s participation in the crimes charged. Even if, as urged, the defendant was charged as an aider and abettor, the evidence satisfies the test of Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Nye & Nissen holds that it must be shown that defendant associated himself with the venture, participated in it as something that he wished to bring about, and sought by his actions to make it succeed. See also Mack v. United States, 326 F.2d 481 (8th Cir. 1964), Mays v. United States, 261 F.2d 662 (8th Cir. 1958).
  Defendant’s last point is that the court erred in denying his motion to sever the trial of Count IV from the trial of Counts I, II and III. Counts I, II and III charged crimes allegedly committed on February 10, 1971. Count IV charged a crime on October 12, 1971, some eight months later. Defendant claims the trial of the four offenses at the same time was prejudicial to him.
  It is of course permissible for the government to join all four counts in the same indictment where, as here, the offenses are “of the same or similar character.” Fed.R.Cr.P. 8(a). In addition, the motion for severance here was untimely, not having been made until after the government rested. Finally, no prejudice has been shown by the joinder of the offenses, even though they occurred eight months apart. Severance is a matter committed to the discretion of the trial court and is not subject to reversal unless clear prejudice is shown. United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970). No prejudice has been shown here.
  The trial court was attentive to possible prejudicial joinder of defendants, granting separate motions of co-defendants Alexander and Gray for severance and separate trials.
  Defendant has also filed a brief Pro Se. We' have examined each of the points raised and find them nonmeritorious. Defendant’s complaint that the informant’s statement was not made available to defendant’s counsel until the morning of the first day of trial is without merit. Under the Statute, 18 U.S.C. § 3500, such a statement need not be made available until the witness whose statement is sought has testified. The names of all witnesses except the informant were given to defendant’s counsel at an omnibus hearing. In the interest of protecting the personal safety of the informant, it was prudent not to disclose his identity until just before trial. Defendant’s objection to the court’s reception of rebuttal evidence is likewise meritless. The testimony was properly received without objection as bearing on the credibility of defendant’s testimony.
  Defendant was represented by competent counsel at trial and in this court. The trial judge afforded defendant a fair trial. Evidence of guilt is substantial and the record is without prejudicial error. We affirm the Judgment of Conviction.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.