429 So.2d 322 (1983)
SARASOTA COUNTY, a Political Subdivision of the State of Florida, Tamaron Homeowners Association, Inc., Jacob and Gladys G. Gwynne, and Theodore and Lula I. Wildman, Appellants,
v.
TAMARON UTILITIES, INC., Appellee.
Nos. 82-1594, 82-1744.
District Court of Appeal of Florida, Second District.
February 23, 1983.
As Clarified on Denial of Rehearings April 6, 1983.
Richard E. Nelson of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellant, Sarasota County.
Daniel Joy, Sarasota, for appellants, Tamaron Homeowners Association, the Gwynnes and the Wildmans.
M. Joseph Lieb, Jr. of Syprett, Meshad, Resnick & Lieb, P.A., Sarasota, for appellee.
CAMPBELL, Judge.
In this petition for common law certiorari, we consider the question of whether a county ordinance which prohibits treatment of depreciation on property contributed to a utility as an operating expense deprives a utility of its property without due process in violation of article I, section 9, Florida Constitution (1980), and the fourteenth amendment to the United States Constitution.
Tamaron Utilities is a franchised public utility operating in Sarasota County. U.S. Homes, Inc., the parent company of Tamaron Utilities, built the subdivision now served by Tamaron and also provided the initial utility service.
Tamaron applied to the Sarasota County Commission for a rate adjustment. Its application included a figure of $23,500 listed as a general and administrative expense under the subcategory "reserve contingency *323 account." Tamaron explained that this figure represented the annual amount of depreciation taken on property contributed to it, commonly referred to as "CIAC" property or property contributed in aid of construction. The county commission's own rate consultant did not include a similar provision covering depreciation on property contributed to the utility in his report directed to Tamaron's application.
The county refused to allow Tamaron to utilize the depreciation on contributed property as an operating expense, citing section 8(e) of County Ordinance No. 80-62, which specifically excludes reimbursement of depreciation on contributed property as an operating expense.
Tamaron then petitioned the circuit court seeking review of the commission's decision. The court struck section 8(e) of the ordinance as violative of the due process rights secured to Tamaron by the state and federal constitutions. The court also found that violations of procedural due process and equal protection occurred during the rate hearing.
The Tamaron Homeowners Association and certain affected individuals then intervened and sought a rehearing which the circuit court denied. The homeowners and the county appealed, and this court then elected to treat that appeal as a petition for common law certiorari. We have jurisdiction pursuant to article V, section 4(b)(3), Florida Constitution (1972), and rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure.
Before discussing the specific legal issue presented here, an identification and explanation of terms important in the utility rate-making process is extremely helpful.
(a) Rate Base. The Florida Supreme Court defined rate base in State v. Hawkins, 364 So.2d 723 (Fla. 1978), as representing "the utility property which provides the services for which rates are charged." 364 So.2d at 724. It is usually established by utilizing one of three primary or major methods of calculation.
The first method is original cost, defined by the Federal Power Commission as the cost of the utility plant to the person first devoting it to public use. There are several variations of this method. For example, the prudent investment method values the plant at the cost of the original investment if prudently made, see City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla. 1968), while the historical cost variation is an estimate of the prudent investment and is used when the real cost figures are unavailable. The second method examines the fair value of the utility's property at the time of the rate inquiry and when the property is in public service. The third method uses the reproduction cost of the existing plant. 64 Am.Jur.2d Public Utilities § 138 (1972).
Neither the United States nor the Florida Constitutions require that any specific method be used to determine the rate base so long as the method does not create an unreasonable or confiscatory rate. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Most states, including Florida, calculate the rate base using the original cost method. Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla. 1972); General Telephone Co. v. Carter, 115 So.2d 554 (Fla. 1959); Jacksonville Gas Corp. v. Florida Railroad & Public Utilities Commission, 50 So.2d 887 (Fla.), cert. denied, 342 U.S. 820, 72 S.Ct. 38, 96 L.Ed. 620 (1951). But see Tampa Electric Co. v. Watson, 146 Fla. 695, 1 So.2d 739 (1941). Sarasota County Ordinance No. 80-62 by its provisions uses the original cost method for determining rate base.
(b) Rate of Return. The court in Hawkins defined rate of return as the "percentage figure which is applied to the rate base in order to establish a reasonable return for the utility's investors." 364 So.2d at 724. A public utility is, of course, entitled to a fair rate of return on invested capital. Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla. 1974). Such a return inures to the benefit of the utility's investors and helps maintain the utility's financial integrity. Federal Power Commission v. Hope Natural *324 Gas Co.; Gulf Power Co. v. Bevis, 296 So.2d 482 (Fla. 1974). Additionally, a utility must be allowed to earn a rate of return sufficient to meet operating expenses. Village of Virginia Gardens v. Haven Water Co., 91 So.2d 181 (Fla. 1956).
In United Telephone Co. v. Mann, 403 So.2d 962 (Fla. 1981), the court explained the method used by the Public Service Commission in calculating a rate of return:
The method of calculating a rate of return is primarily based upon calculating the cost of investment capital. There are three main sources of investment capital: debt, preferred stock and common stock. The cost of the first two sources can be mathematically derived whereas the cost of common stock is a matter of economic judgment. Each of these costs expressed in terms of percentage is then multiplied by that particular source's capitalization ratio to achieve a weighted average. The sum of these weighted averages is the rate of return. After this figure is reached, the commission can make further adjustments to account for such things as accretion, attrition, inflation and management efficiency.
403 So.2d at 966. See also Application of St. Joseph Telephone & Telegraph Co., 19 Fla. Supp. 150 (Fla.R.R. & P.U.C. 1962). Tamaron Utilities claims that its investment capital was all CIAC property, and, therefore, it has no rate base upon which to set a rate of return so as to recoup any investment. The county's rate consultant agrees with this assertion in his report.
(c) Contributed Property or Contributions in Aid of Construction Property (CIAC). Because a public utility is entitled to a rate of return based only on invested capital, property outside the company's debt and equity capital structure is excluded. Hawkins; Westwood. Such contributions include the construction of facilities for the utility by a developer, as well as connection fees paid by customers moving into the development. Application of Tamarac Utilities, Inc., 45 Fla. Supp. 164 (Fla.P.U.C. 1977). Though not expressly applicable here, section 367.081(2), Florida Statutes (1981), contains a detailed description of CIAC property that is helpful:
any amount or item of money, services, or property received by a utility, from any person or governmental agency, any portion of which is provided at no cost to the utility, which represents a donation or contribution to the capital of the utility, and which is utilized to offset the acquisition, improvement, or construction costs of the utility's property, facilities, or equipment used to provide utility services to the public.
Here, there are connection fees as well as property contributed by the developer. Both properly form a part in any calculation of CIAC property.
(d) Operating Expenses. All legitimate expenses incurred by a utility during a test or pro forma year may be recouped. After the rate base is determined, operating expenses, along with taxes, are subtracted from the gross revenue to yield net operating income. This net return will then reveal whether the rate of return is sufficient or whether it is confiscatory.
Operating expenses may be classified via bookkeeping entry in any number of desired headings and subheadings in accordance with generally accepted accounting principles. On an income statement, depreciation expense is usually an allowable inclusion under the heading of general expenses. P. Fess & R. Niswonger, Accounting Principles (13th ed. 1981). Tamaron carries under the heading "general and administrative" expenses an item called "reserve contingency account." It contends that the amount in this account, $23,500, is an amount nearly equal to depreciation taken on CIAC property. The utility also has an additional heading "depreciation expense on noncontributed property" which, along with the reserve fund and other operating expenses and taxes, is subtracted from the gross revenue to obtain the net operating income, in this case, a negative figure. In contrast, the county's rate consultant includes depreciation on noncontributed property under the category "other expenses," but under operating expenses he includes neither a *325 reserve account nor a depreciation expense account for CIAC property.
(e) Depreciation. Depreciation is, of course, a term used to describe the gradual physical and functional decline of property used in business for the production of income. Fess & Niswonger. Section 167 of the Internal Revenue Code treats depreciation as an operating expense and allows an annual deduction in accordance with several prescribed methods.[1] I.R.C. § 167(b) (1983). With some modifications, this treatment is accorded to public utility property.[2] I.R.C. § 167(i) (1983).
For accounting and income tax purposes, the total amount of depreciation recorded and deducted cannot exceed the initial cost of the depreciable asset. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182 (1934); Chirelstein, Federal Income Taxation § 6.07(b) (2d ed. 1979). As used in this context, cost means the historical cost and not the replacement cost of the depreciable asset. Chirelstein. Despite this reliance on the cost method, it must be noted that for federal income tax purposes, one may have a depreciable asset that "costs" nothing. The Internal Revenue Code accomplishes this by assigning a basis or cost that can be used as a starting point for depreciation deductions. For example, if one acquires an asset by gift, section 1015 of the Internal Revenue Code determines a basis for the property. J. Freeland, S. Lind & R. Stevens, Fundamentals of Federal Income Taxation (3d ed. 1981). It seems reasonable to us that if contributed property can be depreciated annually for federal income tax purposes, this depreciation ought also to be considered at some point in the rate-making process.
Courts have long focused on the end result in the rate-making process in deciding whether rates are unreasonable or confiscatory. Hope Natural Gas. Despite the consistent use of the end result method in Florida, Carter; Jacksonville Gas, it will not be followed when it results in the use of erroneous or improper methods of ratemaking. Shevin v. Yarborough, 274 So.2d 505 (Fla. 1973); City of Miami v. Florida Public Service Commission.
Section 8(e) of County Ordinance No. 80-62 provides in pertinent part:
The Board has the duty and authority to determine and fix reasonable rates and charges that may be charged by any public utility for its services. The Board shall determine and investigate the actual original cost of the property of each public utility actually used and useful in public service and shall keep a current record of the net investment of each utility in such property. The value as so determined by the Board shall be used for rate-making purposes, less accrued depreciation and shall not include any contribution in aid of construction or any good will or going-concern value. The Board shall fix and determine a rate which allows for reimbursement of operating costs including depreciation on all properties, excluding contributed properties, and a fair and reasonable net return on the original cost of a system incurred by the person first dedicating it to public service, which shall not include contributions in aid of construction or customer contributions.
This ordinance breaks down in the following manner. The board first finds the actual original cost of the utility property used and useful in public service. From that value or figure, depreciation is then subtracted. CIAC property is also excluded from this cost calculation. Next, the ordinance states that the board must then fix a rate of return which will allow: (1) recovery of operating expenses on all property except depreciation on contributed property; and (2) a fair rate of return on the original cost of the system, not including CIAC property. Therefore, it is clear that the county's rate consultant correctly followed the ordinance in excluding any depreciation *326 on contributed property as an operating expense or cost. The utility claims this depreciation on contributed property must be included in a reserve contingency account so that the utility may accumulate a fund from which it can replace its physical plant.
In Westwood Lake, Inc., the petitioner protested the exclusion from its rate base of certain customer contributions. The court remanded the case for a determination of whether the rates were confiscatory. The court said that to insure a reasonable rate, it might be necessary to include a depreciation loss factor (presumably on CIAC property) in order to accumulate a fund to meet anticipated losses. 264 So.2d at 11.
For accounting purposes, when one depreciates an asset over its useful life, the amount depreciated is recorded to the debit account called "depreciation expense" and credited to a contra asset account called "accumulated depreciation." The asset itself remains recorded in a separate debit account, and it is recorded at its original cost. It is carried like that on the books until it is finally disposed of. The asset cash account is not increased by these entries, and so depreciation itself does not automatically provide a fund for the replacement of plant assets. Chirelstein, supra, at 129; P. Fess & R. Niswonger, supra, at 245. "This misconception [that depreciation entries automatically result in the build-up of a cash reserve] probably occurs because depreciation expense, unlike most expenses, does not require an equivalent outlay of cash in the period in which the expense is recorded." P. Fess & R. Niswonger, supra, at 245-46.
Therefore, Tamaron's reserve account is actually a debit depreciation expense account and so will never actually have any cash. The only way a reserve fund could be established is by debiting the cash or other asset account for an appropriate amount. Depreciation expenses do not involve any cash outlay, and so they are not the type of expenses that a utility has a constitutional right to recoup. Therefore, there is no constitutional requirement that a utility be allowed to build up a reserve fund from depreciation expenses.[3]
In State v. Hawkins, the court found that the Public Service Commission had exceeded its authority by using a particular accounting method to determine rate base. This method first deducted CIAC property from original cost. Depreciation was also subtracted from the original cost. But, depreciation on CIAC property was then added back into the rate base calculation. The Public Service Commission also allowed depreciation on CIAC and non-CIAC property to be treated as an operating expense. In a series of calculations, the court illustrated that the utility was improperly earning a double return on contributed capital because the Public Service Commission allowed an add-back of the CIAC depreciation into the rate base calculation as well as an operating expense allowance for CIAC depreciation.
In State v. Florida Public Service Commission, 399 So.2d 9 (Fla. 1st DCA 1981), the court sustained a Public Service Commission order allowing an add-back of CIAC depreciation in the rate base calculation. There, however, the Public Service Commission had prohibited the utility from treating CIAC depreciation as an operating expense. The court noted that the allowance of the add-back actually eliminated any influence of CIAC in the rate base calculation. 399 So.2d at 11. Finally, the court concluded that disallowing CIAC depreciation as an operating expense offsets the effects of an add-back which would otherwise result in a wrongful return on contributed capital.
Therefore, three principles inherent in the utility rate-making process are clear. One, CIAC depreciation is generally, and should be, considered at some point in the rate-making process. Two, while a utility *327 constitutionally must be allowed the right to recoup its investment and its expenses, there is no constitutional requirement that a utility be allowed to do so by maintaining a reserve fund using depreciation expenses. Three, a utility may permit an add-back of CIAC depreciation into the rate base calculation or it may treat CIAC depreciation as an operating expense, but it cannot do both.
In Southeastern Development & Utility v. Board of County Commissioners, 398 So.2d 882 (Fla. 2d DCA 1981), this court examined the predecessor ordinance of County Ordinance No. 80-62 and correctly sustained its treatment of CIAC depreciation as an operating expense. We did not there examine the question of whether CIAC depreciation was also included by way of an add-back in the actual rate base calculation. Nevertheless, our holding in that case is consistent with the Public Service Commission policy sustained in State v. Florida Public Service Commission, and it avoids the problem examined by the court in Hawkins.
Section 8(e) of County Ordinance No. 80-62 clearly does not allow CIAC depreciation to be treated as an operating expense. Neither does the ordinance permit consideration of CIAC depreciation in the rate base calculation. Our reading of the ordinance leads us to the conclusion that it does not provide for the inclusion of CIAC depreciation in the rate base calculation by way of an add-back.[4] If it did so, then we would be required to grant certiorari and quash the decision of the circuit court on this point. If it is improper to allow a utility to double-dip in its use of CIAC depreciation, it is equally improper to allow a regulatory body to completely prohibit or eliminate the use of CIAC depreciation in the rate-making process.
The circuit court struck only certain words of section 8(e) of the ordinance. We, however, conclude that that is not sufficient and accordingly hold the entire section 8(e) confiscatory and violative of the due process clauses of both the Florida and United States Constitutions and accordingly strike the entire section.
We, therefore, affirm the circuit court. However, we do so not because the exclusion by a regulatory body of CIAC depreciation as an operating expense is unconstitutional per se. We do so because it is improper to completely exclude the consideration of CIAC depreciation in the rate-making process as we interpret Ordinance No. 80-62 as doing here.
Finally, regarding the procedural due process claims, the attorney for Tamaron extensively examined the county's rate consultant and isolated the key differences between the utility's financial report and the consultant's report. He could have sought a continuance if, as he claimed, the consultant's financial report was confusingly drafted. However, he did not do so. The county was certainly entitled, after this full administrative hearing, to reject the utility's report and to accept the consultant's. Therefore, we quash that portion of the circuit court's order which finds violations of procedural due process and equal protection of the law.
AFFIRMED in part and QUASHED in part.
GRIMES, Acting C.J., and SCHOONOVER, J., concur.
NOTES
[1]  The straight line method, the sum of the years digits method, and the declining balance method.
[2]  Such property is subject to special depreciation formulas.
[3]  This does not mean, of course, that a reserve fund could not be established in some other fashion consistent with generally accepted accounting principles, nor does it mean that the practice followed by Tamaron is wrong. We mean only that such a practice is not constitutionally mandated.
[4]  We do not mean to suggest that an add-back is the only manner in which CIAC depreciation may be considered in the rate base calculation.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                         No. 94-5874
IVAN JULIAN STEVENSON, a/k/a Issac,
a/k/a Ike,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                         No. 94-5875
MAURICE EDWARD JACKSON, a/k/a
Moe,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                         No. 94-5876
REGINALD DAVIS, a/k/a Reggie, a/k/a
Sinbad,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-93-25)
Argued: October 31, 1995

Decided: February 5, 1996

Before HALL and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Hugh David O'Donnell, GREEN & O'DONNELL, Har-
risonburg, Virginia; Glenn M. Hodge, WHARTON, ALDHIZER &
WEAVER, P.L.C., Harrisonburg, Virginia, for Appellants. Stephen
Urban Baer, United States Attorney, Roanoke, Virginia, for Appellee.
ON BRIEF: William J. Rogers, Sr., Staunton, Virginia, for Appellant
Davis. Thomas J. Bondurant, Jr., Assistant United States Attorney,
Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

After a joint trial, a jury convicted Ivan Julian Stevenson, Reginald
Davis (R. Davis), and Maurice Edward Jackson of conspiracy to pos-
sess with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 846. The jury also convicted Stevenson and R. Davis of drug mur-
der, 21 U.S.C. § 848(e)(1)(A), and as accessories after the fact, 18
U.S.C. §§ 3, 2. On appeal from judgments entered on the verdicts of

                    2
the jury, Stevenson and R. Davis contend that the court erred by not
granting their motions for severance; that the evidence was insuffi-
cient to support their convictions for murder; that the court violated
their right to compulsory process; and that they were entitled to
downward departures under the sentencing guidelines. Jackson claims
that the court erred by denying his motions for severance and for dis-
missal under the Speedy Trial Act. He also alleges that there was
insufficient evidence to convict him of conspiracy and that an in-court
identification should have been suppressed. Finally, Stevenson, R.
Davis, and Jackson contend that the court abused its discretion by
denying their motions for a mistrial based on third-party contact with
potential jurors. Finding no error, we affirm.

I

Beginning in the summer of 1991, a drug organization led by Mark
Anthony Davis (M. Davis) transported approximately 125 grams of
crack cocaine from Washington, D.C., and New York, New York, to
Front Royal, Virginia, every two to three weeks. Dealers associated
with the organization, including Isaac Stevenson, Maurice Jackson,
Cecil Browning, and R. Davis, the brother of M. Davis, sold the drugs
in the Front Royal area.

Several witnesses linked the three defendants with M. Davis's drug
organization. Greg Browning testified that the three men had traveled
to New York with Cecil, Browning's brother, to purchase crack.
Other witnesses testified that they had purchased crack from Steven-
son and R. Davis and that they had seen Jackson selling drugs and in
possession of more than personal use quantities of cocaine. In addi-
tion, in a statement to the police, Jackson admitted to hustling crack.
Another witness testified that M. Davis had stated that all three defen-
dants were responsible for "tak[ing] care of what he [M. Davis]
wanted."

Stevenson also acted as M. Davis's enforcer or second in com-
mand, using threats and intimidation to collect debts and maintain dis-
cipline within the drug organization. In Front Royal in October 1992,
Stevenson hit Cecil Browning's kneecap with the blunt end of a fire-
man's axe, necessitating a trip to the hospital. A witness had heard

                    3
Stevenson say that he had come to Front Royal to take care of busi-
ness for M. Davis.

By late November 1992, Cecil Browning had fallen behind in his
drug payments to M. Davis. On November 12, 1992, a witness heard
Stevenson tell Cecil, using an obscenity, that he better have the
money tomorrow. R. Davis then told Cecil, using an obscenity, that
if he did not, R. Davis would shoot him. This conversation took place
in front of a Front Royal house known as an open-air drug market.
On the same day, another witness saw R. Davis stabbing a chair with
a knife, saying "somebody getting this."

On the afternoon of November 13, Cecil Browning checked into
room 208 of the Scottish Inn Motel in Front Royal. He was accompa-
nied by Avis Rochelle Aylor. Later that day, witnesses saw R. Davis
and Cecil involved in an argument. There was additional testimony
that Cecil had complained about Stevenson poking him with a knife.

That evening Stevenson, Jackson, R. Davis, and Cecil went back
to room 208 to watch television. After failing to find an acceptable
program, Jackson left to spend the night with Rita Mahoney at a
nearby motel. Mahoney testified that Jackson remained with her until
3 or 3:30 a.m.

At about 12:30 a.m., Cecil left Stevenson and R. Davis and regis-
tered for another room at the Scottish Inn, room 209. Around 2:30
a.m., guests in the rooms below room 209 heard loud thumps coming
from above within seconds of each other. A guest then heard someone
scream: "Let's get out of here, let's go."

About the same time, Stevenson and R. Davis started looking for
Jackson so that they could leave town. After finding Jackson, the
three men drove to Washington, D.C., sometime during the early
morning hours of November 14.

The bodies of Cecil Browning and Avis Rochelle Aylor were found
in room 209 at about 8 a.m. on November 14. Cecil had been shot
near the entrance to the room, and Rochelle was found in the bathtub.

                    4
Evidence introduced at trial indicated that someone wearing
K-swiss type sneakers had kicked in the door to room 209. An imprint
from a K-swiss type sneaker was found in the bathroom. Stevenson
wore K-swiss type sneakers. In addition, Stevenson's palm print was
on the outside of room 209's door.

At trial, a witness testified that he had heard Stevenson admit that
"he went in there, boom, boom, boom, and threw the bitch in the tub."
The witness testified further that R. Davis had heard Stevenson's
statement and had told him to be quiet. Another witness stated that
Stevenson had claimed that Jackson had shot Cecil. The same witness
testified that Stevenson had admitted telling Jackson to kill Rochelle
Aylor in order to prevent her from implicating Jackson. Other wit-
nesses contradicted this testimony.

II

By definition, conspiracy requires a court to consider evidence
implicating more than one individual. Each conspirator is responsible
for the actions of his coconspirators that are in furtherance of the con-
spiracy. Often, the conspiracy will also encompass more than one
offense. As a consequence, joining coconspirators and charged
offenses pertaining to the conspiracy in the same trial is preferred.
Zafiro v. United States, 113 S.Ct. 933, 937 (1993).

We have held that "[t]he grant or denial of a motion for severance
. . . is within the trial court's discretion and will not be overturned
absent a clear abuse of that discretion." United States v. West, 877
F.2d 281, 287-88 (4th Cir. 1989).

Stevenson and R. Davis argue that the denial of a severance preju-
diced them because the jury was incapable of differentiating between
charges of murder and a charge of conspiracy. They claim that it is
"easier" for a jury to find a defendant guilty of conspiracy, and once
a defendant is tainted with guilt, it is a simple matter for a jury to take
the next step and hand down a guilty verdict for murder as well.

Aside from their concern about a jury's thought processes, they cite
no support for this contention. We find nothing in the record to sug-

                     5
gest that the jury did not weigh the evidence or perform its function
in a conscientious and fair manner. In addition, the evidence relating
to the murders was inextricably intertwined with the drug conspiracy
evidence. Even in separate trials, evidence pertaining to the conspir-
acy would have been admissible to prove the motive for murder. Fed.
R. Evid. 401, 402, 404(b). Similarly, evidence of the murders would
have been admissible in a trial for conspiracy as overt acts in further-
ance of the conspiracy. We hold that the court did not abuse its discre-
tion by denying the defendants' motions for severance of offenses.
See United States v. Clark, 928 F.2d 639, 644-45 (4th Cir. 1991).

Also, Stevenson and R. Davis were not prejudiced by the court's
denial of their motions to sever their trial from Jackson's. They con-
tended that Jackson was the murderer, while Jackson maintained his
innocence. But the proffer of mutually-antagonistic defenses by code-
fendants is not per se prejudicial. Zafiro, 113 S. Ct. at 938. Prejudice
will arise only "if there is a serious risk that a joint trial would com-
promise a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence."
Zafiro, 113 S. Ct. at 938.

Under the Federal Rules of Evidence, the evidence introduced
against Jackson that related to the conspiracy would have been admis-
sible in a separate conspiracy trial against Stevenson and R. Davis.
Finally, although Stevenson and R. Davis point to the complex nature
of the evidence, they cite no specific prejudice. See Zafiro, 113 S. Ct.
at 938. After considering the evidence and the record as a whole, we
hold that the district court did not abuse its discretion by denying Ste-
venson's and R. Davis's motions to sever the joinder of the defen-
dants.

III

Jackson alleges that the court's denial of his motion for severance
violated his specific right under the Speedy Trial Act, 18 U.S.C.
3161(c)(1). He also claims that a joint trial prevented the jury from
making a reliable judgment about guilt or innocence.

A federal grand jury returned an indictment against Jackson and his
coconspirators on November 30, 1993. The 70-day speedy trial clock

                     6
began running on February 2, 1994. The trial was scheduled to begin
on April 4, 1994. At a hearing on March 14, 1994, the government
requested a continuance because of the unexpected complexity of the
case and because of a recent ice storm that had prevented the govern-
ment from adequately reviewing discovery. Counsel for Stevenson
and R. Davis joined in this request and these two defendants waived
their rights under the Speedy Trial Act. Jackson did not sign a waiver
and objected to the continuance. On March 21, without making any
"ends of justice" findings, the court continued the trial until July 11,
1994. On March 24, the court entered a second order, stating that a
continuance would serve the "ends of justice" by giving counsel ade-
quate time to prepare for trial.

Alleging that the continuance violated his right to a speedy trial,
Jackson filed a motion to dismiss on July 7, 1994. See 18 U.S.C.
§ 3161(c)(1). On July 11, Jackson's counsel withdrew the motion
after determining that the court's actions satisfied 18 U.S.C.
3161(h)(7). This withdrawal, although not dispositive, is a consider-
ation on appeal. See United States v. Keith, 42 F.3d 234, 238-40 (4th
Cir. 1994).

Under 3161(h)(7) of the Act, a continuance granted to one defen-
dant in a joint trial will also apply to codefendants if joinder of the
parties was proper and the period of delay was reasonable. United
States v. Sarno, 24 F.3d 618, 622 (4th Cir. 1994). Initially we must
consider whether the court's grant of a continuance to Jackson's code-
fendants satisfied the requirements of the Act. We review a district
court's legal determinations under the Speedy Trial Act de novo. We
apply a clearly erroneous standard to review the court's factual find-
ings. Keith, 42 F.3d at 236.

A court may grant a continuance without running afoul of the
Speedy Trial Act if it finds that "the ends of justice served by taking
such action outweigh the best interest of the public and the defendant
in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Here, the court did not
make the requisite "ends of justice" findings on March 21 when it
granted the continuance. But in its March 24 order the court deter-
mined that the order furthered the "ends of justice" because "a failure
to grant such a continuance would deny counsel for the defendant and
the attorney for the Government the reasonable time necessary for

                     7
effective preparation, taking into account the exercise of due dili-
gence." Cf. 18 U.S.C. § 3161(h)(8)(B)(iv). "Ends of justice" findings
made subsequent to the grant of a continuance satisfy the Act if it is
clear from the record that at the time it granted the original continu-
ance order the court weighed the need for a continuance against the
defendant's and the public's interest in a speedy trial. Keith, 42 F.3d
at 237-38. We conclude that the record as a whole demonstrates that
the court conducted the necessary balancing test. See United States v.
Jean, 25 F.3d 588, 594-95 (7th Cir. 1994).

Because the continuance was proper, we next consider whether the
court abused its discretion by denying Jackson's motion for sever-
ance. Stevenson, R. Davis, and Jackson shared equivalent degrees of
culpability for the actions taken in furtherance of the drug conspiracy.
The connected nature of the evidence, along with the preference for
joint trials in conspiracy cases, justified the court's decision. Further,
section 3161(h)(7) was enacted "to make it absolutely clear that Con-
gress did not intend to alter the traditional rules of severance." United
States v. Carey, 746 F.2d 228, 231 (4th Cir. 1984) (citation omitted).
We hold, therefore, that severance was not required.

The continuance granted to his codefendants was applicable to
Jackson if the delay of 48 days was reasonable. Due to the complex
nature of the case, the number of defendants, and the fact that Jackson
has not cited any concrete harm that resulted from the continuance,
we hold that the delay was reasonable. See United States v. Reavis,
48 F.3d 763, 771 (4th Cir. 1995).

IV

Stevenson and R. Davis next attack the sufficiency of the evidence
supporting their convictions for murder and aiding and abetting. Jack-
son appeals the sufficiency of the evidence linking him to the conspir-
acy, claiming that the testimony of Gregory Browning, the brother of
one of the murder victims, was "inherently incredible."

When considering the sufficiency of the evidence, we do not evalu-
ate the credibility of witnesses. Reavis, 48 F.3d at 771. Furthermore,
aside from the testimony of Browning, the government introduced the
testimony of numerous other witnesses who implicated Jackson in the

                     8
drug conspiracy led by M. Davis. Viewing the evidence and drawing
all inferences in the light most favorable to the government, we hold
that the evidence was sufficient to support Stevenson's and R. Davis's
convictions and Jackson's conviction for conspiracy. See Glasser v.
United States, 315 U.S. 60, 80 (1942).

Jackson also claims that Browning's in-court identification of Jack-
son should have been suppressed because Browning might have seen
the defendants in the courtroom prior to testifying. Even if we were
to assume, without deciding, that these circumstances resulted in an
impermissibly suggestive identification procedure, Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994), we find no error because
the totality of the circumstances "fall far short of the `very substantial
likelihood of irreparable misidentification' standard that is required."
United States v. Hughes, 716 F.2d 234, 241 (4th Cir. 1983) (citations
omitted). Evidence showed that Browning was acquainted with Jack-
son from drug transactions Jackson made during trips to New York
City. See Coleman v. Alabama, 399 U.S. 1, 4-6 (1970) (holding
admissible an in-court identification by a witness who had a fleeting
but "real good look" at his assailant in the headlights of a passing car).
We hold that the court did not err in denying Jackson's motion to
strike.

We conclude also that the court did not err by not compelling the
attendance of a defense witness, Mark Hoyle. Because Hoyle was a
defendant in a current criminal trial in another jurisdiction, he was
unavailable. His testimony was presented to the jury by way of a stip-
ulation agreed to by the defense. Under these circumstances, we hold
that the court did not violate Stevenson's and R. Davis's rights under
the Sixth Amendment.

There is also no merit to the claim raised by all three defendants
that the court abused its discretion by not ordering a mistrial. See
West, 877 F.2d at 287-88. The defendants' motions for a mistrial were
based on allegations by Stevenson's sister that a member of the venire
panel and an unidentified juror had heard that two coconspirators,
Leroy Patton and M. Davis, had pled guilty to the indictment. Later
at trial, the jury heard testimony from Patton that he had pled guilty.
Considering the source, the unsubstantiated nature of the allegations,
and Patton's testimony about his plea, along with the fact that the

                     9
overheard information did not relate to the guilt or innocence of the
defendants, we conclude that a mistrial was not warranted. See United
States v. Crisco, 725 F.2d 1228, 1233 (9th Cir. 1984).

In their final contention on appeal, Stevenson and R. Davis claim
that the court committed clear error when it denied their motions for
a downward departure under Application Note 1. of Guideline
§ 2A1.1. A decision not to depart is discretionary unless the district
court mistakenly believed that "it lacked the authority to depart."
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). The record
indicates that the court realized it could depart, but chose not to do
so after weighing the evidence.

AFFIRMED

                    10