UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30759
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON R. DUNCAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
September 29, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
POLITZ, Circuit Judge:
Leon Duncan, formerly an officer with the New Orleans Police Department,
challenges his conviction and sentence for violations of 21 U.S.C. § 846, conspiring to
possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1);
and 18 U.S.C. § 924(c)(1), knowingly using and carrying a firearm during and in relation to
a drug trafficking crime. Duncan was tried with a co-defendant, Darrel Jones, a reserve
deputy sheriff, whose conviction and sentence are not at issue in this appeal. Finding no
reversible error, Duncan’s convictions and sentences are affirmed.
BACKGROUND
This case presents a dispiriting reality -- police corruption with officers prostituting
themselves to facilitate criminal activities that they were duty-bound to eradicate. At least
nine officers1 were convicted of felonies. The only vaguely encouraging note one finds in
this record is the comment by one of the officers involved in the criminal activity that none
of the participants were “true blue policemen.” Indeed!
In late 1993, a New Orleans crack cocaine dealer, Terry Adams, wearied of extortion
by Police Officer Sammie Williams,2 complained to the Federal Bureau of Investigation and
agreed to assist their investigation. Williams quickly accepted Adams’ request for paid
protection for his drug-dealing activities and volunteered the services of fellow officer Len
Davis. After several months, during which Williams and Davis guarded what they believed
to be cocaine shipments at a warehouse, the FBI decided to expand its sting to rid the NOPD
of potentially more pervasive illegality. At the behest of Adams and another undercover
agent, who posed as a large dealer, additional police officers, including Duncan, were
recruited to assist in the protection racket. Duncan, who had previously worked in the
narcotics division of the NOPD, briefed the participants on how to avoid detection by federal
agents and joined in persuading other law enforcement officials to become involved in the
nefarious scheme.
1
Eleven law enforcement officials were implicated.
2
Williams testified that demanding money from drug dealers in exchange for
protection was common among his fellow officers.
2
On November 18, 1994, armed and in full police uniform, Duncan, along with other
law enforcement officials including co-defendant Jones, escorted supposed drug couriers
while they loaded and transported in each of two vehicles what was purported to be twenty-
five kilograms of cocaine. Five kilos in each vehicle were real; the remainder was sham.
Duncan rode with two fellow officers and followed one of the vehicles. Another triumvirate
of officers followed the other vehicle. The goal of the convoy was to ensure that no state or
federal agent interfered with the drug deliveries. For their services, Duncan and the other
police officers received several thousand dollars. Duncan made numerous incriminating
statements, which were taped and played to the jury. After considering the evidence,
including that graphically captured on tape, the jury rejected Duncan’s defense -- that he
thought he was working a security detail -- and convicted him of the offenses charged. He
was sentenced to 295 months incarceration. On appeal he complains of the jury selection
process and that his sentence was based on the attribution to his conduct of an excessive
amount of drugs.
ANALYSIS
I. Jury Selection.
Duncan advances a multifaceted attack on the manner in which the jurors were
chosen. He first contends that the trial court committed reversible error by denying his for-
cause challenges to five members of the venire. He maintains that the error impinged on his
sixth amendment right to an impartial jury because one of those challenged was selected to
serve. He then asserts that the error forced him to use his peremptory challenges to strike
3
four members of the venire who should have been dismissed for cause, thereby contravening
his rights under Fed. R. Crim. P. 24(b)3 and his due process right thereto. Finally, he
maintains that the trial court improperly denied two of his peremptory challenges -- one
involving the juror whom he unsuccessfully attempted to remove for cause -- based on his
analysis of the teachings of Batson v. Kentucky4 and Georgia v. McCollum.5 We address
Duncan’s claims seriatim.
A. For-Cause Challenges.
With respect to the for-cause challenges, our recent discussion in United States v.
Hall6 guides our resolution. There we summarized the applicable law as follows.
The Sixth Amendment right to an impartial jury requires the exclusion of a potential
juror if his views would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath. . . . [A] trial court's
predominant function in determining juror bias involves credibility findings whose
basis cannot be easily discerned from an appellate record. As such, deference must
be paid to the trial judge who sees and hears the [prospective] juror. We will only
second-guess the court’s decision that a juror is unbiased if there is an abuse of
discretion. . . .
[T]he loss of a peremptory challenge [does not] constitute[] a violation of the
constitutional right to an impartial jury. We have long recognized that peremptory
challenges are not of constitutional dimension. They are a means to achieve the end
3
Rule 24(b) assigns the number of peremptory strikes to which the parties in a
criminal case are entitled, in this case, ten for the defense and six for the prosecution.
4
476 U.S. 79 (1986) (holding race-based use of peremptory strikes against jurors
unconstitutional).
5
505 U.S. 42 (1992) (extending Batson framework to criminal defendant’s
discriminatory use of peremptory strikes).
6
152 F.3d 381 (5th Cir. 1998).
4
of an impartial jury. So long as the jury that sits is impartial, the fact that the
defendant had to use a peremptory challenge to achieve that result does not mean the
Sixth Amendment was violated. . . . We have observed that, [w]hile peremptory
challenges, or the number provided by Fed. R. Crim. P. 24(b) may not be
constitutionally required, it does not follow that a trial court’s wrongful reduction of
the number so provided is not reversible error on direct appeal. We have . . . held that
[t]he denial or impairment of the right to exercise peremptory challenges is reversible
error without a showing of prejudice.7
Duncan asserts a sixth amendment violation with respect to one juror. We must reject
his claim unless the trial court abused its discretion in determining that this juror’s “views
would [not] prevent or substantially impair the performance of [her] duties as a juror in
accordance with [her] instructions and [her] oath.”8 Duncan questions the juror's ability to
carry out her duties: she expressed a bias in favor of law enforcement witnesses over other
witnesses.9 On a prospective juror questionnaire she checked “yes” in response to the
question whether she “[w]ould . . . give more weight to the testimony of a law enforcement
witness than that of any other witness.” During voir dire, she elaborated that she “was raised
to respect authority[,] and [she] see[s] a law enforcement officer as an authority figure.”
This response does not necessarily indicate a disqualifying bias. Indeed this view has
been considered as reflective of “responsible citizenship and . . . not a ground to challenge
7
Id. at 406-08 (internal quotations and citations omitted).
8
Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotations omitted).
9
Duncan now suggests that the juror had connections with a federal prosecutor
through her sister and was acquainted with a trial assistant. This information was made
known in the voir dire examination. No issue regarding same was raised in the trial court.
We do not address it here.
5
[a] juror for charge.”10 At most, such would offer a predicate for further voir dire,
“depending on the issues in the case and the prospective witnesses.”11 In the case at bar this
was done. On further examination the juror unambiguously affirmed that she would be fair
and could reject the testimony of a law enforcement witness found to be lacking in
credibility. Finally, Duncan disregards a crucial distinction between this case and others –
the government’s case relied on the testimony of convicted felons. We are persuaded that
the trial court did not err in rejecting Duncan’s sixth amendment challenge to this juror, nor
did it abuse its discretion.12
Nor do we find any error or abuse of discretion in the trial court’s rejection of
Duncan’s for-cause challenges to four other members of the venire. A close reading of the
voir dire examination of these four persuades us that the trial court ruled appropriately.
None of the four demonstrated a disqualifying prejudice or bias.
B. Peremptory Challenges.
Duncan next contends that the trial court erred in its failure to allow two of his
peremptory strikes. The government objected to these challenges on the grounds that they
were racially motivated. Duncan, who is black, exercised ten peremptory challenges; nine
of them were directed at white members of the venire.
10
Darbin v. Nourse, 664 F.2d 1109, 1116 (9th Cir.1981) (Kennedy, J., concurring).
11
Id.
12
United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998).
6
In United States v. Bentley-Smith13 after noting the constitutional bar against race-
based peremptory strikes, we held that the district court’s determination that a party has used
peremptory strikes in a discriminatory manner is a finding of fact to be given great deference
and to be accepted absent clear error. It is from this vantage point that we examine the trial
court’s rulings on the peremptory strikes and the arguments made by the defense and the
government.14
A close reading of the relevant parts of the record of the voir dire examination reflects
somewhat inapt references by the court about racial proportionality in the venire list, jurors
selected, and peremptory challenges exercised, but the determinations made by the trial court
were based on other, appropriate factors. Although we might not have made the same calls
as the trial court in every instance, our review of the court’s total reasoning as to each
challenged juror leaves no doubt that neither error nor abuse of discretion exists as to any of
the rulings advanced as error on appeal. We find no violation of Duncan’s rights under
Fed.R.Crim.P. 24(b), nor any due process rights in connection therewith.
II. Drug Quantity.
Duncan contends that his sentence is based on a clearly erroneous drug calculation.
The Presentence Report calculated his base level offense to be thirty-six under U.S.S.G. §
13
2 F.3d 1368. Duncan argues that our review is de novo because the trial court
committed legal error in applying Batson. We reject Duncan’s argument and, under
Bentley-Smith, review the trial court’s rulings for clear error.
14
We were impressed by the oral advocacy skills demonstrated by counsel, neither of
whom was trial counsel.
7
2D1.1(c)(2), which assigns that base level for offenses involving fifty to one hundred fifty
kilograms of cocaine.15 The PSR attributed to Duncan fifty kilograms of cocaine -- the total
amount of sham and real cocaine contained in the two vehicles in the convoy of November
18, 1994. The PSR reflects that Duncan was unsure as to the exact quantity of drugs, but
concluded that he was aware that a significant amount was involved. Duncan objected to the
latter finding and to the PSR’s determination that he should be held accountable for the
cocaine in both vehicles.
On appeal, Duncan insists that the trial court, in derogation of Fed. R. Crim. P.
32(c)(1), failed to make factual findings that the amount of cocaine attributed to him was
reasonably foreseeable by him. Rather than make factual findings, Duncan complains that
the trial court simply adopted the PSR. Any such finding, Duncan insists, would constitute
clear error because the evidence established neither that he knew of the specific quantity of
drugs involved nor that he understood that quantity to be “significant.” He also contests that
a significant amount translates into fifty kilograms. Finally, for the first time on appeal,
Duncan advances a due process/separation of powers argument -- that the government
unilaterally, and unconstitutionally, determined the level of his sentence by deciding,
15
Duncan received a two-level upward adjustment under U.S.S.G. § 3B1.3 for abusing
the public trust in a manner that significantly facilitated the commission of the offense.
Thus, his total offense level was thirty-eight. Given that offense level and a criminal history
category of I, his guideline range was 235 to 293 months. He was sentenced to 235 months
for the drug crime and an additional sixty months, to run consecutively, for the gun crime.
8
unbeknownst to him, the drug quantity upon which his sentence would be based.16
While a trial court’s application of the sentencing guidelines is reviewed de novo, its
factual findings are reviewed only for clear error.17 “A factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.”18 Plain error review
applies to claims that were not raised before the trial court.19
Rule 32 provides, in pertinent part:
For each matter controverted, the court must make either a finding on the allegation
or a determination that no finding is necessary because the controverted matter will
not be taken into account in, or will not affect, sentencing.20
In United States v. Carreon,21 we addressed this rule as relates to a PSR thusly:
We have nevertheless rejected the proposition that a court must make a catechismic
regurgitation of each fact determined; instead, we have allowed the district court to
make implicit findings by adopting the PSR. This adopting will operate to satisfy the
mandate of Rule 32 when the findings in the PSR are so clear that the reviewing court
is not left to second-guess the basis for the sentencing decision.
Unlike in the cases cited to us by Duncan, we are not presented with an instance in
which a trial court, although adopting the ultimate conclusion of the PSR relating to
16
Duncan does not now argue -- nor did he in the trial court -- that the sham cocaine
should be excluded from the drug calculation for sentencing purposes.
17
See United States v. Dixon, 132 F.3d 192 (5th Cir. 1997).
18
Id. at 201.
19
See United States v. Anderson, 174 F.3d 515 (5th Cir. 1999).
20
Fed. R. Crim. P. 32(c)(1).
21
11 F.3d 1225, 1231 (5th Cir. 1994) (internal quotations and citations omitted).
9
reasonable foreseeability, makes findings that contradict the decisive facts underlying that
conclusion.22 Nor are we confronted with a case where the basis for the PSR’s findings is
unclear.23 In the instant case the foundation for the findings in the PSR regarding the
foreseeability of the drug quantities involved is manifestly apparent. As the probation officer
explained in addressing the objections lodged by Duncan:
Tapes as well as testimony at trial . . . [reflect] that Duncan believed that he was
working to protect a major drug dealer who had substantial amounts of cocaine
contained in at least two automobiles on the day in question.
Duncan’s complaint that the PSR contains no support for equating the qualitative term
“substantial amount[]” with the quantitative term “fifty kilograms,” does not constitute
grounds for rejecting the PSR for obscurity. It merely reflects the undisputed fact that no
evidence was offered at trial establishing that either Duncan or his co-conspirators knew the
precise quantity of drugs they agreed to safeguard.
Having rejected Duncan’s contention that the trial court failed to make factual
findings in compliance with Rule 32, we address whether the trial court committed clear
error in determining that Duncan should be held responsible for fifty kilograms of cocaine.
22
See United States v. Foy, 28 F.3d 464, 476-77 n.24 (5th Cir. 1994) (“In responding
to [the defendant’s] objections regarding a finding on reasonable foreseeability, the PSR
concluded [the defendant] played a significant role in the drug-trafficking enterprise. . . .
However, this finding cannot be attributed to the district court, since the district court
determined that [the defendant] was only a minor participant in the conspiracy.”); Carreon,
11 F.3d at 1230-31 (noting that trial court rejected key theory in PSR supporting
foreseeability).
23
See United States v. Sherbak, 950 F.2d 1095 (5th Cir. 1992); United States v.
Graham, 83 F.3d 1466 (D.C. Cir. 1996) .
10
Duncan’s objections to the quantity of cocaine have varied. In objecting to the PSR, he
claimed that “he should only be held accountable for the cocaine contained within the car
that he escorted.” On appeal, however, we have the argument that he should not be held
responsible for even twenty-five kilograms of cocaine, and that the trial court clearly erred
in finding that: (1) he understood that a significant drug quantity was involved and (2) that
“significant” means fifty kilograms or, for that matter, twenty-five kilograms or ten
kilograms. Indeed, he now asserts that he was not certain that the vehicles contained drugs,
as opposed to drug money.
Under § 2D1.1(a)(3) of the Sentencing Guidelines, the offense level of a defendant
convicted of a drug trafficking offense is determined by the quantity of drugs involved
in the offense. This quantity includes both drugs with which the defendant was
directly involved, and drugs that can be attributed to the defendant in a conspiracy as
part of his “relevant conduct” under § 1B1.3(a)(1)(B). . . . Relevant conduct for
conspiratorial activity is defined in § 1B1.3(a)(1)(B) as “all reasonably foreseeable
acts and omissions of others in furtherance of jointly undertaken criminal activity.”
[In other words,] . . . for conspiratorial conduct to be attributed under §
1B1.3(a)(1)(B), that conduct must be both “reasonably foreseeable” to the defendant
and within the scope of the defendant’s agreement.24
Our review of the trial transcript persuades that the trial court did not clearly err in
calculating the drug quantity attributable to Duncan. The evidence offered at trial amply
supports the finding that Duncan fully grasped that a significant quantity of drugs was
involved. The following facts are salient. Duncan knew or believed: that the drug-protection
racket pre-dated the rendezvous November 18, 1994; that his co-conspirators had been
guarding a warehouse filled with cocaine; that more than half-a-dozen law enforcement
24
Carreon, 11 F.3d at 1230 (citations and emphasis omitted).
11
officials would be guarding the shipments on November 18, 1994; that the cocaine would
be off-loaded from a tractor trailer; that the cocaine would be loaded into two vehicles; that
the drug trafficker was a major player; and that federal agents could be monitoring the
protection racket. While Duncan is correct that no evidence proved his awareness regarding
the exact quantity of drugs at issue, this fact alone is unavailing.25 Otherwise, he and other
like offenders could avoid punishment for actual drug quantities involved through studied
ignorance, notwithstanding their obvious understanding as to the general breadth of the drug
enterprise. In fact, the evidence introduced at trial demonstrated that Duncan and his co-
conspirators adopted this very ploy. Sentencing courts cannot be neutered by such
manipulation. Because fifty kilograms is clearly within the quantity that reasonably should
have been foreseeable to Duncan, we reject his argument that the trial court clearly erred in
attributing this drug quantity to him.
Finally, Duncan did not raise before the trial court his due process/separation of
powers contention. We accordingly view same through the lens of plain error. He offers
ostensibly favorable dictum from our opinion in United States v. Richardson,26 but moves
too quickly. Neither the holding thereof nor its dictum is of aid.
25
See, e.g., United States v. Negron, 967 F.2d 68, 72 (2nd Cir. 1992) (“In order to
sentence a defendant on the basis of the total amount of narcotics seized from his
coconspirators, the court is not required to conclude that the defendant had actual knowledge
of the exact quantity of narcotics involved in the conspiracy; it is sufficient if he could
reasonably have foreseen the quantity involved.”).
26
925 F.2d 112 (5th Cir. 1991).
12
In Richardson, the defendant contended that “the power of the executive branch to
determine a defendant’s sentence based on the amount of money that undercover agents
bring to the table in a ‘sting’ operation violates the separation of powers doctrine [and his
due process rights].”27
We agree[d] that if the executive branch had the unilateral power to directly and
automatically ratchet up a sentence through these means, one might then argue that
such power could constitute the sort of threat to the ‘authority and independence’ of
the judicial branch that the Supreme Court referred to as constitutionally infirm. . .
.28
Nonetheless, we categorically rejected the defendant’s arguments “because the district court
clearly retained the authority to find that the amount of money brought to the table was not
legitimately part of the conspiracy and was not, therefore, ‘relevant conduct.’”29 We reasoned
that “[t]he district court judge is not required to automatically enhance a defendant’s
sentence simply because the government agents choose to bring a certain amount of money
to the table. The judge must make factual findings that the money brought to the table is
‘relevant’ to the crime.”30
We also found no violation of due process, remarking that “it would be difficult to
conclude that the government unfairly manipulated the amount of money involved in the
‘sting’ operation” given that both of the defendants “demonstrated an affirmative desire to
27
Id. at 117.
28
Id. (citation omitted).
29
Id.
30
Id.
13
launder the money presented [them].”31
Duncan attempts to distinguish Richardson from his case because there the
defendants affirmatively sought larger sums of money from the agents. But, as discussed
above, the evidence at trial showed Duncan to be an enthusiastic participant in what he
believed to be an extensive drug protection racket.32 In light of this, the distinction upon
which Duncan relies cannot bear the weight he would assign. To the contrary, this case, in
all important respects, is on all fours with Richardson. For largely the same reasons as
stated in that case, we conclude that Duncan failed to establish, under the plain error standard
of review, that his sentence was unconstitutionally determined by the executive branch.
For these reasons, Duncan’s convictions and sentences are AFFIRMED.
31
Id. at 118.
32
This fact distinguishes the instant case from United States v. Ramirez-Rangel, 103
F.3d 1501 (9th Cir. 1997), also relied upon by Duncan.
14