IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40828
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON LAMOAN NICKERSON; RUBEN CURTIS WILLIS;
a/k/a Donnie Willis; SYLVESTER WILLIAM BROWN, JR.;
JEFFREY WAYNE CROSS; BRIAN KEITH DAVISON; CECIL
LAMAR DOUGLAS, JR.; WELBY SAMUAL PLEASANT, II;
CEDRIC DONELLE JONES; and LILLIAN BRYANT PERRY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:96-CR-13-5
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July 9, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
Sylvester William Brown, Jeffrey Wayne Cross, Brian Keith
Davison, Cecil Lamar Douglas, Byron Lamoan Nickerson, Welby
Samual Pleasant II, Ruben Curtis Willis, and Cedric Donelle Jones
have appealed their convictions for conspiracy to possess with
intent to distribute cocaine base, distribution of cocaine base,
employment of a minor to distribute cocaine base, distribution of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 96-40828
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cocaine base within 1,000 feet of a public housing authority,
establishment of a drug distribution operation or “crack house”,
and use of a telephone to facilitate a conspiracy to distribute.
Appellants argue that African Americans were excluded from the
venire pool in violation of appellants’ right to equal protection
under the Sixth and Fourteenth Amendments and in violation of the
Jury Selection and Service Act. Appellants failed to present any
evidence showing that African Americans were systematically
excluded from the venire pool. Accordingly, they failed to make
a prima facie showing that their right to have a jury drawn from
a fair cross section of the community was violated.1 Appellants
have also failed to show that the disparity between the number of
eligible African Americans in the community and those selected
for the venire was sufficient to establish a prima facie equal-
protection claim.2
Appellants contend that the trial court violated their
confrontation rights in refusing to permit cross-examination of a
Government witness on the question of racial bias. “[A]
defendant’s Sixth Amendment rights do not guarantee
cross-examination that is effective in whatever way and to
whatever extent, the defense might wish.”3 The appellants were
1
United States v. McKinney, 53 F.3d 664, 671 (5th Cir.
1995).
2
See Id.
3
United States v. Wallace, 32 F.3d 921, 926 (5th Cir.
1994) (internal quotation marks omitted).
No. 96-40828
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permitted wide ranging cross-examination of the witness,
including examination of his motivation for cooperating with the
Government. A trial court may limit the scope of marginally
relevant cross-examination.4 The district court did not abuse
its discretion.
Appellants challenge the sufficiency of the evidence
underlying their convictions for distributing crack cocaine
within 1,000 feet of a housing authority. Appellants contend
that the Government failed to prove that they distributed crack
cocaine within 1,000 feet of a housing authority. Appellant
Davison argues that the evidence of this element was insufficient
with respect to him specifically because there was no evidence of
the distance between the housing authority and the street, where
Davison was alleged to have distributed crack cocaine.
The drug conspiracy at issue in this case was centered
around a residence located at 2210 North Duchess, in Sherman,
Texas. Investigating officer Gibson testified that the residence
abutted, and was within 1,000 feet of, an apartment complex
operated by the Sherman Housing Authority. Officer Gibson
testified that he “made measurements from the fence line to the
front of the garage at 2210, as well as from the fence line to
the curb in front of 2210”. A diagram of the area is included in
Gibson’s report. This unrebutted evidence was sufficient to
4
Id.
No. 96-40828
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prove the distance element of the 21 U.S.C. § 860 offense beyond
a reasonable doubt.5
Appellants argue that there was insufficient evidence to
support their convictions for conspiracy to distribute crack
cocaine. Appellants argue generally that the Government’s
evidence was insufficient to demonstrate the existence of an
agreement to violate the narcotics laws.6 We have carefully
reviewed the briefs and the transcript of the trial. The
Government’s evidence, although circumstantial, can fairly be
characterized as overwhelming. The jury could reasonably have
inferred that the defendants would not have been permitted by
Brown to deal crack cocaine at his residence unless there had
been an agreement among them.
Nickerson challenges the sufficiency of the evidence showing
that on December 13, 1995 and on December 19, 1995 he possessed
crack cocaine base with intent to distribute, as alleged in
counts 21 and 22 of the superseding indictment, respectively.
The jury could reasonably have concluded that the December 13,
1995, transaction occurred, was in furtherance of the conspiracy,
and was reasonably foreseeable to Nickerson.7 Although the
5
See United States v. Sparks, 2 F.3d 574 (5th Cir.
1993).
6
See United States v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992).
7
See United States v. Wilson, 105 F.3d 219, 221 (5th
Cir. 1997); United States v. Payne, 99 F.3d 1273, 1278 (5th Cir.
1996).
No. 96-40828
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evidence with respect to the December 19, 1995 transaction is
muddled, a reasonable juror could have resolved the
inconsistencies in the evidence in favor of conviction.
AFFIRMED.