UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-8030
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK BRANCH, and KEVIN JOE HILL,
a/k/a Dominique Hill, GLORIA SHERMAN,
and ANDRE THOMPSON,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
(April 14, 1993)
Before WILLIAMS, REYNALDO G. GARZA, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This is an appeal from a drug trafficking case in which
defendants Branch, Hill, Sherman and Thompson were charged with a
conspiracy to sell cocaine in Midland, Texas, and related
offenses.1 Having been convicted after a jury trial and received
lengthy sentences, they appealed to this court.
1
Count One charged appellants and others with conspiracy
to possess with intent to distribute over 50 grams of cocaine
base. Count Two charged the same defendants with aiding and
abetting possession with intent to distribute. Count Three
charged Jimmy Sherman with possession with intent to distribute
49.18 grams of cocaine base. Count Four charged Thompson and
Jimmy Sherman with use of a communication facility to further a
drug crime. Count Five charged Branch with using and carrying a
firearm in relation to illegal drug trafficking.
All of the appellants argue that a Batson error occurred
in the selection of the jury. Thompson additionally contends that
the jury instructions suffered from plain error, while Sherman
contests sufficiency of the evidence and the denial of her motion
for severance. We find merit in none of these claims and affirm
the judgments of conviction.
BACKGROUND
Jimmy Sherman, the primary government witness, testified
that he began to sell crack cocaine for appellant Branch in
Midland, Texas in April, 1991. On June 13, 1991, during a drug
selling trip to Midland, Jimmy Sherman was arrested and sought
assistance from the police after having been in jail for a month.
Eventually he was bailed out by Branch but continued to cooperate
with the government.
Branch's group was arrested during an August 9 sales trip
to Midland. Branch, Jimmy Sherman and his family, Hill, Hill's
wife Gloria Sherman (no relation to Jimmy) and their child drove to
Midland, where they registered under Gloria Sherman's name in
separate hotels, renting rooms paid for by Branch.
The following day Jimmy Sherman and Thompson went out to
find buyers for their drugs. After making some sales, Jimmy
Sherman returned to the Metro Inn to see his wife. At this point,
Branch arrived saying he believed they were being watched by the
police at the Royal Inn, and he told other members of the group to
retrieve the drugs and gun out of Branch's room at the Royal Inn.
While Sherman was doing this, the police saw and followed him. A
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car chase ensued, and after further pursuit, the police caught and
arrested Branch, Hill and Thompson, who had tried to rescue Jimmy
Sherman.
Back at the Royal Inn, a police officer obtained written
consent to search Gloria Sherman's room, which she was sharing with
her "husband" Hill and their child. When her room was searched, a
red diaper bag with her name on its tag was found in the closet.
The bag contained a package of sanitary napkins in which crack
cocaine was concealed. The government asserted at trial that
Gloria Sherman and her family were being used as a ploy to make the
alleged drug transaction look like a family vacation. Gloria
Sherman claimed that the sanitary napkins were not hers but had
been left there by another person. At trial, Jimmy Sherman
testified that Gloria Sherman was just with them on the sales trip.
I.
THE BATSON CLAIMS
Among the venirepersons there were two black prospective
jurors. The state stuck one of them with a peremptory challenge,
leaving the other on the actual jury panel. At the close of voir
dire, defense counsel urged that the jury panel was invalidly
constituted under Batson v. Kentucky, stating:
Your honor, we want to challenge the
composition of the jury under Batson v.
Kentucky and would ask the court to take
judicial notice that all of our clients are
members of a cognizable race or group, that of
the Afro American. The two members of the
jury panel, number 21, Miss Green, and number
24, Mr. Miller, are members of the same racial
group. The government exercised its
peremptory challenge on Miss Green, but it
3
left Mr. Miller; but we object to the
exclusion of Miss Green under Batson v.
Kentucky, Your Honor.
The court responded, "I don't think you have the absolute right to
have every black on the panel sit on the jury."
This statement seems to be a finding that appellants did
not make a prima facie case of discrimination under Batson, and as
such, it is reviewed for clear error. United States v. Matha, 915
F.2d 1220, 1222 (8th Cir. 1990).
We do not find clear error in the denial of appellants'
motion. For a Batson claim to go forward, the defendant has the
burden of establishing a prima facie case of discrimination by the
prosecutor in the exercise of peremptory strikes. Batson, 476 U.S.
79, 93, 97, 106 S. Ct. 1712, 1721-23, 90 L.Ed.2d 69 (1986); Moore
v. Keller Industries, 948 F.2d 199, 201 (5th Cir. 1991), cert.
denied, ____ U.S. ____, 112 S. Ct. 1945, 118 L.Ed.2d 550 (1992);
United States v. Roberts, 913 F.2d 211, 214 (5th Cir. 1990). A
prima facie case of racial discrimination requires a defendant to
"come forward with facts, not just numbers alone." United States
v. Moore, 895 F.2d 484, 485 (8th Cir. 1990). Batson suggested some
factors that might give rise to a prima facie case: a "pattern" of
strikes; the nature of questions asked by the prosecutor during
voir dire; the prosecutor's statements during voir dire. 476 U.S.
96-97, 106 S. Ct. ______. Only when a prima facie case of
discrimination has been made must the court ask for and evaluate
the prosecutor's grounds for exercising peremptory strikes.
4
In this case the appellants' brief objection did not make
a prima facie Batson case.2 Where the only evidence proffered by
the defendant is that a black prospective juror was struck, a prima
facie Batson claim does not arise. United States v. Lane, 866 F.2d
103, 105 (4th Cir. 1989) ("this does not mean that a prima facie
case of discrimination arises every time a prosecutor strikes a
black prospective juror"); United States v. Ingram, 839 F.2d 1327,
1329 (8th Cir. 1988); United States v. Lewis, 837 F.2d 415, 416
(9th Cir. 1988), cert. denied, 488 U.S. 923, 109 S. Ct. 304, 102
L.Ed.2d 323 (1988) (finding no Batson error when one of two black
venirepersons was struck). The racially discriminatory striking of
even one minority juror will violate Batson, but a defendant must
prove discrimination by more than the sole fact that the minority
venire-person was struck by peremptory challenge.
While the district court could have expressed more
clearly his finding that no prima facie Batson claim had been
asserted, that finding is by no means clearly erroneous.
II.
CONTENTIONS OF GLORIA SHERMAN
Appellant Gloria Sherman asserts that she was entitled to
a severance from the other defendants because she was only charged
with two of the five counts set forth in the indictment and that
2
On appeal, appellants have noted facts in alleged
support of their Batson claim. We may not consider them. Not
only does the failure to enunciate these facts in the district
court amount to a waiver, but this court has repeatedly held that
to be cognizable, a Batson claim must be timely and properly
raised in the trial court. United States v. Erwin, 793 F.2d 656,
667 (5th Cir. 1986).
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trying her with members of the conspiracy who were charged with
more crimes materially prejudiced her.
The general rule is that defendants who are indicted
together should be tried together. Zafiro v. United States, ____
U.S. ____, 113 S. Ct. 933, 937, 122 L.Ed.2d 317 (1993). In Zafiro
the Court outlined the broad discretion given to district courts to
examine motions for severance made by criminal defendants. Id.
The Court held that when defendants have, as here, been properly
joined for trial, a severance is warranted only to avert "serious
risk that a joint trial would compromise a specific trial right of
one of the defendants or prevent the jury from making reliable
judgments about guilt or innocence." 113 S. Ct. at 938. The court
stated that even if prejudice existed it generally should be cured
through jury instructions. Id. The court also sought specificity
in the claims of prejudice.
Measured by Zafiro, the district court's refusal to sever
Sherman was not an abuse of discretion. She asserts that because
the counts in which she was indicted are "unrelated" to those for
which she was not indicted, she was prejudiced. This statement is
conclusory and contrary to the facts; the indictment dealt with one
specific set of events in Midland, Texas on August 9 and 10. In
any event, the trial court's limiting instructions reminded the
jury to judge each co-defendant individually and alleviated any
risk of prejudice in this case. Zafiro, 113 S. Ct. at 938-39.
Sherman next contends that there was insufficient
evidence to support her convictions for conspiracy and aiding and
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abetting the possession of cocaine base. She claims she had no
knowledge of the other defendants' activities or that cocaine was
in her diaper bag. The evidence suggested, however, that she was
a member of the conspiracy who had crack cocaine in her possession;
that she and her family were used as a cover for drug distribution
activities; and that she rented multiple hotel rooms in her name--
on two occasions--to further those activities. Because decisions
about the credibility of testimony are in the providence of the
jury, we review both the evidence and the inferences drawn from the
evidence in the light most favorable to the government. Glasser v.
United States, 315 U.S. 60, 70, 80, 62 S. Ct. 457, 468, 469, 86
L.Ed.2d 680 (1942); United States v. Lopez, 979 F.2d 1024, 1028
(5th Cir. 1992). In this case there was ample evidence from which
the jury could infer that Gloria Sherman was guilty on both counts
of conviction. We need not belabor the point by further
discussion.
III.
THOMPSON
Appellant Thompson objects to the alleged absence of a
jury instruction regarding the voluntariness of his joining a
conspiracy. Thompson contends that because he was afraid of Branch
and owed him money, he did not voluntarily join the conspiracy. He
asserts that the court did not give a specific instruction
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requiring the jury to find that Thompson voluntarily joined the
conspiracy.3
Since this objection was not made at trial, we may review
only for plain error. United States v. Jones, 673 F.2d 115, 118-19
(5th Cir.), cert. denied, 559 U.S. 863, 103 S. Ct. 1040, 74 L.Ed.2d
119 (1982); United States v. Featherston, 949 F.2d 770, 777 (5th
Cir. 1991), cert. denied, ____ U.S. ____, 112 S. Ct. 1771, 118
L.Ed.2d 430 (1992). We therefore review the jury charge to
determine if the error was so fundamental as to result in the
miscarriage of justice. Featherston, 949 F.2d at 777; Jones, 673
F.2d at 118-19.
In his jury charge, the court mentioned no less than
three times that the acts making up the charged offenses must be
done voluntarily, and it said that "knowingly" participating in the
defendant's crimes meant that acts were committed "voluntarily,"
and not because of mistake, accident "or other innocent reason".
In essence, the omitted instruction would add nothing more, so an
additional instruction on the voluntariness of Thompson's
participation in the conspiracy was not necessary. See United
States v. Gunter, 876 F.2d 1113, 1119 (5th Cir. 1989), cert.
denied, 493 U.S. 871, 110 S. Ct. 198, 107 L.Ed.2d 152 (1989);
United States v. Arditti, 955 F.2d 331, 339 (5th Cir. 1992), cert.
denied, ____ U.S. ____, 113 S. Ct. 597, 121 L.Ed.2d 534 (1992).
3
Thompson's notice of appeal was filed untimely, but
within the period allowed for an extension of time. F. Rule App.
Proc. 4(b). This court therefore remanded for a finding of
excusable neglect, which the district court made.
8
The omission of this charge did not rise to plain error. United
States v. Royal, 972 F.2d 643, 648 (5th Cir. 1992), cert. denied,
____ S. Ct. ____, 61 U.S.L.W. 3471 (1993).
IV.
As we find no reversible error, the convictions are
AFFIRMED.
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