IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30438
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY RANDOLPH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 94-CR-20069
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May 27, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Harry Randolph appeals his conviction and sentence for
conspiracy to possess with the intent to distribute cocaine base
and for interstate travel in aid of an illegal activity.
Randolph raises the following issues: the evidence was
insufficient to convict him of the conspiracy charge; he was
improperly joined under Fed. R. Crim. P. 8(b); the district court
erred by failing to sever his trial from the trial of his
codefendants; the district court erred by failing to grant a
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-30438
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mistrial due to the prejudice from the evidence against the
codefendants and unrelated to Randolph; the Double Jeopardy
Clause was violated by the federal prosecution subsequent to the
state prosecution and conviction; and the 1:100 sentencing
disparity for cocaine base, as opposed to cocaine powder,
violates due process and equal protection of the laws.
We have carefully reviewed the record and the arguments. We
conclude that the evidence was sufficient to conviction Randolph
of the conspiracy charge. Randolph, by his own motion or through
adoption of a motion by a codefendant, failed to raise joinder
under Rule 8(b) before trial, and therefore, he waived the issue.
See Fed. R. Crim. P. 12(b)(2) & (f). The district court did not
abuse its discretion in conducting the joint trial with the use
of two juries or by denying the motion for mistrial. See United
States v. Krout, 66 F.3d 1420, 1430 (5th Cir. 1995), cert.
denied, 1996 WL 26289 (U.S. Feb. 20, 1996); United States v.
Limones, 8 F.3d 1004, 1007 (5th Cir. 1993), cert. denied, 114 S.
Ct. 1543 (1994). The district court did not err in finding that
Randolph failed to produce prima facie evidence of a nonfrivolous
double jeopardy claim. See United States v. Cooper, 949 F.2d
737, 750-51 (5th Cir. 1991), cert. denied, 504 U.S. 975 (1992);
United States v. Patterson, 809 F.2d 244, 247-48 (5th Cir. 1987).
The ratio used for sentencing cocaine base trafficking offenses
does not violate equal protection or due process. See United
States v. Watson, 953 F.2d 895, 897 (5th Cir.), cert. denied, 504
U.S. 928 (1992); United States v. Galloway, 951 F.2d 64, 65-66
(5th Cir. 1992).
No. 95-30438
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Randolph's convictions and sentence are AFFIRMED.