United States v. Terry

United States Court of Appeals,

Eleventh Circuit.

No. 93-9348.

UNITED STATES of America, Plaintiff-Appellee,

v.

Emmett TERRY, Defendant-Appellant.

Aug. 16, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 3:93-CR-11-01), G. Ernest Tidwell, Judge.

Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON*, Senior
Circuit Judge.

EDMONDSON, Circuit Judge:

Emmett Terry appeals his convictions and sentences for drug

conspiracy and three substantive drug offenses under 21 U.S.C. §

846 and § 841(a)(1). Terry challenges on three grounds: (1)

Section 1863(b)(6) of the Jury Selection and Service Act violates

his Sixth Amendment rights; (2) the cocaine-base sentencing

provisions violate the Equal Protection Clause; and (3) the

district court erred in enhancing his sentence for abuse of the

public trust. We affirm.

Terry was arrested on a four-count federal indictment alleging

that he and co-defendant, Wesley Holmes, conspired to distribute

cocaine base. When arrested, Terry was a deputy sheriff with the

Meriwether County Sheriff's Department. The evidence showed that

on three separate occasions Terry and co-defendant Holmes sold

drugs to an undercover Georgia Bureau of Investigation Agent.

*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth, sitting by designation.
 After his arrest, Terry filed a motion to dismiss the

indictment on the ground that 28 U.S.C. § 1863(b)(6), which exempts

police officers from serving as grand and petit jurors, violated

his Sixth Amendment rights to a grand jury and a petit jury

selected at random from a fair cross section of the community.

Terry also requested a hearing to show how the exclusion of police

officers from his jury would prejudice his defense. Without

conducting a hearing, a magistrate judge recommended that

defendant's motion be denied; and the district court adopted the

recommendation.

After Terry was found guilty on all three counts, he filed a

motion asking the district court to declare the cocaine-base

sentencing provisions unconstitutional. Terry also filed an

objection to the recommendation in the presentencing report that

his sentence be enhanced for abusing a position of public trust.

The sentencing court denied both motions.

Section 1863(b)(6) of the Jury Selection and Service Act

Terry first argues that section 1863(b)(6) of the Jury

Selection and Service Act, which exempts "members of the fire or

police departments ... [and] public officers in the executive,

legislative or judicial branches of the Government ..." from jury

service, violates his Sixth Amendment right to a grand jury and

petit jury drawn from a fair cross section of the community. 28

U.S.C. § 1863(b)(6). Terry's constitutional claim that his Sixth

Amendment rights were violated is a question of law subject to de

novo review. United States v. Salerno, 481 U.S. 739, 107 S.Ct.

2095, 95 L.Ed.2d 697 (1987).
 The Sixth Amendment entitles defendants in criminal cases to

a grand and petit jury selected at random from a fair cross section

of the community. Taylor v. Louisiana, 419 U.S. 522, 528-30, 95

S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). To establish a prima facie

case of a fair cross section violation under the Sixth Amendment,

Terry must show: (1) the group allegedly excluded is a distinctive

group in the community, (2) the group's representation on grand or

petit venires is not fair and reasonable in relation to their

population in the community, and (3) that the under-representation

is due to the systematic exclusion of the group in the jury

selection process. United States v. Pepe, 747 F.2d 632, 649 (11th

Cir.1984) (citing Duren v. Missouri, 439 U.S. 357, 362-64, 99 S.Ct.

664, 668, 58 L.Ed.2d 579 (1979)).

Terry claims that by exempting members of the police

department, a distinctive group, the statute violates the "fair

cross section" requirement. But, exempting certain occupational

groups from jury service because it is good for the community that

they not be interrupted in their work does not violate the United

States Constitution. Government of Canal Zone v. Scott, 502 F.2d

566, 569 (5th Cir.1974) (citing Rawlins v. Georgia, 201 U.S. 638,

640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906)).1 We accept that

1
The holding in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct.
692, 42 L.Ed.2d 690 (1975), is not to the contrary. In Taylor,
the Supreme Court held unconstitutional a state law requiring
women to express in writing that they wanted to be jurors before
their names could be selected for duty. Women are not a
particular occupational group. In addition, the Court in Taylor
recognized the constitutionality of exempting occupational groups
if to do so would benefit the community. Taylor, 419 U.S. at
534-36, 95 S.Ct. at 700. See also Duren v. Missouri, 439 U.S.
357, 368-70, 99 S.Ct. 664, 671, 58 L.Ed.2d 579 (1979).
allowing police officers to perform their duties without the

interruption of jury service is good for the community (for

example, many police forces have only a few officers to begin with)

and hold that the exemption of police officers is reasonable.

Terry's Sixth Amendment rights were not violated.2
Cocaine-Base Sentencing Provisions

Terry says that the cocaine-base sentencing provisions

contained in the Narcotics Penalties and Enforcement Act of 1986,

21 U.S.C. § 841(b), violate the Equal Protection Clause of the

Fourteenth Amendment. Under the cocaine-base sentencing

provisions, defendants receive higher sentences for crimes

involving cocaine base, that is, crack cocaine, than for crimes

2
Terry argues that the district court erred in failing to
grant an evidentiary hearing on this issue. The Magistrate's
Report and Recommendation, adopted by the district court, did not
address Terry's motion for an evidentiary hearing; the
Magistrate presumably relied on his determination that exempting
particular occupational groups is constitutional. Terry says
that he should have been given an opportunity to show that police
officers are a distinctive group which should not be exempt from
jury service. We review the district court's denial of an
evidentiary hearing for abuse of discretion. U.S. v. Dynalectric
Co., 859 F.2d 1559, 1580 (11th Cir.1988). Because no set of
facts that could have been developed in an evidentiary hearing
would be significant legally in the light of the precedents
mentioned above, we believe the district court did not abuse its
discretion. Put differently, even if one accepts that police
officers are, in fact, a distinct group, the applicable law bars
the relief defendant sought.

Terry also claims that a hearing was needed to explore
how the Clerk's office was implementing the section
1863(b)(6) exemption, that is, to determine whether the
Clerk's office interpreted the exemption to include
janitors, secretaries, and receptionists who worked for the
police department. But, defendant's constitutional claim
was based on the exemption of police officers, not the
exemption of other people working in the police department.
So, the district court did not abuse its discretion in
refusing to grant an evidentiary hearing.
involving powder cocaine. 3 On appeal, Terry argued that these

provisions violate the Equal Protection Clause because Congress

acted with purposeful discrimination.

The constitutionality of a sentencing provision is a question

of law subject to de novo review. United States v. Osburn, 955

F.2d 1500 (11th Cir.1992). In United States v. Byse, 28 F.3d 1165

(11th Cir.1994), we held that Congress distinguished between the

kinds of cocaine, not to discriminate against people, but because

crack cocaine is more dangerous, more highly addictive, more easily

available, and less expensive than powder cocaine. See also,

United States v. Thurmond, 7 F.3d 947 (10th Cir.1993); United

States v. Reece, 994 F.2d 277 (6th Cir.1993). Therefore, the

district court did not err in refusing to declare the cocaine-base

sentencing provision unconstitutional.

Abuse of Public Trust

Terry argues that the district court erred in using the abuse

of a position of trust enhancement pursuant to the Sentencing

Guidelines. Under the Sentencing Guidelines, a defendant's offense

level is increased by two levels if the "defendant abused a

position of public or private trust ... in a manner that

significantly facilitated the commission or concealment of the

offense." United States Sentencing Guidelines § 3B1.3. The

district court's finding that Terry abused a position of public

trust in a manner that significantly facilitated his ability to

commit or conceal the offense is reviewed under a clearly erroneous

3
These provisions have been included in the Sentencing
Guidelines under section 2D1.1.
standard. 18 U.S.C. § 3742(d); United States v. Pedersen, 3 F.3d

1468, 1470 n. 4 (11th Cir.1993).4
At trial it was shown that on one occasion, Terry, while in

uniform, drove, in his marked patrol car, by the park where

co-defendant Holmes was to meet the undercover agent. The lower

court determined that Terry's presence in the vicinity of the

transaction facilitated the crime by providing others involved in

the transaction a sense of security and, because Terry's car had a

police radio, by posting a lookout against other police

interference. The district court's determination that Terry abused

a position of public trust is not clearly erroneous.

But, whether the defendant's conduct justifies the "abuse of

trust" enhancement is a question of law reviewed de novo. United

States v. Burton, 933 F.2d 916 (11th Cir.1991). We hold that by

being at the scene in his patrol car and by monitoring the radio,

Terry was able to monitor police traffic and ensure that no other

officers interrupted the transaction. By doing these things, Terry

facilitated both the commission and concealment of the crime; and

the lower court did not err in applying the enhancement.

AFFIRMED.

4
We seemingly have never considered when a police
officer-defendant is subject to the "abuse of trust" enhancement
for using his position to facilitate a crime. But, other courts
have held that the enhancement should be applied when a drug
dealing police officer showed her badge to other officers to
avoid apprehension, see United States v. Foreman, 926 F.2d 792
(9th Cir.1990); or when a police officer used his position to
alert coconspirators to DEA investigation and to conceal his part
in the conspiracy, see United States v. Rehal, 940 F.2d 1 (1st
Cir.1991); and when a police officer stopped a minor for
violating curfew and raped her in the patrol car. See United
States v. Claymore, 978 F.2d 421 (8th Cir.1992).