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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 topossess 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 andin relation to a drug trafficking crime. Duncan was tried with a co-defendant, DarrelJones, a reserve deputy sheriff, whose conviction and sentence are not at issue in thisappeal. Finding no reversible error, Duncan's convictions and sentences are affirmed.

BACKGROUND

This case presents a dispiriting reality -- police corruption with officers prostitutingthemselves to facilitate criminal activities that they were duty-bound to eradicate. At leastnine officers (1) were convicted of felonies. The only vaguely encouraging note one findsin this record is the comment by one of the officers involved in the criminal activity thatnone of the participants were "true blue policemen." Indeed!

In late 1993, a New Orleans crack cocaine dealer, Terry Adams, wearied ofextortion by Police Officer Sammie Williams, (2) complained to the Federal Bureau ofInvestigation and agreed to assist their investigation. Williams quickly accepted Adams'request for paid protection for his drug-dealing activities and volunteered the services offellow 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 toexpand its sting to rid the NOPD of potentially more pervasive illegality. At the behestof Adams and another undercover agent, who posed as a large dealer, additional policeofficers, including Duncan, were recruited to assist in the protection racket. Duncan, whohad previously worked in the narcotics division of the NOPD, briefed the participants onhow to avoid detection by federal agents and joined in persuading other law enforcementofficials to become involved in the nefarious scheme.

On November 18, 1994, armed and in full police uniform, Duncan, along withother law enforcement officials including co-defendant Jones, escorted supposed drugcouriers while they loaded and transported in each of two vehicles what was purported tobe twenty-five kilograms of cocaine. Five kilos in each vehicle were real; the remainderwas 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 wasto ensure that no state or federal agent interfered with the drug deliveries. For theirservices, Duncan and the other police officers received several thousand dollars. Duncanmade numerous incriminating statements, which were taped and played to the jury. Afterconsidering the evidence, including that graphically captured on tape, the jury rejectedDuncan's defense -- that he thought he was working a security detail -- and convicted himof the offenses charged. He was sentenced to 295 months incarceration. On appeal hecomplains of the jury selection process and that his sentence was based on the attributionto his conduct of an excessive amount of drugs.

ANALYSIS

I. Jury Selection.

Duncan advances a multifaceted attack on the manner in which the jurors werechosen. He first contends that the trial court committed reversible error by denying hisfor-cause challenges to five members of the venire. He maintains that the error impingedon his sixth amendment right to an impartial jury because one of those challenged wasselected to serve. He then asserts that the error forced him to use his peremptorychallenges to strike 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 rightthereto. Finally, he maintains that the trial court improperly denied two of his peremptorychallenges -- one involving the juror whom he unsuccessfully attempted to remove forcause -- based on his analysis of the teachings of Batson v. Kentucky (4) 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.Hall (6) guides our resolution. There we summarized the applicable law as follows.

The Sixth Amendment right to an impartial jury requires the exclusion of a potentialjuror if his views would prevent or substantially impair the performance of hisduties as a juror in accordance with his instructions and his oath. . . . [A] trialcourt's predominant function in determining juror bias involves credibility findingswhose 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 isan abuse of discretion. . . .



[T]he loss of a peremptory challenge [does not] constitute[] a violation of theconstitutional right to an impartial jury. We have long recognized that peremptorychallenges are not of constitutional dimension. They are a means to achieve the endof an impartial jury. So long as the jury that sits is impartial, the fact that thedefendant had to use a peremptory challenge to achieve that result does not meanthe Sixth Amendment was violated. . . . We have observed that, [w]hileperemptory challenges, or the number provided by Fed. R. Crim. P. 24(b) may notbe constitutionally required, it does not follow that a trial court's wrongfulreduction of the number so provided is not reversible error on direct appeal. Wehave . . . held that [t]he denial or impairment of the right to exercise peremptorychallenges is reversible error without a showing of prejudice. (7)  

Duncan asserts a sixth amendment violation with respect to one juror. We mustreject 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 ajuror in accordance with [her] instructions and [her] oath." (8) Duncan questions the juror'sability to carry out her duties: she expressed a bias in favor of law enforcement witnessesover other witnesses. (9) On a prospective juror questionnaire she checked "yes" in responseto the question whether she "[w]ould . . . give more weight to the testimony of a lawenforcement witness than that of any other witness." During voir dire, she elaborated thatshe "was raised to respect authority[,] and [she] see[s] a law enforcement officer as anauthority figure."

This response does not necessarily indicate a disqualifying bias. Indeed this viewhas been considered as reflective of "responsible citizenship and . . . not a ground tochallenge [a] juror for charge." (10) At most, such would offer a predicate for further voirdire, "depending on the issues in the case and the prospective witnesses." (11) In the case atbar this was done. On further examination the juror unambiguously affirmed that shewould be fair and could reject the testimony of a law enforcement witness found to belacking in credibility. Finally, Duncan disregards a crucial distinction between this caseand others - the government's case relied on the testimony of convicted felons. We arepersuaded that the trial court did not err in rejecting Duncan's sixth amendment challengeto 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 ofDuncan's for-cause challenges to four other members of the venire. A close reading ofthe 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 hisperemptory strikes. The government objected to these challenges on the grounds that theywere racially motivated. Duncan, who is black, exercised ten peremptory challenges; nineof them were directed at white members of the venire.

In United States v. Bentley-Smith (13) after noting the constitutional bar against race-based peremptory strikes, we held that the district court's determination that a party hasused peremptory strikes in a discriminatory manner is a finding of fact to be given greatdeference and to be accepted absent clear error. It is from this vantage point that weexamine the trial court's rulings on the peremptory strikes and the arguments made by thedefense and the government. (14)  

A close reading of the relevant parts of the record of the voir dire examinationreflects somewhat inapt references by the court about racial proportionality in the venirelist, jurors selected, and peremptory challenges exercised, but the determinations made bythe trial court were based on other, appropriate factors. Although we might not have madethe same calls as the trial court in every instance, our review of the court's total reasoningas to each challenged juror leaves no doubt that neither error nor abuse of discretion existsas to any of the rulings advanced as error on appeal. We find no violation of Duncan'srights 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. 2D1.1(c)(2), which assigns that base level for offenses involving fifty to one hundredfifty 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 ofNovember 18, 1994. The PSR reflects that Duncan was unsure as to the exact quantityof drugs, but concluded that he was aware that a significant amount was involved. Duncanobjected to the latter finding and to the PSR's determination that he should be heldaccountable 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 wasreasonably foreseeable by him. Rather than make factual findings, Duncan complains thatthe trial court simply adopted the PSR. Any such finding, Duncan insists, would constituteclear error because the evidence established neither that he knew of the specific quantityof drugs involved nor that he understood that quantity to be "significant." He also conteststhat a significant amount translates into fifty kilograms. Finally, for the first time onappeal, Duncan advances a due process/separation of powers argument -- that thegovernment unilaterally, and unconstitutionally, determined the level of his sentence bydeciding, unbeknownst to him, the drug quantity upon which his sentence would bebased. (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 clearlyerroneous as long as it is plausible in light of the record as a whole." (18) Plain error reviewapplies 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 allegationor a determination that no finding is necessary because the controverted matter willnot 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 catechismicregurgitation of each fact determined; instead, we have allowed the district courtto make implicit findings by adopting the PSR. This adopting will operate to satisfythe mandate of Rule 32 when the findings in the PSR are so clear that the reviewingcourt 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 inwhich a trial court, although adopting the ultimate conclusion of the PSR relating toreasonable foreseeability, makes findings that contradict the decisive facts underlying thatconclusion. (22) Nor are we confronted with a case where the basis for the PSR's findingsis unclear. (23) In the instant case the foundation for the findings in the PSR regarding theforeseeability of the drug quantities involved is manifestly apparent. As the probationofficer explained in addressing the objections lodged by Duncan:

Tapes as well as testimony at trial . . . [reflect] that Duncan believed that he wasworking to protect a major drug dealer who had substantial amounts of cocainecontained 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 constitutegrounds for rejecting the PSR for obscurity. It merely reflects the undisputed fact that noevidence was offered at trial establishing that either Duncan or his co-conspirators knewthe precise quantity of drugs they agreed to safeguard.

Having rejected Duncan's contention that the trial court failed to make factualfindings in compliance with Rule 32, we address whether the trial court committed clearerror in determining that Duncan should be held responsible for fifty kilograms of cocaine. Duncan's objections to the quantity of cocaine have varied. In objecting to the PSR, heclaimed that "he should only be held accountable for the cocaine contained within the carthat he escorted." On appeal, however, we have the argument that he should not be heldresponsible for even twenty-five kilograms of cocaine, and that the trial court clearly erredin 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 tenkilograms. Indeed, he now asserts that he was not certain that the vehicles containeddrugs, as opposed to drug money.

Under 2D1.1(a)(3) of the Sentencing Guidelines, the offense level of a defendantconvicted of a drug trafficking offense is determined by the quantity of drugsinvolved in the offense. This quantity includes both drugs with which the defendantwas directly involved, and drugs that can be attributed to the defendant in aconspiracy as part of his "relevant conduct" under 1B1.3(a)(1)(B). . . . Relevantconduct for conspiratorial activity is defined in 1B1.3(a)(1)(B) as "all reasonablyforeseeable acts and omissions of others in furtherance of jointly undertakencriminal activity." [In other words,] . . . for conspiratorial conduct to be attributedunder 1B1.3(a)(1)(B), that conduct must be both "reasonably foreseeable" to thedefendant 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 incalculating the drug quantity attributable to Duncan. The evidence offered at trial amplysupports the finding that Duncan fully grasped that a significant quantity of drugs wasinvolved. The following facts are salient. Duncan knew or believed: that the drug-protection racket pre-dated the rendezvous November 18, 1994; that his co-conspiratorshad been guarding a warehouse filled with cocaine; that more than half-a-dozen lawenforcement officials would be guarding the shipments on November 18, 1994; that thecocaine would be off-loaded from a tractor trailer; that the cocaine would be loaded intotwo vehicles; that the drug trafficker was a major player; and that federal agents could bemonitoring the protection racket. While Duncan is correct that no evidence proved hisawareness 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 quantitiesinvolved through studied ignorance, notwithstanding their obvious understanding as to thegeneral breadth of the drug enterprise. In fact, the evidence introduced at trialdemonstrated that Duncan and his co-conspirators adopted this very ploy. Sentencingcourts cannot be neutered by such manipulation. Because fifty kilograms is clearly withinthe quantity that reasonably should have been foreseeable to Duncan, we reject hisargument 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 ofpowers contention. We accordingly view same through the lens of plain error. He offersostensibly favorable dictum from our opinion in United States v. Richardson , (26) but movestoo quickly. Neither the holding thereof nor its dictum is of aid.

In Richardson , the defendant contended that "the power of the executive branch todetermine a defendant's sentence based on the amount of money that undercover agentsbring to the table in a 'sting' operation violates the separation of powers doctrine [and hisdue process rights]." (27)  

We agree[d] that if the executive branch had the unilateral power to directly andautomatically ratchet up a sentence through these means, one might then argue thatsuch 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 districtcourt clearly retained the authority to find that the amount of money brought to the tablewas 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 adefendant's sentence simply because the government agents choose to bring a certainamount of money to the table. The judge must make factual findings that the moneybrought to the table is 'relevant' to the crime." (30)  

We also found no violation of due process, remarking that "it would be difficult toconclude that the government unfairly manipulated the amount of money involved in the'sting' operation" given that both of the defendants "demonstrated an affirmative desire tolaunder the money presented [them]." (31)  

Duncan attempts to distinguish Richardson from his case because there thedefendants affirmatively sought larger sums of money from the agents. But, as discussedabove, the evidence at trial showed Duncan to be an enthusiastic participant in what hebelieved to be an extensive drug protection racket. (32) In light of this, the distinction uponwhich 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 reasonsas stated in that case, we conclude that Duncan failed to establish, under the plain errorstandard of review, that his sentence was unconstitutionally determined by the executivebranch.

For these reasons, Duncan's convictions and sentences are AFFIRMED.

1. Eleven law enforcement officials were implicated.

2. Williams testified that demanding money from drug dealers in exchange forprotection was common among his fellow officers.

3. Rule 24(b) assigns the number of peremptory strikes to which the parties in acriminal 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 jurorsunconstitutional).

5. 505 U.S. 42 (1992) (extending Batson framework to criminal defendant'sdiscriminatory use of peremptory strikes).

6. 152 F.3d 381 (5 th Cir. 1998).

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 prosecutorthrough her sister and was acquainted with a trial assistant. This information was madeknown in the voir dire examination. No issue regarding same was raised in the trial court. We do not address it here.

10.   Darbin v. Nourse , 664 F.2d 1109, 1116 (9 th Cir.1981) (Kennedy, J., concurring).

11.   Id.

12.   United States v. Scott , 159 F.3d 916, 925 (5 th Cir. 1998).

13. 2 F.3d 1368. Duncan argues that our review is de novo because the trial courtcommitted 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, neitherof whom was trial counsel.

15. Duncan received a two-level upward adjustment under U.S.S.G. 3B1.3 forabusing the public trust in a manner that significantly facilitated the commission of theoffense. Thus, his total offense level was thirty-eight. Given that offense level and acriminal history category of I, his guideline range was 235 to 293 months. He wassentenced to 235 months for the drug crime and an additional sixty months, to runconsecutively, for the gun crime.

16. Duncan does not now argue -- nor did he in the trial court -- that the sham cocaineshould be excluded from the drug calculation for sentencing purposes.

17.   See United States v. Dixon , 132 F.3d 192 (5 th Cir. 1997).

18.   Id. at 201.

19.   See United States v. Anderson , 174 F.3d 515 (5 th Cir. 1999).

20. Fed. R. Crim. P. 32(c)(1).

21. 11 F.3d 1225, 1231 (5 th Cir. 1994) (internal quotations and citations omitted).

22.   See United States v. Foy , 28 F.3d 464, 476-77 n.24 (5 th Cir. 1994) ("Inresponding to [the defendant's] objections regarding a finding on reasonable foreseeability,the PSR concluded [the defendant] played a significant role in the drug-traffickingenterprise. . . . However, this finding cannot be attributed to the district court, since thedistrict court determined that [the defendant] was only a minor participant in theconspiracy."); Carreon , 11 F.3d at 1230-31 (noting that trial court rejected key theory inPSR supporting foreseeability).

23.   See United States v. Sherbak , 950 F.2d 1095 (5 th Cir. 1992); United States v.Graham , 83 F.3d 1466 (D.C. Cir. 1996) .

24.   Carreon , 11 F.3d at 1230 (citations and emphasis omitted).

25.   See, e.g., United States v. Negron , 967 F.2d 68, 72 (2 nd Cir. 1992) ("In orderto sentence a defendant on the basis of the total amount of narcotics seized from hiscoconspirators, the court is not required to conclude that the defendant had actualknowledge of the exact quantity of narcotics involved in the conspiracy; it is sufficient ifhe could reasonably have foreseen the quantity involved.").

26. 925 F.2d 112 (5 th Cir. 1991).

27.   Id. at 117.

28.   Id. (citation omitted).

29.   Id.

30.   Id.

31.   Id. at 118.

32. This fact distinguishes the instant case from United States v. Ramirez-Rangel ,103 F.3d 1501 (9 th Cir. 1997), also relied upon by Duncan.


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