United States v. Barrington ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANCER L. BARRINGTON, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cr-00004-RAJ-FBS-2)
Submitted: January 25, 2010 Decided: February 19, 2010
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Woodward, Jr., Charles B. Lustig, SHUTTLEWORTH,
RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia,
for Appellant. Dana J. Boente, United States Attorney, D.
Monique Broadnax, Special Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mancer L. Barrington, III, appeals his conviction for
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846(2006), and possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2006). Finding no
reversible error, we affirm.
I.
On November 8, 2007, Norfolk Police Department Vice
and Narcotics Investigators Jemal Davis, Richard Stocks, and
Lionel Jackson were traveling in an unmarked police vehicle
searching for Stephen Wesby, whom they suspected of drug
activity. The officers observed a silver Infiniti Q-45;
suspecting that it was Wesby’s vehicle, the officers followed it
to a residence at 2738 Victoria Avenue in Norfolk. The driver
exited the car, entered the house and remained there for five to
seven minutes, returned to the car, and drove away. The
officers thereafter initiated a traffic stop of the vehicle on
the ground that its middle brake light was not functioning. The
driver’s identification revealed him to be Mancer Louis
Barrington, III. Officer Davis noted a strong marijuana odor,
and Barrington volunteered that he was currently on bond for
possession with intent to distribute marijuana. After Officer
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Davis informed Barrington that he smelled marijuana, Barrington
admitted to smoking marijuana the night before and conceded that
the odor could be coming from his jacket. Barrington consented
to a search of his person, which revealed $3834 in cash. A drug
dog then alerted to the glove compartment of the vehicle, where
the officers uncovered $10,780 in cash. After this finding, the
officers arrested Barrington.
The officers then returned to the residence on
Victoria Avenue, where the owner gave the officers consent to
search for narcotics and contraband. As the officers entered
the residence, Malik Carson, one of the residents, was walking
down stairs wearing a cooking apron; upon reaching the bottom of
the stairs, Carson fled out the front door. Officer Davis
proceeded upstairs, where he recovered a cell phone, nine
sandwich bags of cocaine, crack cocaine drying on a napkin, a
loaded revolver, a digital scale, baking soda, a hot plate, a
box of sandwich bags, and a combination safe. When officers
apprehended Carson, they recovered two bags of cocaine powder,
seven sandwich bags of crack cocaine, and $820. Later testing
confirmed that the substances recovered from the upstairs room
and Carson’s person amounted to 34.92 grams of cocaine base and
291.06 grams of cocaine.
Carson would later inform investigators that he and
Barrington had been friends since childhood. Carson began
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selling cocaine and cocaine base in 2007 and, after his
grandmother passed away in September 2007, he approached
Barrington about furnishing additional cocaine for Carson to
sell to help keep his grandmother’s house. At the time of his
arrest, Carson was purchasing from Barrington 14 grams of
cocaine for $400 on a weekly basis.
Evidence at trial indicated that on November 8, 2007,
Carson had called Barrington at 11:49 a.m. to request more
cocaine; Barrington missed the call but called him back at 11:51
a.m. and again at 12:02 p.m. Barrington agreed to meet Carson
at the Victoria Avenue residence. Upon arriving at the house,
Barrington told Carson that he thought the police were following
him and that he wanted to leave the cocaine and his firearm with
Carson. Because Carson had not heard from Barrington after he
left the house, Carson called Barrington’s cell phone at 1:31
p.m. The police investigators arrived at the house at roughly
2:35 p.m.
Barrington and Carson were ultimately indicted for
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2006)
(Count One), possession with intent to distribute cocaine base
and cocaine, respectively, in violation of 21 U.S.C. § 841(a)(1)
(2006) (Counts Two and Three), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
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U.S.C. § 924(c) (2006) (Count Four). The indictment charged
Barrington alone with possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g) (2006) (Count Five).
Barrington filed a pretrial motion to suppress the
currency and cell phones recovered from him during the November
8 traffic stop, which the district court granted. The motion to
suppress covered all evidence and statements obtained from
Barrington during the traffic stop, including the two cell
phones found on Barrington’s person.
Prior to trial, Carson pleaded guilty to Count One and
agreed to testify against Barrington. Carson also consented to
a search of his cell phone, which revealed the calls to
Barrington on November 8. Based upon this information,
investigators obtained a warrant to search the cell phones
retrieved from Barrington during the traffic stop. Thereafter,
Barrington filed a motion in limine, seeking to exclude evidence
from his two cell phones, which the district court denied.
The district court conducted a four-day jury trial.
During voir dire, Barrington raised a Batson challenge after the
Government struck four of the eight African-American members of
the jury pool. After considering the Government’s
nondiscriminatory reasons for the strikes, the district court
ordered the Government to withdraw one of its four strikes. The
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jury as finally composed contained four African-Americans,
including the juror reinstated to the panel.
At the close of the Government’s evidence, Barrington
moved for a judgment of acquittal under Federal Rule of Criminal
Procedure 29. The district court granted the motion as to Count
Five, finding that the Government had failed to introduce any
evidence of a prior felony conviction. The district court
denied the motion as to the other counts. Barrington then filed
a written Rule 29 motion contending that Count Two and Count
Three were duplicative. The district court denied that motion,
as well as the defendant’s renewed Rule 29 motion at the close
of all the evidence.
The jury found Barrington guilty of Count One and
Count Three, and acquitted him on Count Two and Count Four.
Because Barrington had two prior convictions for felony drug
offenses, Count One mandated a life sentence. See 21 U.S.C.
§ 841(a)(1) & (b)(1)(A) (2006). Accordingly, the district court
sentenced Barrington to life imprisonment on Count One and 360
months imprisonment on Count Three, to be served concurrently.
Barrington filed a timely appeal.
II.
On appeal, Barrington raises three challenges to his
conviction, which we consider in turn.
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A.
First, Barrington contends that the district court
erred in allowing the Government to introduce evidence from his
cell phone at trial. The parties agree that Barrington’s
argument is an extension of his earlier motion to suppress. We
review the district court’s findings of fact for clear error,
“giv[ing] due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.” Ornelas v.
United States, 517 U.S. 690, 699 (1996). We review the district
court’s ultimate legal conclusion de novo. Id. And, “[b]ecause
the district court denied the motion to suppress, we construe
the evidence in the light most favorable to the government.”
United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
During the November 8, 2007 traffic stop, police
recovered two cell phones from Barrington. Barrington later
moved to suppress the evidence obtained during that stop, and
the district court granted that motion, suppressing all of the
evidence seized during the traffic stop, including Barrington’s
cell phones. Prior to trial, however, Carson consented to a
search of his cell phone, which was recovered during the search
of the Victoria Avenue residence on November 8. Because a
search of the call logs extracted from Carson’s phone showed
several calls between Carson and Barrington on November 8,
investigators applied for a search warrant to search the two
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cell phones recovered from Barrington. The search warrant was
granted, but Barrington filed a motion in limine to exclude any
evidence obtained from the warrant. The district court found
the evidence admissible under the doctrine of inevitable
discovery. At trial, the Government introduced a document
listing the call log for Carson’s phone, as well as a document
providing the call log from Barrington’s two phones.
On appeal, Barrington argues that the district court
erred in permitting the Government to introduce the call logs
from Barrington’s cell phones. The improper admission of
evidence is subject to harmless error review. See Fed. R. Crim.
P. 52(a) (“Any error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.”); Fed.
R. Evid. 103(a) (noting evidentiary errors support reversal only
if they affect “substantial right”). Erroneously admitted
evidence is harmless if a reviewing court is able to “say, with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Kotteakos v. United
States, 328 U.S. 750, 765 (1946); United States v. Abu Ali, 528
F.3d 210, 231 (4th Cir. 2008).
Even assuming the district court erred in permitting
the admission of the call logs for Barrington’s phones, we
conclude that the error is harmless. Barrington’s physical
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phones were never entered into evidence, only the log showing
that he and Carson called each other several times on November
8, 2007. That information, however, is largely duplicative of
the information provided by the call log for Carson’s phone.
Barrington does not contest the admissibility of that call log.
The only difference between the two logs was that Barrington’s
call log included the length of each call, a minor distinction
that is harmless. Moreover, the call logs were a small portion
of the Government’s case. Carson testified that he and
Barrington spoke on the phone November 8, 2007, to set up their
drug transaction; the call logs simply confirmed that testimony.
Accordingly, this claim affords Barrington no relief.
B.
Next, Barrington challenges the sufficiency of the
evidence used to convict him on Counts One and Three.
Barrington bears a “heavy burden” in contesting the sufficiency
of the evidence supporting a jury verdict. United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation
marks omitted). His conviction must be affirmed if, reviewing
the evidence in the light most favorable to the Government, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. United States v.
Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc). The
Government receives the benefit of “all reasonable inferences
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from the facts proven to those sought to be established.”
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Having reviewed the record, we conclude that the
Government presented sufficient evidence to sustain the
convictions on Count One and Count Three. As to Count One,
conspiracy to distribute and possess with intent to distribute
fifty or more grams of cocaine and cocaine base, the Government
presented the testimony of Carson in addition to the testimony
of four witnesses who testified to purchasing cocaine and/or
cocaine base from Barrington in amounts ranging from 3.5 grams
to 9 ounces. These witnesses testified to a similar pattern in
making their purchases--that they would contact Barrington at a
cell phone number, and that Barrington would drive alone to meet
them. Likewise, they testified that Barrington charged $400 for
3.5 grams of cocaine (an “eight ball”) and as much as $6500 for
9 ounces of cocaine. The witnesses identified several of the
same locations where these drug transactions were consummated.
The Government also presented sufficient evidence to
convict Barrington of Count Three, possession with intent to
distribute 291.06 grams of cocaine. The cocaine referenced in
Count Three was the total amount of cocaine recovered from the
search of the Victoria Avenue residence. Three investigators
testified that Barrington entered the residence and remained for
several minutes. Carson testified that Barrington dropped off
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the cocaine Carson had just ordered and also left additional
cocaine because Barrington believed he was being followed by the
police. The phone logs for Carson’s cell phone corroborated
this story: Carson called Barrington less than one hour before
Barrington arrived at the Victoria Avenue residence and
Barrington called Carson back two minutes later. Barrington
then called Carson again ten minutes later. The amount of
cocaine recovered from the search of the Victoria Avenue
residence, when coupled with the additional contraband,
including the digital scale, baking soda, hot plate, and
sandwich bags, was sufficient to prove an intent to distribute.
Barrington attacks the credibility of Carson and the
four additional witnesses against him, but the jury, not the
reviewing court, is the judge of the witnesses’ credibility. As
we have explained, “[i]n reviewing the sufficiency of the
evidence, we are not entitled to assess witness credibility, and
we assume that the jury resolved any conflicting evidence in the
prosecution’s favor.” United States v. Jeffers, 570 F.3d 557,
565 (4th Cir.), cert. denied, 130 S. Ct. 645 (2009).
Accordingly, we reject Barrington’s challenge to the sufficiency
of the evidence.
C.
Finally, Barrington argues that the Government
violated Batson v. Kentucky, 476 U.S. 79 (1986), in striking
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four African-American members of the venire panel. The Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution forbids the use of peremptory challenges for
a racially discriminatory purpose. See Batson, 476 U.S. at 86.
Batson created a three-step process for evaluating
claims that peremptory challenges were used in a discriminatory
manner.
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991).
As to the prosecutor’s burden under the second step,
the Court has explained, “[u]nless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered
will be deemed race neutral.” Hernandez, 500 U.S. at 360; see
also Purkett v. Elem, 514 U.S. 765, 769 (1995) (“What it means
by a ‘legitimate reason’ is not a reason that makes sense, but a
reason that does not deny equal protection.”).
Finally, in the third prong, “[t]he trial court then
[has] the duty to determine if the defendant has established
purposeful discrimination.” Batson, 476 U.S. at 98. Because a
“judge’s findings in the context under consideration here
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largely will turn on evaluation of credibility, a reviewing
court ordinarily should give those findings great deference.”
Id. at 98 n.21; Hernandez, 500 U.S. at 364. Thus, a finding of
no discrimination is a factual finding reviewed for clear error.
Hernandez, 500 U.S. at 364; Jones v. Plaster, 57 F.3d 417, 421
(4th Cir. 1995).
We find no clear error in the district court’s denial
of Barrington’s Batson challenge. Barrington, an African-
American, raised a Batson challenge after the Government struck
four of the eight African-American members of the venire. The
Government proffered a non-discriminatory reason for each
strike: the Government struck one female juror because she was
sleeping, another female juror because of her demeanor and
disinterested appearance, and a third female juror because she
had a family member who was a drug addict. Finally, the
Government struck a fourth female juror because she worked for a
rental car company. The district court noted that the reasons
were “nondiscriminatory” but found some of the “bases to be
insubstantial.” The district court thus ordered the Government
to withdraw the strike of the rental car agent and permitted the
others to stand.
On appeal, Barrington simply states that striking
fifty percent of the African-American jurors proves
discrimination. We conclude, however, that such meager
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statistical evidence, while probative under Miller-El v. Dretke,
545 U.S. 231, 240-41 (2005), cannot alone carry the day. See,
e.g., Coulter v. McCann, 484 F.3d 459, 468 (7th Cir. 2007)
(denying habeas relief under Batson and Miller-El where
prosecution used ninety percent of its strikes against African-
American jurors). More importantly, the statistical evidence is
not entirely favorable to Barrington. Four members of the jury
that was ultimately seated were African-Americans and the
Government passed the first four African-American members of the
jury panel. Barrington has marshaled no additional evidence of
intentional discrimination and, accordingly, the district court
did not commit clear error in denying his Batson challenge.
III.
For the foregoing reasons, Barrington’s conviction and
sentence are affirmed. As Barrington is represented by counsel,
we deny his motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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