United States v. Bemis , 88 F. App'x 1 ( 2004 )

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                                                                            United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS                        January 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50436
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS JERROD BEMIS, JR., also known as
Douglas Jerrold Bemis, Jr.,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. MO-02-CR-94-1
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Douglas       Jerrod      Bemis,   Jr.,     appeals      his    convictions         of
conspiracy to possess and aiding and abetting the possession of
marijuana with intent to distribute it, in violation of

21 U.S.C. §§ 846

 and 841(a)(1), and

18 U.S.C. § 2

. We AFFIRM.
At Bemis’s trial, Attorney Gary Hill testified that
Bemis asked him to locate a marijuana supplier for Bemis.
Hill pretended to comply, but he informed law enforcement
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
authorities, who set up a sting operation targeting Bemis.
Government witnesses testified that Bemis and his codefendant,
Gerald Mancus, were arrested after they accepted delivery of 300
pounds of marijuana for which they agreed to pay $120,000, $40,000
upon delivery and $80,000 later.
Bemis testified at trial that he had contacted Attorney
Gary Hill in hopes that he would lend Bemis $20,000 to buy some
property. When Hill declined to lend Bemis $20,000, Bemis asked
Hill if he could introduce him to someone who could sell him 100
pounds of marijuana so he could earn $20,000 in order to buy the
property. Hill contacted Bemis and informed him he had found a
supplier. Bemis testified that he then contacted Mancus, who
offered to put up $40,000 if Bemis would broker a marijuana deal.
Bemis’s defense was that he wanted to obtain only 100 pounds of
marijuana, but that the agents tried to sell him 300 pounds.
Later, Bemis testified that Hill told him he would pay for the
other 200 pounds. After the Government objected to this testimony
as hearsay, defense counsel argued that it was admissible under the
coconspirator exception as provided in F ED. R. EVID. 802, actually
Rule 801(d)(2)(E). The court sustained the objection and
instructed the jury to disregard the testimony.
Bemis contends that he is entitled to reversal because the
district court abused its discretion by excluding his testimony
that Hill had agreed to buy 200 of the 300 pounds of marijuana
involved in this case. Bemis argues that the ruling deprived him
2
of his right to present a meaningful defense, that he had the
intent to purchase and possess only 100 pounds of the marijuana.
The district court’s ruling was correct because Attorney Hill
never was a coconspirator; at all relevant times he cooperated with
the law enforcement authorities. A statement is not admissible
under the coconspirator exception if it was made by one “who is
actually a government agent whose sole purpose is to effect the
arrest of the conspirators.” United States v. Wilkerson,

469 F.2d 963

, 968 (5th Cir. 1972).
Furthermore, if it is assumed that the district court erred by
disallowing     the   contested   testimony,   any   error   was   harmless
in light of the overwhelming evidence of Bemis’s guilt of the
charged offenses.       See FED. R. CRIM. P. 52(a).       The evidence was
overwhelming that Bemis knowingly took delivery of 300 pounds of
marijuana, having agreed to pay $40,000 upon delivery, with the
balance payable after he sold the marijuana.         There was also ample
evidence that he conspired with Mancus, and aided and abetted
Mancus in possessing the 300 pounds, which Mancus also bargained
for with the agents.
Bemis testified regarding his version of events, and he also
admitted in the excluded testimony that he had agreed to possess
the additional 200 pounds for his distribution to Hill.            Since he
was   charged   with   possession    with   intent   to   distribute,   not
ownership, any error in the court’s exclusion of this inculpatory
testimony was harmless to Bemis.         See FED. R. CRIM. P. 52(a).
3
Bemis contends also that the district court reversibly erred
by denying his objection to the Government’s exercise of peremptory
challenges during jury selection, based on Batson v. Kentucky,

476 U.S. 79

 (1986). Bemis argues that the Government gave insufficient
reasons for peremptorily challenging three jury-panel members, whom
he believes to be Hispanic because they have Hispanic surnames.
Bemis further argues that the district court erred by not finding
that   there     was   a   prima   facie       case   of     discrimination   by    the
Government, and by failing to strike the entire jury panel.
“The district court’s determination whether the prosecutor’s
strikes are racially motivated is purely factual, and largely turns
on an evaluation of the prosecutor’s credibility.”                     United States
v. Pofahl,

990 F.2d 1456

, 1466 (5th Cir. 1993).                     On review, this
court “giv[es] great deference to the trial court’s finding that
the prosecutor’s explanation was credible.”                       United States v.
Wallace,

32 F.3d 921

,    925     (5th       Cir.    1994).     “Unless      a
discriminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race neutral.”                   Hernandez v. New
York,

500 U.S. 352

, 360 (1991).
The prosecutor in Bemis’s case offered neutral reasons for his
strikes, which do not even suggest a discriminatory intent.                        Some
of his reasons, such as the fact that a member of the venire is
unemployed or young and single, have been deemed by this court to
be valid neutral explanations.             See United States v. Moreno,

878 F.2d 817

, 820-21 (5th Cir. 1989); United States v. Munoz,

15 F.3d

                                          4
395, 399-400 (5th Cir. 1994).
Furthermore, if the Government had been intent on challenging
Hispanic panel members, it could have exercised its peremptory
challenges to eliminate both a Hispanic who was seated on the jury,
and a Hispanic panel member who did not serve on the jury because
he was the last remaining panel member after the jury was selected.
See United States v. Mixon,

977 F.2d 921

, 923 (5th Cir. 1992).
This    also   supports   the   district     court’s   decision    that   the
Government’s reasons for striking the panel members were credible.
As this court explained in United States v. Krout,

66 F.3d 1420

, 1428-29 (5th Cir. 1995), reasons offered by the prosecutor
will be deemed race-neutral by the court unless a discriminatory
intent is inherent in his explanation.          Because the reasons given
by the prosecutor are facially race- and ethnically neutral, with
no valid basis for suspecting a discriminatory intent, Bemis’s
Batson claim lacks merit.
Bemis contends that he is entitled to reversal because the
district court erroneously found that he did not make a prima facie
showing    that    the    Government       discriminated    in    exercising
its peremptory challenges.       Since the district court called on the
prosecutor to provide race-neutral explanations, however, this
court   reviews   only    the   district    court’s    findings   concerning
discrimination, not whether the party made a prima facie case. See
Brown v. Kinney Shoe Corp.,

237 F.3d 556

, 561 (5th Cir. 2001).
5
Bemis asserts conclusionally that he is entitled to reversal
because the district court failed to strike the jury panel.    By not
briefing this claim, Bemis has in effect abandoned it.        See Al-
Ra’id v. Ingle,

69 F.3d 28