Appeals from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CR H 89 232 12. JUDGE David Hittner
Before Reavley, Duhe, and Barksdale, Circuit Judges.
Twelve of 28 defendants challenge their drug conspiracy convictions arising out of a large marijuana and cocaine enterprise. We affirm. Eight also contest their sentences. We vacate six of their sentences and remand those six for resentencing.
This case involves a very large and long lasting drug conspiracy. In a 40 count indictment, the Appellants, along with 16 others, were charged with conspiracy to possess cocaine with intent to distribute (Count 1), conspiracy to possess marijuana with intent to distribute (Count 2), conspiracy to import cocaine (Count 3), possession of cocaine with intent to distribute (Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10, 27), possession of marijuana with intent to distribute (Counts 6, 12), distribution of marijuana (Counts 8, 16), importation of cocaine (Count 31), use of the telephone to facilitate drug trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing criminal enterprise (Count 40), and travel in interstate commerce to facilitate drug trafficking (Counts 7, 11), all in violation of 21 U.S.C. §§ 841(a)(1), 846, 963, 843(b), and 848, and 18 U.S.C. § 1952.
Appellant Roque Garcia operated this extensive marijuana and cocaine trafficking enterprise in Houston. Appellants Zamora, Rocha, Silva, Pieratt, and Ruiz at various times assisted in the distribution of the drugs. For most of the conspiracy's duration Garcia used an apartment in Houston as his headquarters, but the drugs were stored elsewhere, including the homes of Silva and Zamora. Appellants Alvarado and Filoteo supplied some drugs, and appellants Severo and Deborah Garza maintained a supply of marijuana for the enterprise at their home. Appellants Davis and Maseratti were regular customers of the enterprise.
By means of surveillance, a pen register, and a wire tap, the DEA closely observed the Garcia enterprise for approximately a year. At various times during the DEA's investigation, arrests were made and drugs were confiscated. The DEA was careful, however, to stage the arrests so that they appeared not to be connected to the surveillance. By the time all was said and done, the DEA had indicted 28 persons connected with the Garcia enterprise. After a jury trial, all Appellants were convicted on all counts in which they were charged.
The Appellants raise numerous claims on appeal. They contend (1) the government's exercise of peremptory challenges violated the Fifth Amendment, (2) the court's refusal to give a buyer-seller jury instruction was error, (3) the court's refusal to dismiss a juror who, during the trial, applied for a government job was error, (4) the importation conspiracy was improperly joined with the domestic conspiracies, (5) Appellant Davis' car was unlawfully searched, (6) the wiretap order was unlawfully issued, (7) a fatal variance exists between the conspiracies charged and the conspiracies proven, (8) the evidence was insufficient to support the convictions, and (9) the sentences were unlawfully imposed. We consider each in turn.
I. Batson Challenge. The Appellants argue that the government used three of its peremptory strikes to exclude prospective jurors; two black females, and one Hispanic female, solely because of their race and ethnicity in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) and the Fifth Amendment. Appellants objected to the strikes and the prosecutor gave the following explanations:
One black woman was struck because "she appeared to be sleeping during part of the voir dire." The second black woman was struck because she also was not paying attention during the voir dire, and because the prosecutor did not like the fact that she was a City of Houston employee. The Hispanic woman was struck because:
It was my impression from my experience in Hispanic culture that she might tend to be sympathetic toward Debbie Garza's predicament in that she basically is doing what the male in the species is telling her to do, and might be too sympathetic . . . .
The district court overruled Appellants' Batson objection.
The Supreme Court held in Batson that a defendant can establish an equal protection violation based on the government's use of peremptory challenges to remove black potential jurors in his case. Batson, 476 U.S. at 96. If the defendant establishes a prima facie case that the prosecutor used peremptory challenges to remove potential jurors because of their race, the burden shifts to the prosecutor to provide race neutral explanations. The court must then determine, in light of all of the facts and circumstances, whether the defendant has carried his burden to establish purposeful discrimination. Id. at 94-98.
When Appellants objected to the prosecutor's exercise of peremptory challenges in this case, the court, without expressly determining whether a prima facie case was made out, asked the prosecutor to explain his challenges. In Hernandez v. New York, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), the Supreme Court stated that "once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." 111 S. Ct. at 1866.
In evaluating the race-neutrality of an attorney's explanation, we must determine whether the challenges violate the Fifth Amendment as a matter of law. Id. at 1866. Proof of racially discriminatory intent or purpose is required to show a violation of the Fifth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). "Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker selected a particular course of action at ...