U.S. v. Lance

• Citation: 853 F.2d 1177
• Decision Date: 18 August 1988
• Docket Number: No. 87-4719,87-4719
• Parties: 26 Fed. R. Evid. Serv. 633 UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee LANCE, Willie Love, and Rebecca Lance, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1177

853 F.2d 1177

26 Fed. R. Evid. Serv. 633

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee LANCE, Willie Love, and Rebecca Lance, Defendants-Appellants.

No. 87-4719.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1988.

David O. Bell, Oxford, Miss. (Court-appointed), for Gary Lee Lance.

James D. Minor, Oxford, Miss. (Court-appointed), for Love.

Henry L. Lackey, Calhoun City, Miss. (Court-appointed), for Rebecca Lance.

John M. Alexander, Robert Q. Whitwell, Asst. U.S. Attys., Oxford, Miss., for U.S.

Appeals from the United States District Court for the Northern District of Mississippi.

Before KING, JOHNSON and JOLLY, Circuit Judges.

KING, Circuit Judge:

Three criminal defendants appeal their drug conspiracy convictions claiming numerous errors during their jury trial: the discriminatory use of peremptory challenges by the prosecutor during jury selection, the improper admission into evidence of tape recordings made by the government's informant, a prejudicial statement by the trial judge when overruling a hearsay objection to a co-conspirator's testimony, and the judge's refusal to give a defendant's proposed jury instruction. One defendant, who was also convicted of drug possession and unlawful interstate travel, challenges the sufficiency of the evidence against him. Finding no reversible error, we affirm.

I.

In May 1987, a federal grand jury indicted seven persons for conspiring to possess and distribute illegal drugs; the twenty-one count indictment also charged the alleged conspirators with substantive offenses, including possessing marijuana and cocaine with an intent to distribute and traveling in interstate commerce to carry on an illegal activity. See 21 U.S.C. Secs. 841(a), 846; 18 U.S.C. Sec. 1952. Four defendants pled guilty before trial; the remaining defendants, Gary Lee Lance ("Lance"), Rebecca Lance, and Willie Love ("Love"), received a jury trial in August 1987. The jury convicted each defendant of one count of conspiracy, Lance of three counts of marijuana possession and four counts of unlawful interstate travel, and Love of two counts of marijuana possession and two counts of unlawful interstate travel. In September 1987, the district court individually sentenced the defendants to serve terms of imprisonment--Lance, a total of eighteen years, Rebecca Lance, a total of thirty months, and Love, a total of seven years. The district court also sentenced Lance and Love to serve special parole terms for the possession counts and ordered each defendant to pay a special assessment. All three defendants timely appealed from the final judgment.

At trial, the government introduced evidence to prove that the defendants participated in a drug conspiracy that involved purchasing illegal drugs in Miami, Florida, and transporting them to Mississippi for distribution. The government's witnesses included two of the indicted co-conspirators, law enforcement agents who conducted an undercover investigation, and other unindicted co-conspirators, one of whom voluntarily cooperated with the government and served as an informant during the investigation. The government introduced audio tapes made by the informant, audio and video tapes made by the agents, and other physical evidence to corroborate the witnesses' testimony--including registration cards from motels in the Miami area showing Lance and Love as guests and telephone company records showing that toll calls from Florida were charged to Rebecca Lance's phone at her mother's house in Mississippi (Rebecca Lance's residence during the time period that trips to Miami allegedly occurred). During the course of the trial, the defendants objected to the tape recordings and portions of the co-conspirators' testimony, but after conducting the inquiry required by United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc), the trial judge overruled the objections. Although the trial judge initially announced his rulings out of the jury's presence, he stated during the direct examination of the government's last witness:

The objection is overruled. Pursuant to the James ruling heretofore made by the Court, this Court has found that there is independent evidence of any statements made by the defendants herein, that a conspiracy existed, that the defendants did and, in this case, the coconspirator, Mr. Alan Henderson, who is charged in the Indictment, were members of the conspiracy, that this statement--

At that point, Lance's attorney interrupted the trial judge and, after approaching the bench, moved for a mistrial because the judge made these statements before the jury. The defendants' motion was denied, and the trial continued.

The only defendant who testified was Lance. He denied committing any crime and testified that he merely associated with drug dealers and pretended to be one of them because he hoped to gather information that would lead to an investigation of his brothers' deaths, which he suspected were related to drug trafficking. Love claimed to be Lance's part-time employee, merely a paid companion or bodyguard who knew nothing about any drug deals that may have occurred and who could not have made one trip to Florida in October 1985 that, according to co-conspirators, involved a marijuana purchase because he was in jail for an alleged parole violation at the time. Love introduced records from the county jail in Leflore County, Mississippi, to substantiate his story. Rebecca Lance maintained that she was an innocent housewife. The trial judge denied the defendants' motions for acquittal, made both at the close of the government's case and at the close of all the evidence.

Because none of the defendants questions the sufficiency of the evidence concerning the alleged conspiracy, ¹ we need not summarize the complex details of all of the government's proof. Rather, because the defendants raise diverse issues on appeal, we will relate additional facts relevant to each issue in the course of our discussion. The Lances argue that the jury's verdict may not properly be affirmed because the trial judge's prejudicial statements in the jury's presence deprived them of a fair trial. In addition, Lance asserts that the trial judge erred by admitting the informant's tape recordings and by rejecting a proposed jury instruction stating the theory of his defense. Love contends that the government failed to prove him guilty of the substantive offenses and that, in any event, his convictions must be reversed because racial discrimination tainted the empaneling of the petit jury. We will consider chronologically the alleged defects in the trial proceedings: discriminatory jury selection, admission of the informant's tapes, the judge's prejudicial remarks, and denial of Lance's jury instruction; finally, we will address the government's proof of the substantive charges against Love.

II.

A. The Jury Selection

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the constitutional guarantee of equal protection prohibits racial discrimination by the government in selecting a particular petit jury to hear a criminal case. ² If a defendant proves that the government purposefully discriminated against his racial class in exercising its peremptory challenges during jury selection, a conviction by that jury cannot stand. Id. at 100, 106 S.Ct. at 1725. In this case, Love, a black man, contends that the prosecutor violated the principles of Batson by excluding two black persons from the jury because of their race. In support of this contention, Love points out that when he questioned the prosecutor's use of peremptory challenges at trial, the prosecutor explained his action by stating criteria that, applied evenly, would have caused the prosecutor to strike one of the white jurors.

The circumstances surrounding the empaneling of the petit jury in this case are as follows: The venire contained thirty-six people, five of whom were black. After voir dire, the trial judge excused one white venireman for cause. The prosecutor used two of his peremptory challenges to excuse black persons and four to excuse white persons; he did not use the government's one peremptory challenge in the selection of alternate jurors. The trial judge asked the prosecutor to explain each of his challenges against blacks, although the judge noted that this was not a usual case for raising the issue of racial discrimination because there were three defendants, only one of whom was black. During each response, the prosecutor stated that the challenged person was young, single, and without children or "a substantial stake in the community" and that each appeared inattentive to him during voir dire examination. Following one of the prosecutor's explanations, Love's attorney commented that the excluded person was actually a life-long resident of the community, and he disputed the prosecutor's observations concerning attentiveness and eye contact during voir dire. The prosecutor pointed out that if he had intended to exclude all blacks from the jury, he "had enough challenges to do so." The trial judge accepted the prosecutor's explanations for excluding the two black persons, and the trial began with the jury selected by the parties--the twelve-member panel included two black jurors; one of the two alternate jurors was black.

After the jury retired to deliberate, the trial judge again addressed the jury selection issue. The trial judge recited the above facts and invited responses from the government and Love. After noting biographical information about the black jurors who heard the case, the judge found that the government consistently attempted to select jurors who were older and meaningfully employed and who had children or family responsibilities. The judge then concluded both that Love did not establish a prima facie case of purposeful discrimination and that the prosecutor adequately explained his exercise of...