U.S. v. Warren, 93-2241

• Decision Date: 07 February 1994
• Docket Number: No. 93-2241,93-2241
• Citation: 16 F.3d 247
• Parties: UNITED STATES of America, Appellee, v. Dominic Lasonto WARREN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 247

16 F.3d 247

UNITED STATES of America, Appellee, v. Dominic Lasonto WARREN, Appellant.

No. 93-2241.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1993.

Decided Feb. 7, 1994.

Counsel who presented argument on behalf of the appellant was Michael William McNabb of Burnsville, Minnesota.

Counsel who presented argument on behalf of the appellee was Andrew Stephen Dunne of Minneapolis, Minnesota. The names of Francis X. Hermann and Andrew Dunne of Minneapolis, Minnesota, appear on the brief of the appellee.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Dominic Lasonto Warren (Warren) appeals the district court's ¹ judgment entering a jury verdict on six drug-related offenses. Warren contends reversible error occurred at multiple levels in the trial proceedings. A review of the record fails to disclose such error. We affirm.

I. BACKGROUND

In the summer of 1992, Warren became the focus of a cocaine trafficking investigation conducted by a task force of law enforcement officers. An undercover agent made four hand-to-hand purchases of cocaine from Warren. Warren was arrested after the fourth cocaine buy when he observed the drug task force's surveillance team and attempted to flee. At the time of the arrest, the officers found not only cash but also a loaded .38 caliber Smith & Wesson handgun in Warren's right front pants pocket.

After Warren was arrested, one of the officers applied for a search warrant to allow the officers to search Warren's residence and automobile. However, immediately prior to the search warrant application, the officers secured and conducted a protective sweep of Warren's residence. Then, once in receipt of the search warrant, the officers searched Warren's residence and vehicle discovering various drug paraphernalia, another weapon, and marijuana.

Warren was charged with four counts of distribution in violation of 21 U.S.C. Sec. 841(a) (1988), one count of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (Supp. IV 1992), and being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g) (1988). At trial, the primary factual dispute concerned whether Warren carried the handgun during and in relation to a drug trafficking offense.

II. DISCUSSION

Warren asserts on appeal that his due process rights were violated by the officers' investigation, his constitutional rights were violated through the jury selection process, and both the grand jury and the petit jury were erroneously instructed on the elements of Sec. 924(c). He further contends the district court erred when it denied him access to the ministerial records of the grand jury, denied his motion to suppress evidence obtained from the search of his home and automobile, denied his motion to stipulate to his prior felony conviction, allowed cross-examination regarding his prior drug transactions, and refused to stack the acceptance of responsibility adjustment under the Sentencing Guidelines. We find no meritorious claim, and we affirm.

A. Due Process Violation

Because the law enforcement officials repeatedly purchased cocaine from Warren, Warren now asserts the actions of the officers violated his due process rights. Specifically, Warren argues that the officers' actions were not restrained by any guidelines or standards and thus were arbitrary and capricious. He maintains not that the officers discriminated against him, but that they arbitrarily continued to buy drugs from him, thereby increasing his ultimate sentence. The district court considered this argument as one describing sentencing entrapment, although Warren denies this is his claim. See United States v. Barth, 990 F.2d 422, 424 (8th Cir.1993).

Sentencing entrapment is " 'outrageous official conduct [that] overcomes the will of an individual predisposed only to dealing in small quantities' for the purpose of increasing the amount of drugs ... and the resulting sentence of the entrapped defendant." United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir.) (quoting United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.), cert. denied, 499 U.S. 968, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991)), cert. denied, --- U.S. ----, 113 S.Ct. 3017, 125 L.Ed.2d 706 (1993). The claim of sentencing entrapment we rejected in Barth involved seven undercover purchases and 50.5 grams of cocaine. 990 F.2d at 423. Here by contrast we have four undercover purchases and 107.4 grams of cocaine base and 111 grams of cocaine. And here, the law enforcement officers articulated legitimate goals, such as uncovering Warren's supply source, justifying the four purchases of cocaine. Hence, had Warren phrased his claim in terms of sentencing entrapment, it would fail because the government's actions simply were not outrageous.

Warren asserts that the convictions on the drug distribution counts should be reversed because the government's conduct was arbitrary and capricious and thus violated the due process clause. However, such a due process claim must show that "the government conduct was 'so outrageous that due process principles should bar the government from invoking judicial processes to obtain a conviction.' " United States v. Dougherty, 810 F.2d 763, 770 (8th Cir.1987) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973)). In Dougherty, the predisposed defendant bought food stamps from a government agent. The Dougherty court declined to find that this behavior "trigger[ed] fundamental fairness concerns" implicating the due process clause. Id. We recognized in Dougherty that the best way for the government to deter the illegal sale of food stamps may be for the government to provide the stamps to a willing and predisposed buyer. Id. Similarly, here, the government's behavior does not trigger "fundamental fairness concerns" implicating the due process clause. The drug task force's goals included investigating the source of Warren's drug supply. The best way to eliminate illegal drug sales may be to make repeated undercover buys from a single source. Thus, Warren's due process claim likewise fails because the government's conduct was not outrageous.

B. Jury Selection

Warren contends that both his Sixth Amendment guarantee to a jury made up of a fair cross-section of his community and his Fourteenth Amendment right to equal protection were violated by the jury selection process used by the district court. Warren, an African-American, asserts the numerical representation of African-Americans on the petit jury venires in the Fourth Division of the District of Minnesota is sufficient evidence to establish these constitutional violations. We disagree.

Warren's evidence consists of figures from the last seven venire pools in the Fourth Division. ² Averaging the figures together, a total of 0.9% of the pool were African-Americans; while, according to the 1990 census figures, 3.0% of the population of the Fourth Division is African-American. The jurors in the District of Minnesota are chosen from voter registration, Minnesota driver's license, and state identification card lists. The names from these lists are placed in a master jury wheel from which jurors' names are randomly selected.

A jury selection process violates the Sixth Amendment's fair cross-section requirement if (1) the excluded group is distinctive in the community, (2) the representation of this group in the venires is not fair and reasonable in relation to the number of such persons in the community, and (3) this underrepresentation is due to "systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). We agree that the alleged excluded group, African-Americans, is distinctive in the community, but we refuse to review this scant record for the fairness and reasonableness of the representation of African-Americans in the venire. Even assuming that Warren had established unreasonable representation of African-Americans in the venire pool, Warren has failed to offer evidence of the "systematic exclusion of [African-Americans] in the jury-selection process." See id. Warren appears to assume the numerical data, see supra note 2, adequately proves underrepresentation and thus contends the numbers alone are sufficient proof of systematic exclusion. We disagree.

Based upon Warren's data, and lacking any discernable reason for the differences amongst the jury pools other than chance, we decline to find that the District of Minnesota's jury selection process systematically excludes African-Americans. Moreover, Warren has failed to offer any other evidence of systematic exclusion. For example, he has failed to point to a defect in the process itself that serves to exclude African-Americans. See United States v. Garcia, 991 F.2d 489, 491 (8th Cir.1993) (citing Duren, 439 U.S. at 364, 99 S.Ct. at 668). Nor has Warren alleged that the voter registration, driver's license, or state identification requirements impose any discriminatory qualifications on applicants. See id. at 492. Nor has Warren shown that the administration of the juror selection plan ³ is discriminatory. See id. Consequently, we find no Sixth Amendment violation.

For similar reasons, Warren's Fourteenth Amendment equal protection claim is also without support. To establish an equal protection violation in this context, Warren must show the jury selection process (1) resulted in a substantial underrepresentation of a suspect class to which Warren belongs, here African-Americans; and (2) is susceptible to abuse or is not racially neutral. Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). We decline to consider the first element in light of the scant data provided in this record. And, because Warren has failed to point to any evidence from which this...