Unpublished Disposition, 872 F.2d 432 (9th Cir. 1989)

MEMORANDUM^** 

Carlos Wilbert Wright and Donna Satchell appeal from judgments of conviction for conspiracy to distribute a narcotic controlled substance in violation of 21 U.S.C. § 846, and aiding and abetting possession with intent to distribute a narcotic controlled substance in violation of 21 U.S.C. § 641(A) (1) and 18 U.S.C. § 2(a).

Defendants first claim that the prosecutor used a peremptory challenge to exclude a black juror on the grounds of race in violation of their right to equal protection of the laws. The trial court's finding that the prosecutor lacked a discriminatory motive is reviewed under the clearly erroneous standard. United States v. Lewis, 837 F.2d 415, 417 (9th Cir.), cert. denied, 109 S. Ct. 304 (1988).

The prosecutor used peremptory challenges to exclude one white female and one black male. She did not challenge the other black member of the jury panel. The prosecutor's questioning on voir dire revealed no racial motivation. She stated that her reason for excusing the black juror was that she believed he would be either inattentive or hostile to the government because he had recently served as a juror during a month long trial and appeared fidgety during voir dire. Although a defendant may make a prima facie showing of purposeful racial discrimination in the selection of a jury venire by relying solely on the facts of his own case, Batson v. Kentucky, 476 U.S. 79, 95-96 (1986), defendants have shown no circumstances suggesting racial motivation. See Lewis, 837 F.2d at 417 (defendant failed to make out a prima facie case where the prosecutor excused only one black juror, and where the prosecutor's statements on voir dire revealed no bias). Assuming that defendants had made out a prima facie case, the prosecutor's stated reasons for excusing the juror are sufficient to rebut an inference of racial motivation. See, e.g., United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.), cert. denied, 108 S. Ct. 265 (1987).

Defendants next claim that they were denied their right to a fair trial when jurors observed them handcuffed and in the custody of federal marshals during a trial recess. In United States v. Figueroa-Espinoza, 454 F.2d 590, 591 (9th Cir. 1972) and United States v. Acosta-Garcia, 448 F.2d 395, 396 (9th Cir. 1971), we held that the fact that members of the jury may have seen defendants in handcuffs is not so inherently prejudicial as to require an automatic mistrial. The trial court's admonition that the custody status of the defendants does not imply guilt was sufficient to remedy any possible prejudice. See Acosta-Garcia, 448 F.2d at 396.

Defendants also claim that they were denied their right to effective assistance of counsel because their attorneys failed to bring a motion to sever counts one and two, which dealt with a conspiracy in which defendants were not involved. To obtain relief based on a claim of ineffective assistance of counsel, defendant must show that counsel's legal representation fell below an objective standard of reasonableness, and that counsel's errors were so serious as to call into question the reliability of the judicial proceeding's outcome. Strickland v. Washington, 466 U.S. 668, 687 (1984). "The prime consideration is assessing the prejudicial effect of joint trial is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants, in view of its volume and the limited admissibility of some of the evidence." United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980).

Defendants were tried with only three other codefendants. The indictment charged two distinct conspiracies, one involving the sale of 50 grams of rock cocaine, the other, for which Wright and Satchell were convicted, involving 5000 grams of powdered cocaine. The trial court carefully instructed the jury that evidence relating to the rock cocaine conspiracy was not admissible against Wright and Satchell. Under the facts of this case, a reasonable jury could be expected to adhere to these instructions. Moreover, the evidence against Wright and Satchell was overwhelming. Both defendants were implicated by the unrebutted testimony of an undercover police officer. This testimony was corroborated by the testimony of two other law enforcement officals who observed the alleged drug deal, and by the cocaine seized from the car in which defendants were riding. Even assuming that trial counsel's failure to bring a severance motion constituted deficient performance, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Defendants finally claim that the mandatory ten-year minimum sentence prescribed by 21 U.S.C. § 841(b) (1) (A) is unconstitutional, on its face or as applied to them. We have previously upheld section 841(b) (1) (A) against constitutional challenge. In United States v. Savinovich, 845 F.2d 834, 838-840 (9th Cir.), cert. denied, 109 S. Ct. 369 (1988), we held that the mandatory minimum penalties established by section 846(b) do not violate equal protection. In United States v. Kinsey, 843 F.2d 383, 393 (9th Cir.), cert. denied, 108 S. Ct. 2882 (1988), we held that the mandatory minimum penalties do not violate the doctrine of separation of powers. As applied to Wright and Satchell, the ten-year minimum sentence does not constitute cruel and unusual punishment. The trial court sentenced Wright to 11 years in prison, and Satchell to 10 years. Because of the amount of cocaine involved and evidence that defendants had been involved in other episodes of drug-trafficking, these sentences cannot be said to be disproportional to the gravity of defendants' offenses. See Savinovich, 845 F.2d at 840.

AFFIRMED.