United States of America, Plaintiff-appellee, v. Errol T. Hoffman, Defendant-appellant.united States of America, Plaintiff-appellee, v. Delroy Burrowes, A/k/a Scorpio, Defendant-appellant.united States of America, Plaintiff-appellee, v. David A. James, A/k/a Nugget, Defendant-appellant.united States of America, Plaintiff-appellee, v. Andrew R. Spence, Defendant-appellant.united States of America, Plaintiff-appellee, v. Michael L. Spence, Defendant-appellant, 907 F.2d 1140 (4th Cir. 1990)

After a jury trial, Ida Mae Coleman, Errol T. Hoffman, Delroy Burrowes, David A. James, Andrew R. Spence and Michael L. Spence, were convicted of conspiracy to distribute 50 grams or more of a substance containing cocaine base and cocaine, in violation of 21 U.S.C. § 846, as well as other counts of possession with intent to distribute and distribution of cocaine base and cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. All defendants except Coleman appeal. Finding no cause for reversal in the several assignments of error, we affirm the judgments against all appellants.

* The appellants first contend that "cocaine base" as used in 21 U.S.C. § 841(b) (1) (A) (iii) plainly refers only to the white granular substance produced in South America and does not include the substance crack. Alternatively, the appellants argue that the statute as applied violates the due process clause. They assert that it is void for vagueness because it did not provide fair notice to the defendants that their conduct was subject to enhanced punishment.

This issue was recently decided by this court in United States v. Pinto, No. 89-5180 (4th Cir. May 24, 1990). Relying on Pinto, we hold that the term "cocaine base" in section 841 includes crack, that the statute when construed in this manner is not vague, and that its enhancement of punishment does not violate the due process clause.

II

Selection of a petit jury proceeded on the first day of trial. Five black persons were potential jurors on the venire. The court struck one of them for cause. The government exercised peremptory challenges to strike two others. Two black persons served on the jury, and one was an alternate juror. The appellants argue that the government's use of peremptory challenges to exclude the two potential black jurors was racially discriminatory in violation of the equal protection clause.

The Court explained in Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), that if a defendant makes a prima facie showing of discrimination against black jurors, the prosecution must present a race-neutral explanation for striking the jurors that is not pretextual. A district court's findings on this issue are subject to deference on appeal. 476 U.S. at 98 n. 21; United States v. Tindle, 860 F.2d 125, 129 (4th Cir. 1988).

The government explained to the court that it struck potential black juror 654 "because of his age, only 22, and he is a laborer. The casual appearance." We find no error in the court's finding that this neutral reason was not pretextual. Although another juror in the same age group as juror 654 was not struck, she specifically requested to be on this jury so she would not have to serve on a subsequent jury at a time that would conflict with her participation in a job training program. The court, with the agreement of all counsel, moved her to the top of the list of jurors and gave each side an additional peremptory strike.

Juror 668 was struck, according to the government, because she "is a plaintiff in a case against the government. We felt that would affect her judgment." Juror 668 was employed by the U.S. Postal Service at the time of the trial. During voir dire, she stated that she was going to a preliminary hearing "with EEOC and my employer." She also stated that she was a complainant in the EEOC action. When asked if this would distract her, she replied, "It's over two years."

The record supports the court's conclusion that the government's reason for striking juror 668 was not pretextual. Because juror 668 worked for the U.S. Postal Service, and since she said she was a complainant in an EEOC case against her employer, the government reasonably could have inferred that she might have been prejudiced against the United States.

III

Delroy Burrowes was the only defendant who testified at trial. On direct examination, he stated that his home address was 1601 Walter Reed Drive, Arlington, Virginia. He testified that he did not know any of the codefendants. On cross-examination, the government asked if Burrowes knew that Michael Spence had told police that his address was 1601 Walter Reed Drive. Burrowes responded that he had never seen Michael Spence.

Michael Spence moved for a mistrial or severance on the ground that the admission of evidence linking him to the Walter Reed address was highly prejudicial because no other evidence connected him to that address. The court denied the motion but agreed to give a limiting instruction. A stipulation was admitted into evidence that Spence listed his address on a DEA form as 1601 Walter Reed Drive. The trial court gave limiting instructions before and after the evidence was introduced. In his closing argument, Burrowes' counsel referred to the evidence that Spence and Burrowes had the same address and stated that Spence "tried to show you that that was not his address." The court issued a limiting instruction. Another limiting instruction was included as part of the general jury instructions.

Spence contends that the court erred in denying his motion for severance because the spillover effect of evidence of his home address, which was introduced by the government to impeach Burrowes' credibility, deprived him of a fair trial. He points out that the reference to the address in the closing argument of Burrowes' counsel was particularly prejudicial.

The district court's decision to deny a severance will not be overturned on appeal unless the decision deprives the defendant of a fair trial and results in a miscarriage of justice. Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988). Spence has not met his burden to show the requisite prejudice. The court repeatedly gave limiting instructions to the jury, making it clear that the evidence that Spence lived at 1601 Walter Reed Drive should not be considered in determining Spence's guilt, but only in determining Burrowes' credibility. We believe these instructions could be, and were, followed by the jury to ensure a fair trial for Spence. See United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987).

IV

Michael Spence claims that the verdict against him was not supported by sufficient evidence. He was convicted of three counts: conspiracy to possess and distribute 50 grams or more of a substance containing cocaine base, intentionally possessing with the intent to distribute five grams or more of a substance containing cocaine base, and intentionally possessing with the intent to distribute cocaine. Spence argues that no direct evidence proved that Spence knowingly entered the conspiracy and knew of its purpose.

In reviewing whether there was sufficient evidence to support a guilty verdict, we must consider the evidence and all permissible inferences to be drawn from the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942). To prove count one, the government was required to establish that Spence was a willful participant in the conspiracy. Circumstantial evidence is sufficient to support a guilty verdict. United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).

An undercover police detective agreed to purchase 10 ounces of crack from Burrowes and Coleman. Burrowes and Coleman left from Coleman's house, where Coleman cooked crack, to meet the detective for the sale. The police raided the house later in the day and arrested Spence inside. He had 73 grams of cocaine hydrochloride in his pocket and 6.7 grams of crack on the floor beside him. The jury could have inferred from Spence's presence at Coleman's house and the drugs found in his possession and within his reach that he knowingly participated in a conspiracy to distribute cocaine base.

Substantial evidence supported the guilty verdict on the other two counts of possession with intent to distribute cocaine base and cocaine. An expert witness testified that the amounts of drugs found in Spence's possession and within his reach when he was arrested were consistent with distribution, not personal use.

AFFIRMED.