* Senior Circuit Judge of the Second Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 91-1764

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN COBB and JACK R. COBB,

Defendants-Appellants.

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Appeals from the United States District Court

For the Northern District of Texas

__________________________________________________

(October 5, 1992)

Before VAN GRAAFEILAND,* KING, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A jury convicted John Cobb and Jack Cobb of conspiracy to

possess, transport, and sell stolen trucks, in violation of 18

U.S.C. § 371; and convicted Jack Cobb of interstate transportation

of stolen trucks, in violation of 18 U.S.C. § 2312. The Cobbs

appeal their convictions, arguing that the district court: (a)

erroneously accepted the prosecutor's explanations for striking the

only two African-American veniremen; (b) erred in holding that a

warrantless search of Jack Cobb's business was authorized by a

Texas statute permitting warrantless searches of automobile salvage
 

1 Evidence at trial showed that Jack Cobb had paid several

individuals to steal trucks and deliver them to him. Evidence also

showed that John Cobb delivered money to one of these individuals

as payment for a stolen truck. 

2

dealerships; (c) should have dismissed the indictment against John

Cobb with prejudice when it dismissed that indictment pursuant to

the Speedy Trial Act; and (d) erred in refusing to sever the trials

of the two defendants. We affirm.

I

Jack Cobb owned a trucking company in Haltom City, near Fort

Worth, and his son, John Cobb, worked for the company as a

dispatcher. Law enforcement officers discovered stolen trucks and

trailers in the possession of the trucking company's employees.

Both Jack and John Cobb were indicted for conspiracy to possess,

transport, and sell stolen trucks, in violation of 18 U.S.C. § 371

(1988). Jack Cobb was also indicted for possession with intent to

sell, and interstate transportation of stolen trucks and trailers,

in violation of 18 U.S.C. §§ 2321 and 2312 (1988). The jury found

both Jack and John Cobb guilty of conspiracy.1 The jury also found

Jack Cobb guilty of interstate transportation, but not guilty of

possession with intent to sell.

II

A

Both Jack Cobb and John Cobb argue that the district court

erred in accepting the prosecutor's explanations for striking

Virginia Majones and Lula Collins))the only African-Americans on
 

2 The Equal Protection Clause of the Fourteenth Amendment pertains to the

states, but Batson applies to federal, as well as state, criminal cases. See

Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)

(federal criminal conviction reversed on the basis of Batson).

3

the jury panel. The prosecutor exercised peremptory strikes

against both women, and Jack Cobb and John Cobb objected, arguing

that strikes against the only two African-American veniremen raised

an inference that the strikes were racially motivated. The

district court called on the prosecutor to provide a race-neutral

explanation for the strikes, and the prosecutor explained that both

Majones and Collins were struck because they were elderly. He also

stated that Collins did not seem alert during voir dire, and that

Majones' spouse was employed at a hotel which was a known house of

prostitution. On the basis of these explanations, the district

court overruled the Cobbs' challenge to the peremptory strikes.

The Equal Protection Clause2 forbids a prosecutor to exercise

peremptory challenges against prospective jurors solely on account

of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct.

1712, 1719, 90 L. Ed. 2d 69 (1986). Where the facts at voir dire

raise an inference that the prosecutor's peremptory strikes were

racially motivated, the prosecutor has the burden of showing that

the strikes were based on "permissible racially neutral selection

criteria." See id. at 94, 106 S. Ct. at 1721. Once the prosecutor

offers a racially neutral explanation, the district court must

determine whether the reasons offered by the prosecutor))or race

alone))motivated the strikes. See id. at 98, 106 S. Ct. at 1724.
 

3 Jack and John Cobb attack the credibility of the

prosecutor's explanation for striking Majones, on the grounds that

no evidence in the record indicates that her spouse was employed at

4

 The district court's determination is purely factual, and

largely turns on an evaluation of the prosecutor's credibility.

Hernandez v. New York, ___ U.S. ___, 111 S. Ct. 1859, 1869, 114 L.

Ed. 2d 395 (1991). We review the district court's finding

concerning the presence vel non of purposeful discrimination under

the "clearly erroneous" standard. See Hernandez , 111 S. Ct. at

1871; United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.

1988). We will not find a district court's ruling to be clearly

erroneous unless we are left with the definite and firm conviction

that a mistake has been committed. United States v. Mitchell, 964

F.2d 454, 457-58 (5th Cir. 1992).

The district court believed the prosecutor's explanations

after observing the demeanor of the prosecutor and the veniremen.

However, John Cobb and Jack Cobb argue that the prosecutor's

explanation that both Collins and Majones were elderly was not

credible. They point out that several white veniremen were

elderly, but were not struck by the prosecutor. This argument

overlooks the differences between Majones and Collins and the other

elderly panel members. The prosecutor noted that Collins, in

addition to being elderly, was not alert during voir dire, but he

made no such observation about the other elderly veniremen.

Furthermore, the prosecutor was concerned not only about Majones'

age, but also about her spouse's employment at a known house of

prostitution.3 Consequently, the mere fact that the prosecutor
a house of prostitution. We agree that there is no evidence to

that effect. However, the Cobbs point to no authority for the

proposition that we should uphold the district court's credibility

assessment only if it is supported by evidence in the record, and

we decline to adopt such a requirement here. See Hernandez, 111 S.

Ct. at 1869 ("There will seldom be much evidence bearing on [the]

issue [whether the prosecutor's explanation should be believed],

and the best evidence often will be the demeanor of the attorney

who exercises the challenge." (citation omitted)). The district

court determined, after observing the prosecutor's demeanor, that

his explanation was credible; and the absence of record evidence to

support the facts underlying that explanation does not leave us

with the definite and firm conviction that a mistake has been

committed. See Mitchell, 964 F.2d at 457-58.

 

4 See Tex. Rev. Civ. Stat. Ann. art. 6687-2(i) (West Supp.

1992) ("A motor vehicle salvage dealer . . . shall allow and shall

not interfere with a full and complete inspection by a peace

officer of the inventory [and] premises . . . of the dealer.") 

5

declined to strike several elderly white veniremen does not

persuade us to disturb the district court's credibility judgment.

See Hernandez, 111 S. Ct. at 1869 ("[E]valuation of the

prosecutor's state of mind based on demeanor and credibility lies

`peculiarly within a trial judge's province.'" (citation omitted)).

We find no clear error in the district court's decision to accept

the prosecutor's racially neutral explanations.

B

Jack Cobb contends that the district court erred in holding

that a warrantless search of his business was authorized by a Texas

statute permitting warrantless searches of automobile salvage

dealerships.4 Without obtaining a search warrant, Fort Worth

police officer Ernest Pate and several other officers searched

Cobb's business premises and seized two stolen truck engines and a

stolen trailer. The officers believed that Article 6687-2
 

5 See Tex. Rev. Civ. Stat. Ann. art. 6687-2(a) (West Supp.

1992) (A "motor vehicle salvage dealer" is an individual or

organization "engaged in the business of obtaining abandoned,

wrecked, or junked motor vehicles or motor vehicle parts for scrap

disposal, resale, repairing, rebuilding, demolition, or other form

of salvage.").

6

authorized the warrantless search. Cobb filed a pretrial motion to

suppress all evidence seized in the course of the search, arguing

that his business was not a salvage dealership for the purposes of

Article 6687-2,5 and that the warrantless search was therefore

unauthorized and in violation of the Fourth Amendment. The

district court held that Cobb was a motor vehicle salvage dealer

for the purposes of Article 6687-2, and overruled Cobb's motion to

suppress. See Record on Appeal, vol. 5, at 71.

We review the district court's finding of fact))that Cobb was

a motor vehicle salvage dealer, as defined in Article 6687-2))for

clear error. See Hernandez, 111 S. Ct. at 1869 ("[W]e have held

that the [clearly erroneous] standard should apply to review of

findings in criminal cases on issues other than guilt." (citations

omitted)). The district court's finding was not clearly erroneous,

as it was amply supported by the evidence. At the hearing on the

motion to suppress, Officer Pate testified that Cobb's employees at

the site repaired and rebuilt large trucks, using parts obtained

"from salvage yards, from individuals, [and] from trucks that they

had wrecked themselves." See Record on Appeal, vol. 5, at 10.

Officer Pate also testified that Cobb's business sold parts to

another trucking company, see id. at 33, and that Cobb's employees

cut up metal at the Haltom City yard and sold it for scrap. See
 

6 See supra note 5.

 

7 See id.

7

id. at 46. From Officer Pate's testimony it appears that the

activities at Cobb's truck yard precisely fit the statutory

definition of a motor vehicle salvage dealer.6

Cobb also challenges the district court's interpretation of

Article 6687-2(a).7 Because Cobb conducted the activities set out

in the statutory definition of a motor vehicle salvage dealer, the

district court concluded that Cobb was "engaged in the business" of

motor vehicle salvage. Cobb argues that one is not "engaged in the

business of" motor vehicle salvage unless salvage is one's primary

business, and since Cobb was primarily in the business of trucking,

he was not "engaged in the business" of salvage. See Brief for

Jack R. Cobb at 12 ("Mr. Cobb did not have a business devoted to

`obtaining abandoned, wrecked, or junked motor vehicles or motor

vehicle parts for scrap disposal, resale, repairing, rebuilding,

demolition, or other form of salvage.' Appellant Jack Cobb was

engaged in the enterprise of trucking . . . ." (emphasis

supplied)).

The district court was obligated to interpret this Texas

statute as a Texas court would have interpreted it. See Green v.

Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir. 1980), cert.

denied, 449 U.S. 952, 101 S. Ct. 356, 66 L. Ed. 2d 216 (1980)

(Where Mississippi statute did not provide damages for retaliatory

firing, this Court had to "decide [the] issue as we believe a

Mississippi court would decide it." (citation omitted)). We
 

8 See id.

8

review the district court's interpretation of the statute de novo.

See Salve Regina College v. Russell, ___ U.S. ___, 111 S. Ct. 1217,

1221, 113 L. Ed. 2d 190 (1991) ("We conclude that a court of

appeals should review de novo a district court's determination of

state law."). We find no error. 

There is no reason to believe that Texas courts would have

interpreted Article 6687-2 to apply only to persons who are

primarily in the salvage business. The statute does not say

"primarily engaged in the business,"8 and neither the Texas Court

of Criminal Appeals nor any Texas Court of Appeals has interpreted

Article 6687-2 to include such a limitation. Furthermore, limiting

the scope of Article 6687-2 to persons primarily engaged in the

salvage business would bear no logical relationship to what we

perceive to be the obvious purpose of that statute))to aid in the

prevention of motor vehicle theft. Consequently, we find no error

in the district court's decision to apply Article 6687-2 to Cobb's

business, even though Cobb was primarily engaged in trucking, and

only incidentally engaged in motor vehicle salvage.

C

John Cobb argues that the district court should have dismissed

the indictment against him with prejudice. John Cobb filed a

motion to dismiss his original indictment pursuant to the Speedy

Trial Act, 18 U.S.C. § 3162 (1988), alleging that the government
 

9 "In any case in which a plea of not guilty is entered, the

trial of a defendant charged in an information or indictment with

the commission of an offense shall commence within seventy days

from the filing date . . . of the information or indictment . . .

." 18 U.S.C. § 3161(c) (1988). "If a defendant is not brought to

trial within the time limit required by section 3161(c) . . . the

information or indictment shall be dismissed on motion of the

defendant." 18 U.S.C. § 3162(a)(2) (1988). 

 

10 "In determining whether to dismiss the case with or without

prejudice, the court shall consider, among others, each of the

following factors: the seriousness of the offense; the facts and

circumstances of the case which led to the dismissal; and the

impact of a reprosecution on the administration of this chapter and

on the administration of justice." 18 U.S.C. § 3162(a)(2) (1988).

9

had failed to bring him to trial within the required time period.9

The district court granted Cobb's motion, and dismissed the

indictment without prejudice.10

We review the district court's ruling for abuse of discretion.

See United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987),

cert. denied, 487 U.S. 1218, 108 S. Ct. 2870, 101 L. Ed. 2d 906

(1988) (district court's dismissal of indictment without prejudice,

pursuant to the Speedy Trial Act, reviewed for abuse of

discretion). "[W]hen the statutory factors are properly

considered, and supporting factual findings are not clearly in

error, the district court's judgment of how opposing considerations

balance should not lightly be disturbed." United States v.

Taylor, 487 U.S. 326, 333, 108 S. Ct. 2413, 2420, 101 L. Ed. 2d 297

(1988) (explaining the abuse of discretion standard to be applied

by a court of appeals reviewing a district court's decision to

dismiss, with or without prejudice, pursuant to the Speedy Trial

Act). 
 

11 See supra note 10.

10

We find no abuse of discretion here. Cobb does not attack the

findings of fact upon which the district court based its ruling;

and the district court considered all of the statutory factors11 and

articulated its reasoning with respect to each one. The district

court noted that the offense charged was a serious one, which

extended across state lines and lasted two and one-half years. See

Record on Appeal, vol. 2, at 77-78. The district court also

considered that the government had not sought the delay in

prosecuting Cobb or used it for any ulterior purpose, and that Cobb

had failed to press his right to a speedy trial before the court.

See id. at 78. Finally, the district court pointed out that

reprosecution was most beneficial to the administration of justice,

because Cobb had suffered no prejudice as a result of the delay,

and the government had gained no advantage. See id. In light of

United States v. Taylor, we hesitate to disturb the district

court's balancing of these factors. 

Nonetheless Cobb argues that we should overturn the district

court's ruling, because the government's negligence in failing to

afford him a speedy trial required dismissal with prejudice. See

Brief for John Cobb at 13. Because United States v. Russo, 741

F.2d 1264 (11th Cir. 1984), upon which Cobb relies, is

distinguishable, we disagree. In Russo the Eleventh Circuit found

an abuse of discretion in the district court's dismissal without

prejudice, because there was no affirmative justification for the

delay in bringing Russo to trial: the only cause for the delay was
 

12 The district court found that the delay in prosecuting John

Cobb was partially attributable to the government's

misunderstanding of the Speedy Trial Act. See Record on Appeal,

vol. 2, at 77-78. However, the district court's finding did not

amount to a determination that the government had been negligent.

See id.

11

the government's negligence. Russo, 741 F.2d at 1267. That is not

the case here. 

Assuming arguendo that the government was negligent,12 any such

negligence was not the only reason for the delay in trying John

Cobb. Another contributing factor was Jack Cobb's plea agreement.

Jack Cobb entered a plea of guilty in return for the dismissal of

the charges against John Cobb, but six months later he withdrew his

guilty plea. See Record on Appeal, vol. 2, at 75. Naturally this

series of events contributed to the delay of John Cobb's case.

Furthermore, the district court found that John Cobb acquiesced in

the delay resulting from Jack Cobb's plea agreement, rather than

demanding a speedy trial. See id. at 78. Because factors other

than the government's alleged negligence contributed to the Speedy

Trial Act violation, Russo is distinguishable, and we find no abuse

of discretion in the district court's dismissal without prejudice

of the indictment against John Cobb. 

D 

John Cobb also contends that the district court erred in

refusing to sever his case from that of Jack Cobb. John Cobb filed

a motion for severance, pursuant to Fed. R. Crim. P. 14, claiming

that Jack Cobb would testify on his behalf if the two prosecutions
 

13 Abbot v. Wainwright, upon which Cobb relies, is

distinguishable in this regard. In that case we reversed the

district court's denial of a motion for severance, where the motion

was accompanied by an affidavit showing that the co-defendant would

in fact testify if severance were granted. See Abbott v.

Wainwright, 616 F.2d 889, 889-90 (5th Cir. 1980). 

12

were severed. The district court denied the motion, and John Cobb

appeals.

We review the district court's denial of the motion to sever

for abuse of discretion. See United States v. Featherson, 949 F.2d

770, 773 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.

1771, 118 L. Ed. 2d 430 (1992). In order to show that the district

court abused its discretion, Cobb must show that his "trial was

unfair and exposed [him] to compelling prejudice against which the

district court was unable to afford protection." See United States

v. Kane, 887 F.2d 568, 571 (5th Cir. 1989), cert. denied, 493 U.S.

1090, 110 S. Ct. 1159, 107 L. Ed. 2d 1062 (1990). To prove that

his trial was unfair because he was denied the testimony of Jack

Cobb, John Cobb must show that Jack Cobb would, in fact, have

testified. See id. at 573 (defendant was not entitled to severance

on account of co-defendant testimony, unless he established that

the co-defendant would actually testify). 

John Cobb has not made that showing. His motion for severance

was not accompanied by an affidavit from Jack Cobb indicating that

he would testify if the severance were granted.13 Consequently,

there was no support for the claim that Jack Cobb would testify on

John Cobb's behalf, and the district court did not abuse its

discretion by denying the motion for severance. See United States
13

v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987), cert. denied, 484

U.S. 913, 108 S. Ct. 259, 98 L. Ed. 2d 216 (1987) (district court

did not abuse its discretion in denying motion for severance which

was accompanied by the affidavit of the movant's counsel, but not

by an affidavit of the co-defendant who was expected to testify).

III

For the foregoing reasons, we AFFIRM.