UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5172

RICKY LEE GROVES,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5173

WILLIE LEE STRICKLAND,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-94-97-F)

Submitted: April 30, 1996

Decided: June 25, 1996

Before HAMILTON and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert Willis, LAW OFFICES OF ROBERT WILLIS, Raleigh,

North Carolina; Brian E. Clemmons, YOUNG, MOORE & HENDERSON, P.A., Raleigh, North Carolina, for Appellants. Janice

McKenzie Cole, United States Attorney, Christine B. Hamilton,

Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Ricky Lee Groves appeals his conviction and sentence of life plus

60 months for engaging in a continuing criminal enterprise (CCE), 21

U.S.C.A. § 848 (West Supp. 1996), trading food stamps for crack, 7

U.S.C.A. § 2024(b) (West 1988 & Supp. 1996), and use of a firearm

in a drug trafficking offense. 18 U.S.C.A. § 924(c) (West Supp.

1996). Willie Lee Strickland appeals his conviction and 252-month

sentence for crack conspiracy, 21 U.S.C.A. § 846 (West Supp. 1995),

and crack distributions. 21 U.S.C.A. § 841 (West 1981 & Supp.

1995). We affirm.1

The government's evidence at Appellants' joint trial established

that Ricky Groves's brother Charlie Groves sold crack for several

years from his home at 3535 Government Road in Clayton, North

Carolina. When Charlie Groves went to prison in 1992, Ricky

Groves's mother, Alva Mae, moved into Charlie's trailer and Ricky

Groves continued the crack business. Ricky Groves lived in Raleigh

but went to the trailer on Government Road every day. Willie Strick-

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1 Appellants' Motion for Leave to File Statistical Information is

granted. We have considered the information attached to the Motion.

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land had supplied Charlie and continued to supply Ricky Groves.

Ricky Groves also obtained crack from several Haitians, principally

"Haitian Roger." Roger supplied Ricky's sister, Margaret Woodard,

who lived next door, and his niece, Pam Woodard. Runners who sold

the crack to people who drove along Government Road obtained

crack from Ricky, his mother, his sister, or co-conspirator Tim

McCullers and were paid in crack, cash, or both. Ricky Groves also

traded crack for foodstamps, firearms, and various other items. During the course of an extended investigation, about twenty-six controlled buys of crack were made by a federal agent accompanied by

a confidential informant. Audio and video recordings were made of

most of these transactions.

On appeal, Groves and Strickland first contend that the government

unconstitutionally exercised three peremptory strikes against black

jurors. During jury selection, the attorneys for Groves and Strickland

objected to the government's use of three peremptory strikes against

three young black males. The government attorney, who was also

black, explained that the first juror, Mr. McCrowie, was struck

because he was the only single person on the list at that point, and that

the second, Mr. Autry, was struck because "he was looking at me in

a way I didn't particularly care for." The third black juror was from

an area where Groves had relatives living. The district court accepted

the government attorney's explanations and found that no intentional

discrimination had occurred.

Later, Groves's attorney again raised the issue, arguing that the

government was inconsistent in not striking a white male juror who

was divorced as a single person like the first black male who was

struck. He asked the district court to reinstate the first black juror who

was struck, which the court declined to do. The government attorney

stated that he was picking a jury for another attorney who would try

the case, and was generally attempting to follow her instructions. The

district court again found no intentional discrimination.

A party challenging the exercise of a peremptory strike on racial

discrimination grounds must make a prima facie case of intentional

discrimination, after which the burden shifts to the other party, who

must offer a race-neutral reason for exercising the strike. Batson v.

Kentucky, 476 U.S. 79 (1986); Jones v. Plaster, 57 F.3d 417, 420 (4th

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Cir. 1995). A satisfactory reason need only be based on something

besides race; it need not be rational or credible or have any relationship to the trial. Purkett v. Elem, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3814

(U.S. May 15, 1995) (No. 94-802). The trial court must then decide

whether intentional discrimination was a motivating factor for the

peremptory strike. Its decision is reviewed for clear error. United

States v. Hernandez, 500 U.S. 352, 359, 364-65 (1991) (finding concerning discrimination is credibility determination).

Here, the government offered race-neutral reasons for striking all

three black jurors.2 Groves and Strickland contend that the government's reason for striking McCrowie--that he was single--was

inconsistent with its failure to strike a white male who was divorced,

and that a policy of striking all never-married jurors would be discriminatory because black adults are more likely than whites to be

unmarried. They also suggest that the district court failed to address

their argument that the reason offered by the government for striking

McCrowie was pretexual. However, the district court heard the argument for reconsideration of its prior ruling and again found no Batson

violation.

The government attorney who handled the trial (and whose instructions were being followed by the attorney who exercised the peremptory strikes) states in the government's appeal brief that she believes

young unmarried people are less desirable as jurors because they have

not yet had to make difficult decisions, while divorced people often

have had to make such decisions and compromises. Whether or not

such a view is true, it is a consistent and race-neutral reason for striking young persons who have never been married.

Appellants contend that the government's explanation for the strike

against Autry was not credible, but they mischaracterize the reason

for the strike. The government attorney did not say he struck Autry

because of the way he looked, but because of the way he was looking

at the government attorney. We find that the government offered raceneutral reasons for striking both McCrowie and Autry and that the

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2 The preliminary question of whether a prima facie showing of intentional discrimination had been made thus became moot. Hernandez, 500

U.S. at 359.

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district court did not clearly err in finding that there was no Batson

violation.

Groves contends that the evidence was insufficient to support his

CCE conviction because it was insufficient to convict him of conspiracy (Count 1) or the distribution counts (Counts 4-11, 21, 31, 32, and

34).3 A conviction must be sustained if there is substantial evidence,

taken in the light most favorable to the government, to support a finding of guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). The elements which the government was required to prove to convict Groves

of participation in a continuing criminal enterprise are: (1) that

Groves committed a felony violation of the federal drug laws; (2) that

the violation was part of a series of violations of the drug laws; (3)

that the series of violations were undertaken by Groves in concert

with five or more persons with respect to whom Groves occupied a

position of organizer, supervisor, or any other position of management; (4) that Groves obtained substantial income or resources from

the continuing series of violations. United States v. Heater, 63 F.3d

311, 316-17 (4th Cir. 1995). At least three predicate violations of the

drug laws must be proved, of which one may be a conspiracy under

21 U.S.C.A. § 846 (West Supp. 1995). United States v. Ricks, 882

F.2d 885, 891 (4th Cir. 1989).

Groves argues that three of the other named conspirators, Lonnie

Morrison, Tim McCullers, or Baltasaras Romilus (Haitian Bill), were

engaged in separate conspiracies.4 While the government's witnesses

may not have testified about direct dealing between Groves and these

three, there was abundant evidence that Groves conspired with

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3 After Groves was convicted, the district court vacated his conviction

for the conspiracy and all the distribution counts. It is unclear why the

substantive counts were vacated. However, a defendant's conduct may

be a predicate offense for CCE purposes even without a conviction for

that conduct. United States v. Apodaca, 843 F.2d 421, 432 (10th Cir.),

cert. denied, 488 U.S. 932 (1988).

4 McCullers and Romilus pled guilty to the conspiracy count before

Appellants went to trial. Lonnie Morrison is identified in the presentence

report as a street dealer for Groves, but runner Travis Walker testified

that Morrison had his own crack business. Morrison pled guilty to two

crack distribution counts and one count of trading food stamps for crack.

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numerous people to violate federal drug laws. Runner Larry Horton

testified that Groves's other runners included Eric Chris, James

Lemon, Ricky McNeil, Malcolm Tomlinson, and "Soldier Boy."

Groves also contends that there was insufficient evidence to prove

the substantive distribution counts because the indictment gave specific months (Counts 4-11) or specific dates (Counts 21, 31, 32, 34)

when the distributions occurred, while the runners who testified at

trial were not specific about dates. However, there was specific testimony from Detective Alfred Linton of the Clayton Police Department, and Sergeant Clyde Berube, of the Johnston County Sheriff's

Department, about a transaction on June 23, 1993, in which Groves

was shown to be the source of the crack purchased by the undercover

agent for food stamps in a videotaped transaction. Runner Larry Horton testified that Groves was the source of the crack he sold to an

undercover agent for food stamps on September 30, 1993. This transaction was audio taped.5

The evidence was thus sufficient to convict Groves of the offenses

which were charged in Counts 21 and 34 under 21 U.S.C.A. § 841,

and in Counts 61 and 73 under 7 U.S.C.A. § 2024(b). Because there

was substantial evidence that Groves committed three felony violations of the drug laws by participating in the crack conspiracy and the

crack transactions on June 23, 1993, and September 30, 1993, the

§ 848 conviction will be affirmed. Groves makes the same claim of

insufficient evidence with regard to his convictions for trading crack

for food stamps and the argument is without merit for the same reason. Groves concedes that the evidence that he traded firearms for

crack was sufficient to convict him under § 924(c), but suggests that

the testimony was not credible. The credibility of witnesses is not

reviewable on appeal. United States v. Saunders , 886 F.2d 56, 60 (4th

Cir. 1989).

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5 Government Exhibits 10 and 10A were the crack and the lab report

for the June 23, 1993, controlled buy involving Ricky Groves and runners James Lemon and William (Red) Woodard. Government Exhibit 87

was a videotape of the transaction. Government Exhibit 85 was an audio

tape of the September 30, 1993, controlled buy from runners Larry Horton and Eric Chris.

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Strickland first argues that there was insufficient evidence to convict him of conspiracy because there was no testimony that he conspired with Lonnie Morrison, Timothy McCullers, or Baltaras

Romilus (Haitian Bill). However, there was ample evidence that he

supplied crack to Ricky Groves regularly throughout the conspiracy;

this evidence is sufficient to sustain his conviction.

Strickland also contends that there was insufficient evidence to

support his substantive distribution convictions because the government's witnesses did not give the specific dates of his distributions.

The substantive counts charged Strickland with distributions of more

than 50 grams of crack in April, August, October, and December

1993, and in February, April, and June 1994. Runners Horton, Woodard, Tomlinson, and Walker all testified that Strickland supplied

Groves with crack throughout the conspiracy. Horton testified that

Strickland came to see Groves about once a week. Given that the jury

found the government's witnesses credible, this evidence was sufficient for the jury to find that Strickland distributed crack to Groves

in the months charged.

Strickland next contests the admission of an address book seized

during a December 1993 search of his apartment when he was being

sought as a murder suspect. He contends first that the search warrant

affidavit was insufficient because the sources of the information contained in it were not identified. Second, he argues that the affidavit

failed to establish probable cause that an address book would be

found in the apartment. On appeal, he further argues, in effect, that

the warrant was overbroad in authorizing seizure of the address book

because it was not evidence pertinent to the murder.

An affidavit in support of a warrant application must provide the

magistrate with information sufficient for determining the existence

of probable cause that specific evidence of a crime will be found in

the place to be searched. Illinois v. Gates, 462 U.S. 213, 239 (1983).

However, a reviewing court takes into account the totality of the

information made known to the magistrate. Massachusetts v. Upton,

466 U.S. 727, 732-34 (1984). The affidavit submitted by Police Chief

Toppings, of Four Oaks, North Carolina, described the murder in

detail but did not make clear that he personally obtained the information from the witnesses to the murder. Toppings testified that he dis-

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cussed his investigation with the magistrate before the warrant was

issued, so that the magistrate was aware of the sources of the information. In this circumstance, we find that the district court did not err

in finding that the warrant was based on probable cause.

A magistrate may not authorize a search broader than the scope of

the probable cause showing. United States v. Christine, 687 F.2d 749,

753 (3d Cir. 1982). The address book was listed in the warrant application as an item sought as evidence of a crime and the identity of a

person participating in a crime, along with handguns, bullets, clothes,

shoes, and pictures. Toppings testified that he included the address

book because it would be a help in finding Strickland if he were not

apprehended quickly. He said the magistrate did not question him

about the address book. Even if the address book was not properly

listed on the warrant application because it was not evidence of the

murder or the identity of the suspect (which was not really in doubt),

the admission of the address book was harmless error at most.

Chapman v. California, 386 U.S. 18, 23-24 (1967). It is not clear

from the materials presented on appeal what part, if any, the address

book played in the government's case against Strickland, but in view

of the other evidence against him, we are satisfied that any error in

the admission of the address book was harmless beyond a reasonable

doubt.

Following the jury's verdict, the probation officer recommended

that Groves be held responsible for 72.9 kilograms of crack and 1792

grams of cocaine, and that Strickland be held responsible for 7.1 kilograms of crack. USSG § 2D1.1, 2D1.5.6 Both Groves and Strickland

objected to the amount of crack attributed to them on the grounds that

the trial testimony did not establish those amounts and that the information from unidentified co-conspirators contained in the presentence

report was unreliable.

Groves contends that the district court clearly erred in adopting the

recommended finding that he was responsible for 72.9 kilograms of

crack because the presentence report listed crack amounts reported by

unidentified co-conspirators and the amounts do not correspond with

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6 United States Sentencing Commission, Guidelines Manual (Nov.

1994). Groves and Strickland were sentenced in February 1995.

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the trial testimony. However, the trial testimony firmly established

that Groves was responsible for the distribution of more than 1.5 kilograms of crack over the course of the conspiracy. That amount gave

him an offense level of 38, the highest possible under USSG § 2D1.1,

which was increased to 42 under USSG § 2D1.5 because of his CCE

conviction. Exactly how much Groves had distributed in excess of 1.5

kilograms is immaterial. The district court's adoption of the recommended findings was not clearly erroneous.

Strickland concedes that the testimony of certain witnesses at trial

establishes his responsibility for more than 1.5 kilograms of crack, but

argues that the district court should have found their testimony unreliable because it was vague and imprecise. Because the witnesses consistently testified that Strickland supplied Groves on a weekly basis

throughout the life of the conspiracy, the district court did not clearly

err in finding that Strickland was responsible for more than 1.5 kilograms of crack. Moreover, the court did not clearly err in finding that

he was more than a mere courier.

We therefore affirm Appellants' convictions and sentences. Appellants' Motion to File Statistical Information is granted. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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