* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 28, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50436

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS JERROD BEMIS, JR., also known as

Douglas Jerrold Bemis, Jr.,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Western District of Texas

USDC No. MO-02-CR-94-1

--------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Douglas Jerrod Bemis, Jr., appeals his convictions of

conspiracy to possess and aiding and abetting t he possession of

marijuana with intent to distribute it, in violation of 21 U.S.C.

§§ 846 and 841(a)(1), and 18 U.S.C. § 2. We AFFIRM.

At Be mis’s trial, Attorney Gary Hill testified that

Bemis asked him

to locate a marijuana supplier for Bemis.

Hill pretended to comply, but he informed law enforcement2

a uthorities, who set up a sting operation targeting Bemis.

G overnment witnesses testified that Bemis and his codefendant,

Gerald Mancus, were arrested after they accepted delivery of 300

pounds of marijuana for which they agreed to pay $120,000, $40,000

upon delivery and $80,000 later.

Bemis testifie d at trial that he had contacted Attorney

Gary Hill in hopes that he would lend Bemis $20,000 to buy some

property. When Hill declined to lend Bemis $20,000, Bemis asked

Hill if he coul d introduce him to someone who could sell him 100

pounds of marijuana so he could earn $20,000 in order to buy the

property. Hill contacted Bemis and informed him he had found a

supplier. Bemis testified that he then contacted Mancus, who

offered to put up $40,000 if Bemis would broker a marijuana deal.

B emis’s defense was that he wanted to obtain only 100 pounds of

marijuana, but that the agents tried to sell him 300 pounds.

Later, Bemis testified that Hill told him he would pay for the

other 200 pounds. After the Government objected to this testimony

as hearsay, defense counsel argued that it was admissible under the

coconspirator exception as provided in F ED

. R. E VID

. 802, actually

Rule 801(d)(2)(E). The court sustained the objection and

instructed the jury to disregard the testimony.

Bemis contends that he is entitled to reversal because the

district c ourt abused its discretion by excluding his testimony

that Hill had agreed to buy 200 of the 300 pounds of marijuana

involved in this case. Bemis argues that the ruling deprived him3

of his right to present a mea ningful defense, that he had the

intent to purchase and possess only 100 pounds of the marijuana.

The district court’s ruling was correct because Attorney Hill

never was a coconspirator; at all relevant times he cooperated with

the law enforcement authorities. A statement is not admissible

under the coconspirator exception i f it was made by one “who is

actually a government agent whose sole purpose is to effect the

arrest of the conspirators.” U nited States v. Wilkerson

, 469 F.2d

963, 968 (5th Cir. 1972).

Furthermore, if it is assumed that the district court erred by

disallowing the contested testimony, any error was harmless

in light of the overwhelming evidence of Bemis’s guilt of the

charged offenses. S ee F ED

. R. C RIM

. P. 52(a). The evidence was

overwhelming that Bemis knowingly took delivery of 300 pounds of

marijuana, having agreed to pay $40,000 upon delivery, with the

balance payable after he sold the marijuana. There was also ample

evidence that he conspired with Mancus, and aided and abetted

Mancus in possessing the 300 pounds, which Mancus also bargained

for with the agents.

Bemis testified regarding his version of events, and he also

admitted in the excluded testimony that he had agreed to possess

the additional 200 pounds for his distribution to Hill. Since he

was charged w ith possession with intent to distribute, not

ownership, any error in the court’s exclusion of this inculpatory

testimony was harmless to Bemis. See F ED

. R. C RIM

. P. 52(a).4

Bemis contends also that the district court reversibly erred

by denying his objection to the Government’s exercise of peremptory

challenges during jury selection, based on Batson v. Kentucky

, 476

U.S. 79 (1986). Bemis argues that the Government gave insufficient

reasons for peremptorily challenging three jury-panel members, whom

he believes to be Hispanic because they have Hispanic surnames.

Bemis further argues that the district court erred by not finding

that there was a prima facie case of discrimination by the

Government, and by failing to strike the entire jury panel.

“The district court’s determination whether the prosecutor’s

strikes are racially motivated is purely factual, and largely turns

on an evaluation of the prosecutor’s credibility.” United States

v. Pofahl

, 990 F.2d 1456, 1466 (5th Cir. 1993). On review, this

court “giv[es] great deference to the trial court’s finding that

the prosecutor’s explanation was credible.” U nited States v.

Wallace

, 32 F.3d 921, 925 (5th Cir. 1994). “Unless a

discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race neutral.” H ernandez v. New

York , 500 U.S. 352, 360 (1991).

The prosecutor in Bemis’s case offered neutral reasons for his

strikes, which do not even suggest a discriminatory intent. Some

of his reasons, such as the fa ct that a member of the venire is

unemployed or young and single, have been deemed by this court to

be valid neutral explanations. S ee United States v. Moreno

, 878

F.2d 817, 820-21 (5th Cir. 1989); United States v. Munoz , 15 F.3d5

395, 399-400 (5th Cir. 1994).

Furthermore, if the Government had been intent on challenging

Hispanic panel members, it could have exercis ed its peremptory

challenges to eliminate both a Hispanic who was seated on the jury,

and a Hispanic panel member who did not serve on the jury because

he was the last remaining panel member after the jury was selected.

See United States v. Mixon

, 977 F.2d 9 21, 923 (5th Cir. 1992).

This also supports the district court’s decision that the

Government’s reasons for striking the panel members were credible.

As this court explained in United States v. Krout

, 66 F.3d

1420, 1428-29 (5th Cir. 1995), reasons of fered by the prosecutor

will be deemed race -neutral by the court unless a discriminatory

intent is inherent in his explanation. Because the reasons given

by the prosecutor are facially race- and ethnically neutral, with

no valid basis for su specting a discriminatory intent, Bemis’s

Batson claim lacks merit.

Bemis contends that h e is entitled to reversal because the

district court erroneously found that he did not make a prima facie

showing that the Government discriminated in exercising

its peremptory challenges. Since the district court called on the

prosecutor to provide race-neutral explanations, however, this

court reviews only the district court’s findings concerning

discrimination, not whether the party made a prima facie case. S ee

Brown v. Kinney Shoe Corp. , 237 F.3d 556, 561 (5th Cir. 2001).6

Bemis asserts conclusionally that he is entitled to reversal

because the district court failed to strike the jury panel. By not

briefing this claim, Bemis has i n effect abandoned it. S ee AlRa’id v. Ingle , 69 F.3d 28, 33 (5th Cir. 1995).

AFFIRMED.