UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4078

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MANCER L. BARRINGTON, III,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Raymond A. Jackson, District 

Judge. (2:08-cr-00004-RAJ-FBS-2)

Submitted: January 25, 2010 Decided: February 19, 2010

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lawrence H. Woodward, Jr., Charles B. Lustig, SHUTTLEWORTH, 

RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, 

for Appellant. Dana J. Boente, United States Attorney, D. 

Monique Broadnax, Special Assistant United States Attorney, 

Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Mancer L. Barrington, III, appeals his conviction for 

conspiracy to distribute and possess with intent to distribute 

cocaine and cocaine base, in violation of 21 U.S.C. § 846

(2006), and possession with intent to distribute cocaine base, 

in violation of 21 U.S.C. § 841(a)(1) (2006). Finding no 

reversible error, we affirm. 

I.

On November 8, 2007, Norfolk Police Department Vice 

and Narcotics Investigators Jemal Davis, Richard Stocks, and 

Lionel Jackson were traveling in an unmarked police vehicle 

searching for Stephen Wesby, whom they suspected of drug 

activity. The officers observed a silver Infiniti Q-45; 

suspecting that it was Wesby’s vehicle, the officers followed it 

to a residence at 2738 Victoria Avenue in Norfolk. The driver 

exited the car, entered the house and remained there for five to 

seven minutes, returned to the car, and drove away. The 

officers thereafter initiated a traffic stop of the vehicle on 

the ground that its middle brake light was not functioning. The 

driver’s identification revealed him to be Mancer Louis 

Barrington, III. Officer Davis noted a strong marijuana odor, 

and Barrington volunteered that he was currently on bond for 

possession with intent to distribute marijuana. After Officer 
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Davis informed Barrington that he smelled marijuana, Barrington 

admitted to smoking marijuana the night before and conceded that 

the odor could be coming from his jacket. Barrington consented 

to a search of his person, which revealed $3834 in cash. A drug 

dog then alerted to the glove compartment of the vehicle, where 

the officers uncovered $10,780 in cash. After this finding, the 

officers arrested Barrington.

The officers then returned to the residence on 

Victoria Avenue, where the owner gave the officers consent to 

search for narcotics and contraband. As the officers entered 

the residence, Malik Carson, one of the residents, was walking 

down stairs wearing a cooking apron; upon reaching the bottom of 

the stairs, Carson fled out the front door. Officer Davis 

proceeded upstairs, where he recovered a cell phone, nine 

sandwich bags of cocaine, crack cocaine drying on a napkin, a 

loaded revolver, a digital scale, baking soda, a hot plate, a 

box of sandwich bags, and a combination safe. When officers 

apprehended Carson, they recovered two bags of cocaine powder, 

seven sandwich bags of crack cocaine, and $820. Later testing 

confirmed that the substances recovered from the upstairs room

and Carson’s person amounted to 34.92 grams of cocaine base and 

291.06 grams of cocaine.

Carson would later inform investigators that he and 

Barrington had been friends since childhood. Carson began 
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selling cocaine and cocaine base in 2007 and, after his 

grandmother passed away in September 2007, he approached 

Barrington about furnishing additional cocaine for Carson to 

sell to help keep his grandmother’s house. At the time of his 

arrest, Carson was purchasing from Barrington 14 grams of 

cocaine for $400 on a weekly basis. 

Evidence at trial indicated that on November 8, 2007, 

Carson had called Barrington at 11:49 a.m. to request more 

cocaine; Barrington missed the call but called him back at 11:51 

a.m. and again at 12:02 p.m. Barrington agreed to meet Carson 

at the Victoria Avenue residence. Upon arriving at the house, 

Barrington told Carson that he thought the police were following 

him and that he wanted to leave the cocaine and his firearm with 

Carson. Because Carson had not heard from Barrington after he 

left the house, Carson called Barrington’s cell phone at 1:31 

p.m. The police investigators arrived at the house at roughly 

2:35 p.m. 

Barrington and Carson were ultimately indicted for 

conspiracy to distribute and possess with intent to distribute 

cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2006)

(Count One), possession with intent to distribute cocaine base 

and cocaine, respectively, in violation of 21 U.S.C. § 841(a)(1)

(2006) (Counts Two and Three), and possession of a firearm in 

furtherance of a drug trafficking offense, in violation of 18 
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U.S.C. § 924(c) (2006) (Count Four). The indictment charged 

Barrington alone with possession of a firearm by a felon, in 

violation of 18 U.S.C. § 922(g) (2006) (Count Five). 

Barrington filed a pretrial motion to suppress the 

currency and cell phones recovered from him during the November 

8 traffic stop, which the district court granted. The motion to 

suppress covered all evidence and statements obtained from 

Barrington during the traffic stop, including the two cell 

phones found on Barrington’s person.

Prior to trial, Carson pleaded guilty to Count One and 

agreed to testify against Barrington. Carson also consented to 

a search of his cell phone, which revealed the calls to 

Barrington on November 8. Based upon this information, 

investigators obtained a warrant to search the cell phones 

retrieved from Barrington during the traffic stop. Thereafter, 

Barrington filed a motion in limine, seeking to exclude evidence 

from his two cell phones, which the district court denied. 

The district court conducted a four-day jury trial. 

During voir dire, Barrington raised a Batson challenge after the 

Government struck four of the eight African-American members of 

the jury pool. After considering the Government’s 

nondiscriminatory reasons for the strikes, the district court 

ordered the Government to withdraw one of its four strikes. The 
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jury as finally composed contained four African-Americans, 

including the juror reinstated to the panel. 

At the close of the Government’s evidence, Barrington 

moved for a judgment of acquittal under Federal Rule of Criminal 

Procedure 29. The district court granted the motion as to Count 

Five, finding that the Government had failed to introduce any 

evidence of a prior felony conviction. The district court 

denied the motion as to the other counts. Barrington then filed 

a written Rule 29 motion contending that Count Two and Count 

Three were duplicative. The district court denied that motion, 

as well as the defendant’s renewed Rule 29 motion at the close 

of all the evidence. 

The jury found Barrington guilty of Count One and 

Count Three, and acquitted him on Count Two and Count Four. 

Because Barrington had two prior convictions for felony drug 

offenses, Count One mandated a life sentence. See 21 U.S.C. 

§ 841(a)(1) & (b)(1)(A) (2006). Accordingly, the district court 

sentenced Barrington to life imprisonment on Count One and 360 

months imprisonment on Count Three, to be served concurrently. 

Barrington filed a timely appeal. 

II.

On appeal, Barrington raises three challenges to his 

conviction, which we consider in turn.
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A.

First, Barrington contends that the district court 

erred in allowing the Government to introduce evidence from his

cell phone at trial. The parties agree that Barrington’s 

argument is an extension of his earlier motion to suppress. We 

review the district court’s findings of fact for clear error, 

“giv[ing] due weight to inferences drawn from those facts by 

resident judges and local law enforcement officers.” Ornelas v. 

United States, 517 U.S. 690, 699 (1996). We review the district 

court’s ultimate legal conclusion de novo. Id. And, “[b]ecause 

the district court denied the motion to suppress, we construe 

the evidence in the light most favorable to the government.” 

United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004). 

During the November 8, 2007 traffic stop, police 

recovered two cell phones from Barrington. Barrington later 

moved to suppress the evidence obtained during that stop, and 

the district court granted that motion, suppressing all of the 

evidence seized during the traffic stop, including Barrington’s 

cell phones. Prior to trial, however, Carson consented to a 

search of his cell phone, which was recovered during the search 

of the Victoria Avenue residence on November 8. Because a 

search of the call logs extracted from Carson’s phone showed 

several calls between Carson and Barrington on November 8, 

investigators applied for a search warrant to search the two 
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cell phones recovered from Barrington. The search warrant was 

granted, but Barrington filed a motion in limine to exclude any 

evidence obtained from the warrant. The district court found 

the evidence admissible under the doctrine of inevitable 

discovery. At trial, the Government introduced a document 

listing the call log for Carson’s phone, as well as a document 

providing the call log from Barrington’s two phones.

On appeal, Barrington argues that the district court 

erred in permitting the Government to introduce the call logs

from Barrington’s cell phones. The improper admission of 

evidence is subject to harmless error review. See Fed. R. Crim. 

P. 52(a) (“Any error, defect, irregularity, or variance that 

does not affect substantial rights must be disregarded.”); Fed. 

R. Evid. 103(a) (noting evidentiary errors support reversal only 

if they affect “substantial right”). Erroneously admitted 

evidence is harmless if a reviewing court is able to “say, with 

fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error.” Kotteakos v. United 

States, 328 U.S. 750, 765 (1946); United States v. Abu Ali, 528

F.3d 210, 231 (4th Cir. 2008). 

Even assuming the district court erred in permitting 

the admission of the call logs for Barrington’s phones, we 

conclude that the error is harmless. Barrington’s physical 
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phones were never entered into evidence, only the log showing 

that he and Carson called each other several times on November 

8, 2007. That information, however, is largely duplicative of 

the information provided by the call log for Carson’s phone. 

Barrington does not contest the admissibility of that call log. 

The only difference between the two logs was that Barrington’s 

call log included the length of each call, a minor distinction 

that is harmless. Moreover, the call logs were a small portion 

of the Government’s case. Carson testified that he and 

Barrington spoke on the phone November 8, 2007, to set up their 

drug transaction; the call logs simply confirmed that testimony. 

Accordingly, this claim affords Barrington no relief.

B.

Next, Barrington challenges the sufficiency of the 

evidence used to convict him on Counts One and Three. 

Barrington bears a “heavy burden” in contesting the sufficiency 

of the evidence supporting a jury verdict. United States v. 

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation 

marks omitted). His conviction must be affirmed if, reviewing 

the evidence in the light most favorable to the Government, any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. United States v. 

Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc). The 

Government receives the benefit of “all reasonable inferences 
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from the facts proven to those sought to be established.” 

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

Having reviewed the record, we conclude that the 

Government presented sufficient evidence to sustain the

convictions on Count One and Count Three. As to Count One, 

conspiracy to distribute and possess with intent to distribute 

fifty or more grams of cocaine and cocaine base, the Government 

presented the testimony of Carson in addition to the testimony 

of four witnesses who testified to purchasing cocaine and/or 

cocaine base from Barrington in amounts ranging from 3.5 grams 

to 9 ounces. These witnesses testified to a similar pattern in 

making their purchases--that they would contact Barrington at a 

cell phone number, and that Barrington would drive alone to meet 

them. Likewise, they testified that Barrington charged $400 for 

3.5 grams of cocaine (an “eight ball”) and as much as $6500 for 

9 ounces of cocaine. The witnesses identified several of the 

same locations where these drug transactions were consummated. 

The Government also presented sufficient evidence to 

convict Barrington of Count Three, possession with intent to 

distribute 291.06 grams of cocaine. The cocaine referenced in 

Count Three was the total amount of cocaine recovered from the 

search of the Victoria Avenue residence. Three investigators 

testified that Barrington entered the residence and remained for 

several minutes. Carson testified that Barrington dropped off 
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the cocaine Carson had just ordered and also left additional 

cocaine because Barrington believed he was being followed by the 

police. The phone logs for Carson’s cell phone corroborated 

this story: Carson called Barrington less than one hour before 

Barrington arrived at the Victoria Avenue residence and 

Barrington called Carson back two minutes later. Barrington 

then called Carson again ten minutes later. The amount of 

cocaine recovered from the search of the Victoria Avenue 

residence, when coupled with the additional contraband,

including the digital scale, baking soda, hot plate, and 

sandwich bags, was sufficient to prove an intent to distribute. 

Barrington attacks the credibility of Carson and the 

four additional witnesses against him, but the jury, not the 

reviewing court, is the judge of the witnesses’ credibility. As 

we have explained, “[i]n reviewing the sufficiency of the 

evidence, we are not entitled to assess witness credibility, and 

we assume that the jury resolved any conflicting evidence in the 

prosecution’s favor.” United States v. Jeffers, 570 F.3d 557, 

565 (4th Cir.), cert. denied, 130 S. Ct. 645 (2009).

Accordingly, we reject Barrington’s challenge to the sufficiency 

of the evidence. 

C.

Finally, Barrington argues that the Government 

violated Batson v. Kentucky, 476 U.S. 79 (1986), in striking 
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four African-American members of the venire panel. The Equal 

Protection Clause of the Fourteenth Amendment to the United 

States Constitution forbids the use of peremptory challenges for 

a racially discriminatory purpose. See Batson, 476 U.S. at 86.

Batson created a three-step process for evaluating 

claims that peremptory challenges were used in a discriminatory 

manner. 

First, the defendant must make a prima facie showing 

that the prosecutor has exercised peremptory 

challenges on the basis of race. Second, if the 

requisite showing has been made, the burden shifts to 

the prosecutor to articulate a race-neutral 

explanation for striking the jurors in question. 

Finally, the trial court must determine whether the 

defendant has carried his burden of proving purposeful 

discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59 (1991).

As to the prosecutor’s burden under the second step, 

the Court has explained, “[u]nless a discriminatory intent is 

inherent in the prosecutor’s explanation, the reason offered 

will be deemed race neutral.” Hernandez, 500 U.S. at 360; see

also Purkett v. Elem, 514 U.S. 765, 769 (1995) (“What it means 

by a ‘legitimate reason’ is not a reason that makes sense, but a 

reason that does not deny equal protection.”).

Finally, in the third prong, “[t]he trial court then 

[has] the duty to determine if the defendant has established 

purposeful discrimination.” Batson, 476 U.S. at 98. Because a 

“judge’s findings in the context under consideration here 
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largely will turn on evaluation of credibility, a reviewing 

court ordinarily should give those findings great deference.” 

Id. at 98 n.21; Hernandez, 500 U.S. at 364. Thus, a finding of 

no discrimination is a factual finding reviewed for clear error. 

Hernandez, 500 U.S. at 364; Jones v. Plaster, 57 F.3d 417, 421 

(4th Cir. 1995). 

We find no clear error in the district court’s denial 

of Barrington’s Batson challenge. Barrington, an AfricanAmerican, raised a Batson challenge after the Government struck 

four of the eight African-American members of the venire. The 

Government proffered a non-discriminatory reason for each 

strike: the Government struck one female juror because she was 

sleeping, another female juror because of her demeanor and 

disinterested appearance, and a third female juror because she 

had a family member who was a drug addict. Finally, the 

Government struck a fourth female juror because she worked for a 

rental car company. The district court noted that the reasons 

were “nondiscriminatory” but found some of the “bases to be 

insubstantial.” The district court thus ordered the Government 

to withdraw the strike of the rental car agent and permitted the 

others to stand.

On appeal, Barrington simply states that striking 

fifty percent of the African-American jurors proves 

discrimination. We conclude, however, that such meager 
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statistical evidence, while probative under Miller-El v. Dretke, 

545 U.S. 231, 240-41 (2005), cannot alone carry the day. See, 

e.g., Coulter v. McCann, 484 F.3d 459, 468 (7th Cir. 2007) 

(denying habeas relief under Batson and Miller-El where 

prosecution used ninety percent of its strikes against AfricanAmerican jurors). More importantly, the statistical evidence is 

not entirely favorable to Barrington. Four members of the jury 

that was ultimately seated were African-Americans and the 

Government passed the first four African-American members of the 

jury panel. Barrington has marshaled no additional evidence of 

intentional discrimination and, accordingly, the district court 

did not commit clear error in denying his Batson challenge. 

III.

For the foregoing reasons, Barrington’s conviction and 

sentence are affirmed. As Barrington is represented by counsel, 

we deny his motion to file a pro se supplemental brief. 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