After his trial and conviction on one count of using the United States Postal Service to facilitate possession with intent to distribute cocaine base, one count of possession of cocaine base with intent to distribute, and one count of conspiracy, Lafayette James was sentenced to 188 months in prison. James now appeals several aspects of his trial: namely, the district court’s denial of his motion to suppress certain statements made during an interview with U.S. Postal Inspectors, and the prosecutor’s use of peremptory challenges to allegedly exclude African-Americans from the jury. James also appeals his sentence, challenging the court’s method of calculating the quantity of drugs attributable to him in computing his sentence, the court’s refusal to grant him a reduction in his sentence for being a minimal participant, and the disparity between sentences for crack and powder cocaine in the Sentencing Guidelines. We affirm.
We begin with a brief factual summary of the events leading up to James’ arrest and trial. On May 4,1995, Postal Inspector Cynthia Kindell intercepted a suspicious package at Lambert Airport in St. Louis, Missouri. She opened it and discovered approximately 7.76 ounces of crack cocaine inside. After removing most of the cocaine, Inspector Kin-dell replaced a small amount and combined it with brown sugar so that the package looked and felt as though it had not been disturbed. The package was addressed to Virgil Lockett, 5720 N. Belt West, 34-164, Belleville, Illinois. Lorenzo White was the name of the sender, and the return address was 9145 S. Broadway, Los Angeles, California.
The Belleville address to which the package was sent was a Mailboxes, Etc. store located in Countiy Club Plaza; “164” designated a mailbox inside the store rented by Virgil Lockett. The store’s owner gave the inspectors permission to make a controlled delivery of the package, and she allowed Postal Inspector Ed Moreno to remain inside the store and observe as the package was picked up. That afternoon, a person later identified as Virgil Lockett did pick up the package. Inspector Moreno notified other inspectors, who followed Lockett as he walked with the package along the shopping plaza. He briefly entered a supermarket, - walking in one door and out the other. When he entered the parking lot, the agents arrested him and recovered the package.
Inspector Kindell discovered that six other packages had been delivered to Lockett at the Mailboxes Etc. address between November, 1994 and April, 1995. Each package had the same return address of 9145 S. Broadway, Los Angeles, California, which further investigation revealed was the address of a convenience store called Mom & Pop’s. The name of the sender on four of the six packages was “Lorenzo White,” and the two other packages had senders by the names of “Michael Jones” and “Tom Johnson.”
In preparation for Virgil Lockett’s trial, Inspectors Kindell and L.A. Armstrong traveled to Los Angeles to photograph the Mom & Pop’s store and to interview any employees to see if they knew Virgil Lockett or anyone by the name of Lorenzo White, Michael Jones or Tom Johnson. They also had in mind the possibility of finding a suspect, so they brought along some handwriting exemplar forms.
When the inspectors arrived at the Mom & Pop’s store, they asked to see the manager. Carrie Hicks, a cashier, directed them to Ralph Njoku, the assistant manager. What happened next is disputed: Kindell and Armstrong say they identified themselves to Njoku as postal inspectors and told him that they were investigating drug shipments through the mail. However, Njoku and Hicks testified that Kindell and Armstrong identified themselves as salespeople. In any event, Njoku told the inspectors that he did not recognize the names of Virgil Lockett, Lorenzo White, Michael Jones or Tom Johnson. Njoku had never heard of Lockett, and when he showed the inspectors a list of the store’s employees, none of the other names appeared on the list. The name “Lafayette” was on the list, but without a last name. Njoku told the inspectors that Lafayette, the store’s manager, wasn’t working that day.
At trial, James testified that the tone of their interview was open and conversational. He did not attempt to leave or ask the inspectors to leave. James stepped outside the office at one point to smoke a cigarette, and Inspector Armstrong accompanied him. At the end of the interview, Kindell and Armstrong asked James to fill out some handwriting exemplars. James later testified that he did so freely. After noticing that James’ handwriting looked like the handwriting on the mailing labels, the inspectors told James that he was no longer just a potential witness, but a suspect, and they read James his Miranda rights.
After the interview, Kindell and Armstrong went to the Los Angeles post office and discovered three mailing labels for packages coming from Virgil Lockett to the Mom & Pop’s store. They knew James had picked up the packages, because his signature was on the label as the recipient. Lockett testified at trial that the packages contained cash payments sent to James for the purpose of purchasing cocaine. The inspectors arrested James shortly afterward.
At James’ trial, the 42-person jury pool contained nine African-Americans, and the final jury venire consisted of three blacks and nine non-blacks. The prosecutor attempted to strike seven of the panelists using peremptory challenges; he was successful in striking four blacks and two whites, and was unsuccessful in striking one black woman. He openly endorsed the two other black women who eventually sat on the jury. The court and James raised Batson challenges each time the prosecutor tried to strike an African-American from the jury, and after hearing the prosecutor’s explanations, the court was satisfied that all but one were legitimate and race-neutral.
The jury found James to be guilty on all three counts. At sentencing, the court based James’ offense level on the total weight of drugs involved in the conspiracy. Because only the last package of drugs was confiscated, the court used the weight of the drugs in that package to estimate the weights of the drugs in the other six packages. In the package that Inspector Kindell confiscated, cocaine comprised approximately 71 percent of the total weight. The court then multiplied the total weights of the other packages by 71 percent to come up with a total estimate of 36.56 ounces of cocaine. This translated to 1036.47 grams, which, because it was more than 500 grams, meant that James’ offense level was set at 36. The court also denied James’ request for a 2- to 4-level
I.
James asserts that Inspectors Kindell and Armstrong considered him a suspect when they made their trip to Los Angeles and interviewed him. Because of this and the circumstances surrounding the interview, he says, he was effectively in their custody and they should have read him his Miranda rights at the beginning of their interview, instead of at the end. As a result, James claims that his statements and his handwriting exemplars should have been suppressed at trial.
Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Miranda v. Arizona,
This court has held that custody “implies a situation in which the suspect knows he is speaking with a government agent and does not feel free to end the conversation; the essential element of a custodial interrogation is coercion.”
United States v. Martin,
In support of his contention that he was in custody, James relies on the testimony of Njoku and Hicks, who stated that the inspectors first identified themselves as salespeople. This misleading tactic, he implies, should alert the court to the fact that the inspectors came to the store with the purpose of eliciting a confession from him. He also points to the fact that Inspector Armstrong had three phone numbers relating to James in his possession, implying that Armstrong must have investigated James before traveling to Los Angeles, and so the inspectors must have been lying when they testified they had never heard of James before the trip.
2
However, the district court chose to believe the testimony of Inspectors Kindell and Armstrong when they said they did not identify themselves as salespeople and when
James also points to the fact that the inspectors came to speak with him at his place of business during the workday. He says this was a “coercive and premeditated tactic ... to render Mr. James helpless,” because he was unable to leave work while employees and customers were present. James asserts that the inspectors should have called him or visited him at home, but that they did not do this, either “intentionally or through sheer laziness.” Additionally, he points out that the inspectors chose to speak with him in a small, crowded office, which, because they stood in the doorway, prevented him from leaving the interview. These allegations go to whether a reasonable man in James’ situation would have felt free to leave, which, because it is a mixed question of law and fact, is an issue that we review de novo. Id.
“In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”
Stansbury,
In addition, although the investigators began the interview considering James to be nothing more than a potential witness for Virgil Lockett’s trial, during the course of the conversation, and especially after seeing the handwriting samples he gave, they came to view him as a suspect. This does not
The district court correctly stated that the central issue of this motion to suppress was whether James was in custody when the inspectors were interviewing him. In order for the inspectors to have interrogated James, as interrogation is defined for
Miranda
purposes, James would have had to be in custody. “[T]he
Miranda
safeguards come into play whenever a person in custody is subjected to express questioning or its functional equivalent____”
Rhode Island v. Innis,
II.
The second aspect of his case that James appeals is the process by which the jury in his trial was selected. James, an African-American, claims that the government showed a pattern of deliberately excluding African-Americans from the jury pool by its use of peremptory challenges, violating his rights under the Equal Protection Clause of the Fourteenth Amendment. The trial court granted all of the prosecutor’s peremptory challenges except for one, concluding that the prosecutor’s reasons were race-neutral. “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.”
Batson v. Kentucky,
We have held that in analyzing a prosecutor’s explanation and race-neutral reasons following a
Batson
challenge, the district court should determine whether the reasons “were legitimate or mere pretenses designed to mask purposeful, racial discrimination.”
United States v. Chandler,
In this particular case, the jury venire consisted of forty-two persons, nine of whom were African-American. Following voir dire, the prosecutor unsuccessfully moved to strike three jurors, two of whom were black, for cause.
4
The prosecutor was not asked to
The parties next proceeded to make their peremptory challenges. The government began by challenging Juror No. 4, an African-American woman. The court raised the Bat-son issue on its own, and the prosecutor gave as his reason that she was from Washington Park (a predominantly black town whose mayor had recently been prosecuted by the U.S. Attorney’s Office) and that she did not seem attentive. The court did not consider this to be a valid reason and denied the strike. The prosecutor then told the court that he did not intend to strike Juror No. 8, another African-American woman, and the following exchange took place:
The Prosecutor: You are bringing up the issue of race here and we’re not to the point where she’s the only potential black juror on the panel.
The Court: That has nothing to do with it. If we had one white person and 30 African-Americans out there you would still have to give a reason. You still cannot strike African-Americans without giving a reason. As I understand the law, that’s the law.
The Prosecutor: It’s my impression that you know, the Batson issue arises when you have a situation where the prosecutor is striking all black jurors and that’s not my intention.
For the government’s next peremptory challenge, it chose Juror No. 5, also an African-American woman. The prosecutor, giving his reason, stated: “[T]he reason I’m striking her also she looked like she was mad about being here. Your Honor, I’m serious. The expression on her face was such that she looked like she was just mad about being in the courtroom.” He went on to explain that he thought her expression may have meant that she held some animosity toward the government or the defendant. James’ attorney raised a
Batson
challenge, but the court concluded that the government’s reason was race-neutral. As “body language has long been used as a basis for peremptory challenges,”
United States v. Hinton,
The prosecutor next challenged Juror No. 11, another African-American woman, and James made a Batson challenge. The government’s reason was the one it gave when it challenged her for cause, that her brother had been involved with cocaine, and the court allowed the strike, although it did comment on the fact that the government’s first three challenges had been to African-Americans. It stated, “It seems to me that now we certainly have to look a little harder at any challenges you make because now we’re beginning to see a pattern.” The prosecutor again mentioned to the judge that he did not intend to strike two African-American jurors, which the court dismissed as irrelevant, saying “I don’t see how it has any bearing. It is not a question of who you don’t strike. You are saying, Oh, I’m a good boy, I didn’t strike this one.”
Juror No. 26, a white man who had indicated some support for the drug legalization movement, was the government’s next peremptory strike. The prosecutor then chose Juror No. 18, an African-American woman whose cousin had been a drug user, for his next strike. The court considered the reason given to be race-neutral.
Next, the government challenged Juror No. 20, an African-American man who had two cousins convicted of drug-related crimes. After James again objected, raising Batson, the court allowed the strike, because the reason given was race-neutral. The court did acknowledge that the fact that five of the prosecutor’s six challenges were to African-
James declares that although the prosecutor gave race neutral reasons for his strikes, the fact that five of his seven attempted strikes were to African-Americans indicates that his reasons were “mere pretenses designed to mask purposeful, racial discrimination.”
Chandler,
We are, however, concerned with what seems to be a misinterpretation of the purpose and reason behind Batson on the prosecutor’s part, although it does not change our finding in this case. The district court correctly interpreted the law when it decided to grant or deny the peremptory strikes. The court also properly corrected the prosecutor’s mistaken interpretation of Batson, which does not hold that a prosecutor can strike as many African-Americans as he wishes as long as he leaves one or two on the panel. Nor does Batson say that a prosecutor can give any reason he likes for striking one African-American juror as long as he claims that he won’t strike another. Batson demands that a prosecutor give a race-neutral reason every time he wants to peremptorily challenge an African-American person from the jury, no matter how many African-Americans remain.
III.
Next, James challenges the method the district court used to estimate the amount of drugs involved in the LockettJames conspiracy in order to calculate his sentence. We review the district court’s calculation of the quantity of drugs attributable to James for clear error.
United States v. Taylor,
The government must prove an amount of drugs attributable to a defendant by a preponderance of the evidence.
United States v. Garcia,
The information that the district court used in calculating the amount of drugs to attribute to James consisted of testimony by Virgil Lockett that he received 30.6 ounces (867.31 grams) of cocaine from James and the weights indicated on the Express Mail packages sent from James to Lockett. It is the court’s use of this last bit of information that James challenges. Because the government had only retrieved the last package sent by James to Lockett, it was unable to
James claims these numbers are random, unfair, vague and arbitrary, and says he should be sentenced only on the basis of the drugs found in the last package, because there had been no proof that any of the other packages contained drugs, aside from Virgil Lockett’s testimony. The court was entitled to believe that testimony, however. In addition, the court’s reliance on the estimates of drug quantities was not improper, see
Garcia,
rv.
James also appeals the court’s refusal to grant him a sentence reduction for being a minor or minimal participant pursuant to U.S.S.G. § 3B1.2. We review this decision for clear error.
United States v. Agee,
U.S.S.G. § 3B1.2 provides for a 4-level reduction for a minimal participant, which the Commentary defines as one who is “plainly among the least culpable of those involved in the conduct of a group ... [whose] lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as a minimal participant.” The Commentary defines a minor participant as “any participant who is less culpable than most other participants, but whose role could not be described as minimal,” and § 3B1.2 provides for a 2-level reduction for minor participants. A 3-level reduction is permitted for cases where the defendant comes between being a minimal and a minor participant. James has asked for any one of these three reductions.
James points to Lockett’s involvement in a Florida drug ring, noting that James had no knowledge of or involvement in that endeav- or, to bolster his claim that he was but a minimal participant in Lockett’s larger drug scheme. James also claims that the credible evidence at trial showed that all he did was address the packages that were sent to Lockett, and he characterizes as unbelievable Lockett’s testimony that James was more involved.
We find the court’s reasoning to be more persuasive, however. It noted,
it seems to me from the evidence I heard in this ease that, given that the jury has found Mr. James guilty, that he could not be classified in any way different than Mr. Lockett. He certainly played a major role in this whole — he had to obtain the drugs from someplace. Someone had to bring them to him or he had to participate in the mailing. The money was mailed back. All the way through this thing he was certainly participating — I don’t want to say as an equal partner, but certainly approaching an equal participant on the same level as Mr. Lockett.
The district court’s decision to deny James’ request for a § 3B1.2 adjustment was not clearly erroneous.
V.
James’ final argument is that the disparity under the Sentencing Guidelines between the sentences for crack cocaine and for powder cocaine is discriminatory. We have rejected
The district court’s rulings are Affirmed.
Notes
. Inspectors Kindell and Armstrong testified that when they made the trip to Los Angeles, they were not aware of Lafayette James' existence. They were also unaware of the fact that Lockett and James were cousins. During interviews with Lockett’s relatives, someone had spoken of Lafayette but called him "Kim," his middle name. Kindell and Armstrong did not make the connection that Lafayette James and Kim James were the same person until Lafayette James’ mother called him “Kim” in an interview sometime after the Los Angeles trip and James' arrest.
. Kindell and Armstrong did have three phone numbers connected to James that had been written on the mailing labels: one was James' home telephone number, another was his mobile phone number, in his fiancee's name, and the third was his mother’s home telephone number. However, neither the inspectors nor anyone else presented testimony that the inspectors knew of the subscribers to these numbers when they went to Los Angeles.
. The government has moved to strike this and other portions of James’ brief. As we are affirming the district court’s rulings, the motion is denied as moot.
. The prosecutor moved to strike Juror No. 11 because her brother had been involved in a co
