UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                  No. 95-5033
REGINALD MARLIN ISMEL, a/k/a
Reggie, a/k/a New York Junior,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                  No. 95-5034
RICHARD DAVID DEGOUT, a/k/a New
York Steve,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-8)

Argued: October 28, 1996

Decided: August 7, 1998

Before NIEMEYER and MOTZ, Circuit Judges, and DOUMAR,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Margaret McLeod Cain, Charlottesville, Virginia, for
Appellants. Stephen Urban Baer, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Gordon W.
Poindexter, Jr., POINDEXTER & SCHORSCH, Waynesboro, Vir-
ginia, for Appellant Ismel. Robert P. Crouch, Jr., United States Attor-
ney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

I. BACKGROUND

The defendants appeal their convictions, arguing (1) that the dis-
trict court failed to instruct the jury on an essential element of one of
the offenses with which they were charged, (2) that the district court
erred in permitting the prosecutor to use peremptory challenges to
remove minorities from the jury panel, (3) that certain jury incidents
should have led the district court to declare a mistrial, (4) that the dis-
trict court erred in prohibiting the introduction of certain impeach-
ment evidence relating to one of the prosecution witnesses, and (5)
that the district court should have struck down a statute that defen-
dants were charged with and convicted of violating, because it pun-
ishes those involved with cocaine base much more severely than those
involved with cocaine powder. Although the trial court may have
improperly instructed the jury regarding the elements necessary to
prove a violation of 21 U.S.C. § 848(e)(1)(A), we find that it was
harmless error. We further find no merit in the remainder of the
assignments of error and affirm the conviction.

                     2
A. Procedural and Factual History

On March 9, 1994, Reggie Ismel and Richard David DeGout were
charged in Count One of a twelve-count indictment with conspiring,
in violation of 21 U.S.C. § 846, "[t]o possess with intent to distribute
more than 50 grams of cocaine base . . . in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(A)." Count
Two charged both men, "being persons who were engaged in an
offense punishable under section 841(b)(1)(A) of Title 21," with
intentionally killing or causing the killing of another in violation of
21 U.S.C. § 848(e)(1)(A). Count Three charged DeGout alone with
using a firearm in relation to a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1), and Count Four charged DeGout alone with
threatening to kill a witness to the shooting with intent to prevent
communication to a law enforcement officer of the United States, in
violation of 18 U.S.C. § 1512(a).

A jury convicted Ismel on Counts One and Two and convicted
DeGout on Counts One, Two, Three, and Four. The district court sen-
tenced Ismel to concurrent life terms of imprisonment for both his
conviction under Count One and his conviction under Count Two.
The district court also sentenced DeGout to concurrent life terms of
imprisonment for both his conviction under Count One and his con-
viction under Count Two. In addition, the district court sentenced
DeGout to ten years imprisonment for his conviction under Count
Four, to run concurrently with the life terms, and to five years for his
conviction under Count Three, to run consecutive to the other terms
of imprisonment.

The facts relevant to this appeal are sadly familiar. A Bronx (New
York City) group of drug dealers expanded their operations to Char-
lottesville, Virginia. One of the group's members, Orlando Hamilton,
was the primary supplier of cocaine base to the Charlottesville com-
munity. Ismel became Hamilton's main distributor in Charlottesville.
DeGout eventually joined the conspiracy by selling cocaine base with
Ismel and by being an enforcer for Ismel. The three were known as
JoJo, Junior and Steve.1 The three lived in the valley of the Bronx and
_________________________________________________________________
1 JoJo unfortunately had succumbed to the hazards of the drug trade
well before this trial.

                     3
were wholesalers of drugs. Other individuals came from the Bronx
and were retail street dealers. These street dealers were supplied by
Ismel or DeGout or Hamilton. These retailers who came from the
Bronx were from a different and less affluent part of the Bronx than
were the wholesalers.

On November 16, 1992, at the direction of Ismel, DeGout twice
shot Anthony L. Jones in the head at point blank range for some
alleged wrong Jones had committed in regard to Ismel's "product."
Jones subsequently died.

Ismel and DeGout supplied many street dealers with crack cocaine.
Eleven of those or their wives or sisters testified as to purchasing
from an eight ball to a quarter of a kilogram of cocaine base from
Ismel or through him or DeGout on separate occasions from time to
time. They then resold the cocaine to others and in turn acquired sub-
sequent crack from the wholesalers. The testimony of the drug retail-
ers was unrebutted as to amounts and purchases from Ismel and
DeGout. The defense was centered on the question of the murder of
Anthony Jones. The amount of crack which was the product which
Ismel was distributing was never in dispute and clearly in excess of
fifty grams of crack.

B. The Statutory Problems at Trial

After the close of all evidence at the trial of the defendants, the dis-
trict court prepared two verdict forms. At that time, the parties did not
object to the verdict forms, and they were given to the jury. The forms
stated, in relevant part,

          As to Count One of the Indictment, charging [the defen-
          dants] . . . with conspiracy to violate 21 U.S.C. § 841(a)(1),
          we the Jury find the defendant . . . .

          As to Count Two of the Indictment, charging [the defen-
          dants] with the intentional killing . . . of Anthony Lamont
          Jones in the course of an offense punishable under 21
          U.S.C. § 841(a)(1), we the jury find . . . .

                     4
JA 42-43 (emphasis added). Instructing the jury on Count One, the
district court stated,

          The defendants are charged in Count 1 with conspiring with
          others to possess with intent to distribute and to distribute
          cocaine base, a violation of Section 846, Title 21 of the
          United States Code, which provides in pertinent part that
          any person who conspires to commit any defense -- any
          offense defined in this subchapter is punishable as pre-
          scribed for the offenses, the commission of which was the
          object of the conspiracy.

          Now, Section 841(a)(1) of Title 21 of the United States
          Code in the same subchapter provides in part: "It shall be
          unlawful for any person knowingly or intentionally to manu-
          facture, distribute, or dispense, or possess with intent to
          manufacture, distribute or dispense a controlled substance."

JA 249-50. Instructing the jury on Count Two, the district court
stated,

          In order to find the defendants guilty of the offense
          charged in Count 2, the Government must prove the follow-
          ing essential elements beyond a reasonable doubt: First, that
          the defendants . . . were engaged in an offense punishable by
          Title 21, Section 841(a)(1), that is, a conspiracy to possess
          with intent to distribute controlled substances, and distribu-
          tion of controlled substances; two, that the defendants killed
          or caused to be killed or aided and abetted the killing of
          Anthony L. Jones; three, that the defendants did such acts
          knowingly and intentionally.

JA 253-54 (emphasis added). Count Two of the indictment, however,
charged the defendants with violating Section 848(e)(1)(A), which
proscribes killing while engaging in an offense punishable under Sec-
tion 841(b)(1)(A), not Section 841(a)(1).2
_________________________________________________________________
2 Section 848(e)(1)(A) provides:

          (e) Death Penalty. (1) In addition to the other penalties set
          forth in this section-

          (A) any person engaging in or working in furtherance of a
          continuing criminal enterprise, or any person engaging in an

                    5
Section 848(e)(1)(A) in pertinent part requires a person to engage
in an offense punishable under section 841(b)(1)(A) while
841(b)(1)(A) requires in pertinent part a violation of section
_________________________________________________________________
          offense punishable under section 841(b)(1)(A) or section
          960(b)(1) [21 USCS § 841(b)(1)(A) or 960(b)(1)] who intention-
          ally kills or counsels, commands, induces, procures, or causes
          the intentional killing of an individual and such killing results,
          shall be sentenced to a term of imprisonment, which shall not be
          less than 20 years, and which may be up to life imprisonment,
          or may be sentenced to death ...,

while sections 841(a) and (b)(1)(A) provide in pertinent part as follows:

          § 841. Prohibited acts A

          (a) Unlawful acts. Except as authorized by this title, it shall be
          unlawful for any person knowingly or intentionally-

          (1) to manufacture, distribute, or dispense, or possess with
          intent to manufacture, distribute, or dispense, a controlled
          substance; or

          (2) to create, distribute, or dispense, or possess with intent to
          distribute or dispense, a counterfeit substance.

          (b) Penalties. Except as otherwise provided in section 409,
          418, 419, or 420 [21 USCS § 849, 859, 860, or 861], any person
          who violates subsection (a) of this section shall be sentenced as
          follows:

          (i)(A) In the case of a violation of subsection (a) of this sec-
          tion involving-

           (I) 1 kilogram or more of a mixture or substance contain-
          ing a detectable amount of heroin;

          (ii) 5 kilograms or more of a mixture or substance containing
          a detectable amount of-

           (I) coca leaves, except coca leaves and extracts of coca
          leaves from which cocaine, ecgonine, and derivatives of
          ecgonine or their salts have been removed;

           (II) cocaine, its salts, optical and geometric isomers, and
          salts of isomers;

           (III) ecgonine, its derivatives, their salts, isomers, and
          salts of isomers; or

                     6
841(a)(1). The Court instructed the jury concerning the requirement
that for a conviction of 848(e)(1)(A), one had to prove the conspiracy
to distribute controlled substances (in this case cocaine base), as set
forth in Section 841(a)(1) but did not instruct the jury that they had
to find in accordance with Section 841(b)(1)(A)(iii) that 50 grams or
more of cocaine base was involved in the conspiracy.

After the district court charged the jury and the verdict forms had
been given to the jury, the government asked the district court to
recall the jury and recharge them with the appropriate instruction con-
cerning Section 841(b)(1)(A). JA 260. The government requested this
recharging before the jury began deliberations. Id. The court denied
this request, but stated, "[i]f they [the jury] raise the question, I'll
explain it." JA 260. During the ensuing jury deliberations, the jury
foreman did question the district court by writing,"[w]e would like
to know the contents of 21 United States Code Section 841(a)(1),
please." JA 270. "Consequently, the government again asked for a
recharging of the jury concerning the proper reference to Section
841(b)(1)(A). Interestingly, counsel for defendant Ismel opposed any
such instruction. See JA 270-77. Accordingly, the court denied the
government's request.

After the jury returned with the convictions, the defendants filed a
motion for acquittal or mistrial based on the omission in the instruc-
tions of the element requiring proof of at least 50 grams of cocaine
base as set forth in Section 841(b)(1)(A).

Despite the error, however, the district court found that the jury
necessarily made the factual finding that the defendants distributed in
excess of fifty grams of cocaine base. Ismel and DeGout were not
street dealers. They were wholesale distributors who delivered crack
to the retailers.
_________________________________________________________________

           (IV) any compound, mixture, or preparation which con-
          tains any quantity of any of the substances referred to in sub-
          clauses (I) through (III);

          (iii) 50 grams or more of a mixture or substance described
          in clause (ii) which contains cocaine base ....

                    7
II. DISCUSSION

In reviewing the defendants' convictions of violating Section
848(e)(1)(A), we must determine whether conspiracy to distribute
fifty grams or more of cocaine base -- as opposed to any quantity of
cocaine base -- is an essential element necessary to convict the
defendants of violating Section 848(e)(1)(A). If so, then the trial court
improperly instructed the jury. If we find the instruction erroneous,
however, we must then analyze whether we should notice that error,
because of the evidence and the defendant's objection to a corrective
instruction.

For the sake of clarity, we begin by considering whether the district
court improperly instructed the jury regarding Section 848(e)(1)(A).

A.

In United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989), cert.
denied, 493 U.S. 1084 (1990), a panel of our circuit commented on
the nature of Section 841(b)(1)(A). In that case, the defendant had
been found guilty of possessing cocaine base in violation of Section
841, and the trial court enhanced his sentence pursuant to Section
841(b)(1)(A), which provided a mandatory minimum sentence for
possessing with intent to distribute fifty grams or more of cocaine
base. The defendant claimed that the government had failed to prove
beyond a reasonable doubt that amount of cocaine base, but the panel
held that "the quantity of the drug went to the question of Powell's
sentence, rather than his guilt, [thus,] the government only had to
prove that quantity by a preponderance of the evidence." Id. at 85.
Thus, drug quantity was in that case a statutory sentencing factor, not
a substantive element of the offense. Id. at 85; see also United States
v. Brown, 887 F.2d 537, 540 (5th Cir. 1989)."In addition, because the
quantity of drugs only goes to the sentence rather than guilt, trial by
jury as to that fact is not required." United States v. Engleman, 916
F.2d 182, 184 (4th Cir. 1990).

A subsequent case, United States v. Patterson , 38 F.3d 139 (4th
Cir. 1994), cert. denied, 115 S.Ct. 1968 (1995), built upon this foun-
dation. In that case, the defendants shared illegal drugs with a young
woman, who died (apparently from an overdose). The defendants pled

                     8
guilty to distribution of controlled substances under Section
841(a)(1). At sentencing, the district court found that the death
resulted from the drugs provided by the defendants. The district court
"adopted the suggested Sentencing Guideline imprisonment range, as
modified by the application of § 841(b)(1)(C)." Id. at 142. On appeal,
the defendants argued that the government had to prove beyond a rea-
sonable doubt that the death resulted from a violation of 21 U.S.C.
§ 841(a)(1), "in order to impose the . . . mandatory minimum sentence
under 21 U.S.C.A. § 841(b)(1)(C)." Id. at 143.

In rejecting this argument, Patterson instructed that "[i]n determin-
ing whether a particular statutory provision is an`essential element of
the offense' requiring proof beyond a reasonable doubt or is a `sen-
tencing enhancement' requiring proof only by a preponderance of the
evidence, `the legislature's definition of the elements of an offense
controls.'" Id. at 143, quoting United States v. Cross, 916 F.2d 622,
623 (11th Cir. 1990). The panel wrote in Patterson,

          we conclude that from a close textual analysis, the manda-
          tory minimum provision in § 841(b)(1)(C) is a sentencing
          enhancement provision. The plain language contained in
          § 841(b)(1)(C) clearly indicates that punishment is predi-
          cated upon conviction under another statute--21 U.S.C.
          § 841(a).

          Furthermore, a strong analogy can be drawn from the
          holdings of this Circuit and others that 21 U.S.C.
          § 841(b)(1)(A), which provides increased mandatory sen-
          tences for violations of § 841(a) involving certain amounts
          of controlled substances, is a sentencing enhancement provi-
          sion requiring proof only by a preponderance of the evi-
          dence.

Id. (citations omitted).

After reviewing precedent discussing Section 848(e)(1)(A), the
statute at issue in the appeal before us today, we have found several
cases involving whether conduct involving fifty grams or more of
cocaine base is an essential element to prove a violation of Section
848(e)(1)(A). In one of these, the issue was raised. In United States

                     9
v. Walker, 912 F.Supp. 646, 653 (N.D.N.Y. 1996), aff'd, ___ F.3d
___, 1998 WL 174606 (2d Cir. N.Y. 1998), the defendants were
charged with intentionally killing a man while engaging in an offense
punishable under Section 841(b)(1)(A), in violation of Section
848(e)(1)(A). In an order settling a preliminary motion, the lower
court wrote:

          As a predicate for this Count, the government has charged
          the defendants with participating in a conspiracy punishable
          under § 841(b)(1)(A). In order to establish guilt . . ., the gov-
          ernment must show not only that the defendants are guilty
          of a narcotics conspiracy, and that the defendants intention-
          ally killed [the victim] while engaging in that conspiracy,
          but [also] that the conspiracy involved at least . . . fifty
          grams or more of cocaine base.

Id. at 653 (emphasis added), also substantially reiterated on appeal in
___ F.3d at ___, 1998 WL 174606, 8 (2d Cir. N.Y.). A discussion of
the statutes themselves would bear this out.

In relevant part, 21 U.S.C. § 848(e)(1)(A) provides,

          In addition to the other penalties set forth in this section --
          any person engaging in or working in furtherance of a con-
          tinuing criminal enterprise, or any person engaging in an
          offense punishable under section 841(b)(1)(A) of this title or
          section 960(b)(1) of this title who intentionally kills or
          counsels, commands, induces, procures, or causes the inten-
          tional killing of an individual and such killing results, shall
          be sentenced to any term of imprisonment, which shall not
          be less than 20 years, and which may be up to life imprison-
          ment, or may be sentenced to death . . . .

21 U.S.C. § 848(e)(1)(A).

21 U.S.C § 841(b)(1)(A), the statutory provision to which Section
848(e)(1)(A) refers, states,

          . . . any person who violates subsection (a) of this section
          shall be sentenced as follows: . . . In the case of a violation

                    10
          of subsection (a) of this section involving . . . 50 grams or
          more of a mixture or substance which contains . . . cocaine
          base . . . shall be sentenced to a term of imprisonment which
          may not be less than 10 years or more than life and if death
          or serious bodily injury results from the use of such sub-
          stance shall be not less than 20 years or more than life . . . .

21 U.S.C § 841(b)(1)(A).

In comparison, 21 U.S.C. § 841(a)(1), to which the district court
referred in charging the jury regarding Section 848(e)(1)(A), states,

          . . . it shall be unlawful for any person knowingly or inten-
          tionally -- to manufacture, distribute, or dispense, or pos-
          sess with intent to manufacture, distribute, or dispense, a
          controlled substance . . . .

21 U.S.C. § 841(a)(1).

The subsections of Section 841(b), of which Section 841(b)(1)(A)
is one subsection, provide specific penalties for violating Section
841(a), which prohibits, inter alia, the distribution of certain drugs.
Section 841(b)(1)(A) is the subsection of Section 841(b) that provides
penalties for those distributing the largest quantities of drugs. In rele-
vant part, Section 841(b)(1)(A) provides stiff penalties for the distri-
bution of greater than fifty grams of cocaine base. Other subsections
of Section 841(b) provide lesser penalties for the distribution of lesser
quantities of drugs. Therefore, when Congress enacted the relevant
part of Section 848(e)(1)(A) and explicitly referred to killings com-
mitted while engaging in acts punishable under Section 841(b)(1)(A),
Congress obviously intended Section 848(e)(1)(A) to apply only to
those killings committed while a defendant engages in the distribution
of the larger quantities of drugs discussed in Section 841(b)(1)(A).

It is true that after a conviction of a violation of Section 841(a), a
district court can sentence a defendant to the stiff penalties provided
in Section 841(b)(1)(A) upon finding by a preponderance of the evi-
dence that the defendant distributed the requisite quantity of drugs.
We reaffirm the wisdom of those decisions. Because Section

                     11
848(e)(1)(A) explicitly and exclusively refers to Section
841(b)(1)(A), however, we believe that proof beyond a reasonable
doubt of the distribution of drug quantities set forth in Section
841(b)(1)(A) is a necessary element to prove a violation of Section
848(e)(1)(A). See also United States v. Beckford , 966 F.Supp. 1415,
1425 (E.D. Va. 1997); United States v. DesAnges , 921 F.Supp. 349,
356 (W.D. Va. 1996).

In plain language, then, Section 848(e)(1)(A) specifically requires
that the killing occur while the killer is engaging in an offense punish-
able under Section 841(b)(1)(A). Engaging in an offense punishable
under Section 841(b)(1)(A), therefore, is an essential element neces-
sary to prove a violation of Section 848(e)(1)(A). A fortiori, in this
case the jury must have found beyond a reasonable doubt that the con-
spiracy involved ". . . 50 grams or more of a mixture or substance . . .
which contains cocaine base." 21 U.S.C. § 841(b)(1)(A).3

B.

Federal Rule of Criminal Procedure 30, which governs the proce-
dures relating to the charging of the jury in a criminal case, provides
in relevant part:

          No party may assign as error any portion of the charge or
          omission therefrom unless that party objects thereto before
          the jury retires to consider its verdict, stating distinctly the
          matter to which that party objects and the grounds of the
          objection.

Fed. R. Crim. P. 30 (emphasis added).

In this case, defense counsel did not timely object to the erroneous
jury instruction. Somewhat ironically, however, the record indicates
_________________________________________________________________
3 Recently, another panel in this circuit decided that Section 848(e), of
which Section 848(e)(1)(A) is a subpart, establishes a separate, substan-
tive offense rather than a mere penalty enhancement. See United States
v. NJB, ___ F.3d ___, No. 96-4381, slip op. at ___ (4th Cir. Jan. 6,
1997). We agree, of course, with both that conclusion and the well-
reasoned opinion supporting it.

                     12
that the government did object and request the Court to correct the
erroneous jury instruction. The record indicates that the attorney for
Ismel opposed the government's requests that the district court prop-
erly correct the jury instruction. JA 270-77. This was a somewhat
rushed ad hoc exchange concerning a convoluted statute having
counter references. For reasons which will become apparent, we find
it unnecessary to consider whether or not this constituted "invited
error."

The party wishing to assign as error a jury instruction must itself
have timely objected to the jury instruction. Fed. R. Crim. P. 30.
Thus, although the government objected, Rule 30 still bars the defen-
dants from assigning the misinstruction as error, because the defen-
dants themselves did not object at trial. Federal Rule of Criminal
Procedure 52(b), however, limits the otherwise absolute bar in Rule
30. Deceptively simple in content, Rule 52(b) provides: "Plain errors
or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." Therefore, we should
notice the erroneous jury instruction only if the erroneous jury
instruction meets the test developed by the Supreme Court to imple-
ment Rule 52(b). The test to determine this is clear. As is stated in
United States v. Martinez, 136 F.3d 972, 976 (4th Cir. 1998):

          Under Johnson v. United States, ___ U.S. ___, 117 S.Ct.
          1544, 137 L.Ed.2d 718 (1997), the district court's erroneous
          instruction on an element of the offense is subject to
          harmless error analysis. Johnson, ___ U.S. at ___ ___, 117
          S.Ct. at 1548-50. Johnson permits application of the plain
          error standard set forth in United States v. Olano, 507 U.S.
          725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

...

          Applying the Olano test to this case, it is clear that: (1) there
          is error; (2) the error is plain; and (3) the error"affect[s]
          substantial rights." Olano, 507 U.S. at 732-35, 113 S.Ct. at
          1776-78. It is thus within our discretion to notice and correct
          the error, if it "seriously affect[s] the fairness, integrity or
          public reputation of judicial proceedings." Olano, 507 U.S.
          at 732, 113 S.Ct. at 1776 (quoting United States v. Atkinson,

                    13
          297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).
          In applying the fourth prong of Olano's harmless error test,
          we follow the Court in Johnson which considered whether
          the evidence on the element was "overwhelming" and "es-
          sentially uncontroverted at trial." Johnson, ___ U.S. at ___,
          117 S.Ct. at 1550.

The Court in that case found the evidence overwhelming and affirmed
the conviction. A reading of the entire transcript in this case leads
unalterably to the conclusion that the conspiracy had to have been
concerning the distribution in excess of 50 grams of cocaine base. The
evidence was overwhelming and unrebutted and would lead one to
understand why the defense would have objected to the government's
requests. The defense would rather not emphasize the size of the con-
spiracy and the large amount of drugs involved. Here, eleven of the
purchasers of drugs from the defendants were themselves identified
as drug dealers and they or their sisters or wives testified. The testi-
mony was unrebutted and overwhelming that more than 50 grams of
cocaine base was distributed pursuant to the conspiracy.

As discussed previously, the district court committed error in fail-
ing to instruct the jury regarding an element essential to prove a viola-
tion of Section 848(e)(1)(A). Further, that error is plain, because the
error was clear both at the time it occurred and at the time of appeal.
See United States v. Cedelle, 89 F.3d 181 (4th Cir. 1996). In addition,
as another panel of this circuit has recognized,"the failure to instruct
on an element of the crime . . . satisfies Olano's third prong." David,
83 F.3d at 647.

Having found in this case that the error meets all three of Olano's
Rule 52(b) requirements, we then must consider whether we should
exercise our discretion to notice the error. See Olano, 507 U.S. at 736-
37.

In light of these considerations, we believe we should not notice
the error since the only conspiracy shown was one distributing in
excess of 50 grams of crack cocaine and the failure to instruct was
harmless error in this case.

                    14
III. OTHER ASSIGNMENTS OF ERROR

The defendants' four other assignments of error all lack merit, and
need only a brief discussion.

During the jury selection, the defense objected to the prosecution's
use of peremptory challenges to two African-American veniremen,
apparently basing their objection upon the seminal case, Batson v.
Kentucky, 476 U.S. 79 (1986). In response, the prosecution explained
that they struck the first venireman because he knew two government
witnesses and was related to one of them, and because he was friendly
with a woman "who lives in the heart of the drug area." The prosecu-
tion explained that they struck the second venireman, because he has
a brother who had been convicted of a drug charge, a potential cause
of bias. The district court ruled that these reasons were adequate to
support the striking of the witnesses, and the court overruled the
defendants' motion. Because a trial judge observes the proceedings
directly, we will disturb a trial court's finding of the presence or
absence of intentional discrimination in ruling on a Batson claim only
if such finding is clearly erroneous. See United States v. Grandison,
885 F.2d 143, 146 (4th Cir. 1989). The district court's determinations
in this matter are not clearly erroneous, and thus we affirm the district
court's overruling of the objection.

During the trial, the defendants apparently wanted to cross-
examine a minor prosecution witness regarding an affidavit that the
defense claimed the witness had signed some years before the trial.
In the affidavit, the witness supposedly alleged that he had been
forced by police officers in another jurisdiction to name falsely two
men as criminal suspects in 1987. The district court excluded the use
of this impeachment evidence, because the court felt that its impeach-
ment value was limited, that the risk of prejudice was great, and that
allowing the impeachment evidence would result in a"trial within a
trial," necessitating testimony from the involved police officers to
counter the witness's claim. We review a district court's restrictions
on cross-examination only for an abuse of discretion, see United
States v. Ambers, 85 F.3d 173, 175 (4th Cir. 1996), and we find that
the district court was well within its discretion in so limiting the
cross-examination.

Also during the trial, a few minor incidents involving the jury
occurred. First, one juror wrote a note to the court, asking the court

                     15
if he would be protected by federal law after the trial ended. The dis-
trict court overruled the defense's subsequent motion for mistrial, and
replaced the juror with one of the alternate jurors. Second, as another
of the jurors was leaving the jury box at the commencement of a
recess in the trial, the juror made a short comment, expressing recog-
nition of one of the prosecution's witnesses. The district court over-
ruled the defense's subsequent motion for mistrial, citing the
impossibility of avoiding instances of juror-witness familiarity in
small communities such as Charlottesville, Virginia. Finally, a third
juror wrote a note to the district court, advising the court that the trial
was placing an undue strain on her employer and that she was plan-
ning to be a member of a wedding party in two days. Again the
defense requested a mistrial, but the district court simply replaced the
juror with another alternate juror.

The defendants argue that mistrial should have been granted after
one or all of these incidents. We disagree. First, Federal Rule of
Criminal Procedure 24(c) gives the trial court discretion to seat alter-
nate jurors if the court finds that a juror is unable or disqualified from
performing her duties. Second, and more importantly, these incidents
truly were minor, indeed. The genius of the jury system is that ordi-
nary people populate juries, and we expect ordinary people to have
complaints, questions, and problems. Because trial judges have the
opportunity to observe the jury, we are not inclined to second-guess
a trial judge's handling of such unremarkable complaints, questions,
and problems. None of the three minor incidents called into question
by the defendants lead us to worry that the defendants did not receive
a fair trial. Accordingly, we reject their arguments here.

In the defendants' final assignment of error, they argue that the dis-
trict court should have ruled, sua sponte, that federal laws punishing
crimes involving cocaine base more harshly that crimes involving
powder cocaine violate the Equal Protection Clause, because black
drug users more often choose cocaine base over powder cocaine than
do white drug users. We have previously rejected this argument, see
United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994), and we
see no reason to question that precedent here and, therefore, the con-
victions are affirmed.

AFFIRMED

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