         No. 95-4134


United States of America,                  *
                                           *
      Appellee,                            *
                                           *
          v.          *
                                           *
Joyce A. Brown,                            *
                                           *
         Appellant.                        *


                                               Appeals from the United States
                                               District Court for the
                                               District of Nebraska.



         No. 95-4170


United States of America,                  *
                                           *
         Appellee, *
                                           *
           v.                              *
                                           *
Elizabeth Buckhanan,                       *
                                           *
          Appellant.                       *



                          Submitted:    June 12, 1996

                            Filed:     August 2, 1996


Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ROSENBAUM,*
      District Judge.




     *
     The HONORABLE JAMES M. ROSENBAUM, United States District
     Judge for the District of Minnesota, sitting by
     designation.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

     After a five-day trial, a jury convicted Joyce Brown and Elizabeth
Buckhanan of possession of cocaine base (crack cocaine) with the intent to
distribute it.   The trial court sentenced Ms. Brown to 135 months in
prison, Ms. Buckhanan to 70 months in prison.        Both women appeal their
convictions, arguing that their trials should have been separate, that the
venire for their jury was not drawn from a fair cross-section of the
community, and that the evidence was insufficient.    Ms. Brown also appeals
her sentence, arguing that the trial court erred in assessing her role in
the offense and in determining the amount of drugs attributable to her.
We affirm the judgments of the trial court.1


                                    I.
     In late 1994, the police in Lincoln, Nebraska, served a search
warrant on an apartment.   Both defendants were in the apartment at the
time, along with five other women, a man, and a child.      The police found
crack cocaine in the apartment.


     Separate one-count indictments subsequently charged each defendant
and three of the other women with possession of crack cocaine with the
intent to distribute it.   On motion by the government, the trial court
consolidated the cases for trial.   Two of the other women pleaded guilty,
thus the eventual trial involved only the two defendants in this appeal and
one other co-defendant.


     On appeal, both defendants argue that the consolidation of trials
prejudiced their right to a fair trial.    The essence of each defendant's
argument is that the evidence against her two co-defendants was stronger
and that the jury was unable to compartmentalize the less incriminating
evidence against her.




     1
      The Honorable Warren K. Urbom, United States District Judge
for the District of Nebraska.


                                    -2-
Ms.   Buckhanan      also    argues   that    her    defense    and   those     of   her   two
co-defendants were antagonistic.


      We note that the trial court instructed the jury twice at the
beginning of the trial, and again at its conclusion, that the evidence with
respect to each defendant was to be judged separately.                 Assuming, without
deciding, that both defendants preserved the issue of severance, we see no
abuse of discretion in the trial court's decision to consolidate the
trials.     See, e.g., United States v. Kindle, 925 F.2d 272, 277 (8th Cir.
1991).


                                             II.
      The two defendants in this appeal and their co-defendant are black.
At voir dire, the defendants moved to strike the venire that was present,
observing that it apparently contained no black people.                    The trial court
denied the motion.          On appeal, both defendants argue, based on the sixth
amendment, that the pool from which their venire was drawn was not derived
from a fair cross-section of the community, in other words, that the jury
selection plan then in effect for the trial court was unconstitutional.
See, e.g., Taylor v. Louisiana, 419 U.S. 522, 528, 530, 538 (1975); see
also 28 U.S.C. § 1861.


      "In    order    to    establish   a    prima    facie    violation   of   the   [sixth
amendment] fair-cross-section requirement, the defendant must show (1) that
the group alleged to be excluded is a 'distinctive' group in the community;
(2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process."                      Duren
v. Missouri, 439 U.S. 357, 364 (1979).               Because the defendants offered no
evidence to establish even a prima facie case, the trial court's denial of
their motion was correct.         See, e.g., Government of the




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                                              3
Virgin Islands v. Navarro, 513 F.2d 11, 18-19 (3d Cir. 1975), cert. denied,
422 U.S. 1045 (1975); see also Wharton-El v. Nix, 38 F.3d 372, 376 (8th
Cir. 1994), cert. denied, 115 S. Ct. 1126 (1995).     (We note as well that
the defendants never requested racial information on the pool from which
their venire was drawn until after their trial.)


                                     III.
      Each defendant argues that the evidence was legally insufficient.
At trial, police officers testified that Ms. Brown had over $2,000 cash in
her purse and that Ms. Buckhanan had more than five grams of crack cocaine
in her purse.    One of the two women who pleaded guilty testified that she
saw both Ms. Brown and Ms. Buckhanan make "switches and sales," that she
saw both defendants "selling crack cocaine" multiple times, and that she
saw Ms. Brown trade crack cocaine for merchandise from several people.
Considering that evidence in the light most favorable to the government,
see, e.g., United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996),
we hold that the jury was entitled to believe, beyond a reasonable doubt,
that each defendant possessed crack cocaine with the intent to distribute
it.


                                     IV.
      At sentencing, the trial court increased Ms. Brown's base offense
level by three levels, finding that she was a manager or supervisor in a
criminal activity that involved at least five participants.    See U.S.S.G.
§ 3B1.1(b).     Ms. Brown challenges that finding.


      At trial, both of the women who pleaded guilty testified that
Ms. Brown was the person who decided whether people who came to the
apartment door could come into the apartment.   One of those women testified
that Ms. Brown appeared to be "a boss" of Ms. Buckhanan and of a third
woman, who were also selling crack cocaine in the




                                     -4-
                                      4
apartment.    At the sentencing hearing, the man in the apartment during the
search testified that the two women who pleaded guilty were "cooking up"
crack cocaine; a second man, who admitted living at the apartment and
dealing drugs "outside" the apartment building, testified that he saw the
two women who pleaded guilty "[f]lashing [crack cocaine] around" inside the
apartment.    The trial court then found that Ms. Brown was a manager or a
supervisor and that the criminal activity involved herself, Ms. Buckhanan,
the third woman who was selling crack cocaine at the apartment, and the two
women who pleaded guilty.    Based on the evidence presented, that finding
is not clearly erroneous.    See, e.g., United States v. McMurray, 34 F.3d
1405, 1415 (8th Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995).


                                      V.
        Finally, Ms. Brown challenges the trial court's attribution to her,
for sentencing purposes, of 37.53 grams of crack cocaine.      See U.S.S.G.
§ 2D1.1(a)(3), § 2D1.1(c)(5).      She also contends that the trial court
failed to make a specific finding, as required by Fed. R. Crim. P.
32(c)(1), with respect to 30.21 grams included in that amount.


        Fed. R. Crim. P. 32(c)(1) requires that the court must "rule on any
unresolved objections to the presentence report" by making a finding on the
objection or by disregarding the disputed facts.         At the sentencing
hearing, the trial court stated that it credited the trial testimony with
respect to those 30.21 grams.    While the trial court could have been more
explicit in stating that it was therefore making a finding for sentencing
purposes in that regard, we hold that the trial court's statement was
adequate to satisfy the requirements of Fed. R. Crim. P. 32(c)(1).     See,
e.g., United States v. Nnanna, 7 F.3d 420, 421 (5th Cir. 1993) (per
curiam).     (We also note that Ms. Brown's lawyer stated, just before the
trial




                                     -5-
                                      5
court imposed sentence, that "Your Honor, I believe you addressed all my
objections.")


     The trial court's finding, moreover, that 37.53 grams of crack
cocaine should be attributed to Ms. Brown is not clearly erroneous.   See,
e.g., United States v. McMurray, 34 F.3d 1405, 1414 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1164 (1995).


                                   VI.
     For the reasons stated, we affirm the judgments of the trial court.
We also grant the government's motion to file its letter of June 3, 1996,
as part of the record.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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