                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1535
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Eugene Arthur Blaylock,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 13, 2004
                                Filed: August 31, 2005
                                 ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Eugene Arthur Blaylock (Blaylock) appeals his conviction. In a superceding
indictment, the government charged Blaylock with three counts: conspiracy to
distribute methamphetamine and ecstasy (Count I), aiding and abetting possession
with intent to distribute methamphetamine (Count V), and aiding and abetting
possession with intent to distribute ecstasy (Count VI). A jury acquitted Blaylock of
Counts I and VI, but found Blaylock guilty of Count V for 50 or more grams of actual
methamphetamine. The district court1 sentenced Blaylock to 120 months’
imprisonment and five years’ supervised release. Blaylock assigns numerous errors,
including (1) the district court’s denial of his pretrial severance and suppression
motions; (2) the denial of a fair trial due to the prosecutor’s peremptory challenge of
a prospective juror based on sexual orientation; (3) the denial of his right to call
witnesses on his behalf; (4) the improper admission at trial of his previously
suppressed statement to police; (5) insufficiency of evidence to support his
conviction; and (6) the cumulative effect of pretrial and trial errors, which prejudiced
his right to a fair trial. Finding no reversible errors, we affirm.

I.    BACKGROUND
      A.     Factual Summary
      Originally from Texas, Blaylock lived in Dallas when he first met co-
defendants Jason Haslip (Haslip) and Timothy Ehrmann (Ehrmann) at a fund raiser
in Austin on Memorial Day weekend in 2001. After their initial meeting, Blaylock
saw Haslip and Ehrmann at various fund raisers and circuit parties2 in July and
September 2001. At these events, Blaylock, Haslip, and Ehrmann engaged in
recreational drug use, sharing personal quantities of ecstasy, ketamine, and
methamphetamine. In between events Blaylock kept in touch via e-mail and
telephone with Haslip and Ehrmann, who lived in Minneapolis.

      In late April 2002, Ehrmann telephoned Blaylock and told him he was planning
to vacation in Arizona and would try to stop in Dallas on his return trip to
Minneapolis. On May 10, Ehrmann sent Blaylock an e-mail message stating, “I
apologize for not getting those samples down to you.” The e-mail message informed
Blaylock that Ehrmann might travel to Dallas on the weekend of May 19 and stay a

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
      2
          Circuit parties are a series of gay dance parties held around the world.

                                           -2-
few days. The same e-mail message ended stating, “If that happens, and you choose
to meet up, I will bring them with me.”

       On May 18, Blaylock sent Ehrmann an e-mail message stating, “I went to the
white party this past weekend, and I am here to tell you, demand is high and supply
is low right now. Prime time to establish a working relationship is upon us.” On
June 1, Ehrmann called Blaylock from Arizona, telling Blaylock he would be driving
back to Minneapolis and, if feasible, would stop in Dallas. Ehrmann invited Blaylock
to accompany him to Minneapolis via Chicago, where Ehrmann would show Blaylock
a couple of the clubs. Ehrmann explained to Blaylock that he would stay in
Minneapolis for a week to ten days, and then Ehrmann would fly Blaylock back to
Dallas.

      Ehrmann arrived in Dallas with co-defendant Jimmie Orr (Orr) on Sunday,
June 2. They met Blaylock in a parking lot, where Blaylock left his vehicle and
joined Ehrmann and Orr. Later that evening, the three checked into a club, where
they spent the night. On the same evening, Blaylock ingested some ecstasy supplied
by Ehrmann. The following day, instead of driving north, the three drove west to
Phoenix. Once they arrived in Phoenix, Orr retrieved his bags from the car and
disappeared.

      Ehrmann and Blaylock spent five days in Phoenix and Scottsdale. Blaylock
vacationed, while Ehrmann worked on locating Orr. On three or four occasions
during his layover in Phoenix, Blaylock used methamphetamine supplied by
Ehrmann. Blaylock saw a “small baggie, kind of puffy, full of white crystal meth,”
which he characterized as being a personal use amount. On June 5, Blaylock agreed
to cash two large checks for Ehrmann. The first check was made out to “Butch
Eugene Blaylock” in the amount of $4,000 and was dated June 4, 2002. Blaylock
cashed the check and delivered the proceeds to Ehrmann. Several hours later,
Blaylock cashed a second check made payable to him in the amount of $3,500 and

                                        -3-
gave the proceeds to Ehrmann. After several days in Phoenix, Ehrmann located Orr,
who decided to return to Minnesota in a separate vehicle. Ehrmann and Blaylock
made plans to drive from Phoenix to Minneapolis with a brief stop in Chicago.

       On June 8, Ehrmann and Blaylock left Phoenix in a car rented by Ehrmann and
headed for Chicago. Blaylock was driving on Interstate 40, when Arizona State
Trooper Anthony Gerard (Trooper Gerard) clocked the vehicle traveling at ninety-
four miles per hour, nineteen miles per hour over the maximum speed limit. After
stopping the vehicle, Blaylock gave Trooper Gerard his Texas driver’s license and the
car rental agreement signed by Ehrmann. Blaylock complied with Trooper Gerard’s
requests to exit the vehicle and walk back to the patrol car. Trooper Gerard asked
Blaylock his purpose in traveling to Arizona, and Blaylock replied that he and
Ehrmann had gone to Phoenix “to hang out.” Blaylock also told Trooper Gerard he
was unemployed. Trooper Gerard issued Blaylock a speeding ticket, returned his
documents, and advised him he was free to go.

       While Blaylock was walking back to the rental vehicle, Trooper Gerard asked
Blaylock if he would answer a few more questions. Blaylock agreed and returned to
the patrol car. Trooper Gerard told Blaylock there was a problem with drugs being
transported along the interstate, and asked Blaylock whether any illegal drugs were
inside the car. When Blaylock answered in the negative, Trooper Gerard asked
Blaylock for permission to search the vehicle, and, after briefly pausing, Blaylock
consented. Blaylock returned to the rental vehicle to retrieve the keys from the
ignition. After conversing briefly with Ehrmann, Blaylock told Trooper Gerard that
Ehrmann did not want Trooper Gerard to search the car, and advised Trooper Gerard
he would need to speak with Ehrmann. To secure his personal safety, Trooper Gerard
directed Blaylock to stay by the driver’s door.

      Trooper Gerard then approached the passenger side of the rental vehicle and
spoke with Ehrmann, who told Trooper Gerard he was in a hurry and did not want

                                        -4-
Trooper Gerard to search the car. When Trooper Gerard assured Ehrmann it would
only take five minutes to search the car, Ehrmann changed the basis of his objection
and told Trooper Gerard a search would invade his privacy. As Ehrmann was voicing
his objections, Trooper Gerard observed Ehrmann flipping his seat belt back and forth
and noticed Ehrmann’s hands were shaking. Trooper Gerard then asked Ehrmann
whether any illegal drugs were in the car, at which point Ehrmann’s right eyebrow
began quivering uncontrollably and his right arm started shaking.

       Suspecting criminal activity was afoot, Trooper Gerard called a canine unit,
which arrived at the scene approximately seventeen minutes later. A drug-sniffing
dog alerted to the vehicle’s trunk. When Trooper Gerard searched the trunk, he
recovered a large black duffle bag with two packages containing approximately a
pound of a white crystal substance that field tested positive for methamphetamine,
and also found ten ecstasy tablets, a digital scale, and $520 inside a smaller black
duffle bag. Following the search, Blaylock and Ehrmann were arrested.

       Immediately upon being arrested, Blaylock told a detective he should talk with
a lawyer, but then agreed to proceed with an interview. During the interview,
Blaylock admitted “he knew all, everything that was going on.” Blaylock told the
detective he knew Ehrmann was coming to Phoenix to buy a “high amount” of
methamphetamine. Blaylock also told the detective the trip to Chicago had been
delayed two or three days because “things were not falling into place.” Blaylock
explained to the detective he was traveling with Ehrmann because Blaylock was
contemplating the idea of selling drugs, and he was using his vacation with Ehrmann
to see if Ehrmann could set him up and see where the business would go.

       B.    Procedural History
       A grand jury indicted Blaylock and five other co-defendants on federal drug
trafficking charges. Blaylock pled not guilty and proceeded to trial along with four
of the other co-defendants. Before trial, Blaylock moved to suppress the evidence

                                        -5-
obtained during the vehicle search and his post-arrest statements. The district court
adopted the magistrate judge’s recommendations and denied the motion to suppress
the fruits of the vehicle search, but granted the motion to suppress Blaylock’s post-
arrest statements, which had been obtained in violation of the Sixth Amendment.

        Trial lasted three weeks and included testimony from thirty witnesses and the
admission of more than 100 exhibits. Co-defendant Orr pled guilty and agreed to
testify as a cooperating government witness. Orr testified Ehrmann purchased a
pound of methamphetamine in Phoenix, and Orr saw the pound of methamphetamine
in the sitting area of the hotel room Ehrmann shared with Blaylock. Orr testified
Blaylock was asleep in the room while Orr and Ehrmann discussed the
methamphetamine transaction. Orr also testified Ehrmann told him that Ehrmann
intended to help out Blaylock financially through some future transactions in Ohio,
Chicago, and Minneapolis, and Blaylock would help Ehrmann get rid of some drugs.
On cross-examination, Orr admitted he had never told any law enforcement officers
about this alleged joint venture between Ehrmann and Blaylock, but had told only the
prosecutor.

        After the government rested, Blaylock waived his Fifth Amendment rights and
testified. Blaylock denied being part of a drug conspiracy and denied aiding and
abetting possession of methamphetamine or ecstasy with the intent to distribute.
Blaylock testified that, when Ehrmann and Orr arrived in Dallas, Blaylock expected
the three would be traveling to Minneapolis via Chicago. The next day, Blaylock
testified, the plan changed, and they instead drove west toward Phoenix for Ehrmann
to retrieve some money from Orr’s aunt’s house. Although Blaylock admitted he
used methamphetamine during his five-day layover in Phoenix, Blaylock testified he
did not use any other drugs, and he never saw any ecstasy tablets or the large quantity
of methamphetamine, which were discovered during the car search. Blaylock
testified the only drugs he saw during the trip were small personal use amounts of



                                         -6-
methamphetamine. Blaylock also denied owning the large duffle bag, which he
claimed belonged to Ehrmann.

         Blaylock testified that gradually, over the course of several days in Phoenix,
Ehrmann’s access to drugs, the large amounts of cash, and frequent cellular phone
calls between Orr and Ehrmann combined to make Blaylock “more and more aware
. . . that something was going on.” Blaylock acknowledged that he began thinking
something–a drug deal–was going down between Ehrmann and Orr by the third or
fourth day in Phoenix. Blaylock told the jury he had not been involved in dealing
drugs in Arizona, nor had he had any direct conversations with Orr or Ehrmann about
what was happening. Blaylock also told the jury, before he and Ehrmann set off on
June 8, Blaylock specifically asked Ehrmann if he had any more drugs on him, and
Ehrmann told Blaylock he did not.

       On cross-examination, Blaylock testified ketamine was his drug of choice and
further testified his e-mail message to Ehrmann stating, “You and I have seriously got
to get together ASAP. I went to the white party this weekend. And I’m here to tell
you demand is high and supply is low,” referenced a possible future business
relationship with Ehrmann, from whom Blaylock wanted to purchase ketamine, which
he intended to sell for profit. The prosecutor then impeached Blaylock with his post-
arrest interview statements, and Blaylock reluctantly admitted he had never uttered
the word “ketamine” during the police interview, nor had he used ketamine during his
June trip. The prosecutor also attempted to impeach Blaylock on his ecstasy use.
However, Blaylock explained to the jury that, while he had used ecstasy on June 2
when he, Ehrmann, and Orr spent the evening in Dallas, he did not use any ecstasy
in Arizona, and he understood Ehrmann did not have any ecstacy.

       The prosecutor next sought to impeach Blaylock by using his post-arrest
statements. Blaylock admitted he told police in a post-arrest interview that Ehrmann
told Blaylock they were traveling to Arizona from Dallas to purchase a large quantity

                                         -7-
of methamphetamine. Blaylock also admitted that, throughout the trip from Dallas
to Arizona, he knew there was methamphetamine and ecstasy around him. Blaylock
also admitted he told the Arizona detective he knew what was going on around him,
and was using the Arizona-to-Minneapolis trip to see if Ehrmann could set him up
selling drugs.

       The jury returned a special verdict, acquitting Blaylock of the conspiracy
charge (Count I) as well as the charge of aiding and abetting possession with intent
to distribute ecstasy (Count V). However, the jury found Blaylock guilty of aiding
and abetting possession with intent to distribute methamphetamine (Count VI). The
district court sentenced Blaylock to a mandatory minimum term of 120 months’
imprisonment and five years’ supervised release.

       Blaylock raises numerous errors on appeal. He contends (1) the district court
erred in denying his pretrial motions to sever and to suppress the fruits of the vehicle
search; (2) the district court made numerous trial errors, including denying his Batson
challenge, allowing co-defendant Ehrmann to be excused from testifying, and
admitting suppressed evidence; (3) the evidence at trial was insufficient for a jury to
convict him of aiding and abetting possession with intent to distribute
methamphetamine; and (4) the cumulative effect of these pretrial and trial errors
denied him the right to a fair trial.

II.   DISCUSSION
      A.     Pretrial Motions
             1.     Severance Motion
      Generally, defendants who are “charged in a conspiracy should be tried
together, particularly where proof of the charges against the defendants is based upon
the same evidence and acts.” United States v. Boyd, 610 F.2d 521, 525 (8th Cir.
1979). Because defendants who are jointly indicted on similar evidence from the
same or related events should, in most instances, be tried together, a defendant

                                          -8-
seeking severance must show “real prejudice,” that is, “something more than the mere
fact that he would have had a better chance for acquittal had he been tried separately.”
United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993) (citing United States v.
Adkins, 842 F.2d 210, 211-12 (8th Cir. 1988)).

      Rule 14(a) of the Federal Rules of Criminal Procedure allows a district court
to grant a severance of defendants if it appears a defendant or the government is
prejudiced by a joinder. See Fed. R. Crim. P. 14(a). The United States Supreme
Court has declared the joinder and severance rules “are designed to promote economy
and efficiency and to avoid a multiplicity of trials, so long as these objectives can be
achieved without substantial prejudice to the right of the defendants to a fair trial.”
Zafiro v. United States, 506 U.S. 534, 540 (1993) (internal quotations omitted). We
review under an abuse of discretion standard a district court’s denial of a motion to
sever. United States v. Mickelson, 378 F.3d 810, 817 (8th Cir. 2004).

        The district court was not required to grant severance simply because Blaylock
claimed he needed a separate trial in order to call co-defendant Ehrmann as a witness.
Rather, Blaylock needed to establish the likelihood Ehrmann actually would have
testified and his testimony would have been exculpatory. Id. at 818; United States v.
Delpit, 94 F.3d 1134, 1143-44 (8th Cir. 1996). The record establishes that, when
Blaylock filed his pretrial motion for severance, he never represented to the district
court Ehrmann would be willing to testify on Blaylock’s behalf. Nor is the record
sufficiently clear Ehrmann’s testimony, if adduced, would have been exculpatory.
Although Ehrmann told an Arizona detective on September 11, 2002, Blaylock
“never saw [the drugs] directly,” Ehrmann also made multiple inculpatory statements:
(1) Ehrmann and Blaylock “had talked about getting together and buying meth”; (2)
“Blaylock used meth during their trip”; and (3) “Blaylock should’ve known what was
happening.”




                                          -9-
      At trial, Blaylock renewed his motion for severance, claiming Ehrmann was
willing to testify. Then on August 5, 2003, Blaylock’s counsel discovered Ehrmann
was not willing to testify. The next day, Ehrmann’s counsel informed the district
court Ehrmann was contemplating testifying to information related exclusively to
Blaylock’s case, but defense counsel acknowledged “the problem, obviously, for Mr.
Ehrmann is . . . [the prosecutor] would then feel compelled to go into the free talk that
occurred down in Arizona.” Ehrmann’s counsel then offered Ehrmann’s testimony
if Ehrmann were allowed to answer only questions asked by Blaylock’s counsel or
by Ehrmann’s own counsel. When the district court properly ruled Ehrmann would
be subject to the government’s cross-examination if he took the stand, Ehrmann’s
counsel advised the district court Ehrmann was inclined to invoke his Fifth
Amendment rights. Absent a firm representation Ehrmann would be willing to testify
on Blaylock’s behalf, the district court did not abuse its discretion in denying the
motion to sever.

       The record on appeal establishes (1) Blaylock’s “mere presence” defense was
not incompatible with the defenses of his co-defendants; and (2) the jury was able to
compartmentalize the trial evidence as it related to each of the co-defendants. The
jury actually acquitted Blaylock of two of three indicted offenses, which persuades
us the jury proved itself quite capable of compartmentalizing the evidence. We find
no abuse of discretion in the district court’s denial of Blaylock’s motion to sever.

              2.     Suppression Motion
       Blaylock next contends the district court erred in denying his motion to
suppress evidence obtained during an illegal search and seizure. We review de novo
the district court’s conclusions of law and review for clear error the district court’s
factual findings. See United States v. Welerford, 356 F.3d 932, 935 (8th Cir. 2004).
We will affirm the district court’s order denying Blaylock’s motion to suppress the
fruits of the vehicle search, “unless the decision is unsupported by substantial
evidence, is based on an erroneous view of the applicable law, or in light of the entire

                                          -10-
record, we are left with a firm and definite conviction that a mistake has been made.”
United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005) (quoting Welerford, 356
F.3d at 935).

       Traffic stops constitute “seizures” within the meaning of the Fourth
Amendment, see United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir. 2004), and
must be reasonable under the principles enunciated in Terry v. Ohio, 392 U.S. 1
(1968). Generally, a traffic “stop must be supported by at least a reasonable,
articulable suspicion that criminal activity” has occurred or is occurring. United
States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). A traffic violation, no matter how
minor, creates probable cause for a law enforcement officer to stop the vehicle. See
United States v. Barry, 98 F.3d 373, 376 (8th Cir. 1996). In performing a traffic stop,
an officer may conduct investigatory procedures reasonably related in scope to the
circumstances that initially justified the interference. United States v. McCoy, 200
F.3d 582, 584 (8th Cir. 2000) (per curiam). The officer may detain a motorist while
the officer performs routine tasks, such as writing a citation and completing
computerized checks of a driver’s license, vehicle registration, and criminal history.
United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999).

       However, “once the officer decides to let a routine traffic offender depart with
a ticket, a warning or an all clear–a point in time determined, like other Fourth
Amendment inquiries, by objective indicia of the officer’s intent–then the Fourth
Amendment applies to limit any subsequent detention or search.” Id. at 648. We
declared previously that an officer cannot continue to detain a motorist after the
officer completes the initial stop, unless the officer has “a reasonably articulable
suspicion for believing” criminal activity is afoot. United States v. Beck, 140 F.3d
1129, 1134 (8th Cir. 1998); see also United States v. Fuse, 391 F.3d 924, 927-28 (8th
Cir. 2004); Jones, 269 F.3d at 925 (explaining “with the purpose of the traffic stop
completed, it would be an unreasonable extension of the scope of the investigation
for [the trooper] to further detain [the suspect] or his vehicle, ‘unless something that

                                         -11-
occurred during the traffic stop generated the necessary reasonable suspicion to
justify a further detention’”) (quoting United States v. Mesa, 62 F.3d 159, 162 (6th
Cir. 1995)).

       In this case, the traffic stop facts are straightforward. Trooper Gerard clocked
the rental vehicle traveling nineteen miles per hour over the maximum speed limit.
Trooper Gerard had probable cause to stop the vehicle for speeding. United States
v. Winters, 221 F.3d 1039, 1041 (8th Cir. 2000). Blaylock argues, once Trooper
Gerard issued Blaylock a speeding citation and told him he was free to go, Trooper
Gerard no longer had reasonable suspicion to delay the vehicle or detain its
occupants. We do not agree with Blaylock’s contention that he was illegally detained
following the initial traffic stop. When Trooper Gerard asked Blaylock if he would
be willing to answer some additional questions, Blaylock replied affirmatively, and
willingly walked back to the patrol car. When Trooper Gerard asked permission to
search the vehicle, Blaylock paused momentarily before consenting to the search.
When Blaylock returned to the car to retrieve the car keys and Ehrmann objected to
the search, Blaylock told Trooper Gerard he would need to speak to Ehrmann.
Trooper Gerard then directed Blaylock to stay by the driver’s car door while Trooper
Gerard spoke to Ehrmann. Blaylock acquiesced, and stood by patiently while
Trooper Gerard spoke with Ehrmann. Up to this point, no unlawful detention had
occurred.

       Recently, in United States v. Fuse, 391 F.3d 924, 929 (8th Cir. 2004), we ruled
“the termination of a traffic stop does not effectively erase the objectively reasonable
suspicions developed by a police officer during the traffic stop.” Our review of the
suppression record convinces us Trooper Gerard had developed objectively
reasonable suspicions before he asked Blaylock, and later Ehrmann, for consent to
search the vehicle. When Trooper Gerard first approached the vehicle, he testified
he thought it strange Ehrmann did not look up from his computer and make eye
contact with him. Trooper Gerard also found it odd that Blaylock said he was driving

                                         -12-
from Dallas to Phoenix with no specific purpose, other than “to hang out.” Trooper
Gerard further testified he found it unusual that Blaylock would be vacationing when
he was unemployed. Trooper Gerard’s initial suspicions increased when Blaylock
consented to a search, but Ehrmann then refused consent. Upon approaching
Ehrmann, Trooper Gerard testified Ehrmann appeared nervous, and was fidgeting and
squirming in his seat. Ehrmann also changed his rationale for objecting to the search.
First Ehrmann told Trooper Gerard he was in a hurry and could not wait for the
vehicle search. After Trooper Gerard assured him a search would take only five
minutes, Ehrmann told Trooper Gerard he did not want his privacy invaded. Trooper
Gerard noticed Ehrmann’s hands were shaking. When Trooper Gerard pointedly
asked Ehrmann whether illegal drugs were in the vehicle, Ehrmann’s eyebrow began
twitching uncontrollably and his right arm began shaking.

       Blaylock’s statements and actions throughout the traffic stop, when viewed in
a vacuum, would not have given Trooper Gerard a reasonable, articulable suspicion
to detain the vehicle. However, Blaylock’s passenger, Ehrmann, exhibited suspicious
behavior throughout the traffic stop. Ehrmann’s suspicious actions, which included
nervous squirming, twitching, and shaking, combined with Blaylock’s vague reasons
for making the trip to Arizona and their presence on a known drug corridor in a rental
car provided Trooper Gerard with reasonable suspicion to detain the vehicle until a
canine unit arrived. See id. at 929-30. Once the canine alerted to the trunk, Trooper
Gerard had probable cause to search the vehicle. Under these facts, we conclude the
district court did not err in denying Blaylock’s motion to suppress the fruits of the
lawful search.

      B.     Alleged Trial Errors
             1.    Batson Challenge
      Blaylock raises a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to
the government’s peremptory strike of a panel member, contending the government
struck the panel member because of his sexual orientation. The district court denied

                                        -13-
the Batson challenge, first questioning Batson’s application to sexual orientation
challenges, and then finding Blaylock failed to make a prima facie showing of
unlawful discrimination and the government offered legitimate, nondiscriminatory
reasons for exercising a peremptory challenge against the panel member. Blaylock
attempts to elevate this challenge to the level of a constitutional error under the
Batson line of cases, arguing the denial of his Batson objection denied him the right
to a fair trial.

       Under Batson, a party opposing a peremptory strike may make a prima facie
case of discrimination by showing the circumstances support an inference that the
exercise of the challenged peremptory strike was based on unlawful discrimination.
United States v. Velazquez-Rivera, 366 F.3d 661, 665 (8th Cir. 2004). If the
objecting party establishes a prima facie case, then the proponent of the peremptory
strike must provide a nondiscriminatory explanation for the strike. Id. The district
court then must determine whether there was purposeful discrimination. See Elmahdi
v. Marriott Hotel Servs., Inc., 339 F.3d 645, 651 (8th Cir. 2003); Hall v. Luebbers,
341 F.3d 706, 713 (8th Cir. 2003). We review the district court’s Batson ruling for
clear error, United States v. Jones, 245 F.3d 990, 992 (8th Cir. 2001), and we accord
great deference to the district court’s findings, United States v. Roebke, 333 F.3d
911, 912 (8th Cir. 2003). See Batson, 476 U.S. at 98 n.21 (reasoning because the
district court’s findings largely turn on credibility, we give those findings “great
deference”); Elmahdi, 339 F.3d at 651. Although the California Supreme Court has
held sexual orientation should be a protected class for jury selection purposes, see
People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has
assumed, without deciding, sexual orientation qualifies as a Batson classification,
Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the Supreme Court
nor this circuit has so held.

      While we doubt Batson and its progeny extend constitutional protection to the
sexual orientations of venire persons, our review of the trial record persuades us that

                                         -14-
even if Blaylock made a prima facie case of purposeful discrimination, his Batson
objection fails, because the government offered legitimate nondiscriminatory reasons
for striking the panel member. The prosecutor told the district court that he
questioned the suitability of this panel member before learning of the panel member’s
sexual orientation. Specifically, the prosecutor explained to the court he was
concerned by the panel member’s liberal education and his musician background, and
the prosecutor felt the panel member was a potential loner. Blaylock offered no
evidence to show the prosecutor’s proffered reasons were pretextual. Accordingly,
we find no clear error.

             2.     Right to Call Witness
       Blaylock claims the most fatal trial error occurred when the trial court allowed
Ehrmann to be excused from testifying. Blaylock intended to call Ehrmann as a
defense witness and subpoenaed him. After considering the matter, Ehrmann invoked
the Fifth Amendment and declined to testify at trial. Blaylock never called Ehrmann
as a witness or moved the district court to compel Ehrmann to testify.

       We review for an abuse of discretion a district court’s decision not to compel
testimony after a witness has claimed a Fifth Amendment privilege. United States v.
Washington, 318 F.3d 845, 856 (8th Cir. 2003). Blaylock’s challenge represents a
conflict between his right to call Ehrmann as a witness in his defense and Ehrmann’s
right to avoid self-incrimination. “It is well settled that an accused’s right to
compulsory process must yield to a witness’s Fifth Amendment privilege not to give
testimony that would tend to incriminate him or her.” United States v. Habhab, 132
F.3d 410, 416 (8th Cir. 1997).

      “The Self-Incrimination Clause of the Fifth Amendment guarantees that no
person ‘shall be compelled in any criminal case to be a witness against himself.’”
Withrow v. Williams, 507 U.S. 680, 688 (1993) (quoting U.S. Const. amend. V).
“Nothing in the Fifth Amendment, or in any other constitutional provision, provides

                                         -15-
a means for overcoming this privilege once a potential witness has invoked it.”
United States v. Moussaoui, 382 F.3d 453, 466 (4th Cir. 2003). Blaylock’s Sixth
Amendment right to compulsory process does not include the right to compel
Ehrmann or any other witness to waive his or her Fifth Amendment privilege against
self-incrimination. United States v. Bowling, 239 F.3d 973, 976 (8th Cir. 2001);
United States v. Robaina, 39 F.3d 858, 862 (8th Cir. 1994) (citing Kastigar v. United
States, 406 U.S. 441, 444 (1972)).

     Ehrmann did not want to subject himself to the government’s cross-
examination. He did not want to divulge his inculpatory post-arrest statements.
Ehrmann’s right to preserve his Fifth Amendment privilege against self-incrimination
trumped Blaylock’s right to compel him to testify. Accordingly, we find no error.

              3.     Admission of Suppressed Evidence
      Blaylock next assigns as error the admission of his post-arrest statements
during the government’s cross-examination of him at trial. We review a district
court’s evidentiary ruling concerning the admission of suppressed statements for
impeachment purposes under an abuse of discretion standard. United States v.
Pierson, 101 F.3d 545, 546 (8th Cir. 1996). Before trial, Blaylock moved to suppress
post-arrest statements he made to an Arizona detective, arguing that after he asserted
his desire to consult with legal counsel, the government violated his Sixth
Amendment right to counsel by eliciting uncounseled statements without first
obtaining from Blaylock an express, voluntary waiver of his rights. The magistrate
judge made a recommendation, which the district court adopted, to suppress the
statements from use during the government’s case-in-chief. However, the
government was not precluded from using Blaylock’s post-arrest statements to
impeach Blaylock, testing the truthfulness of his story, in the event Blaylock testified
inconsistently at trial. Harris v. New York, 401 U.S. 222, 225-26 (1971) (declaring
defendant who testifies falsely may be impeached with suppressed statements).



                                         -16-
       Blaylock first contends his post-arrest statements were involuntary and
therefore could not be used to impeach him. However, Blaylock never moved to
suppress his interview statements based on a Fourth Amendment voluntariness
violation; therefore, Blaylock waived this argument on appeal. Instead, Blaylock
moved to suppress his interview statements based on a Sixth Amendment denial of
his right to counsel. The magistrate judge ruled “it is less than clear from the
evidence in the record whether Blaylock did in fact request an attorney at the scene
of his arrest.” However, giving Blaylock the benefit of the doubt, the magistrate
judge concluded Blaylock had requested an attorney prior to the interview. Because
the police detective “reinitiated communication with Blaylock, . . . asking both
routine questions and incriminatory questions, [and] asked Blaylock to waive his
previously-invoked right to counsel,” the detective’s “conduct invalidated any
subsequent waiver,” and the magistrate judge concluded Blaylock’s statements should
be suppressed. The district court adopted the recommendation and suppressed the
interview statements.

       Before trial, the government filed a motion in limine, seeking to use Blaylock’s
interview statements for impeachment. Before Blaylock testified, his counsel advised
Blaylock his prior statements to the Arizona Highway Patrol could be used against
him if Blaylock testified inconsistently to any of the prior statements. The district
court also declared Blaylock could be impeached with his prior statements. Given
these express admonitions, we agree with the government, Blaylock’s prior
statements were admissible as impeachment evidence.

       Blaylock claims the prosecutor engaged in improper impeachment, contending
his prior interview statements were consistent with his trial testimony. We have ruled
previously, “inconsistency [of prior statements] is not limited to diametrically
opposed answers but may be found in evasive answers, inability to recall, silence, or
changes of position.” United States v. Dennis, 625 F.2d 782, 795 (8th Cir. 1980).
The government contends Blaylock changed his position between the time Blaylock

                                         -17-
gave a post-arrest interview and when he testified at trial. Our record review
establishes Blaylock’s “gradual epiphany” trial defense was arguably inconsistent
with some admissions Blaylock made during his post-arrest interview. On direct
examination, Blaylock testified he understood the purpose of the return trip from
Dallas to Phoenix was for Ehrmann to collect money from Orr’s aunt’s house.
However, during his June 8 post-arrest interview, Blaylock told the police detective
he “was aware of things that were going on” and knew Ehrmann was coming to
Phoenix to buy a “high amount” of methamphetamine. Notably, Blaylock did not tell
the detective during his interview he now knew why Ehrmann had traveled to
Phoenix; instead, he told Arizona police, “we drove and I mean I knew all, everything
that was going on.” Although Blaylock’s post-arrest statements do not reveal exactly
when Blaylock learned of Ehrmann’s and Orr’s purpose for returning to Phoenix, the
context and syntax of Blaylock’s interview admissions strongly imply Blaylock knew
of the trip’s illegal purpose at a much earlier time than he testified to the jury.

       Blaylock also objects to the prosecutor impeaching Blaylock regarding his
ecstasy use. Blaylock testified at trial he used ecstasy on June 2, but did not use
ecstasy again during the trip. Blaylock also claimed ketamine was his preferred drug
and the drug he was interested in selling for profit. During his post-arrest interview,
Blaylock told the officer he and Ehrmann did not use any ecstasy, and Blaylock was
under the impression Ehrmann did not possess any ecstasy. While Blaylock’s post-
arrest statement is not diametrically opposed to his trial testimony, his post-arrest
statement can be inferred as being a general denial of using ecstasy, which is
inconsistent with Blaylock’s trial testimony. Blaylock had a full and fair opportunity
to reconcile the statements and to explain that he used ecstasy in Dallas on June 2,
and not during the time he was in Arizona. Any impeachment error was harmless.

     Blaylock further objects to the prosecutor’s impeachment on the subject of
ketamine. We conclude the prosecutor’s impeachment of Blaylock on this subject
was permissible. On direct examination, Blaylock portrayed himself as purely a

                                         -18-
recreational drug user and only a prospective dealer of ketamine, a controlled
substance not named in the superceding indictment. When Blaylock deliberately
chose to distance himself from the indicted controlled substances of ecstasy and
methamphetamine, the prosecutor was entitled to ask Blaylock whether he had ever
discussed or mentioned ketamine in his post-arrest interview. When Blaylock
answered that he thought he had, the prosecutor asked Blaylock to locate the word
“ketamine” in the post-arrest interview transcript, which Blaylock could not do,
because Blaylock had never uttered the word “ketamine” to the Arizona police.

       In taking the witness stand, Blaylock assumed tremendous risks, of which he
was fully forewarned. In portraying himself to the jury as a recreational drug user and
prospective dealer of ketamine, and in testifying he was in the dark about the trip’s
purpose until just before leaving Phoenix, Blaylock set himself up for the prosecutor
to impeach him on these fundamental credibility issues. While the district court
arguably may have erred in allowing impeachment on the subject of Blaylock’s
ecstasy use, we conclude any error was harmless, because Blaylock had an
opportunity to explain the consistency of his statements. See United States v. Brack,
747 F.2d 1142, 1152 (7th Cir. 1984). Indeed, Blaylock’s explanation of his ecstasy
use likely secured him an acquittal on Count VI.

       C.     Sufficiency of Evidence
       Blaylock also contends the evidence at trial was insufficient to convict him of
aiding and abetting possession of methamphetamine with intent to distribute. We
review de novo the sufficiency of the evidence, examining the evidence in the light
most favorable to the jury verdict and giving the verdict the benefit of all reasonable
inferences. United States v. Sheikh, 367 F.3d 756, 763 (8th Cir. 2004). We will not
disturb a verdict, unless no reasonable jury could have found Blaylock guilty beyond
a reasonable doubt on each element of the charge. Id.




                                         -19-
       Blaylock argues no reasonable jury could have convicted him of aiding and
abetting possession with intent to distribute methamphetamine while acquitting him
of a conspiracy to do the same. The conspiracy and the aiding and abetting counts,
however, are not identical. Count I charged Blaylock, Ehrmann and four other
defendants with conspiring to distribute more than 500 grams of methamphetamine
and ecstasy; whereas, Count V charged only Ehrmann and Blaylock with aiding and
abetting possession with intent to distribute approximately 250 grams of
methamphetamine. Thus, these two counts differed not only as to the defendants
indicted, but also as to the types and quantities of controlled substances alleged.

       Section 2(a) of Title 18 of the United States Code declares whoever aids or
abets the commission of a crime is punishable as a principal. 18 U.S.C. § 2(a). The
jury was instructed that, in order to find Blaylock guilty of the crime of aiding and
abetting possession of methamphetamine with intent to distribute, it must find beyond
a reasonable doubt Blaylock associated himself with the unlawful venture, he
participated in the unlawful venture as something he wished to bring about, and he
sought by his action to make the unlawful venture succeed. United States v.
LaGuardia, 774 F.2d 317, 319 (8th Cir. 1985). The unlawful venture charged was
possession of methamphetamine with the intent to distribute.

       The jury did an exceptional job of compartmentalizing the evidence of each
charge against each of the five defendants. With the exception of a couple
incriminating e-mail messages in May 2002, the government’s inculpatory evidence
against Blaylock consisted of his conduct between June 2, when he joined Ehrmann
and Orr in Dallas, and June 8, when he was arrested outside Flagstaff. The
government presented evidence that during this period Blaylock (1) admitted to the
Arizona detective the purpose of the return trip to Phoenix was to purchase a
distributable quantity of methamphetamine; (2) admitted he was taking the vacation
with Ehrmann for the purpose of having Ehrmann set him up dealing illegal drugs;
(3) assisted in the purchase of the methamphetamine by cashing two checks and

                                        -20-
tendering the proceeds to Ehrmann, who then purchased the methamphetamine with
the check proceeds; and (4) assisted Ehrmann in driving the vehicle. Sufficient
evidence existed for a reasonable jury to find beyond a reasonable doubt Blaylock
aided and abetted possession of methamphetamine with intent to distribute.

      On the other hand, the jury had no evidence before it tying Blaylock to any of
the conspiratorial transactions involving large quantities of methamphetamine and
ecstasy, which occurred in Minnesota, Nevada, and California. Apparently, the jury
believed Blaylock when he testified he had no knowledge Ehrmann possessed any
ecstasy. Because the government had no evidence linking Blaylock to the small
quantity of ecstasy recovered, the jury acquitted him of Count VI. Concluding the
jury performed its duties well, we will not disturb its verdict.

      D.     Cumulative Error
      Blaylock’s fifth and final assigned error asserts the cumulative effect of all
previous claimed errors denied him his Sixth Amendment right to a fair trial. Our
review of the record convinces us Blaylock received a fair trial.

       E.     Sentencing
       The district court sentenced Blaylock to 120 months’ imprisonment, the
mandatory minimum sentence for aiding and abetting possession of 50 grams or more
of methamphetamine with intent to distribute. 21 U.S.C. § 841(b)(1)(A)(viii).
Because Blaylock’s sentence is not based upon the United States Sentencing
Guidelines, but is imposed by the governing criminal statute upon a drug quantity
finding of fifty or more grams of methamphetamine as determined by a jury beyond
a reasonable doubt, Blaylock is not entitled to resentencing under the holding in
United States v. Booker, 125 S. Ct. 738 (2005). We affirm his sentence. See United
States v. Vieth, 397 F.3d 615, 620 (8th Cir. 2005).




                                       -21-
III.   CONCLUSION
       Accordingly, we affirm Blaylock’s conviction and sentence.
                       _____________________________




                                      -22-
