                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 01/07/2000
                                                              THOMAS K. KAHN
                                   No. 96-9210                    CLERK

                      D. C. Docket No. 96-00004-CR-6


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

KYLE MICHAEL BREWER, a.k.a.
Michael Brewer, etc.,
BENJAMIN BREWER, et al.,

                                                           Defendants-Appellants.



                  Appeals from the United States District Court
                      for the Southern District of Georgia

                                (January 7, 2000)


Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
NESBITT*, Senior District Judge.
______________
*Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District
of Florida, sitting by designation.
DUBINA, Circuit Judge:
      Ten defendants in a drug conspiracy case appeal their convictions and

sentences imposed by the United States District Court for the Southern District of

Georgia. We affirm in part, and vacate in part.



                        I. STATEMENT OF THE CASE

      A. Procedural History

      A jury convicted all of the defendants, with the exception of Larry Johnson,

of conspiring to possess with the intent to distribute and to distribute cocaine and

cocaine base, in violation of 21 U.S.C. § 846 (Count 1). The jury convicted Leroy

Bethel on two counts of distribution of cocaine base, in violation of 21 U.S.C. §

841(a)(1) (Counts 21 and 22), and on one count of possession of a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g). The jury convicted Benjamin

Brewer, Lenard Jenkins, and Cornelius Jones of use of a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 11).

The jury convicted Kyle Michael Brewer on two counts of distribution of cocaine

base, in violation of 21 U.S.C. § 841(a)(1) (Counts 5 and 6), on one count of

employment of a minor to distribute cocaine base, in violation of 21 U.S.C. §

861(a) (Count 8), and on one count of use of a firearm during and in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 9). The district


                                          2
court entered a judgment of acquittal on another cocaine distribution count against

Kyle Michael Brewer (Count 7).

      The jury also convicted Sylvester Greene on three counts of distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 12, 13, and 14). The

jury convicted Willie Outler on one count of distribution of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (Count 17); the district court entered a judgment

of acquittal on another count charging him with possessing a firearm as a convicted

felon. (Count 18). The jury convicted Leroy Singleton on one count of

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 15). The jury

convicted Donnell Summersett on two counts of distribution of cocaine base

(Counts 2 and 3), and on one count of possession of cocaine base with the intent to

distribute it (Count 4), all in violation of 21 U.S.C. § 841(a)(1); the district court

entered a judgment of acquittal on another count charging him with use of a

firearm during and in relation to a drug trafficking crime (Count 9). The jury also

convicted Larry Johnson on one count of possession of cocaine base with the intent

to distribute it (Count 26), and on one count of distribution of cocaine base (Count

27), both in violation of 21 U.S.C. § 841(a)(1); the district court entered a

judgment of acquittal on the conspiracy count.




                                            3
      The district court sentenced all of the defendants to substantial terms of

imprisonment in the federal penitentiary and they are all presently incarcerated

pending this appeal.

      B. Facts

      The record in this case demonstrates that in early 1992, Donnell Summersett

and Kyle Michael Brewer were the leaders of a conspiracy that distributed cocaine

and cocaine base in Toombs County, Georgia. Both defendants, along with

Benjamin Brewer, Lenard Jenkins, and Cornelius Jones provided cocaine to

individuals for distribution. Kyle Michael Brewer owned a car wash, which was

the location for several undercover purchases of cocaine. On two occasions,

several of the defendants were involved in an exchange of gunfire due to a problem

with a cocaine purchase. In sum, the evidence was overwhelming that these

defendants were involved in an extensive cocaine conspiracy.

                                    II. ISSUES

      1. Whether the defendants’ convictions are supported by sufficient

evidence.

      2. Whether the district court’s procedure for designating alternate jurors was

error and requires reversal of the defendants’ convictions.




                                          4
      3. Whether the district court abused its discretion in denying the defendants’

severance motions.

      4. Whether the district court properly sentenced the defendants.

      5. Whether the district court abused its discretion in admitting out-of-court

statements under the coconspirator exception to the hearsay rule.

      6. Whether there was a prejudicial variance between allegations of the

indictment and the government’s proof at trial.

      7. Whether plea agreements in which the government offers leniency in

exchange for a cooperating witness’s testimony violates 18 U.S.C. § 201(c)(2).

      8. Whether distribution of cocaine base (21 U.S.C. § 841(a)(1)) is a lesser

included offense of employment of a minor to distribute cocaine base (21 U.S.C. §

861(a)).

                                 III. ANALYSIS

      After reviewing the record in this case, we conclude that there is no merit to

any of the defendants’ arguments concerning issues numbered 1, 3, 4, 5, 6, and 7.

Accordingly, we summarily affirm the defendants’ convictions and sentences

relative to those issues without further discussion.1 We do feel compelled,

however, to address briefly issues numbered 2 and 8.


      1
            See 11th Cir. R. 36-1.
                                         5
      A. Random Procedure to Designate Alternate Jurors

      Defendants Kyle Michael Brewer and Donnell Summersett contend that the

district court’s procedure for designating alternate jurors requires reversal of their

convictions. We evaluate this claim under the de novo standard of review. See

United States v. Register, 182 F.3d 820, 841 (11th Cir. 1999).

      The parties initially selected 14 jurors to hear the evidence in this case, but

the district court did not designate which two would serve as alternates. Just

before the jurors retired to deliberate, the district court announced that it was

“going to have the clerk raffle two of you out.” (R15-1066). The district court

then designated two of the jurors, Bonnie Fair and Leslie Morris, as alternates.

Defense counsel objected to this procedure, stating that two other jurors, “Ms.

Busby and Mr. Lewis, being the last two in order, should have been the two that

were designated alternates.” (R15-1066). As the defendants correctly point out,

the district court’s unusual procedure is clearly inconsistent with Fed.R.Crim.P.

24(c), which provides in pertinent part as follows:

             (c) Alternate Jurors. The court may direct that not
             more than 6 jurors in addition to the regular jury be
             called and impanelled to sit as alternate jurors. Alternate
             jurors in the order in which they are called shall replace
             jurors who, prior to the time the jury retires to consider
             its verdict, become or are found to be unable or
             disqualified to perform their duties. * * * An alternate


                                           6
               juror who does not replace a regular juror shall be
               discharged after the jury retires to consider its verdict.

Fed.R.Crim.P. 24(c). (Emphasis added).

         The defendants claim that the district court violated the rule by using a

random draw to discharge the alternate jurors, rather than simply discharging the

last two jurors selected, and that the violation constitutes reversible error. In our

view, the district court, through the use of a random draw, committed error by

violating the explicit command of Fed.R.Crim.P. 24(c). The question then

becomes whether the district court’s error is reversible error or merely harmless

error.

         In this circuit we have explicitly rejected a rule of per se reversal for Rule

24(c) violations. See United States v. Acevedo, 141 F.3d 1421, 1423 (11th Cir.

1998), cert. denied, 119 S.Ct. 1048 (1999). Instead, reversal is required only if

there is a reasonable possibility that the district court’s violation of Rule 24(c)

actually prejudiced the defendant by tainting the jury’s final verdict. See Register,

182 F.3d at 842; United States v. Bendek, 146 F.3d 1326, 1328 (11th Cir. 1998),

cert. denied, 119 S.Ct. 1086 (1999).

         In seeking to show prejudice, Kyle Michael Brewer asserts that because one

of the jurors who was designated as an alternate was black, the district court’s

method diluted black representation on the jury. That unsupported assertion,

                                             7
without any reference to the racial makeup of the jury panel that convicted the

defendants, falls far short of the required showing of a reasonable possibility that

the district court’s violation of Rule 24(c) actually prejudiced the defendants by

affecting the jury’s final verdict. See Acevedo, 141 F.3d at 1424 (emphasis added).

      Other courts of appeals that have considered a similar Rule 24(c) violation

have concluded that the error may be harmless. See United States v. Love, 134

F.3d 595, 601- 03 (4th Cir.), cert. denied, 118 S.Ct. 2332 (1998); United States v.

Olano, 62 F.3d 1180, 1190 n.3 (9th Cir. 1995); United States v. Sivils, 960 F.2d

587, 593-94 (6th Cir. 1992); and United States v. Aguon, 851 F.2d 1158, 1171 (9th

Cir. 1988)(en banc), overruled on other grounds, Evans v. United States, 504 U.S.

255 (1992).

      Therefore, based on our precedent and other appellate decisions, we hold

that even though the district court committed error in the present case, it was

harmless.2

      B. Double Jeopardy




      2
         We do, however, caution the district court not to employ the random draw
in future criminal cases. The next time the district court violates the rule, the error
may affect a defendant’s substantial rights and mandate reversal of a criminal
conviction.
                                           8
      Kyle Michael Brewer also contends that his conviction on Count 6 of the

indictment which charged him with distributing cocaine base on November 10,

1993, in violation of 21 U.S.C. § 841(a)(1), and his conviction on Count 8, which

charged him with using a minor to distribute cocaine base in connection with the

same transaction, in violation of 21 U.S.C. § 861(a)(1), constituted the same

offense for double jeopardy purposes. The government confesses error on this

issue in its brief and agrees that under the circumstances of this case the section

841(a)(1) violation is a lesser-included offense of the section 861(a) violation.

Therefore, we vacate Brewer’s conviction and sentence on Count 6 of the

indictment. See United States v. Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir.

1993).

      In conclusion, we affirm all of the defendants’ convictions and sentences,

with the exception of Kyle Michael Brewer’s conviction and sentence on Count 6

of the indictment which we vacate.

      AFFIRMED IN PART, VACATED IN PART.




                                           9
