                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 05-12835                  JANUARY 25, 2007
                         Non-Argument Calendar             THOMAS K. KAHN
                       ________________________                CLERK


                   D. C. Docket No. 03-20483-CR-MGC

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                   versus

NOEL ROBERTS,
a.k.a. Casper,
a.k.a. Caspa,
a.k.a. Mark,
CAREY LEE WILLIAMS,

                                                 Defendants-Appellants.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (January 25, 2007)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Noel Roberts and Carey Lee Williams appeal their convictions and sentences

for conspiracy to import and conspiracy to possess with intent to distribute cocaine,

in violation of 21 U.S.C. §§ 846 and 963, and aiding and abetting the importation

and the possession with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a) and 952(a). On appeal, Williams challenges the district court’s denial of

his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

challenges to the government’s peremptory strikes of the petit jury, argues that the

content of the prosecutor’s objections constituted prosecutorial misconduct, and

asserts that the district court abused its discretion by advising the jury to disregard

portions of his closing argument.1 Roberts likewise raises a Batson claim and

further argues that the district court clearly erred in enhancing his Guideline range

for a supervisory or managerial role in the offense. For the reasons set forth more

fully below, we affirm.



       1
          Stating that the following issues are raised pursuant to his duty under Anders v.
California, 386 U.S. 738 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) to inform the Court of any
potentially appealable issues, Williams summarily argues that: (1) the waiver of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not voluntary;
(2) the district court erred in allowing the government to raise his prior convictions in its opening
statement; and (3) the admission of a statement by a codefendant, phone records, and a list of
telephone numbers transcribed from a cell phone, violated Crawford v. Washington, 541 U.S.
36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We discern no error in the denial of Williams’s
motion to suppress his statements to law enforcement, no abuse of discretion by the district court
in permitting the government to discuss prior convictions in its opening statement, and no plain
error under Crawford. We note that Williams’s counsel has not filed a formal motion to
withdraw under Anders.

                                                  2
                                I. Standard of review

      We review the district court’s resolution of a Batson challenge for clear

error, giving great deference to the district court’s finding as to the existence of a

prima facie case. Central Ala. Fair Housing Ctr., Inc. v. Lowder Realty Co., Inc.,

236 F.3d 629, 635 (11th Cir. 2000). We review “a prosecutorial misconduct claim

de novo because it is a mixed question of law and fact.” United States v. Eckhardt,

466 F.3d 938, 947 (11th Cir. 2006). We review the district court’s limitation of a

closing argument for abuse of discretion. See United States v. Hall, 77 F.3d 398,

400-01 (11th Cir. 1996). We review for clear error a district court’s determination

of a defendant’s role in the offense. United States v. De Varon, 175 F.3d 930, 937

(11th Cir. 1999) (en banc).

                                      II. Batson

      Roberts argues that the striking of five black jurors was, in and of itself,

sufficient to establish a prima facie case under Batson and Williams similarly

argues that he made a prima facie showing of a pattern of strikes against black

jurors. They make further arguments regarding the court’s failure to require the

prosecutor to state a race-neutral explanation for each strike and the adequacy of

the reasons proffered by the prosecution. The government responds that

defendants never made a prima facie showing before the district court.



                                            3
      The district court conducts a three-part inquiry into whether a peremptory

strike was motivated by racial or ethnic discrimination. United States v.

Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005), cert. denied, 127 S.Ct. 380

(2006). “First, the district court must determine whether the party challenging the

peremptory strikes has established a prima facie case of discrimination by

establishing facts sufficient to support an inference of racial discrimination.” Id.

(citation and quotation marks omitted). The district court reaches the next part of

the inquiry only if a prima facie case is established. See id. In the second part of

the inquiry, the burden shifts to the party making the strike to provide a race-

neutral explanation for the strike. Id. Regardless of the frivolity of the

justification, the inquiry proceeds to step three, where “the district court determines

the persuasiveness of the justification offered by the striker and decides whether

the objector has carried its burden of proving purposeful discrimination.” Id. at

1038-39.

      The district court should determine whether a prima facie case is established

based on the totality of relevant facts about the prosecutor’s conduct. Atwater v.

Crosby, 451 F.3d 799, 805 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 25,

2006) (No. 06-7287). Engaging in a pattern of strikes against venire members of

one race may support a prima facie case of racial discrimination. Ochoa-Vasquez,



                                           4
428 F.3d at 1039. However, “a showing that a party used its authorized

peremptory strikes against jurors of one race does not, standing alone, establish a

prima facie case of discrimination.” Lowder, 236 F.3d at 637. The factors we

have considered to provide context to the use of peremptory strikes against jurors

of one race include whether jurors of the same race served unchallenged on the

jury, whether the striking party struck all people, or as many people as the striker

had strikes, of the same race from the venire, and the existence of a substantial

disparity between the percentage of jurors of that race struck and their

representation on both the venire and the jury. Ochoa-Vasquez, 428 F.3d at 1044-

45.

      The defendants raised Batson challenges to three individual peremptory

strikes by the government. They also raised a challenge to the entire panel, arguing

that all five of the government’s strikes were for black jurors. All four challenges

were summarily denied by the district court. Given the context of the court’s

denials, we conclude that these denials were based on the defendants’ failure to

establish a prima facie case. We hold that the district court did not clearly err in

this finding. Both before the district court and on appeal, the defendants have

based their prima facie case on evidence that the government used all five of its

peremptory strikes on the initial 12 jurors to strike black venire members. At



                                           5
neither stage in the proceedings have they attempted to place this fact in context.

As a result, their argument is insufficient to establish a prima facie case. See

Lowder, 236 F.3d at 637. Moreover, to the extent that the record does provide

context, it does not support a finding that the district court clearly erred. Based on

the government’s representations, which were not disputed before the district

court, the government accepted two black jurors, who were subsequently struck by

the defendants, and three black jurors served on the jury. In addition, the

government used only five of its six peremptory challenges to the petit jury and,

therefore, could have struck an additional black juror from the venire. See

Fed.R.Crim.P. 24(b)(2).

                           III. Prosecutorial misconduct

      Williams next argues that the government made disparaging remarks to the

effect that his counsel was “twisting testimony and transcripts.”

      To establish prosecutorial misconduct, (1) the remarks must be
      improper, and (2) the remarks must prejudicially affect the substantial
      rights of the defendant. A defendant’s substantial rights are
      prejudicially affected when a reasonable probability arises that, but for
      the remarks, the outcome of the trial would have been different. When
      the record contains sufficient independent evidence of guilt, any error
      is harmless.

Eckhardt, 466 F.3d at 947 (citations and quotation marks omitted). If the remarks

are improper, “reversal is only warranted if the entire trial is so replete with errors



                                            6
that [the defendant] was denied a fair trial.” Id.

       In McLain,2 we held that prosecutorial misconduct occurred where, in the

jury’s presence, the prosecutor repeatedly accused defense counsel of intentionally

misleading jurors and witnesses and of lying in court. McLain, 823 F.2d at 1462.

In another case, we rejected a claim of prosecutorial misconduct based on five

comments during a rebuttal argument where the prosecutor stated, inter alia, that

the lawyers misstated the evidence, called witnesses liars with no basis in fact, and

that, “one day there is going to be a great book of fiction entitled lawyers [sic]

closing arguments.” United States v. Calderon, 127 F.3d 1314, 1336 (11th Cir.

1997) (alteration in original).

       Williams’s claim of prosecutorial misconduct is based on one objection by

the prosecutor to questioning concerning a witness’s explanation of her testimony

in a prior trial during which the prosecutor stated, “I don’t think it’s a proper twist

of the transcript[,]” and four sustained objections to questions asked by Williams’s

counsel to one of the government’s witnesses on cross-examination in which the

prosecutor asserted that the testimony was misstated. We hold that the challenged

remarks are more like those in Calderon than those in McLain and, therefore, there



       2
        United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987), overruled on other
grounds by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), as
recognized in United States v. Watson, 866 F.2d 381 (11th Cir. 1989).

                                              7
was no prosecutorial misconduct in this case.

      Even if the prosecutor’s statements rose to the level of prosecutorial

misconduct, they did not deprive Williams of a fair trial. In McLain, the

prosecutor’s repeated accusations that defense counsel intentionally misled jurors

and witnesses and lied in court was insufficient, standing alone, to warrant

reversal. McLain, 823 F.2d at 1462. It therefore follows that the prosecutor’s

objections here are also insufficient to warrant reversal.

                        IV. Limitation of closing argument

      Reasoning that providing awareness of a sentence to the jury is proper,

Williams next argues that the district court erred by informing the jury not to

consider his counsel’s arguments regarding punishment, as it effectively diluted his

closing argument and undermined counsel’s credibility. During his closing

arguments, Williams’s counsel argued:

             I submit to you the government has fallen short with respect to
      producing evidence from which they will ask the judge to sentence my
      client to eternal imprisonment, the statutory maximum that can be
      imposed would be life in prison.
             Ladies and gentlemen, do not throw Mr. Williams any kind of
      bone here. If you are going to convict him, just knock him out with
      all four counts. Do not split the baby in half. Because any one count–

At this point, the prosecution objected and was overruled. Counsel then continued:

      There are four Counts, convicting him of one is the same as
      convicting him of four. I am asking you to not split the baby. It

                                           8
      makes no difference at all. This is an all or nothing proposition. He is
      either guilty as charged or not guilty as charged. All or nothing.

      “The district court has broad discretion over closing argument and will be

reversed only if counsel is prevented from making all legal arguments supported

by the facts.” Hall, 77 F.3d at 400. “In arguing the law to the jury, counsel is

confined to principles that will later be incorporated and charged to the jury.”

United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983). Counsel cannot

argue incorrect or inapplicable theories of law. United States v. Valdes-Guerra,

758 F.2d 1411, 1416 (11th Cir. 1985). We do not permit defense counsel to make

a nullification argument to the jury, recognizing “that [while] a jury may render a

verdict at odds with the evidence or the law, neither the court nor counsel should

encourage jurors to violate their oath.” Trujillo, 714 F.2d at 106 (footnote

omitted). Moreover, the Supreme Court has recognized that “providing jurors

sentencing information invites them to ponder matters that are not within their

province, distracts them from their factfinding responsibilities, and creates a strong

possibility of confusion.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct.

2419, 2424, 129 L.Ed.2d 459 (1994).

      The jury was instructed that it should never consider the question of

punishment in deciding the case. Williams requested that the jury convict him of

either all counts or no counts immediately after informing the jury that the

                                           9
government would ask the judge to sentence him to “eternal imprisonment.”

Based on the context in which Williams made the “splitting the baby” argument,

the district court did not abuse its discretion in concluding that it was intertwined

with the comments regarding punishment. Therefore, by seeking to provide

information on punishment to the jury, Williams’s argument contravened the

instruction regarding punishment and implicitly encouraged jurors to violate their

oath. Accordingly, the district court did not abuse its discretion by instructing the

jury to disregard portions of Williams’s closing argument.

                                V. Role enhancement

      The conspiracy at issue in this case involved the smuggling of cocaine on

and off of cruise ships. As to the April 2003 cruise, Roberts argues that his

actions, arranging hotel accommodations, providing spending money and money to

change an airplane ticket, and providing a ride to the flea market, were insufficient

to warrant a role adjustment. He contends that the four couriers on the cruise were

repeat couriers who needed no instruction from him and there was no evidence that

he provided them with contact information or telephone numbers to complete their

roles on the cruise.

      Section 3B1.1(b) of the U.S. Sentencing Guidelines provides for a

three-level enhancement if a “defendant was a manager or supervisor (but not an



                                           10
organizer or leader) and the criminal activity involved five or more participants or

was otherwise extensive . . . .” U.S.S.G. § 3B1.1(b). Among other factors, the

court should consider the nature of participation in the commission of the offense,

the nature and scope of the illegal activity, the degree of participation in planning

or organizing the offense, and the degree of control and authority exercised over

others. U.S.S.G. § 3B1.1, comment. (n.4). “In a drug distribution case such as this

one, the management enhancement is appropriate for a defendant who arranges

drug transactions, negotiates sales with others, and hires others to work for the

conspiracy.” United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir. 1999)

(affirming role enhancement where the defendant sold cocaine to “runners” who, in

turn, sold cocaine to buyers).

      The district court did not clearly err in finding that Roberts’s responsibilities

regarding the couriers was managerial activity that warranted a three-level

increase. The testimony of Christopher Brown, one of the couriers on the April

2003 cruise, established that Roberts did more than simply provide transportation

and accommodation to the four drug couriers. Roberts told the couriers what to

buy at the flea market, how to act on the cruise, and where to obtain the cruise

tickets. He also told them that they would pick up the drugs in Curacao and that

someone working on the ship would take the drugs. In addition, Roberts provided



                                          11
the couriers with money to meet their needs both before and on the cruise,

including $6,000 to spend on the cruise and a few hundred dollars to allow Brown

to change his plane ticket. Additional evidence of Roberts’s role regarding this

cruise comes from Roberts’s statement to Oraine Selvin, a cooperating witness for

the government, that Roberts was taking care of the cruise. There is also evidence

of communications between Roberts and phone numbers in Aruba, Curacao, and

the cell phone of one of the couriers shortly before and during the cruise, and

evidence of multiple phone calls Roberts placed to a number associated with

codefendant Andre Dougan the day the cruise members were arrested.

      In light of the foregoing, Roberts and Williams’s convictions and sentences

are

      AFFIRMED.




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