U.S. v. Cobb ( 1992 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 91-1764
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN COBB and JACK R. COBB,
Defendants-Appellants.
__________________________________________________
Appeals from the United States District Court
For the Northern District of Texas
__________________________________________________
(October 5, 1992)
Before VAN GRAAFEILAND,* KING, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
A jury convicted John Cobb and Jack Cobb of conspiracy to
possess, transport, and sell stolen trucks, in violation of 18
U.S.C. § 371; and convicted Jack Cobb of interstate transportation
of stolen trucks, in violation of 18 U.S.C. § 2312. The Cobbs
appeal their convictions, arguing that the district court: (a)
erroneously accepted the prosecutor's explanations for striking the
only two African-American veniremen; (b) erred in holding that a
warrantless search of Jack Cobb's business was authorized by a
Texas statute permitting warrantless searches of automobile salvage
*
Senior Circuit Judge of the Second Circuit, sitting by designation.
dealerships; (c) should have dismissed the indictment against John
Cobb with prejudice when it dismissed that indictment pursuant to
the Speedy Trial Act; and (d) erred in refusing to sever the trials
of the two defendants. We affirm.
I
Jack Cobb owned a trucking company in Haltom City, near Fort
Worth, and his son, John Cobb, worked for the company as a
dispatcher. Law enforcement officers discovered stolen trucks and
trailers in the possession of the trucking company's employees.
Both Jack and John Cobb were indicted for conspiracy to possess,
transport, and sell stolen trucks, in violation of 18 U.S.C. § 371
(1988). Jack Cobb was also indicted for possession with intent to
sell, and interstate transportation of stolen trucks and trailers,
in violation of 18 U.S.C. §§ 2321 and 2312 (1988). The jury found
both Jack and John Cobb guilty of conspiracy.1 The jury also found
Jack Cobb guilty of interstate transportation, but not guilty of
possession with intent to sell.
II
A
Both Jack Cobb and John Cobb argue that the district court
erred in accepting the prosecutor's explanations for striking
Virginia Majones and Lula Collins))the only African-Americans on
1
Evidence at trial showed that Jack Cobb had paid several
individuals to steal trucks and deliver them to him. Evidence also
showed that John Cobb delivered money to one of these individuals
as payment for a stolen truck.
2
the jury panel. The prosecutor exercised peremptory strikes
against both women, and Jack Cobb and John Cobb objected, arguing
that strikes against the only two African-American veniremen raised
an inference that the strikes were racially motivated. The
district court called on the prosecutor to provide a race-neutral
explanation for the strikes, and the prosecutor explained that both
Majones and Collins were struck because they were elderly. He also
stated that Collins did not seem alert during voir dire, and that
Majones' spouse was employed at a hotel which was a known house of
prostitution. On the basis of these explanations, the district
court overruled the Cobbs' challenge to the peremptory strikes.
The Equal Protection Clause2 forbids a prosecutor to exercise
peremptory challenges against prospective jurors solely on account
of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct.
1712, 1719, 90 L. Ed. 2d 69 (1986). Where the facts at voir dire
raise an inference that the prosecutor's peremptory strikes were
racially motivated, the prosecutor has the burden of showing that
the strikes were based on "permissible racially neutral selection
criteria." See id. at 94, 106 S. Ct. at 1721. Once the prosecutor
offers a racially neutral explanation, the district court must
determine whether the reasons offered by the prosecutor))or race
alone))motivated the strikes. See id. at 98, 106 S. Ct. at 1724.
2
The Equal Protection Clause of the Fourteenth Amendment pertains to the
states, but Batson applies to federal, as well as state, criminal cases. See
Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)
(federal criminal conviction reversed on the basis of Batson).
3
The district court's determination is purely factual, and
largely turns on an evaluation of the prosecutor's credibility.
Hernandez v. New York, ___ U.S. ___, 111 S. Ct. 1859, 1869, 114 L.
Ed. 2d 395 (1991). We review the district court's finding
concerning the presence vel non of purposeful discrimination under
the "clearly erroneous" standard. See Hernandez , 111 S. Ct. at
1871; United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.
1988). We will not find a district court's ruling to be clearly
erroneous unless we are left with the definite and firm conviction
that a mistake has been committed. United States v. Mitchell, 964
F.2d 454, 457-58 (5th Cir. 1992).
The district court believed the prosecutor's explanations
after observing the demeanor of the prosecutor and the veniremen.
However, John Cobb and Jack Cobb argue that the prosecutor's
explanation that both Collins and Majones were elderly was not
credible. They point out that several white veniremen were
elderly, but were not struck by the prosecutor. This argument
overlooks the differences between Majones and Collins and the other
elderly panel members. The prosecutor noted that Collins, in
addition to being elderly, was not alert during voir dire, but he
made no such observation about the other elderly veniremen.
Furthermore, the prosecutor was concerned not only about Majones'
age, but also about her spouse's employment at a known house of
prostitution.3 Consequently, the mere fact that the prosecutor
3
Jack and John Cobb attack the credibility of the
prosecutor's explanation for striking Majones, on the grounds that
no evidence in the record indicates that her spouse was employed at
4
declined to strike several elderly white veniremen does not
persuade us to disturb the district court's credibility judgment.
See Hernandez, 111 S. Ct. at 1869 ("[E]valuation of the
prosecutor's state of mind based on demeanor and credibility lies
`peculiarly within a trial judge's province.'" (citation omitted)).
We find no clear error in the district court's decision to accept
the prosecutor's racially neutral explanations.
B
Jack Cobb contends that the district court erred in holding
that a warrantless search of his business was authorized by a Texas
statute permitting warrantless searches of automobile salvage
dealerships.4 Without obtaining a search warrant, Fort Worth
police officer Ernest Pate and several other officers searched
Cobb's business premises and seized two stolen truck engines and a
stolen trailer. The officers believed that Article 6687-2
a house of prostitution. We agree that there is no evidence to
that effect. However, the Cobbs point to no authority for the
proposition that we should uphold the district court's credibility
assessment only if it is supported by evidence in the record, and
we decline to adopt such a requirement here. See Hernandez, 111 S.
Ct. at 1869 ("There will seldom be much evidence bearing on [the]
issue [whether the prosecutor's explanation should be believed],
and the best evidence often will be the demeanor of the attorney
who exercises the challenge." (citation omitted)). The district
court determined, after observing the prosecutor's demeanor, that
his explanation was credible; and the absence of record evidence to
support the facts underlying that explanation does not leave us
with the definite and firm conviction that a mistake has been
committed. See Mitchell, 964 F.2d at 457-58.
4
See Tex. Rev. Civ. Stat. Ann. art. 6687-2(i) (West Supp.
1992) ("A motor vehicle salvage dealer . . . shall allow and shall
not interfere with a full and complete inspection by a peace
officer of the inventory [and] premises . . . of the dealer.")
5
authorized the warrantless search. Cobb filed a pretrial motion to
suppress all evidence seized in the course of the search, arguing
that his business was not a salvage dealership for the purposes of
Article 6687-2,5 and that the warrantless search was therefore
unauthorized and in violation of the Fourth Amendment. The
district court held that Cobb was a motor vehicle salvage dealer
for the purposes of Article 6687-2, and overruled Cobb's motion to
suppress. See Record on Appeal, vol. 5, at 71.
We review the district court's finding of fact))that Cobb was
a motor vehicle salvage dealer, as defined in Article 6687-2))for
clear error. See Hernandez, 111 S. Ct. at 1869 ("[W]e have held
that the [clearly erroneous] standard should apply to review of
findings in criminal cases on issues other than guilt." (citations
omitted)). The district court's finding was not clearly erroneous,
as it was amply supported by the evidence. At the hearing on the
motion to suppress, Officer Pate testified that Cobb's employees at
the site repaired and rebuilt large trucks, using parts obtained
"from salvage yards, from individuals, [and] from trucks that they
had wrecked themselves." See Record on Appeal, vol. 5, at 10.
Officer Pate also testified that Cobb's business sold parts to
another trucking company, see id. at 33, and that Cobb's employees
cut up metal at the Haltom City yard and sold it for scrap. See
5
See Tex. Rev. Civ. Stat. Ann. art. 6687-2(a) (West Supp.
1992) (A "motor vehicle salvage dealer" is an individual or
organization "engaged in the business of obtaining abandoned,
wrecked, or junked motor vehicles or motor vehicle parts for scrap
disposal, resale, repairing, rebuilding, demolition, or other form
of salvage.").
6
id. at 46. From Officer Pate's testimony it appears that the
activities at Cobb's truck yard precisely fit the statutory
definition of a motor vehicle salvage dealer.6
Cobb also challenges the district court's interpretation of
Article 6687-2(a).7 Because Cobb conducted the activities set out
in the statutory definition of a motor vehicle salvage dealer, the
district court concluded that Cobb was "engaged in the business" of
motor vehicle salvage. Cobb argues that one is not "engaged in the
business of" motor vehicle salvage unless salvage is one's primary
business, and since Cobb was primarily in the business of trucking,
he was not "engaged in the business" of salvage. See Brief for
Jack R. Cobb at 12 ("Mr. Cobb did not have a business devoted to
`obtaining abandoned, wrecked, or junked motor vehicles or motor
vehicle parts for scrap disposal, resale, repairing, rebuilding,
demolition, or other form of salvage.' Appellant Jack Cobb was
engaged in the enterprise of trucking . . . ." (emphasis
supplied)).
The district court was obligated to interpret this Texas
statute as a Texas court would have interpreted it. See Green v.
Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir. 1980), cert.
denied, 449 U.S. 952, 101 S. Ct. 356, 66 L. Ed. 2d 216 (1980)
(Where Mississippi statute did not provide damages for retaliatory
firing, this Court had to "decide [the] issue as we believe a
Mississippi court would decide it." (citation omitted)). We
6
See supra note 5.
7
See id.
7
review the district court's interpretation of the statute de novo.
See Salve Regina College v. Russell, ___ U.S. ___, 111 S. Ct. 1217,
1221, 113 L. Ed. 2d 190 (1991) ("We conclude that a court of
appeals should review de novo a district court's determination of
state law."). We find no error.
There is no reason to believe that Texas courts would have
interpreted Article 6687-2 to apply only to persons who are
primarily in the salvage business. The statute does not say
"primarily engaged in the business,"8 and neither the Texas Court
of Criminal Appeals nor any Texas Court of Appeals has interpreted
Article 6687-2 to include such a limitation. Furthermore, limiting
the scope of Article 6687-2 to persons primarily engaged in the
salvage business would bear no logical relationship to what we
perceive to be the obvious purpose of that statute))to aid in the
prevention of motor vehicle theft. Consequently, we find no error
in the district court's decision to apply Article 6687-2 to Cobb's
business, even though Cobb was primarily engaged in trucking, and
only incidentally engaged in motor vehicle salvage.
C
John Cobb argues that the district court should have dismissed
the indictment against him with prejudice. John Cobb filed a
motion to dismiss his original indictment pursuant to the Speedy
Trial Act, 18 U.S.C. § 3162 (1988), alleging that the government
8
See id.
8
had failed to bring him to trial within the required time period.9
The district court granted Cobb's motion, and dismissed the
indictment without prejudice.10
We review the district court's ruling for abuse of discretion.
See United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987),
cert. denied, 487 U.S. 1218, 108 S. Ct. 2870, 101 L. Ed. 2d 906
(1988) (district court's dismissal of indictment without prejudice,
pursuant to the Speedy Trial Act, reviewed for abuse of
discretion). "[W]hen the statutory factors are properly
considered, and supporting factual findings are not clearly in
error, the district court's judgment of how opposing considerations
balance should not lightly be disturbed." United States v.
Taylor, 487 U.S. 326, 333, 108 S. Ct. 2413, 2420, 101 L. Ed. 2d 297
(1988) (explaining the abuse of discretion standard to be applied
by a court of appeals reviewing a district court's decision to
dismiss, with or without prejudice, pursuant to the Speedy Trial
Act).
9
"In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment with
the commission of an offense shall commence within seventy days
from the filing date . . . of the information or indictment . . .
." 18 U.S.C. § 3161(c) (1988). "If a defendant is not brought to
trial within the time limit required by section 3161(c) . . . the
information or indictment shall be dismissed on motion of the
defendant." 18 U.S.C. § 3162(a)(2) (1988).
10
"In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of the
following factors: the seriousness of the offense; the facts and
circumstances of the case which led to the dismissal; and the
impact of a reprosecution on the administration of this chapter and
on the administration of justice." 18 U.S.C. § 3162(a)(2) (1988).
9
We find no abuse of discretion here. Cobb does not attack the
findings of fact upon which the district court based its ruling;
and the district court considered all of the statutory factors11 and
articulated its reasoning with respect to each one. The district
court noted that the offense charged was a serious one, which
extended across state lines and lasted two and one-half years. See
Record on Appeal, vol. 2, at 77-78. The district court also
considered that the government had not sought the delay in
prosecuting Cobb or used it for any ulterior purpose, and that Cobb
had failed to press his right to a speedy trial before the court.
See id. at 78. Finally, the district court pointed out that
reprosecution was most beneficial to the administration of justice,
because Cobb had suffered no prejudice as a result of the delay,
and the government had gained no advantage. See id. In light of
United States v. Taylor, we hesitate to disturb the district
court's balancing of these factors.
Nonetheless Cobb argues that we should overturn the district
court's ruling, because the government's negligence in failing to
afford him a speedy trial required dismissal with prejudice. See
Brief for John Cobb at 13. Because United States v. Russo, 741
F.2d 1264 (11th Cir. 1984), upon which Cobb relies, is
distinguishable, we disagree. In Russo the Eleventh Circuit found
an abuse of discretion in the district court's dismissal without
prejudice, because there was no affirmative justification for the
delay in bringing Russo to trial: the only cause for the delay was
11
See supra note 10.
10
the government's negligence. Russo, 741 F.2d at 1267. That is not
the case here.
Assuming arguendo that the government was negligent,12 any such
negligence was not the only reason for the delay in trying John
Cobb. Another contributing factor was Jack Cobb's plea agreement.
Jack Cobb entered a plea of guilty in return for the dismissal of
the charges against John Cobb, but six months later he withdrew his
guilty plea. See Record on Appeal, vol. 2, at 75. Naturally this
series of events contributed to the delay of John Cobb's case.
Furthermore, the district court found that John Cobb acquiesced in
the delay resulting from Jack Cobb's plea agreement, rather than
demanding a speedy trial. See id. at 78. Because factors other
than the government's alleged negligence contributed to the Speedy
Trial Act violation, Russo is distinguishable, and we find no abuse
of discretion in the district court's dismissal without prejudice
of the indictment against John Cobb.
D
John Cobb also contends that the district court erred in
refusing to sever his case from that of Jack Cobb. John Cobb filed
a motion for severance, pursuant to Fed. R. Crim. P. 14, claiming
that Jack Cobb would testify on his behalf if the two prosecutions
12
The district court found that the delay in prosecuting John
Cobb was partially attributable to the government's
misunderstanding of the Speedy Trial Act. See Record on Appeal,
vol. 2, at 77-78. However, the district court's finding did not
amount to a determination that the government had been negligent.
See id.
11
were severed. The district court denied the motion, and John Cobb
appeals.
We review the district court's denial of the motion to sever
for abuse of discretion. See United States v. Featherson, 949 F.2d
770, 773 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.
1771, 118 L. Ed. 2d 430 (1992). In order to show that the district
court abused its discretion, Cobb must show that his "trial was
unfair and exposed [him] to compelling prejudice against which the
district court was unable to afford protection." See United States
v. Kane, 887 F.2d 568, 571 (5th Cir. 1989), cert. denied, 493 U.S.
1090, 110 S. Ct. 1159, 107 L. Ed. 2d 1062 (1990). To prove that
his trial was unfair because he was denied the testimony of Jack
Cobb, John Cobb must show that Jack Cobb would, in fact, have
testified. See id. at 573 (defendant was not entitled to severance
on account of co-defendant testimony, unless he established that
the co-defendant would actually testify).
John Cobb has not made that showing. His motion for severance
was not accompanied by an affidavit from Jack Cobb indicating that
he would testify if the severance were granted.13 Consequently,
there was no support for the claim that Jack Cobb would testify on
John Cobb's behalf, and the district court did not abuse its
discretion by denying the motion for severance. See United States
13
Abbot v. Wainwright, upon which Cobb relies, is
distinguishable in this regard. In that case we reversed the
district court's denial of a motion for severance, where the motion
was accompanied by an affidavit showing that the co-defendant would
in fact testify if severance were granted. See Abbott v.
Wainwright, 616 F.2d 889, 889-90 (5th Cir. 1980).
12
v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987), cert. denied, 484
U.S. 913, 108 S. Ct. 259, 98 L. Ed. 2d 216 (1987) (district court
did not abuse its discretion in denying motion for severance which
was accompanied by the affidavit of the movant's counsel, but not
by an affidavit of the co-defendant who was expected to testify).
III
For the foregoing reasons, we AFFIRM.
13