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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-5692
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALTA LEE KEMPER,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(SA-92-CR-13)
June 16, 1993
Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:*
Alta Lee Kemper appeals his conviction by a jury of possession
with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), challenging the admission in evidence of crack cocaine
and inculpatory statements, and complaining of a remark by the

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1 Batson v. Kentucky, 476 U.S. 79 (1986).
2
prosecutor in closing argument. He also raises a Batson1
objection. Finding no error, we affirm.
Background
While executing a search warrant of Kemper's residence and any
vehicle located on the premises or under Kemper's control, agents
found 489 grams of cocaine in the console of a pickup truck parked
in front of the residence. The truck had been seen in front of
Kemper's house on at least three occasions prior to the search.
The search disclosed a receipt indicating Kemper had purchased the
vehicle a few months earlier. Kemper denied the truck was his but
after the agent made entry through the sliding rear window and
found the cocaine in the console, Kemper told the agent that the
"crack" was his.
At trial Kemper objected to the introduction in evidence of
the cocaine and the inculpatory statement. The court overruled the
objection, concluding that probable cause supported the search
warrant and that the warrant authorized a search of the truck. The
jury returned a guilty verdict of guilty, the trial court imposed
an enhanced penalty of life imprisonment, and Kemper timely
appealed.
Analysis
Kemper maintains that agents unlawfully searched the truck and
therefore the trial court should not have admitted into evidence
the cocaine found therein and his inculpatory statements made with

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2 United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.
1991), cert. denied, 112 S.Ct. 2278 (1992).
3
respect thereto. Under Fed.R.Crim.P. 12(b)(3) & (f), defendants
must advance motions to suppress evidence prior to trial. Failure
to do so is typically deemed a waiver unless the court grants
relief therefrom. By granting Kemper a continuing objection to the
introduction of this evidence, and deferring its ruling thereon,
the district court implicitly granted the relief envisioned in
Rule 12(f). We proceed on that assumption.
In reviewing rulings on the admissibility of evidence in a
setting as here presented, we accept factual findings unless
clearly erroneous or influenced by an incorrect view of the law,
and review legal conclusions de novo.2
The warrant authorized the search of, inter alia, "any vehicle
under the control of Alta Lee Kemper." During the search of Kemper
and his residence, agents found in Kemper's wallet a receipt for
the purchase of the truck. The truck was parked immediately in
front of the residence and had been seen there before on several
occasions. A confidential informant who provided information
underlying the search warrant had indicated that Kemper owned a
"Chevy truck, license 3765 TW." This information matched. These
facts adequately support the determination that this truck was
under Kemper's control and, accordingly, was subject to the search
warrant. The court did not err in admitting the fruit of this
search.
Kemper complains that the district court erred in denying his

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3 878 F.2d 817 (5th Cir.), cert. denied, 493 U.S. 979
(1989).
4 948 F.2d 199 (5th Cir. 1991), cert. denied, 112 S.Ct.
1945 (1992).
5 United States v. Clemons, 941 F.2d 321 (5th Cir. 1991).
6 E.g., id. (appellate court reviews district court
acceptance of race-neutral explanation for peremptory strikes only
against clearly erroneous standard).
4
motion to strike the jury because the prosecutor used a peremptory
challenge to strike a black juror in violation of the teaching of
Batson. He contends that the strike was made solely on the basis
of race, an action which violates the equal protection component of
the fifth amendment.
Confronted with the Batson challenge, the prosecutor stated
that he struck the juror because he appeared to be in his thirties
yet said he was retired. The prospective juror was inattentive,
looked very sleepy, and appeared to be on some type of pain
medication. The district court agreed with the prosecutor's
assessment that the juror looked a bit young to be retired and
accepted his explanation for the strike. This conforms to Batson
and progeny, including United States v. Moreno3 and Moore v. Keller
Industries, Inc.4 The government need not provide a quantitiable
race-neutral explanation for a strike in the absence of proscribed
racial motivation.5 We note that two black jurors served on the
jury panel. We cannot find the district court's acceptance of the
prosecutor's explanation clearly erroneous.6
Finally, Kemper complains of an unfair statement by the

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7 United States v. Diaz-Carreon, 915 F.2d 951 (5th Cir.
1990).
8 United States v. Pierre, 958 F.2d 1304 (5th Cir. 1992)
(en banc), cert. denied, 113 S.Ct. 280 (1992).
5
prosecutor who stated in closing argument:
We hear about confidential informants. Well, I submit to
you that confidential informants are needed by our law
enforcement to do their job. Drug dealers aren't out
there doing their drug deals in front of bishops, in
front of priests, in front of honest citizens. They're
out doing business in front of other drug dealers, in
front of other crooks, in front of other people that have
criminal records, and these are the people that for one
reason or another come to the police, quite often for
money, quite often for other reasons. They come to the
police and they tell what they know. And this is
essential to law enforcement. Why are they confidential
informants? Because they're out risking their lives. If
-- if Mr. Kemper knew who these confidential informants
are, we don't know what would happen.
Kemper unsuccessfully objected to this statement.
Improper prosecutorial comments require reversal only if the
comments substantially affect a defendant's right to a fair trial.7
To determine the potential prejudicial effect we must consider the
context in which the statement is made.8 In closing argument
defense counsel argued that the government's proof was weak because
the identity of the confidential informants had not been made
known, saying: "They want to talk about confidential informants,
but you don't know their names." Although rhetorically excessive,
for which we caution the prosecutor, we do not perceive the
statement as calculated to inflame or prejudice the jury. The
trial court did not err in its ruling.
AFFIRMED.

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