U.S. v. Mixon

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 89-3680

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM KIRK MIXON,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
(November 5, 1992)

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges and Werlein,*

District Judge.

REYNALDO G. GARZA, Circuit Judge:

Appellant Mixon challenges his conviction of conspiracy to

import and the actual importation of 500 plus pounds of marijuana

into the United States based on alleged jury selection

discrimination. He also claims a 4th Amendment search violation

*
District Judge of the Southern District of Texas, sitting
by designation.
because of the placement of a transponder on the plane he was

flying. After review we find no merit in these arguments and

therefore we affirm.

FACTS

One January 7, 1986, Special Agent Luzak received a tip from

a confidential source that two men had requested that their Cessna

210D aircraft be modified. They requested that the rear seats be

removed to create added storage space and that extra bladder gas

tanks be connected to the wing tips. The extra tanks cost $4800

and increased gas capacity from thirty gallons to eighty gallons of

fuel, thereby increasing its range to 1200 miles. Luzak personally

observed the modifications being done. The source told Luzak that

the two men were called "Fred" and "Kirk" and that they were

staying at the Holiday Inn in Vicksburg, Mississippi. Luzak was

also informed that they were driving a blue Ford long bed pickup

truck. Luzak corroborated this information and determined that the

vehicle was registered to an Alex A. Vega, Jr., who had a record of

firearm violations. One of the men was identified as Fred Cody

Magee who had a very extensive drug record including a conviction

in 1985 for conspiracy to sell one ton of marijuana in Dallas.

Luzak also identified an accompanying individual as John Joseph

Matrone who had been arrested for forgery and convicted for aiding

and abetting wire fraud.

Luzak testified that the modified plane fit the profile for a

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drug smuggling aircraft. Luzak got a warrant to place a

transponder on the plane to trace its travel. On January 16, 1986,

the plane was spotted coming in from the direction of Jamaica and

landing in a cane field outside Baton Rouge. The agents descended

upon the plane about two hours after it landed because they had

lost contact with the tracer. They did not find any marijuana and

a few minutes later Mixon, the appellant, returned to the aircraft

and explained that the plane had broken down. Mixon, Matrone and

Magee were indicted in 1988.

Magee testified for the government at Mixon's trial and stated

that they had all conspired to import about 500 pounds of marijuana

from Jamaica and that they had actually succeeded the night of

January 16. The marijuana was already removed by the time the

officers got to the plane. Magee received five (5) years active

probation, Matrone two (2) years imprisonment and Mixon was

sentenced to twenty (20) years for conspiracy to import and another

twenty (20) for the actual importation. His prison terms are to

run concurrently.

ANALYSIS

Mixon claims that the government racially discriminated

against blacks in its peremptory challenges during jury selection

and therefore deprived him of a racially balanced jury. The

standard required in jury selection is racial neutrality. Batson

v. Kentucky, 476 U.S. 79, 87, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1985).

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Every individual is entitled to a jury that is selected without

racial bias. Defendants can challenge perceived racial

discrimination in jury selection whether the stricken juror is of

the same or different race as his own. Powers v. Ohio, 113 L.Ed.

411, 428 (1991). Therefore, Mixon who is white, may challenge the

striking of blacks from sitting on the jury. "Unless a

discriminatory intent is inherent in the prosecutor's explanation,

the reason given by the prosecutor will be deemed race-neutral."

U.S. v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991); see also

Hernandez v. New York, U.S. ,111 S.Ct. 1859, 114 L.Ed.2d 395

(1991).

The reasons given by the government in the present case in

response to the defense prima facie contention of bias were found

by the court to be race-neutral and credible. Upon review we also

find that reasons given are race neutral and we find no clear

error. The final jury comprised of one (1) black and eleven (11)

whites. The government used five out of its six challenges against

blacks. The one black accepted by the government weakens the

argument that the government was accepting jurors solely on a

racial basis. The defense also used one of its preemptory

challenges against a black.

The reasons given for the rejections for juror #2, James

Cloud, and juror #11, Yvonne Harvey, were low level of education

and non-supervisory positions at work. The government argued that

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the case was entirely based on circumstantial evidence and needed

jurors who could grasp the nuances. Even though there were white

jurors with equivalent backgrounds the preemted jurors' answers and

appearance went into the equation and the trial judge found the

government's reasoning non-pretextual.

Jurors #21, Cassandra Waddell, and #28, Maryellen Bottley,

were both rejected because they had previously been members of hung

juries. The government didn't inquire about their votes on those

juries because the fact that they were both exposed to hung juries

alone might predispose to them to accept the same result in the

present case and they were seen as risks. Bottley also indicated

that her brother was convicted of a crime and this was viewed by

the government as an added risk. They accepted a white juror who

indicated that a relative was convicted of bootlegging but this was

acceptable to them because the relative was an in-law and not a

blood relative.

Finally juror #8, Mercedes Torres, was rejected because she

indicated that she and her husband were ordained ministers and the

government felt that perhaps she would have a higher threshold of

reasonable doubt. The government also explained that Torres glared

at the U.S. Attorney during voir dire and this might indicate a

certain animosity towards the government.

These reasons are all race neutral and the defense failed to

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show that they were fabricated. We find no error in the judge's

finding of credibility.

The issue claiming an illegal search of the airplane because

of the placement of the transponder is equally meritless. Its

placement in the aircraft was authorized by a warrant duly executed

by the Southern District Court of Mississippi on January 11, 1986.

There was sufficient probable cause for the placement of this

tracer.

The government was first alerted to the modification of the

plane by a confidential source. Agent Luzak duly corroborated the

information. Government agents personally observed the rear seat

removed and the extra tanks added to the wings. A check on the

individuals involved uncovered a convicted drug felon, Magee. A

check on Matrone revealed that he was also a criminal with a

history of forgery arrests and a conviction on aiding and abetting

wire fraud. A check on the registered owner of the pickup truck,

Alex Vega, revealed that he had violated firearm regulations. The

modified plane fit the profile of a drug smuggling aircraft. All

of the information together was more than enough to give the agents

probable cause to suspect the individuals of planning to smuggle

drugs and it was proper to request a warrant to place a transponder

to trace the Cessna in question. See Illinois v. Gates, 462 U.S.

213, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983).

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 For all the above mentioned reasons the appellant's conviction

is

AFFIRMED.

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