UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40120
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL ANTHONY ALIX, TROY DONAVAN BOUNDS, and KERRY
LERRON BASS,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
__________________________________________________
June 13, 1996
Before WISDOM, EMILIO M. GARZA, and PARKER, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants Paul Anthony Alix, Troy Donavan Bounds, and Kerry
Lerron Bass appeal their convictions and sentences arising from
their involvement in a cocaine distribution scheme. We affirm.
I
Bass is a former chemical salesman who started his own
business, KLB Environmental Services ("KLB"), in Houston, Texas.
Bass sold cocaine to multiple parties on a regular basis. These
transactions often took place at the KLB office. Bounds is a
former employee of KLB. Bounds delivered cocaine for Bass to
several of Bass's regular purchasers. Some of these purchasers
converted the cocaine into cocaine base, or "crack" cocaine, which
was then transported to Victoria, Texas, for resale. One of Bass's
purchasers testified that he had discussed with Bounds the sale of
"crack" cocaine in Victoria. On at least one occasion, Bass rented
an automobile which his purchasers used for sales trips to
Victoria. Alix sold "crack" cocaine in Victoria. Although he did
not work for KLB, Alix was listed on the KLB payroll.
Based on information from multiple informants, search warrants
were obtained for Bass's residence in Pearland, Texas, for Bass's
residence in Houston, Texas, and for the KLB office in Houston,
Texas. Police seized cocaine, drug paraphernalia, cash, guns,
business records, and tax information. Pursuant to a grand jury
indictment, Bass, Bounds, and Alix were charged with conspiracy to
distribute more than fifty grams of "crack" cocaine, in violation
of 21 U.S.C. § 846. Bass and Bounds were also charged with
conspiracy to possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 846. Bass was
additionally charged with engaging in a continuing criminal
enterprise, in violation of 21 U.S.C. § 848, with seven counts of
aiding and abetting in the possession with intent to distribute
"crack" cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
and 18 U.S.C. § 2, with aiding and abetting in the commission of
money laundering, in violation of 18 U.S.C. § 1957, and with four
counts of failure to file income tax returns, in violation of 26
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U.S.C. § 7203.
At jury selection in their joint trial, the only African-
American on the jury panel was excused for cause. Bass and Bounds
moved to strike the jury panel, and alternatively moved for a
continuance to permit investigation of the number of African-
Americans eligible for jury service in the Southern District of
Texas, Victoria Division.1 The district court denied both motions.
At trial, the jury found Bass, Bounds, and Alix guilty on all
counts. Bass was sentenced to ten concurrent terms of 360 months'
imprisonment, followed by five years of supervised release, one
concurrent term of 120 months' imprisonment, followed by three
years of supervised release, four concurrent terms of twelve
months' imprisonment, followed by one year of supervised release,
and a $650 mandatory assessment. Bounds was sentenced to two
concurrent terms of 235 months' imprisonment, followed by five
years of supervised release, and a $100 mandatory assessment. Alix
was sentenced to one term of 135 months' imprisonment, followed by
five years of supervised release, and a $50 mandatory assessment.
Bass, Bounds, and Alix filed timely notices of appeal.
II
A
Bass argues that the district court erred by denying his
1
Bass, Bounds, and Alix are all African-Americans.
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motion to strike the jury panel.2 In reviewing a district court's
ruling on such a motion, we review determinations of fact for clear
error and determinations of law de novo. United States v.
McKinney, 53 F.3d 664, 670-71 (5th Cir.), cert. denied, ___ U.S.
___, 116 S. Ct. 261, 133 L. Ed. 2d 184, and cert. denied, ___ U.S.
___, 116 S. Ct. 265, 133 L. Ed. 2d 188, and cert. denied, ___ U.S.
___, 116 S. Ct. 431, 133 L. Ed. 2d 346 (1995). The Sixth Amendment
guarantees a criminal defendant the right to a trial by a jury
selected from a fair cross-section of the community. Taylor v.
Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 696, 42 L. Ed. 2d 690
(1975). A defendant establishes a prima facie violation of the
fair-cross-section requirement by showing the following:
[T]he defendant must show (1) that the group alleged to
be excluded is a "distinctive" group in the community;
(2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in
relation to the number of such persons in the community;
and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed.
2
The appellate brief of each defendant in this case expressly adopts
by reference the arguments presented in the briefs of the other two co-
defendants. Rule 28(i) of the Federal Rules of Appellate Procedure provides for
such adoption by reference in cases involving multiple appellants. However, we
have previously held that an appellant may not raise fact-specific challenges to
his own conviction or sentence, such as sufficiency-of-the-evidence challenges
or challenges to the application of the sentencing guidelines, by merely
referring to similar challenges in another appellant's brief. United States v.
Harris, 932 F.2d 1529, 1533 (5th Cir.), cert. denied, 502 U.S. 897, 112 S. Ct.
270, 116 L. Ed. 2d 223, and cert. denied, 502 U.S. 917, 112 S. Ct. 324, 116 L.
Ed. 2d 265 (1991), and cert. denied, 502 U.S. 1049, 112 S. Ct. 914, 116 L. Ed.
2d 814 (1992). Therefore, to the extent that the issues raised by each defendant
in this case have been properly adopted by the other defendants, our holding as
to each issue in this opinion may be deemed to be our holding as to all three
defendants.
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2d 579 (1979). Bass presented no evidence, either at the time of
his motion or at any time thereafter, pertaining to the second and
third prongs of the Duren test.3 Accordingly, Bass has not
established a prima facie violation of the fair-cross-section
requirement. We hold that the district court did not err by
denying Bass's motion to strike the jury panel.
Alternatively, Bass argues that the district court erred by
denying his motion for a continuance to permit investigation of the
number of African-Americans eligible for jury service in the
Southern District of Texas, Victoria Division. The decision of
whether to grant or deny a continuance is vested in the sound
discretion of the district court, and we will reverse that decision
only where the defendant demonstrates an abuse of discretion
resulting in serious prejudice. United States v. Alford, 999 F.2d
818, 821 (5th Cir. 1993). In light of the district court's
findings,4 and especially in light of Bass's failure to present any
3
We note that a defendant cannot establish a prima facie violation of
the fair-cross-section requirement by relying solely on the composition of the
jury panel at his own trial. Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.
1986).
4
After listening to the arguments of counsel, the district court
stated the following:
I do not feel it's in the best interest of justice to grant
the motion to have that type of delay in this trial. Again, while
you may conduct those studies, surveys, or whatever, I am not
convinced that they would indicate or prove that any of the
irregularities that you are concerned with have actually happened or
taken place.
I am not convinced that, at least from my knowledge of the
racial makeup of the Victoria Division that the Jury would be any
different if we struck this panel and summoned a new panel.
I think that we have selected these potential jurors in manner
that has been used throughout the Southern District. I am not aware
of any irregularities involved in that process.
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evidence to the contrary, we hold that the district court did not
abuse its discretion when it denied Bass's motion for a
continuance.
B
Bass next argues that the district court erred when it denied
his motion to suppress evidence seized from the KLB office and from
his two residences. Our review of a district court's denial of a
motion to suppress evidence seized pursuant to a warrant is limited
to (1) whether the good-faith exception to the exclusionary rule
applies, and (2) whether the warrant was supported by probable
cause. United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.
1992). If the good-faith exception to the exclusionary rule
applies, we need not reach the probable cause issue. Id.
Evidence obtained by officers who reasonably relied in good
faith upon the validity of a warrant is admissible, even if the
affidavit on which the warrant was based was insufficient to
establish probable cause. United States v. Leon, 468 U.S. 897,
922-23, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d 677 (1984). An officer
may rely in good faith on the validity of a warrant so long as the
warrant is supported by more than a "bare bones affidavit." United
States v. Pofahl, 990 F.2d 1456, 1474 (5th Cir. 1993). An
affidavit must establish a nexus between the place to be searched
and the evidence sought. United States v. Pace, 955 F.2d 270, 276-
77 (5th Cir. 1992). We review the reasonableness of an officer's
reliance on a warrant de novo. Satterwhite, 980 F.2d at 321.
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An IRS agent involved in the investigation of Bass, Bounds,
Alix, and others gave the affidavit supporting the search warrants
for the KLB office and Bass's residences. The affidavit detailed
the findings of both federal and local law enforcement agencies
investigating tax evasion and cocaine distribution in Texas and
Louisiana. The affidavit included corroborated information from
multiple informants who had purchased cocaine from Bass at the KLB
office. The affidavit also contained information obtained from
business and telephone records indicating that financial and tax
records could be located at Bass's residences. We find that the
search warrants at issue in this case were supported by more than
a "bare bones" affidavit. Accordingly, we find that the officers
reasonably relied in good faith on the validity of the warrants.
Thus, the good-faith exception to the exclusionary rule applies,
and the district court did not err when it denied Bass's motion to
suppress evidence seized pursuant to these warrants.
C
Bounds and Alix argue that the evidence presented at trial was
insufficient to support their conspiracy convictions.
Specifically, Bounds argues that he did not know that the cocaine
he delivered was being converted into "crack" cocaine for
distribution in Victoria. Specifically, Alix argues that the
Government failed to prove that he made an agreement with any other
defendant to violate narcotics laws. We review sufficiency-of-the-
evidence challenges to determine whether any rational trier of fact
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could have found the essential elements of the crime beyond a
reasonable doubt. United States v. Smith, 930 F.2d 1081, 1085 (5th
Cir. 1991). In so doing, we view the evidence in the light most
favorable to the Government, drawing all reasonable inferences in
favor of the jury's verdict. Id. A conviction for a narcotics
conspiracy requires proof beyond a reasonable doubt (1) that two or
more people agreed to violate the narcotics laws, (2) that each
alleged conspirator knew of the conspiracy and intended to join it,
and (3) that each alleged conspirator participated in the
conspiracy. United States v. Morris, 46 F.3d 410, 420 (5th Cir.),
cert. denied, ___ U.S. ___, 115 S. Ct. 2595, 132 L. Ed. 2d 842
(1995). An agreement between a defendant and the other alleged
conspirators need not be proved by direct evidence, but may be
inferred from a concert of action. Id. A defendant may be
properly found guilty of a narcotics conspiracy, even absent
knowledge of the exact details of the conspiracy or the exact
identities of all the co-conspirators, so long as he "knowingly
participates in the larger conspiratorial objectives." United
States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992), cert.
denied, 508 U.S. 915, 113 S. Ct. 2354, 124 L. Ed. 2d 262 (1993).
With respect to Bounds, there was overwhelming evidence
presented at trial that Bounds made cocaine deliveries for Bass.
One witness testified that he observed more than one kilogram of
cocaine in Bounds's home. There was also evidence presented that
tended to indicate that Bounds knew that the cocaine he delivered
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was being converted into "crack" cocaine. Pursuant to a valid
search warrant, officers seized a box containing a spoon, a plastic
baggie containing five grams of cocaine, and a small set of scales
from Bounds's home. Telephone records showed numerous calls made
to Bounds's pager number from a convenience store in Victoria where
Bass's purchasers regularly sold "crack" cocaine. One of these
purchasers testified that he and Bounds had discussed the success
of the "crack" sales in Victoria. Bass's purchasers testified as
to the amounts of powder cocaine they purchased from Bass and the
amounts of subsequently produced "crack" cocaine that they sold in
Victoria. Viewing the evidence in the light most favorable to the
jury's verdict, we find that a rational trier of fact could have
found beyond a reasonable doubt that Bounds was a knowing
participant in a conspiracy to distribute more than fifty grams of
"crack" cocaine, and that Bounds was a knowing participant in a
conspiracy to possess with intent to distribute more than five
kilograms of cocaine. Accordingly, we hold that the evidence
presented at trial was sufficient to support Bounds's conspiracy
convictions.
With respect to Alix, evidence at trial established that Alix
obtained "crack" cocaine from Bass's purchasers and sold "crack"
cocaine in Victoria. Witnesses also testified that Alix supplied
other street-level distributors with "crack" cocaine to sell in
Victoria. These witnesses testified as to the amounts of "crack"
cocaine that they either sold to Alix, bought from Alix, or
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observed in the possession of Alix. In addition, check stubs
seized from the KLB office show payments made to Alix for
"payroll," even though Alix was not a KLB employee. Alix's name
and phone number were also found on a desk calendar in the KLB
office. Viewing the evidence in the light most favorable to the
jury's verdict, we find that a rational trier of fact could have
found beyond a reasonable doubt that Alix was a knowing participant
in a conspiracy to distribute more than fifty grams of "crack"
cocaine. Accordingly, we hold that the evidence presented at trial
was sufficient to support Alix's conspiracy conviction.
D
Bounds and Alix also argue that the district court erred in
calculating their base offense levels under the sentencing
guidelines. Specifically, Bounds argues that the district court
erred by finding that 4.68 kilograms of "crack" cocaine were
attributable to him for sentencing purposes. Specifically, Alix
argues that the district court erred by finding that seventy grams
of "crack" cocaine were attributable to him for sentencing
purposes. A district court's determination of the amount of drugs
attributable to a defendant at sentencing is a factual finding,
reviewable under the clearly erroneous standard. United States v.
Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), cert. denied, ___ U.S.
___, 114 S. Ct. 1096, 127 L. Ed. 2d 409, and cert. denied, ___ U.S.
___, 114 S. Ct. 1552, 128 L. Ed. 2d 201, and cert. denied, ___ U.S.
___, 115 S. Ct. 282, 130 L. Ed. 2d 198 (1994). The sentencing
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guidelines provide that a defendant's offense level for a drug
trafficking offense is determined by the quantity of drugs
involved. U.S.S.G. § 2D1.1(a)(3). For a defendant convicted of
conspiracy, this quantity includes amounts attributable to the
conduct of others in furtherance of the conspiracy so long as those
amounts were reasonably foreseeable to the defendant. U.S.S.G.
§ 1B1.3(a)(1), comment. (n.1). Consistent with this standard, it
is proper to sentence a defendant under the drug quantity table for
"crack" cocaine if the conversion of powder cocaine into "crack"
cocaine is foreseeable to him. United States v. Angulo-Lopez, 7
F.3d 1506, 1511 (10th Cir. 1993), cert. denied, ___ U.S. ___, 114
S. Ct. 1563, 128 L. Ed. 2d 209 (1994).
With respect to Bounds, evidence at trial established that he
regularly delivered powder cocaine to Bass's purchasers. On one
occasion, one kilogram of cocaine was observed in Bounds's home.
Testimony also indicates that Bounds knew, through conversations
with at least one of Bass's regular purchasers, that the cocaine
sold by Bass was routinely converted into "crack" cocaine for sale
in Victoria. Having reviewed the testimony of the witnesses with
respect to the amounts of "crack" cocaine involved in transactions
foreseeable to Bounds, we find that the district court's finding
that 4.68 kilograms of "crack" cocaine were attributable to Bounds
for sentencing purposes is not clearly erroneous. We hold that the
district court did not err in calculating Bounds's base offense
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level.5
With respect to Alix, evidence at trial established that he
engaged in numerous transactions involving the purchase and sale of
"crack" cocaine. Further, the evidence establishes that Alix
obtained this "crack" cocaine from at least one of Bass's regular
purchasers. Having reviewed the testimony of the witnesses with
respect to the amounts of "crack" cocaine involved in transactions
foreseeable to Alix, we find that the district court's finding that
seventy grams of "crack" cocaine were attributable to Alix for
sentencing purposes is not clearly erroneous. We hold that the
district court did not err in calculating Alix's base offense
level.6
5
Bounds also argues that § 2D1.1(C)(3) of the sentencing guidelines
violates equal protection because of the ratio between punishments for powder
cocaine and punishments for "crack" cocaine. We have repeatedly rejected this
argument and do so again. See United States v. Buchanan, 70 F.3d 818, 828 n.9,
829 n.10 (5th Cir. 1995) (citing cases), cert. denied, ___ U.S. ___, 116 S. Ct.
1340, 134 L. Ed. 2d 490 (1996).
6
Alix also contends that the district court erred in calculating his
base offense level by denying his request for a two-level "minor participant"
adjustment, pursuant to U.S.S.G. § 3B1.2. We review a district court's finding
that a defendant was not a minor participant in the offense for clear error.
United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.), cert. denied, ___ U.S.
___, 115 S. Ct. 214, 130 L. Ed. 2d 142 (1994). The evidence at trial shows that
Alix not only sold the "crack" cocaine that he obtained from Bass's purchasers,
but also that Alix distributed "crack" cocaine to other street-level
distributors. The district court's finding that Alix was not a minor participant
in a conspiracy to distribute "crack" cocaine was not clearly erroneous.
Accordingly, the district court did not err in denying Alix's request for a two-
level "minor participant" adjustment.
Bass also argues that the district court erred when it denied his motion
for a downward departure from the sentencing range applicable to him under the
sentencing guidelines. We will not review a district court's refusal to depart
from the guidelines unless the refusal was in violation of the law. United
States v. Hatchett, 923 F.2d 369, 372 (5th Cir. 1991). However, we will review
a refusal to depart if the district court's decision was based on a mistaken
belief that it had no legal authority to depart. United States v. Burleson, 22
F.3d 93, 94-95 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 283, 130 L. Ed.
2d 199 (1994). In this case, both sides presented argument to the district court
concerning the departure provision and its factors. We find that the district
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III
Based on the foregoing, we AFFIRM.
court's decision was not based on a mistaken belief that it had no legal
authority to depart. Accordingly, we hold that the district court did not err
when it denied Bass's motion for a downward departure.
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