United States v. Alix

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.

__________________________________________________

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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