U.S. v. Alix

• Decision Date: 13 June 1996
• Docket Number: No. 95-40120,95-40120
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Anthony ALIX, Troy Donavan Bounds, and Kerry Lerron Bass, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 429

86 F.3d 429

UNITED STATES of America, Plaintiff-Appellee, v. Paul Anthony ALIX, Troy Donavan Bounds, and Kerry Lerron

Bass, Defendants-Appellants.

No. 95-40120.

United States Court of Appeals, Fifth Circuit.

June 13, 1996.

Alice Ann Burns, Asst. U.S. Atty., U.S. Attorney's Office, Paula Camille Offenhauser, Gaynelle Griffin Jones, Houston, TX, for plaintiff-appellee.

Russell Van Henderson, Houston, TX, for defendant-appellant Alix.

Susan Johnson, Corpus Christi, TX, for Bounds.

Steven Jeffrey Lieberman, Kent A. Schaffer, Bires & Schaffer, Houston, TX, for Bass.

Appeal from the United States District Court for the Southern District of Texas.

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 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 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.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 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.

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 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...