United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk ____________________
No. 02-10069 ____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LASHONDA WILSON; CRAIG ALEXANDER; CHRISTOPHER ALEXANDER
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas No. 5:01-CR-60-2-C _________________________________________________________________
Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges.
PER CURIAM:*
Craig Alexander, Christopher Alexander, and LaShonda Wilson
were convicted of one count of conspiracy to possess with the
intent to distribute more than fifty grams of crack cocaine, in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(iii),
and two counts of possession of more than fifty grams of crack
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. cocaine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii), and 18 U.S.C. § 2. The
district court sentenced Craig Alexander and Christopher
Alexander to terms of life imprisonment and LaShonda Wilson to a
term of 235 months’ imprisonment. We affirm.
I. FOURTH AMENDMENT CHALLENGES
This appeal presents three challenges under the Fourth
Amendment that merit brief discussion. The first involves a
warrant-based search of the residence of Christopher Alexander
(“Christopher”). The next two challenges involve an incident at
the Greyhound bus station in Shreveport, Louisiana.
A. The Search of Christopher’s Residence
On January 23, 2001, the police conducted a warrant-based
search of Christopher’s residence in Lubbock, Texas. While the
police did not uncover illegal narcotics, they did find over
$32,000 in cash and records indicating drug activity. The
warrant was issued by a municipal judge in Lubbock based on the
affidavit of Officer Dwayne Gerber (“Officer Gerber”) of the
Lubbock Police Department, who was acting on information provided
by a confidential informant.
In challenging the denial of his motion to suppress evidence
seized from this search, Christopher contends that Officer
Gerber’s affidavit cannot support a finding of probable cause.
Christopher makes much of the fact that the informant reported
that he had observed cocaine inside the residence within the
2 previous 72 hours and that cocaine was being trafficked and
possessed at the residence, but that none was found when the
search was conducted. Specifically, he asserts that because
Officer Gerber did not observe the confidential informant enter
Christopher’s home or personally meet the informant, Officer
Gerber displayed a reckless disregard for the truth in relying on
the informant.
The district court held that there were sufficient facts
alleged in the affidavit to establish probable cause, that the
affidavit was executed in good faith by the agent, and that the
warrant was lawful. We agree. The affidavit gave specific
reasons supporting the confidential informant’s credibility and
described specific information supporting a reasonable
probability that contraband would be found within the residence.
The judge who issued the warrant therefore “had a substantial
basis for finding probable cause,” United States v. Cavazos, 288
F.3d 706, 709 (5th Cir. 2002), and the district court correctly
denied Christopher’s motion to suppress. In any event, the
warrant at issue here is far more than a “bare bones” affidavit,
and the officers were entitled to rely in good faith on its
validity in conducting the search. See United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1996).
B. The Shreveport Bus Station Incident
The next two Fourth Amendment challenges arise out of the
same incident. In early February 2001, Craig Alexander (“Craig”)
3 and LaShonda Wilson, along with Latricia Perry, traveled by bus
en route to Georgia when the bus made a scheduled stop at a
Greyhound bus station in Shreveport, Louisiana. Caddo Parish
Sheriff’s Deputies Danny Williams (“Officer Williams”) and James
McLamb (“Officer McLamb”) performed a drug inspection inside the
bus in response to a positive canine alert to the outside of the
bus.
Inside the bus, during the drug interdiction investigation,
Officer Williams noticed a suspicious bulge in Craig’s pants.
Officer Williams began to question Craig, who reported that his
name was “Calvin Reed” and that he was traveling alone. Officer
Williams asked Craig to speak with him in the luggage room at the
bus station, and Craig agreed to follow him. Once in the luggage
room, Officer Williams asked Craig for his bus ticket and photo
identification card. Craig informed Officer Williams that he did
not have a driver’s license. However, when he pulled out his bus
ticket, an Alabama driver’s license fell out of Craig’s pocket.
While the bus ticket was issued to “Calvin Reed,” the license was
under the name “Adrian Lavar Smith.” Although Craig insisted
that he was alone, Officer Williams recalled observing Craig
walking alongside two women.
Officer Williams then returned to the bus, soon encountering
Wilson. He asked to see her bus ticket. Wilson’s bus ticket was
also under the name “Reed.” Officer Williams thereafter asked
Wilson to exit the bus. Wilson consented to a conversation with
4 Officer Williams, and indeed, while exiting the bus, she inquired
as to the location of Craig, to whom she referred as her brother
“Calvin.” Officer Williams then informed her that Craig was in
the back talking with another deputy and that they could go to
the luggage area, where he was being questioned. Wilson and
Officer Williams differ as to what exactly happened next. Wilson
recalls that when she turned to go the other way, Officer
Williams grabbed her arm and directed her toward Craig’s
location. Contrarily, Officer Williams testified that he did not
touch Wilson until she later lifted up her shirt to reveal
cocaine.
Nevertheless, once they reached the luggage area, Officer
Williams read Wilson her Miranda rights, but informed her that
she was not under arrest. He then asked whether she had
narcotics on her person. She responded in the affirmative and
pointed to her stomach. Officer Williams then lifted up Wilson’s
shirt and found crack cocaine partially concealed underneath her
waistband. Craig, Perry, and Wilson were arrested immediately
thereafter.
Both Craig and Wilson challenge the district court’s denial
of their motions to suppress evidence seized during the incident
at the Shreveport bus station.2 When reviewing a district
2 Christopher also claims that the district court erred in denying his motion to suppress evidence seized at the Shreveport bus station based on the allegedly unreasonable seizures of Perry, Craig, and Wilson. Significantly, Christopher was not
5 court’s denial of a motion to suppress evidence obtained by an
alleged violation of the Fourth Amendment, this court reviews the
district court’s factual determinations for clear error and its
ultimate Fourth Amendment conclusions de novo. E.g., United
States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
1. Wilson’s Motion to Suppress
Wilson asserts two discrete Fourth Amendment claims on
appeal. First, she claims that Officer Williams’s touching of
her constituted an unreasonable seizure. Relying on the Supreme
Court’s decision in California v. Hodari D., 499 U.S. 621 (1991),
Wilson argues that by grabbing her, Williams prohibited her
attempt to walk away, restricted her freedom to leave, and
thereby unreasonably seized her. She contends that under these
circumstances, a reasonable person would not feel free to leave.
Second, she claims that her rights were violated when Officer
Williams lifted up her shirt and searched her person without
obtaining her consent.
among those allegedly seized at the Shreveport bus station. The Supreme Court has repeatedly made clear that “rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” E.g., Minnesota v. Carter, 525 U.S. 83, 101 (1998). Because Christopher did not have a reasonable expectation of privacy at the Shreveport bus station, he cannot now argue that evidence seized as a result of an alleged violation of a co-defendant’s Fourth Amendment rights should be suppressed.
6 In denying Wilson’s motion to suppress, the district court
determined that the officers used lawful and proper interdiction
techniques, and specifically, that the officers’ encounters with
Craig and Wilson were consensual and that “they were not in
custody by the officers.” We read these determinations as a
conclusion that no seizure of Wilson occurred until she was
formally arrested.
Wilson’s basic contention – that, based on Hodari D., when
she was grabbed by Officer Williams and steered in the direction
of the luggage room, a seizure occurred – overlooks several key
teachings of that case. While Hodari D. does state that an
arrest can be effectuated by mere grasping, id. at 624, Hodari D.
further reaffirms that a seizure under the Fourth Amendment
“readily bears the meaning of laying the hands or application of
physical force to restrain movement, even when it is ultimately
unsuccessful,” id. at 626 (emphasis added), and that a seizure
has traditionally required a “taking [of] possession,” id. at
624.
While Wilson asserts that Officer Williams’s grabbing of her
constitutes a seizure, the district court implicitly did not
credit her assertion that her freedom of movement was restrained.
Apart from Officer Williams’ grabbing of her (crediting arguendo
her version of the touching at issue here, rather than Officer
Williams’ version) incident to steering her in the direction she
7 had indicated she wanted to go, there is no other indication in
the record that she was not free to move in any other direction
she might choose. In other words, the record does not indicate
that she was ever under Officer Williams’s control, and we read
the district court’s findings as a conclusion to that effect.
See United States v. Holloway, 962 F.2d 451, 456-57 (5th Cir.
1992) (applying the Hodari D. analysis and finding that a
defendant was not seized until his movement was restrained,
“meaning under the officers’ control”) (emphasis added). On this
record, that conclusion is not erroneous.
Further, Wilson’s invocation of the Mendenhall test, i.e.,
that “a reasonable person would have believed that he was not
free to leave,” United States v. Mendenhall, 446 U.S. 544, 554
(1980), is problematic. The Hodari D. Court plainly described
the Mendenhall test as a necessary, but not sufficient condition
to demonstrate a seizure. 499 U.S. at 628. Wilson’s failure to
present additional evidence of actual restraint further vitiates
her claim.
Wilson also claims that her Fourth Amendment rights were
violated when Officer Williams failed to inform Wilson of her
right to refuse the search of her person. This argument is
without merit. The Supreme Court has rejected the proposition
that law enforcement officers must always inform citizens of
their right to refuse when seeking permission to conduct a
8 consent search without a warrant. United States v. Drayton, 536
U.S. 194, 207 (2002). Reviewing the totality of the
circumstances, the denial of her motion to suppress was
warranted. Significantly, Wilson does not controvert the facts
that Officer Williams read Wilson her Miranda rights, informed
her that she was not under arrest, and simply asked whether she
had narcotics on her person. By responding in the affirmative
and pointing exactly where the narcotics could be found on her
body, Wilson implicitly granted Officer Williams permission to
search. Thus, no Fourth Amendment violation occurred.
2. Craig’s Motion to Suppress
Craig claims that the district court erred in denying his
motion to suppress because his arrest violated his rights under
the Fourth Amendment. Specifically, he asserts that Officer
Williams lacked probable cause to arrest him.
“Probable cause exists when facts and circumstances within
the knowledge of the arresting officer would be sufficient to
cause an officer of reasonable caution to believe that an offense
has been or is being committed.” E.g., United States v.
Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994). Given the
facts and circumstances before Officer Williams, probable cause
to arrest existed. First, Officer Williams noticed a suspicious
bulge in Craig’s pants, which, based on his experience in drug
interdiction, typically indicated concealment of either illegal
9 narcotics or weapons. Officer Williams also recognized that
Craig was traveling under an alias. These circumstances,
combined with Wilson’s request for her brother “Calvin,” the fact
that both Wilson and Craig possessed bus tickets issued to
persons with the last name “Reed,” and the fact that drugs were
found on Wilson’s person, support a finding that Officer Williams
had probable cause to believe that an offense had been or was
being committed by Craig. Thus, it was not error to deny Craig’s
motion to suppress.
II. SUFFICIENCY OF THE EVIDENCE CHALLENGES
Christopher and Craig challenge the sufficiency of the
evidence to support their convictions under Count Two of the
indictment, and Craig challenges the sufficiency of the evidence
to support his conviction under Counts One and Three of the
indictment. In reviewing a claim of insufficient evidence to
support a conviction, this court determines “whether a rational
trier of fact could have found that the evidence proved the
essential elements of the crime beyond reasonable doubt.” E.g.,
United States v. Gallardo-Trapero, 185 F.3d 307, 314 (5th Cir.
1999). The trial evidence is viewed in the light most favorable
to the government and with all reasonable inferences made in
support of the jury’s verdict. Id.
A. Christopher and Craig’s Count Two Convictions
10 Count Two charged possession of more than fifty grams of
crack cocaine with intent to distribute on or about October 19,
2000. The cocaine at issue in Count Two was found in a backpack
that Wilson abandoned at the Lubbock airport on October 19, 2000.
Christopher and Craig assert that no evidence exists to prove
that they actually possessed the cocaine. They emphasize the
fact that the baggage personnel could not identify Wilson as the
person who placed the backpack on the conveyor for inspection.
Christopher also argues that he was neither at the airport nor in
the car at the time of the incident at issue.
The essential elements of a violation of § 841(a) include:
(1) knowledge, (2) possession, and (3) intent to distribute the
controlled substance. E.g., United States v. Delgado, 256 F.3d
264, 274 (5th Cir. 2001). If, as here, a defendant is charged
with aiding and abetting in violation of 18 U.S.C. § 2, proof of
actual possession is not necessary. Id. The government need
only prove that the defendant became “associated with,
participated in, and in some way acted to further the possession
and distribution of the drugs.” Id.
The evidentiary record indicates that Craig and Christopher
associated with, participated in, and acted to further the
possession and distribution of crack cocaine, namely by directing
Wilson to transport to the airport crack cocaine concealed inside
a backpack. Contrary to their contentions, evidence exists
11 linking Wilson to the backpack containing the cocaine, as the
record indicates that not only were Wilson’s fingerprints located
on the backpack, but also that a tag bearing her name was found
inside the backpack. More importantly, there is evidence linking
Craig and Christopher to the confiscated backpack, as Craig
accompanied Wilson to the airport the day the cocaine was seized,
an occurrence that Craig subsequently reported to Christopher.
Their participation in this incident provides circumstantial
evidence of their intent to violate § 841(a)(1) and their active
role in so doing. Because proof of actual possession of the
crack cocaine is not required under aiding and abetting
liability, sufficient evidence existed to support both Craig and
Christopher’s convictions for Count Two.
B. Craig’s Count One and Three Convictions
On appeal, Craig also challenges the sufficiency of the
evidence to support his conspiracy conviction on Count One, as
well as his conviction on Count Three, the facts of which stem
from the seizure of crack cocaine from Perry and Wilson at the
Shreveport bus station on February 4, 2001. Craig argues that
there is no credible evidence linking him to the drugs found on
Perry and Wilson or suggesting that he knowingly participated in
a cocaine conspiracy.
As the government points out, the testimony of Perry and
Rhodesia Harris described Craig’s crack distribution activities
12 using those women to sell and transport the drug. Their
testimony was sufficient to support Craig’s conspiracy conviction
and was corroborated by other evidence in the record.
Count Three charged Craig with aiding and abetting the
possession of more than fifty grams of crack cocaine with intent
to distribute on or about February 1-4, 2001. The crack cocaine
at issue was confiscated from Wilson and Perry at the Shreveport
bus station. Evidence exists linking Craig to the confiscated
crack. At trial, Perry testified that Craig: (1) drove Wilson
and Perry from Lubbock to Amarillo, where they boarded the bus to
Shreveport; (2) stayed at the same Amarillo hotel as Wilson,
Perry, and Christopher, where the drug conspiracy was discussed
prior to leaving for the bus station; (3) purchased the bus
tickets for Perry, Wilson, and himself, to take the trip to
Shreveport; and (4) came on the trip with Perry and Wilson to
ensure that Wilson was successful in trafficking the drugs.3
Once again, under aiding and abetting liability, the
government need not demonstrate that Craig actually possessed the
3 Craig claims that because his conviction rested on the testimony of Perry, an accomplice that received immunity, his acquittal is required under the court’s jury instruction to “never convict any defendant upon the unsupported testimony of such a witness.” However, this argument does not reflect the entire context of the instruction; the court instructed the jury to never convict based on such testimony “unless you believe that testimony beyond reasonable doubt.” Record on Appeal, vol. 7, at 630, ln. 15-17. More importantly, Craig fails to establish that Perry’s testimony was “insubstantial on its face.” E.g., United States v. Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998).
13 crack cocaine in question. By presenting evidence of his actions
leading up to the confiscation of the crack cocaine and the
Shreveport bus station, the government satisfied its burden of
proof by establishing that Craig associated with, participated
in, and in some way acted to further a violation of § 841(a)(1).
Craig’s conviction for Count Three should also be affirmed.
III. OTHER MISCELLANEOUS CHALLENGES
Craig and Christopher make other challenges to their
convictions. First, they argue that the district court
improperly denied their request to delay their trial so that they
could change from jail-issued clothing to their own attire.
Because there was no jail insignia or any jail writings on the
white t-shirt or the khaki pants they wore at trial, it cannot be
said that the clothing at issue “improperly project[ed] an
implication of guilt.” United States v. Dawson, 563 F.2d 149,
151 (5th Cir. 1977). As a result, this claim fails.
Next, they contend that the district court improperly denied
their request for a mistrial because, during a lunch break, a
handful of jurors observed them ascending the court house steps
in handcuffs and shackles. However, “brief and inadvertent
exposure to jurors of defendants in handcuffs is not so
inherently prejudicial as to require a mistrial, and defendants
bear the burden of affirmatively demonstrating prejudice.”
United States v. Diecidue, 603 F.2d 535, 549 (5th Cir. 1979).
14 Because Craig and Christopher have not sufficiently demonstrated
prejudice, this claim fails as well.
Finally, Christopher claims that the district court’s
removal of the only African-American from the jury pool
constituted manifest error. He argues that for reasons discussed
in Batson v. Kentucky, 476 U.S. 79 (1986), the Defendants, who
were all African-American, should have had at least one person of
the their race serving on the jury. To the contrary, Batson
holds that jury members must be selected on a race-neutral basis,
and that defendants do not have the right to have their case
tried before a jury comprised of members of their own race. Id.
at 85-86. Thus, there was no manifest error in the district
court’s sua sponte removal of the juror.
IV. CONCLUSION
Because none of the issues presented rises to the level of
reversible error, the respective judgments of conviction and
sentences of the Defendants are AFFIRMED.