U.S. v. Mixon ( 1992 )

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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