                                                       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that this opinion should not be published and is not precedent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.




                                15
