U.S.A. v. Gibbs

• Citation: 190 F.3d 188
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. TERRENCE GIBBS A/K/A TERRY A/K/A T TERRENCE GIBBS, APPELLANT IN NO. 97-1374 UNITED STATES OF AMERICA, v. ANTJUAN SYDNOR, APPELLANT IN NO. 97-1736 UNITED STATES OF AMERICA, v. EARL LAMONT BROWN, APPELLANT IN NO. 97-1785 NOS. 97-1374, 97-1736 and 97-1785 Argued:
• Decision Date: 22 March 1999
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 188

190 F.3d 188 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. TERRENCE GIBBS A/K/A TERRY A/K/A T TERRENCE GIBBS, APPELLANT IN NO. 97-1374

UNITED STATES OF AMERICA, v. ANTJUAN SYDNOR, APPELLANT IN NO. 97-1736

UNITED STATES OF AMERICA, v. EARL LAMONT BROWN, APPELLANT IN NO. 97-1785

NOS. 97-1374, 97-1736 and 97-1785

U.S. Court of Appeals, Third Circuit

Argued: March 22, 1999

Decided: August 26, 1999

On Appeal From the United States District Court For the Eastern District of Pennsylvania District Judge: Honorable Harvey Bartle, III

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[Copyrighted Material Omitted] Paul J. Hetznecker, Esquire (argued) 1420 Walnut Street, Suite 911 Philadelphia, PA 19102 Counsel for Appellant Terrence Gibbs.

Christopher D. Warren, Esquire (argued) DeStefano & Warren The Lafayette Building 437 Chestnut Street Philadelphia, PA 19106 Counsel for Appellant Antjuan Sydnor Mark C. Levy, Esquire (argued) Saul, Ewing, Remick & Saul 1500

Market Street 3800 Centre Square West, 38th Floor Philadelphia, PA 19102 Counsel for Appellant Earl Lamont Brown.

Michael R. Stiles, Esquire United States Attorney Walter S. Batty, Jr., Esquire Assistant United States Attorney Chief of Appeals Robert E. Courtney, III, Esquire Deputy United States Attorney Chief, Organized Crime Strike Force Frank A. Labor, III, Esquire (argued) Assistant United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Counsel for Appellee United States of America

Before: Becker, Chief Judge, Cowen, Circuit Judges, and Stagg, District Judge.^*

Becker, Chief Judge

OPINION OF THE COURT

This opinion addresses the appeals of Antjuan Sydnor, Earl Lamont Brown, and Terrence Gibbs, who were convicted of conspiring to distribute cocaine and to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846. Sydnor's appeal requires us to explore the scope of conspiracy liability for a defendant whose sole involvement in a conspiracy consists of buying drugs from another member of the conspiracy. Brown's appeal compels us to consider the limits on a government agent's testimony about the meaning of coded drug conversations. In Gibbs's appeal, we must determine whether the introduction of evidence of a conspiracy's use of violence as part of its modus operandi violates Fed. R. Evid. 404(b). In an attack on their sentences, all three defendants ask us to examine whether the District Court erred in attributing various amounts of crack and powder cocaine to each of them, where those attributions were largely based on a government agent's interpretation of coded drug conversations.

Under our existing caselaw, in order to prove a defendant's membership in a conspiracy when that defendant has only been in a buyer-seller relationship with a member of the conspiracy, the government must prove both that the defendant purchased drugs from the conspiracy and that the defendant knew that the individual from whom he purchased the drugs was part of a larger drug operation. Since the government produced sufficient evidence that Sydnor was more than a one-time buyer of drugs from the conspiracy and that, in buying drugs from Gibbs, he was aware of part of the scope of the conspiracy of which Gibbs was a leader, we will affirm Sydnor's conviction under 21 U.S.C. § 846.

We further conclude that, in Brown's case, some of the testimony of the government expert should have been excluded because, in interpreting language that the jury needed no assistance in interpreting, that testimony violated the dictates of Fed. R. Evid. 702. However, we reject Brown's contention that the agent's testimony violated Rule 704(b), for it merely translated the coded drug language, and did not opine on Brown's intent. Because we are satisfied that there was sufficient evidence of Brown's role as an enforcer for the conspiracy without the improper testimony, and that the error in admitting the testimony was harmless, we will affirm his conviction. We also conclude that the evidence of violent acts by the conspiracy, the introduction of which is now contested by Gibbs, did not violate Rule 404(b), because such violence did not constitute an act separate from the conspiracy itself. Hence his conviction too must be affirmed. On the sentencing issues, we will affirm the sentences of all three defendants in their entirety. In making this determination, we conclude that an enforcer for a drug conspiracy may be held responsible for the amount of drugs transacted by the conspiracy during the time he acts in that capacity.

I. Background Facts Relevant to All Defendants

Sydnor, Gibbs, and Brown are three of sixteen co-defendants who were charged with conspiracy to possess and distribute cocaine in violation of 21 U.S.C.§ 846. The indictment charged that the conspiracy ran from May 1992 until April 1995; Count 1 of the indictment identified Darryl Coleman and Gibbs as the leaders of the conspiracy and listed Sydnor and Brown (among others) as working for the conspiracy by distributing cocaine and collecting drug proceeds.¹ Count 1 also averred that the members used coded and cryptic language when discussing the cocaine business on the phone, and that some members of the conspiracy, including Gibbs and Brown, used and attempted to use acts of violence to further the conspiracy.

At trial, the government established that Coleman and Gibbs ran a drug organization that obtained cocaine from various suppliers and resold the cocaine in Philadelphia in both powder and crack form. Coleman and Gibbs processed the cocaine into crack at different houses in Philadelphia. After Coleman was arrested on state charges in April 1994 and subsequently imprisoned, Gibbs assumed primary responsibility for the organization, which meant that he supervised and managed the business, and recruited individuals to distribute cocaine and to collect drug proceeds from that distribution.

In addition to oral testimony by former members of the alleged enterprise, the government introduced a large number of tape-recorded conversations between various co-defendants, the recording of which was authorized by a district Judge. Five tapes contain conversations between Gibbs and Sydnor. Four tapes, recorded over a three-week period, contain Discussions between Gibbs and Brown. At least thirteen tapes contain conversations between Gibbs and Coleman. The government also introduced conversations in which other defendants discussed Brown's and Sydnor's roles in the conspiracy. However, much of the language on the tapes was in code and is virtually incomprehensible to the untrained ear. The government therefore called FBI Agent Jesse Coleman to interpret the coded language. Agent Coleman has been a narcotics investigator for eighteen years, and the District Court qualified him as an expert in the analysis and interpretation of drug conversations. None of the defendants challenged Agent Coleman's qualifications as an expert in analyzing and interpreting the intercepted 771conversations. The jury convicted each of the three defendants of the conspiracy charge. We have jurisdiction to review their appeals pursuant to 28 U.S.C. § 1291.

II. Antjuan Sydnor

A. Background

At trial, the government attempted to prove that Sydnor processed powder cocaine into crack for distribution to others, and that he worked as a distributor for the conspiracy. The government's evidence in this regard consisted of five tape-recorded conversations between Gibbs and Sydnor, as well as a conversation between Gibbs and another confederate named Robert Saunders. The government also introduced Agent Coleman's testimony in which he interpreted those conversations. Finally, the government proffered a list of names and numbers found in Gibbs's apartment. A confederate testified that Gibbs often listed on pieces of paper names of people who owed Gibbs money. Among the initials and names on the proffered list were the initials "ANT," which, the confederate testified, referred to Antjuan Sydnor.

Sydnor's defense at trial was that the government proved only that Sydnor had a buyer-seller relationship with Gibbs. The defense pointed out that the government introduced no evidence proving that Sydnor assisted the conspiracy in acquiring cocaine, processing cocaine into crack, collecting or laundering cash proceeds, or maintaining stash houses in which cocaine was stored. In addition, there was no evidence that Gibbs ever paid Sydnor for drug-related activities or did anything involving Sydnor other than sell him distribution quantities of drugs. Therefore, the defense contended, there was no proof that Sydnor knowingly and voluntarily joined the conspiracy.

In support of his theory, Sydnor introduced evidence at trial that Gibbs had tried to have him killed because he believed Sydnor had tried to rob him. Sydnor argued that this refuted the contention that he and Gibbs were working together toward a common goal. The jury, which was instructed that a buyer-seller relationship between two people cannot by itself establish a conspiracy, rejected Sydnor's defense and convicted him of the conspiracy charge.

The Presentence Investigation Report ("PSI") found that Sydnor could be held responsible for a total of 1.8 kilograms of crack and two kilograms of powder cocaine based on the intercepted conversations. Sydnor objected to the PSI's Conclusion, claiming that Agent Coleman's interpretations of the phone conversations were inconsistent and therefore unreliable. In addition, Sydnor argued that none of the drugs sold to him were ever seized, observed, or subjected to chemical analysis, though he admitted that he could be held responsible for two kilograms of powder cocaine (in contrast to crack). The District Court, rejecting his argument, found that Sydnor was involved with and reasonably foresaw involvement with 1.5 kilograms of crack and two kilograms of...