U.S. v. Gibson

• Citation: 530 F.3d 606
• Decision Date: 26 June 2008
• Docket Number: No. 07-2330.,07-2330.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph L. GIBSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

530 F.3d 606

UNITED STATES of America, Plaintiff-Appellee, v. Joseph L. GIBSON, Defendant-Appellant.

No. 07-2330.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 2008.

Decided June 26, 2008.

Bethany Biesenthal (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

John A. Meyer, Timothy P. O'Connor (argued), Meyer & O'Connor, Chicago, IL, for Defendant-Appellant.

Before MANION, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge.

Following a jury trial, Joseph L. Gibson was convicted of two counts of using a facility of interstate commerce for the commission of murder for hire, in violation of 18 U.S.C. § 1958,¹ one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). He was sentenced to a total of 235 months in prison. He appeals from his conviction. We start with the facts, viewed in the light most favorable to the jury's verdict.

In 2004, Gibson and a man named Jeff Coleman shared the management and proceeds of a narcotics distribution corner, or "drug spot," near the intersection of Pulaski Road and Adams Street in Chicago. But Coleman got himself arrested and imprisoned, leaving Gibson with complete control of the business. When Coleman was released from prison in January 2005, he reinserted himself into the drug operation.

Tension arose between Coleman and Gibson, and apparently both thought the way to resolve the problem was to have the other killed. In conversations during the summer of 2005 and into early 2006, Gibson talked with a man named Walter Hampton about his belief that Coleman was going to "make a move against him [Gibson]" — meaning that Coleman was going to kill him. Gibson and Hampton discussed killing Coleman. Hampton would do the murder in exchange for a 50 percent share of the profits from the drug spot. Conversations of this nature continued, and in January 2006 Hampton asked Gibson for a "clean" gun to use for the murder. A "clean" gun is one from which the serial number has been removed. Gibson said he had one. Additionally, in January Gibson drove Hampton to the area in which Coleman lived and continued to offer 50 percent of the drug proceeds for the murder.

Having a change of heart, however, on January 25, 2006, Hampton went to the Federal Bureau of Investigation to tell them about Gibson's plan. Agents asked Hampton to place a telephone call to Gibson which they would record. In the recorded conversation Hampton asked Gibson if he had the "strap." "Strap" is a street term for a handgun. Gibson said, "I got it, I got it." In other recorded telephone conversations the two men continued the discussion and agreed to meet in order for Gibson to give Hampton the gun.

Hampton was fitted with a wire, and he and undercover police officer Alonzo Harris went to a building where Hampton was to meet Gibson. Another man came out of the building carrying a "Little Debbie" strawberry cupcake box from which Harris said he saw the grip of a gun protruding. The man handed the box to Gibson, who immediately handed it to Hampton. After the meeting, Hampton gave the box and the gun to Harris. The serial number on the gun was filed away.

After this transaction Hampton made another recorded call to Gibson. Hampton asked for a "few stacks," which is a couple thousand dollars, to "get low" once the murder took place. Gibson did not answer, but later Hampton was again wired and met Gibson at a gas station. Gibson indicated he would give Hampton the money after the murder. This meeting was also videotaped.

The FBI arrested Gibson at 11:45 p.m. on January 27, 2006, shortly after the meeting at the gas station. He was taken to the FBI offices and given Miranda warnings. Gibson waived his Miranda rights and gave a statement about his participation in the plot. He admitted that he gave a gun to Hampton so Hampton could kill Coleman. He indicated that he would pay Hampton but had not yet decided on the amount. After these statements Gibson began to write out a confession. However, the agents observed that Gibson was tired and offered to let him sleep and start the interview the next day. The agents told Gibson he had a right under a local court rule to appear before a magistrate judge within 17 hours of his arrest. He signed a waiver of that right.

At 12:55 p.m. the next day he was brought back to the FBI office. He had been in custody for about 13 hours. The agents again reminded Gibson of his Miranda rights. He then completed a written statement in which he described his drug dealing with Coleman and admitted to complying with Hampton's request for cash in exchange for the murder.

A motion Gibson made to suppress his written statement was denied and he proceeded to trial. He was convicted on all counts. Gibson's appeal raises issues regarding the denial of his motion to suppress, the jury instructions on the murder-for-hire counts and the lack of a unanimity instruction, and the sufficiency of the evidence on the murder-for-hire count. He also contends that the errors involving the murder-for-hire charge require reversal of the entire judgment, including the gun charges.

We will turn first to the jury instructions on the murder-for-hire charge. When the challenge to a jury instruction implicates a question of law, our review is de novo. United States v. Macedo, 406 F.3d 778 (7th Cir.2005). But the "district court is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law." United States v. Lee, 439 F.3d 381, 387 (7th Cir.2006).

After all the testimony had been taken, the district judge, Charles R. Norgle, Sr., held a jury instruction conference at which each side's proposed instructions were considered. It is notable that Gibson did not propose an instruction that would require the jury to agree unanimously on every element of the murder-for-hire count, and he also did not object to its absence — though he raises the issue on appeal. The judge rejected the three instructions Gibson proposed as to elements of murder for hire and rather used the instructions provided by the government.

The murder-for-hire statute, 18 U.S.C. § 1958(a), provides in part:

Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both....

The instructions given tracked the statute and stated that to sustain the charge the government had to prove three propositions. As relevant here, the instruction was that the government had to prove

that anything of pecuniary value was received or promised or agreed to be paid as consideration for the murder.

"Anything of pecuniary value" was defined as it is in the statute: "money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage." Finally, the instructions stated:

In considering whether "anything of pecuniary value" was received or promised or agreed to be paid as consideration for the alleged murder, you are instructed that not only money, but also drugs, guns, or involvement in future crimes which would yield cash profits, can also constitute consideration.

The issues Gibson raises involve the meaning of "consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value." He contends, in effect, that the word "consideration" imports civil contract law into the statute. His first proposed instruction was:

In considering whether something of pecuniary value was promised or agreed to be paid as consideration for a murder, you are instructed that the Defendant must have reached an agreement — that is, a contract — with a third person in which the Defendant and the third person exchanged mutual promises whereby the third person promised to commit the murder in exchange for the Defendant's promise to pay something of pecuniary value to the third person. If you find from your consideration of all the evidence that the government has failed to prove beyond a reasonable doubt that the Defendant reached such an agreement with a third person, then you must acquit Defendant of Counts One and Two.

He is not entirely without support for the proposition that civil contract law is somehow involved in the statute, but he stretches the proposition beyond the breaking point. In United States v. Richeson, 338 F.3d 653, 657 (7th Cir.2003), we said that "consideration retains its contract law meaning of a bargained-for exchange of something of value" and that the statute requires a quid-pro-quo between the solicitor and the murderer. But we also cautioned that the use of the word "consideration" "`does not import all of contract law,' it should be interpreted in accordance with its plain meaning, which is `in return for' or `in exchange for,'" citing United States v. Hernandez, 141 F.3d 1042, 1057 (11th Cir.1998).

The instructions given here make clear that the murder must have been solicited in exchange for something of pecuniary value. That is exactly what is required under the statute. To go beyond that and instruct the jury that a contract is required could mislead them into thinking that some formal understanding — absurdly, perhaps even a written document — is required. As Judge Norgle remarked to Gibson's attorney, "From your standpoint it would be...