U.S. v. Gamory

• Citation: 635 F.3d 480
• Decision Date: 11 March 2011
• Docket Number: No. 09–13929.,09–13929.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Edgar Jamal GAMORY, a.k.a. J.B., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

635 F.3d 480

84 Fed. R. Evid. Serv. 1305

22 Fla. L. Weekly Fed. C 1885

UNITED STATES of America, Plaintiff–Appellee,

v.Edgar Jamal GAMORY, a.k.a. J.B., Defendant–Appellant.

No. 09–13929.

United States Court of Appeals, Eleventh Circuit.

March 11, 2011.

Richard Martin Adams, James W. Parkman, III, Parkman, Adams & white, LLC, Birmingham, AL, for Defendant–Appellant.Lisa Wilson Tarvin, Lawrence R. Sommerfeld, Atlanta, GA, for Plaintiff–Appellee.Appeal from the United States District Court for the Northern District of Georgia.Before BARKETT, MARTIN and HILL, Circuit Judges.MARTIN, Circuit Judge:

Appellant Edgar Jamal Gamory appeals his convictions for conspiracy to possess with intent to distribute at least five kilograms of cocaine and at least 1,000 kilograms of marijuana and money laundering. Gamory also appeals his sentence of life imprisonment and raises eleven different issues challenging either his convictions or sentence. After thorough review, and having had the benefit of oral argument, we affirm.

I. FACTUAL BACKGROUND

In June 2008, a Northern District of Georgia federal grand jury named Gamory in a five count superseding indictment. Gamory, along with three co-defendants,¹ was charged in count one with conspiring to distribute and possess with the intent to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii) and (vii). Gamory was also charged in counts two, three, four, and five with aiding and abetting in four separate money laundering transactions in violation of 18 U.S.C. §§ 1957 and 2. The government filed a notice for increased punishment pursuant to 21 U.S.C. § 851.

A. INVESTIGATION AND OFFENSE CONDUCT

In July of 2006, Special Agent Larsen of the Atlanta Field Office of the Drug Enforcement Agency (“DEA”), began an investigation of codefendant Victor Olvera following a traffic stop and seizure of more than $800,000 in United States currency. During a subsequent search of Olvera's discarded trash bags, agents discovered evidence of drug trafficking, including drug ledgers. During the course of the investigation, Agent Larsen identified other subjects, initially known only by their nicknames as JB, Smooth, and Pudge. Eventually, agents secured the cooperation of a confidential informant (“CI” or “CS”), who provided information on a Mexican drug trafficker, Enrique Juangorena, who the CI said had been providing cocaine and marijuana to JB, later identified as Edgar Gamory.²

According to trial testimony, in late or early 2005, Juangorena began supplying cocaine to Gamory, who operated in Georgia, North and South Carolina, Virginia, and New York. Juangorena first met Gamory at Gamory's residence, where Juangorena and the CI went to pick up $750,000 or $800,000 in drug proceeds from the sale of cocaine.

In addition to translating conversations between Gamory and Juangorena, the CI delivered cocaine from Juangorena to Gamory and in turn counted and transported drug proceeds from Gamory's residence. The CI testified that Gamory received more than 2,000 kilograms of cocaine. Also during this period, the CI picked up drug proceeds in amounts of $300,000, $600,000, and $800,000 generated from the sale of cocaine.

Gamory employed childhood friends, including Errol Moliere and Durrell Holland (both of whom testified against him at trial), to sell drugs and collect drug proceeds for him. Moliere sold cocaine for Gamory in Raleigh and Greensboro, North Carolina, and Alexandria, Virginia, between 1998 and 2006. Similarly, Holland sold cocaine for Gamory in Greensboro; Charleston, South Carolina; and Norfolk, Hampton, Newport News and Virginia Beach, Virginia between 2000 and 2007. Between 2005 and 2007, Holland sold between 18 to 20 kilograms of cocaine every four to five days while in Virginia. Holland received the cocaine from couriers who worked for Gamory and drove a Ford Explorer belonging to Gamory, which had a secret compartment in it to transport drugs and drug proceeds between Atlanta and Virginia.

In January 2006, Moliere moved to Atlanta and lived in Gamory's basement for two or three months while working with Gamory in the music recording business at Gamory's studio, Hush Money Entertainment (“HME”). According to Moliere and Holland, HME was a hobby that never got off the ground, and Gamory never made any money from it. Gamory also owned seafood restaurants in New York, but was not the registered owner. Rather, the restaurants were registered in the name of Steve Workman, another childhood friend who worked with Gamory in the drug business. According to Holland, Workman just “legalized” the fish restaurants for Gamory.

In May 2007, as directed by agents, the CI contacted Gamory and made arrangements for Gamory, Juangorena, and the CI to meet at HME on May 24, 2007, for a controlled drug buy. In anticipation of the meeting, surveillance was set up at Gamory's residence and recording studio that day. DEA agents observed two people leave the residence in different cars, including a green Ford Explorer, which agents suspected had a hidden compartment based upon information received from the CI. Agents followed the Explorer to a location where it was parked in a garage at Providence Apartments in Lithonia, Georgia (“the apartment” and “apartment garage,” respectively). Vaughn Greene was identified as the driver of the Explorer at the scene. Agents also identified another cooperator, Errol Moliere,³ who was observed meeting with Greene at the apartment complex after Greene had parked the Explorer in the apartment garage.

Agents obtained consent⁴ to search the apartment garage from Greene's girlfriend, Lakisha Parker. During a search of the Explorer, agents seized $630,000 from a hidden compartment. Moliere later identified the Explorer that Greene was driving that day as belonging to Gamory and having been used in the past to deliver cocaine to, and pick up drug proceeds from, Moliere in Virginia or North Carolina. At trial, Holland and Moliere both identified some of the bundles of money, which were labeled with the letter “D,” as drug proceeds Holland had collected and Moliere and Greene packaged at Holland's residence in Virginia for Gamory.

Agent Larsen then obtained a search warrant for Gamory's residence at Riverwalk Trail, in Lilburn, Georgia (“Gamory's residence”), which was executed the next day, on May 25, 2007. During the search, agents seized a large amount of cash, jewelry, five firearms, a Kevlar police vest, drug packaging materials, and papers which contained notations similar to those found in drug ledgers. Agents also located a hidden compartment which had been built into the basement stairs by the CI and Olvera.

B. MOTION TO SUPPRESS

Following his indictment, Gamory pled not guilty and filed a motion to suppress evidence that had been seized from his residence. Codefendant Greene ⁵ also filed a motion to suppress evidence seized at Gamory's residence on May 25, 2007, as well as evidence which had been seized at the apartment and apartment garage in Lithonia. Gamory and Greene both filed motions for evidentiary hearings on their motions to suppress. In his suppression motion, Gamory alleged the warrant affidavit included materially false information regarding Lakeisha Parker's having given consent to search her apartment garage, thus violating Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).⁶

The Magistrate Judge granted Greene an evidentiary hearing but not Gamory. After hearing Parker's testimony that she did not consent and the government agents' testimony to the contrary, the Magistrate Judge concluded that Parker's testimony was “simply not credible” and thus recommended denying Gamory's motion to suppress and request for a Franks hearing. Over Gamory's objections, the District Court approved and adopted the Magistrate Judge's recommendation and denied his motions to suppress.

C. TRIAL

Gamory proceeded to a jury trial. Voir dire was conducted by the District Court and by the parties. The government struck jurors 13, 18, 25, 27, 29, and alternate juror 20. Gamory challenged four of the government's six peremptory strikes based on “statistics more than anything else,” i.e., jurors 13, 25, 27, and 29. Gamory argued that the government's use of four of its six peremptory challenges, or 66%, to strike African–American jurors violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The District Court rejected this challenge, however, after concluding that the government offered race neutral explanations.

During the trial, the government presented the testimony of 19 witnesses, including: Agent Larson; the CI; Holland; Moliere; Juangorena; various surveillance agents who testified to the facts set out above; various car dealers regarding automobile purchases and state and federal tax officials regarding income tax records. With the exception of HME and Gamory Enterprises, the evidence showed that all of Gamory's assets, including his residence, vehicles and restaurants, were titled in alias names used by Gamory or in the names of other people, primarily Gamory's family members.

Additionally, over Gamory's objections, the government introduced evidence that Gamory had paid no personal income or business taxes for HME and Gamory Enterprises during the years 2003–2006, and neither had he paid taxes for his restaurants during 2003–2007.⁷ Gamory objected on the grounds that the records were irrelevant and unfairly prejudicial, under Fed.R.Evid. 403. There were also a number of witnesses who testified regarding the drug conspiracy and money.⁸

To prove the money laundering charges, the government relied on the testimony of the CI, Juangorena, Holland and Moliere and the existence (or lack thereof) of tax records for Gamory and his family to show that Gamory did not have a legitimate source of income. Based on this evidence, as well as testimony by Wardell Strickland about how the...