692 Fed.Appx. 529 (10th Cir. 2017), 16-6227, United States v. Gabourel

Docket Nº:16-6227, 16-6228
Citation:692 Fed.Appx. 529
Opinion Judge:Carolyn B. McHugh, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARENZO MONTEL GABOUREL, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WESLEY TAVION GRANT, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee (16-6227): David McCrary, Nicholas Jacob Patterson, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK. For Larenzo Montel Gabourel, Defendant - Appellant (16-6227): Vicki Zemp Behenna, Crowe & Dunlevy, Oklahoma...
Judge Panel:Before KELLY, BRISCOE, and McHUGH, Circuit Judges.
Case Date:June 07, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 529

692 Fed.Appx. 529 (10th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

LARENZO MONTEL GABOUREL, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

WESLEY TAVION GRANT, Defendant - Appellant

Nos. 16-6227, 16-6228

United States Court of Appeals, Tenth Circuit

June 7, 2017

Page 530

Editorial Note:

UNPUBLISHED OPINION

(D.C. No. 5:15-CR-00172-D-2). (W.D. Oklahoma).

(D.C. No. 5:15-CR-00172-D-1). (W.D. Oklahoma).

United States v. Grant, (W.D. Okla., Jan. 19, 2016)

For United States of America, Plaintiff - Appellee (16-6227): David McCrary, Nicholas Jacob Patterson, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK.

For Larenzo Montel Gabourel, Defendant - Appellant (16-6227): Vicki Zemp Behenna, Crowe & Dunlevy, Oklahoma City, OK.

For United States of America, Plaintiff - Appellee (16-6228): Robert Donald Gifford II, Gungoll, Jackson, Collins, Box & Devoll, Oklahoma City, OK; David McCrary, Nicholas Jacob Patterson, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK.

For Nicholas Jacob Patterson, Defendant - Appellant (16-6228): Paul Antonio Lacy, Esq., Kyle Wackenheim, Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK.

Before KELLY, BRISCOE, and McHUGH, Circuit Judges.

Page 531

ORDER AND JUDGMENT [*]

Carolyn B. McHugh, Circuit Judge

Larenzo Montel Gabourel and Wesley Tavion Grant were tried together and convicted of drug crimes relating to the possession and distribution of Phencyclidine (PCP). Mr. Gabourel appealed, claiming that the evidence was insufficient to support his convictions and that the district court committed plain error by not giving a drug-addict jury instruction. In a separate appeal, Mr. Grant also contends the evidence was insufficient to support his convictions, and he argues the district court abused its discretion in admitting

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evidence of his prior convictions and gang affiliation.

The appeals were briefed and argued separately, but because they arise out of the same set of facts, we consolidate them for disposition and consider both appeals in this Order and Judgment. For the reasons we now explain, we affirm each of the defendants' convictions.

I. BACKGROUND

A.

Factual History1

In the spring of 2015, Mr. Gabourel, Paul Thomas, and Alvin Norman drove from Los Angeles, California to Oklahoma City, Oklahoma. Mr. Thomas traveled to visit his friend, Mr. Grant, who was living in Oklahoma City at the time. Mr. Grant asked if Mr. Thomas would bring Mr. Norman along, and Mr. Norman invited Mr. Gabourel. Prior to this trip, Mr. Gabourel had not met Mr. Thomas or Mr. Grant. The three men arrived in Oklahoma around May 12, 2015.

Mr. Thomas and Mr. Grant spent most of their time together in Oklahoma getting high on PCP, Oxycontin, and Xanax at a " stash house" located in the Invitational Apartments.2 Around May 16, Mr. Thomas spoke with Mr. Gabourel about finding a source of money. Mr. Gabourel said " he knew somebody that would get him some PCP if [Mr. Thomas] knew anybody" wanting to buy. Mr. Thomas responded that he knew someone who probably would buy.

The next day, May 17, Mr. Thomas arrived at the stash house to find Mr. Gabourel in the kitchen mixing (or " cutting" ) the PCP with " starter fluid or something" to make it " look like it's more than what it is." Mr. Thomas asked Mr. Gabourel where he got the PCP, and Mr. Gabourel responded that " [h]is people looked out for him." Mr. Thomas and Mr. Grant smoked some of this PCP, and both said it was " garbage," but Mr. Thomas " knew somebody" who would likely buy it anyway.

Mr. Thomas contacted the potential buyer to see if he would be interested in purchasing the PCP. Unbeknownst to Mr. Thomas, this person was a confidential informant who then alerted the authorities. On May 18, Mr. Thomas and Mr. Norman met the informant at a local Walmart to discuss a future sale of PCP. Afterward, the police followed Mr. Thomas and Mr. Norman back to the stash house. Mr. Thomas then informed Mr. Gabourel " that [his] people might want to get something from [Mr. Gabourel], get some of that."

The following day, the police observed Mr. Thomas, Mr. Grant, Mr. Norman, and Mr. Gabourel leave the apartment and get into a car. The police followed the four men to a restaurant, where the men went inside to eat. While at the restaurant, the informant called Mr. Thomas and said he " had somebody that wanted something." They set up a meeting at Walmart to exchange two ounces of PCP for $450. When Mr. Thomas ended the call, he told Mr. Gabourel that " somebody might want some of that garbage [Mr. Gabourel] got."

Mr. Thomas then drove the men back to the stash house. Mr. Grant, Mr. Norman, and Mr. Gabourel went into the apartment while Mr. Thomas waited in the car. Mr. Grant and Mr. Norman returned to the car shortly thereafter, but Mr. Gabourel stayed at the apartment. Mr. Thomas, Mr.

Page 533

Grant, and Mr. Norman then drove to Walmart to sell the PCP.

At Walmart, Mr. Norman got into the informant's car, which was also occupied by an undercover officer posing as the " buyer." Mr. Norman sold the officer two ounces of PCP contained in two vanilla extract bottles. Upon completion of the sale, Mr. Norman rejoined Mr. Thomas and Mr. Grant in the other car and they left Walmart, with authorities following.

The police later initiated a traffic stop, during which they found $450 on

Mr. Norman. The police arrested the men and transported them to the police station for questioning. While Mr. Grant was walking through the parking lot, a third bottle of vanilla extract containing one ounce of PCP fell from his buttocks onto the ground.

Meanwhile, the authorities waiting at the stash house could detect the odor of PCP from " 15 to 20 feet away from the door" to the apartment. They obtained a search warrant and then entered the apartment, yelling " [p]olice, search warrant, get on the ground." The police found " slightly less than one gallon" of PCP in the kitchen. Several officers testified this was the most PCP they had ever recovered in a single police operation. They also found a plastic medicine dropper for transferring liquid, and three empty boxes for bottles of vanilla extract, matching the size and type exchanged during the drug buy and dropped by Mr. Grant during the arrest.

The officers found Mr. Gabourel in the bedroom, and he admitted to having a gun in his pocket.3 The officer who handcuffed Mr. Gabourel removed a revolver loaded with five rounds of ammunition from Mr. Gabourel's pocket. In the bedroom, the police also found Mr. Grant's wallet which contained his birth certificate, social security card, and an appearance bond for Oklahoma County court.

B.

Procedural History

Mr. Thomas, Mr. Grant, Mr. Norman, and Mr. Gabourel were indicted by a federal grand jury in the Western District of Oklahoma. Mr. Gabourel was charged with Count 1: conspiracy to possess with intent to distribute and to distribute PCP; Count 3: possession of PCP with intent to distribute or aiding and abetting; and Count 4: possession of a firearm in furtherance of a crime. 21 U.S.C. § § 841(a)(1), 846; 18 U.S.C. § § 2, 924(c)(1)(A)(i). Mr. Grant was charged with Count 1: conspiracy to possess with intent to distribute and to distribute PCP; Count 2: distribution of PCP or aiding and abetting; and Count 3: possession of PCP with intent to distribute or aiding and abetting. 21 U.S.C. § § 841(a)(1), 846; 18 U.S.C. § 2. Mr. Thomas pled guilty prior to trial, agreeing to cooperate as a government witness, and Mr. Norman was a fugitive at the time of trial.4 Thus, only Mr. Grant and Mr. Gabourel were tried together.

Prior to trial, the government moved to admit evidence of Mr. Grant's prior convictions and gang affiliation. First, the government filed a Federal Rule of Evidence 404(b) Notice of intent to introduce evidence of Mr. Grant's prior convictions for drug offenses, including prior possession of PCP. The government sought to use this

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evidence to prove intent, plan, knowledge, and absence of mistake or accident. The district court admitted the evidence over Mr. Grant's objection. Second, the government moved in limine to admit evidence of Mr. Grant's gang affiliation. The district court reserved ruling on the motion until trial.

At the start of trial, Mr. Gabourel's counsel indicated his intent to introduce evidence of both Mr. Thomas's and Mr. Grant's affiliation with the Bloods gang. Counsel explained this evidence supported the defense's theory that Mr. Thomas had provided perjured testimony blaming Mr. Gabourel, who was not a gang member, for obtaining the PCP rather than "...

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