U.S. v. Gibson

• Decision Date: 05 June 1995
• Docket Number: Nos. 94-10084,94-10649,s. 94-10084
• Citation: 55 F.3d 173
• Parties: 42 Fed. R. Evid. Serv. 503 UNITED STATES of America, Plaintiff-Appellee, v. James Clifton GIBSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Clifton GIBSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 173

55 F.3d 173

42 Fed. R. Evid. Serv. 503

UNITED STATES of America, Plaintiff-Appellee, v. James Clifton GIBSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Clifton GIBSON, Defendant-Appellant.

Nos. 94-10084, 94-10649.

United States Court of Appeals, Fifth Circuit.

June 5, 1995.

Sidney Powell, Dallas, TX, for appellant.

Christopher Stokes, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Ft. Worth, TX, for appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant James Clifton Gibson ("Gibson") appeals his criminal conviction and the denial of his post-trial motions. We affirm.

PROCEEDINGS IN THE COURT BELOW

On November 17, 1992, Gibson and Melvin Boyd Hazelton ("Hazelton") were named in a four count indictment. The defendants were jointly charged in three counts: Count 1, conspiracy to manufacture and to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1); Count 2, possession of methylamine, a listed chemical, in violation of 21 U.S.C. Sec. 841(d)(2); and Count 4, maintaining a place for the purpose of manufacturing and distributing a controlled substance, in violation of 21 U.S.C. Sec. 856(a)(1). Hazelton was also charged with possession of phenylacetic acid, a listed chemical, in violation of 21 U.S.C. Sec. 841(d)(2).

On March 15, 1993, Hazelton pleaded guilty to Count 4 and, pursuant to a plea agreement, testified as a government witness at Gibson's trial. Hazelton was subsequently sentenced to 120 months imprisonment. A jury found Gibson guilty on all counts on March 26, 1993.

Gibson retained new counsel approximately one week after he was convicted, and his trial counsel later withdrew. Gibson filed a motion to suppress evidence, for new trial, to dismiss the indictment, and for release pending appeal on July 28, 1993. The motion for new trial was based on his claim that he received ineffective assistance of counsel at trial because his trial counsel failed to file a motion to suppress evidence, conducted inadequate pretrial investigation, and failed to call certain witnesses identified by the new lawyer. The trial court denied the motion, finding that it was not based on newly discovered evidence and was outside the seven day limit for filing motions for new trial imposed by FED.R.CRIM.P. 33. The district court also denied Gibson's motion to suppress evidence, finding that he had waived his right to object to its admission by failing to timely file for suppression and that he had not shown cause sufficient to merit relief from that waiver under FED.R.CRIM.P. 12(f). The district court likewise denied the motions for dismissal of the indictment and for release, although Gibson was granted release after sentencing The district court sentenced Gibson on January 18, 1994 to 135 months imprisonment and a 5 year term of supervised release. Gibson appealed. On April 15, 1994, Gibson filed a motion for new trial based on newly discovered evidence, and this Court stayed the appeal. The district court denied the motion, finding that the same arguments had been advanced in earlier post-trial motions and were without merit. Gibson filed a notice of appeal from that order as well, and this Court consolidated the two appeals.

pending appeal. Gibson moved for reconsideration of those orders, which motion was denied on December 3, 1993, with a finding that no grounds existed for granting new trial or acquittal.

FACTS

Gibson is an arguably bright, professionally successful mechanical engineer in his early thirties. He holds patents on and receives royalties from two tow truck designs. He is married and has two young children and testified that he considers himself a strong Christian.

Hazelton is a forty year old high school graduate with mechanical aptitude and a history of drug use and failed relationships. The two met in the late eighties when Gibson had Hazelton overhaul the engine in his car. Gibson enjoyed Hazelton's company and liked to "pick his brain" about technical design problems. Over time, the two became close friends, vacationing together, and eventually Hazelton moved in with Gibson's family.

Gibson and Hazelton developed a plan to go into business together. Gibson was going to do design work and, with Hazelton's help, manufacture his own prototypes. In the Spring of 1992, they jointly purchased a 132.5 acre piece of land just outside of Loving, Texas, which included a residence and several outbuildings. Both contributed to the down payment on the real estate, but the lien note and title to the land were taken in the Gibsons' names because of Hazelton's past credit problems. Hazelton moved onto the ranch first, and Gibson and his family moved onto the ranch a short while later. From April through August, Gibson and Hazelton worked to convert the barn into a workshop. Neither Gibson nor Hazelton had jobs off the ranch, and devoted much of their time to the renovation.

When law enforcement officers executed a search warrant on the ranch, they found glassware adequate to set up a methamphetamine lab, some of which contained methamphetamine residue, in boxes in the barn. Authorities found a fingerprint identified as Gibson's on one of the pieces of glassware. They also found a jar in the workshop refrigerator containing a small amount of methamphetamine.

The officers found a pair of jeans that smelled like a methamphetamine cook, approximately $40,000 cash, several guns, a notebook with chemical formulas, and a receipt for a mini-warehouse rental among Hazelton's belongings in the house. They also found a telephone scrambler, several loaded guns, and more cash among Gibson's belongings. One officer testified that Gibson made an oral confession during the search, admitting that he was aware of the chemicals on the property, but explaining that Hazelton had offered him money to store the chemicals temporarily.

A subsequent search of the mini-warehouse revealed a large quantity of phenylacetic acid. Hazelton had signed the mini-warehouse lease and listed Gibson's name on the lease document. Gibson had a key to the mini-warehouse which he told his wife to turn over to authorities during his incarceration after the search.

Hazelton and Gibson both testified at trial, giving two very different versions of the facts. Hazelton testified that he had cooked methamphetamine at the ranch three times during the Spring/Summer of 1992. He testified to a several-year-long collaboration between himself and Gibson in the manufacture, distribution, and use of methamphetamine, and fully implicated Gibson in the methamphetamine cooks on the ranch.

Gibson testified that he was not aware of the presence of any controlled substances on the property, that he did not conspire or intend to manufacture methamphetamine,

and that he was ignorant of Hazelton's extensive drug involvement. He explained that he kept large sums of cash on hand because a potential problem with the Internal Revenue Service precluded depositing the funds in a bank account. He explained that his fingerprint was on the piece of glassware in the workshop because he had been nosing around in Hazelton's boxes one time, but he maintained that he did not know what the glassware was for. He denied that he made a statement to an officer at the time of the search admitting knowledge of the presence of chemicals on the property. Finally, he attributed to Hazelton the motive of getting a better deal from the government on sentencing by lying about their partnership.

SUPPRESSION ISSUES

Gibson claims that his conviction should be reversed because the physical evidence used against him at trial was unconstitutionally seized. He specifically alleges that the judge's signature on the search warrant was forged and that the underlying affidavit included deliberate or reckless misrepresentations.

a. The judge's signature on the warrant.

Appellant submitted a post-trial motion alleging that State District Judge Jim R. Wright's signature on the search warrant was a forgery. He submitted affidavits from two handwriting experts. One reached the "tentative opinion" that the signature on the warrant was written by a person other than Judge Wright. The other expert submitted a report that the signature on the warrant was "probably" not written by Judge Wright. Judge Wright submitted an affidavit stating that he did sign the search warrant. Finding himself "unconvinced that the judge's signature on the search warrant is a forgery," the district court denied the motion. Having reviewed this factual determination for clear error, United States v. Carrillo-Morales, 27 F.3d 1054, 1061 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995), we find no merit in this ground of error.

b. Adequacy of the affidavit of probable cause.

The affidavit for the search warrant was signed by deputy sheriff Houston Johnson ("Johnson"). He stated under oath that he and three other officers were on a hill across the road from the ranch at 9:34 p.m. on August 1, 1992 conducting surveillance when each of them "smelled an odor associated with the manufacture of amphetamine, methamphetamine or phenylacetone coming from the direction of the [Gibson ranch]." The affidavit stated that all four officers had training in the detection of clandestine labs and were familiar with odors associated with such labs.

Gibson filed a post-trial motion contending that Johnson's allegations that the officers smelled a clandestine lab were deliberately false or were made with reckless disregard of the truth. In determining whether a search warrant establishes probable cause, a court must disregard any intentional or reckless misrepresentations made by the affiant in the affidavit. United States v. Cherry, 50 F.3d 338, 341 (5th Cir.1995). Without...