U.S. v. Gibson

• Citation: 170 F.3d 673
• Decision Date: 04 March 1999
• Docket Number: No. 98-1503,98-1503
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark GIBSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 673

170 F.3d 673

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

No. 98-1503.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 25, 1998.

Decided March 4, 1999.

Brian R. Harvey (argued), Office of the United States Attorney, Civil Division, Appellate Section, Chicago, IL, for Plaintiff-Appellee.

Victor M. Pilolla (argued), Oak Park, IL, for Defendant-Appellant.

Before CUDAHY, COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Mark Gibson was convicted by a jury of four counts of distributing and possessing with the intent to distribute cocaine base ("crack cocaine") in violation of 21 U.S.C. § 841(a)(1). On appeal, Gibson raises two issues: (1) whether the district court erred in admitting into evidence statements Gibson made to the FBI upon his arrest in which Gibson admitted that he had sold drugs, including crack cocaine, for years and (2) whether the district court erred in admitting into evidence portions of recorded conversations between Gibson and an undercover agent during which they discussed the possible purchase of handguns. For the reasons discussed below, we reject the arguments presented by Gibson and affirm his conviction.

I. HISTORY

On four separate occasions in February and April 1996, Gibson sold crack cocaine to Mark Banks. Unbeknownst to Gibson, Banks was a Senior Special Agent with the Wisconsin Department of Justice working undercover in a joint operation with the FBI, the Waukegan and Zion Police Departments, and the Kenosha County drug unit.

After establishing a rapport with Gibson by engaging in two prior narcotics transactions with him, Agent Banks arranged for a third meeting with Gibson in order to purchase another quantity of crack cocaine. During the course of this transaction, which was recorded with surveillance devices, Agent Banks inquired about the possibility of purchasing a handgun from Gibson. Gibson told Agent Banks that he could obtain nine millimeter pistols and forty-five caliber handguns and would sell these firearms to Agent Banks for $200 each. Although no sale of handguns was finalized, Agent Banks ended their meeting by purchasing crack cocaine from Gibson and confirming his interest in future drug and handgun purchases.

The fourth and final transaction occurred approximately two weeks later. Once again, Agent Banks contacted Gibson and indicated his interest in purchasing additional quantities of crack cocaine. After confirming the amount of crack cocaine to be exchanged, Agent Banks inquired about the purchase of a nine millimeter pistol. No agreement was reached regarding the purchase of a handgun in this conversation.

Agent Banks and Gibson met later that day to complete the transaction upon which they had previously agreed. This transaction was also recorded by surveillance devices. Agent Banks again inquired about the purchase of a handgun, but Gibson remained noncommittal on such an exchange, and, in fact, Agent Banks never purchased a handgun from Gibson.

Gibson was eventually arrested by the FBI for distribution and possession with intent to distribute crack cocaine fifteen months after the date of his last transaction with Agent Banks. The delay in Gibson's arrest was necessitated by Agent Banks' involvement in a number of other criminal investigations. After his arrest, the FBI approached Gibson about the possibility of cooperating in an ongoing FBI drug investigation. Gibson consented to an interview with FBI agents. During the course of that interview, Gibson admitted that he had been involved in the trafficking of narcotics, starting with marijuana and cocaine, since he was fourteen or fifteen years old, that he began selling crack cocaine in 1994, and that he had last purchased crack cocaine for resale in January 1997. Despite participating in this interview, Gibson decided not to cooperate with the FBI, and the criminal case against him went forward.

Prior to his trial on the drug charges, Gibson filed a motion in limine seeking to preclude the government from introducing certain evidence at trial. The motion contested the admission of the statements Gibson made to the FBI detailing his drug dealing activities into evidence. Gibson submitted that these statements were irrelevant because they did not relate to the specific charges contained in his indictment. The motion also sought to prevent the government from offering those portions of the recorded conversations between Gibson and Agent Banks pertaining to the purchase of handguns. Gibson again argued that these recordings were irrelevant and also asserted that they were prejudicial. The district court denied this motion, and the government offered this evidence at trial.

II. ANALYSIS

A. Admissibility of Gibson's Prior Incriminating Statements

to the FBI

Gibson argues that the district court erred in allowing the government to admit into evidence the incriminating statements Gibson made to the FBI concerning his prior drug dealing activities. Gibson moved, prior to trial, to bar the government from introducing this evidence pursuant to Federal Rule of Evidence 402. Gibson argued that the statements had no relevance to the drug charges in this case. The district court denied Gibson's motion, ruling that "Gibson's admissions [were] directly relevant and probative of his guilt, even though he did not confess to the specific undercover sales in this case."

On appeal, it appears that Gibson has abandoned his relevancy objection to this evidence and, instead, maintains that the statements were inadmissible evidence of "other crimes" within the meaning of Rule 404(b). ¹ Rule 404(b) generally prohibits the introduction of character evidence relating to a defendant's other crimes, wrongs, or acts when such evidence is offered to show conduct in conformity with the activity that is the subject of current litigation. United States v. Macias, 930 F.2d 567, 572 (7th Cir.1991). Gibson submits that the statements were offered only to show his propensity to commit the charged crimes and, therefore, the admission of this evidence violated Rule 404(b).

Our review of the record indicates that Gibson failed to raise a Rule 404(b) objection to the admission of this evidence before the district court. This failure to make a timely objection before the district court constitutes a forfeiture of this argument on appeal. Fed.R.Crim.P. 52(b); ² United States v. Wilson, 134 F.3d 855, 862 (7th Cir.1998). We therefore review the district court's decision to admit this evidence for plain error only. United States v. Olano, 507 U.S. 725, 731-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Wilson, 134 F.3d at 862-63; United States v. Ross, 77 F.3d 1525, 1538 (7th Cir.1996).

Plain error review under Rule 52(b) allows us to reverse the district court only if we conclude that: (1) error occurred; (2) the error was plain; and (3) the error affected the defendant's substantial rights. See Olano, 507 U.S. at 731-35, 113 S.Ct. 1770; Wilson, 134 F.3d at 862-63; Ross, 77 F.3d at 1538. An "error" within the meaning of Rule 52(b) occurs if a legal rule has been violated during the district court proceedings, and the defendant did not knowingly waive his right to object to the violation. Olano, 507 U.S. at 732-34, 113 S.Ct. 1770. "Plain" means "clear" or "obvious." Id. at 734, 113 S.Ct. 1770 ("At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law."). Finally, plain error affects "substantial rights" if the error was prejudicial, meaning that the error "must have affected the outcome of the district court proceedings." Id. The defendant, not the government, bears the burden of persuasion with respect to prejudice. Id. Moreover, even if all three conditions are satisfied, the decision to correct a forfeited error lies within the sound discretion of the court of appeals, and "the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 732, 113 S.Ct. 1770 (citations and internal quotations omitted).

Our first task is to determine whether the admission of the statements constituted error under Rule 404(b). We conclude no such error occurred. As stated, evidence of other crimes or wrongs is not admissible under Rule 404(b) to show that the defendant acted in conformity therewith on a particular occasion. Fed.R.Evid. 404(b). Rule 404(b) contains a proviso, however, that permits evidence of other crimes, wrongs, or acts to be introduced for other non-propensity purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Id.

This Court has established a four-prong test to determine the appropriateness of admitting evidence under Rule 404(b). Under this test, evidence may be admitted pursuant to Rule 404(b) if: (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice. See, e.g., United States v. Lampkins, 47 F.3d 175, 179 (7th Cir.1995); United States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir.1994).

Gibson challenges the district court's decision to admit this evidence on three of the four prongs; he concedes that his admission of prior drug dealing is sufficient to support a jury finding that he committed those acts. With respect to the first prong of the test, Gibson argues that the admission of the statements he made to the FBI can serve no purpose other than to show his propensity to deal drugs. The government counters...