U.S. v. Gibson

• Decision Date: 30 December 2003
• Docket Number: No. 02-3023.,02-3023.
• Parties: UNITED STATES of America, Appellee, v. Alonzo GIBSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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353 F.3d 21

UNITED STATES of America, Appellee, v. Alonzo GIBSON, Appellant.

No. 02-3023.

United States Court of Appeals, District of Columbia Circuit.

Argued October 7, 2003.

Decided December 30, 2003.

Appeal from the United States District Court for the District of Columbia (No. 94cr00193-02).

Jonathan L. Katz, appointed by the court, argued the cause and filed the briefs for appellant.

Alonzo Gibson was on the pro se brief for appellant.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese, III, and Martin D. Carpenter, Assistant U.S. Attorneys.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Alonzo Gibson appeals his conviction of possession of cocaine with intent to distribute, see 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii) (2003), and conspiracy to possess cocaine with intent to distribute, see id. § 846, on the ground that the imposition of his sentence over seven years after the jury returned a guilty verdict violated his right to speedy sentencing under the Sixth Amendment. Assuming that such a right exists, we hold that it was not violated. The delay was extraordinarily long but Gibson, far from being prejudiced, actively contributed to it and never requested prompt sentencing. With the exception of a 35-month institutional delay due to the loss of Gibson's pro se motions in chambers, the remaining delay was caused by Gibson, who filed multiple motions and requests for continuances and repeatedly resisted sentencing by the district court. These circumstances defeat his attempt to shift course on appeal. Gibson's other sentencing challenge, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is identical to a claim that was rejected in United States v. Graham, 317 F.3d 262, 273-74 (D.C.Cir.2003). Because Gibson's remaining challenges to his conviction are without merit, we affirm the judgment of conviction.

I.

The evidence, which we must view in the light most favorable to the government, see United States v. Wilson, 160 F.3d 732, 736-37 (D.C.Cir.1998), shows that Gibson was involved in arranging for Federal Express to ship from Los Angeles two boxes containing cocaine, one to an apartment in Silver Spring, Maryland and one to an address in the District of Columbia. The government's evidence showed that three men, who claimed not to be together although they conversed together, entered a Federal Express office in Los Angeles on April 14, 1994. Two of the men each carried a box, and the third man leaned on the counter. Gonzaver Braziel, a Federal Express employee who processed one of the packages, identified Gibson in a photo array as possibly being the third man and at trial identified Gibson as that man. After the three men left, Federal Express employees, whose suspicions were aroused by the behavior of the three men and certain details of the shipments, notified security personnel, who determined, upon x-raying the boxes, that they appeared to contain drugs. Federal Express employees opened one box and found a white powdery substance. The box was resealed, and both boxes were shipped to Federal Express headquarters in Memphis, Tennessee, and then to the District of Columbia, where Federal Express delivered the two boxes to United States Drug Enforcement Administration ("DEA") agents.

After searching the boxes pursuant to search warrants, DEA agents found that the powdery substance field-tested positive for cocaine: the box addressed to Maryland contained 2.994kg of 86% pure cocaine hydrochloride, and the box addressed to the District of Columbia contained 3.007kg of 90% pure cocaine. DEA agents, dressed as Federal Express employees, delivered the Maryland box, which indicated the sender was "Greg Smith" and the addressee was "Larry Davis," to the Maryland address, which turned out to be an apartment rented by Fatoumata Doumbia, Gibson's girlfriend. A few minutes after delivery, DEA agents executed a search warrant for the apartment. They found Gibson in a bedroom bending over the box that had just been delivered; with him were two pink sender's receipts, one for each of the boxes sent from Los Angeles. Also in the bedroom were two identification cards that bore Gibson's photograph, one showing the name "Greg Smith" and the other "Larry Davis." Gibson told agents that the box belonged to him and that he had been instructed to call an answering service upon delivery and say that "Snoop-Doggie-Dog" had called, and someone would call back and tell him where to deliver it. Gibson also told agents that the box contained marijuana. At trial, Doumbia testified about Gibson obtaining the fake identification cards and confirmed that Gibson had gone to Los Angeles twice in April 1994, calling her on April 15, 1994, to pick him up at the airport. She also testified that she gave the box to Gibson because he had told her he was expecting it.

The second box listed the sender as "Denise Jones" and was addressed to "Twanna Jones" at an apartment in the District of Columbia. Vi-Ki Dennis Taylor, Gibson's co-defendant, met the agent outside of the apartment and offered to accept delivery for Twanna Jones, whom he claimed was his sister. The agent refused, left, and later returned and delivered the box to Twanna Jones, who said the package was for Taylor. Before DEA agents could execute a search warrant, Twanna Jones and Taylor drove off with the box in a car registered to Antoine Jones, Twanna's brother, who had told her to expect a package for Taylor to be sent to her. Taylor was later arrested at his own apartment in Maryland, and DEA agents found the empty box nearby. The DEA agents also found 992.4 grams of 88% pure cocaine hydrochloride in the trunk of the car Taylor had been driving, along with a notebook containing addresses for "Greg Smith" and "Larry Davis," the names on Gibson's false identifications, one of which was the Maryland address at which Gibson had been arrested. A search of Antoine Jones' apartment in Virginia later uncovered supermarket and insurance cards in Gibson's name, as well as a yellow sticker and a napkin each bearing the Maryland address where Gibson had been arrested.

Gibson and Taylor were indicted on two counts: possession of with intent to distribute, see 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii), and conspiracy to possess with intent to distribute, see id. § 846, more than five kilograms of cocaine. Pursuant to then-prevailing precedent in this circuit, the jury was not instructed to determine the relevant drug quantity beyond a reasonable doubt, only whether Gibson possessed or conspired to possess "a detectable or measurable amount of cocaine." The jury returned its verdict on November 9, 1994, finding Gibson guilty of both counts. On February 8, 2002, the district court sentenced Gibson to concurrent terms of 240 months imprisonment, to be followed by concurrent three-year terms of supervised release, and imposed a special assessment of $50 on each count.

II.

Of the multiple challenges by Gibson to his conviction, only five require discussion. Part II discusses three trial-related claims, and Parts III and IV address the two challenges to his sentence.

First, it is clear that Gibson's contention that his conviction rested on insufficient evidence fails. The court reviews challenges to the sufficiency of the evidence de novo, see United States v. Fennell, 53 F.3d 1296, 1298 (D.C.Cir.1995), in order to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). That standard is met here.

Gibson was arrested with the Maryland box in his possession,¹ and the jury heard testimony both that he had been expecting the box and that he intended to deliver it to a third party. Moreover he had sender's receipts from both the Maryland and District of Columbia boxes, and the jury heard testimony that he had traveled to Los Angeles around the time they were shipped. He was found with false identifications matching the names of the shipper and addressee of the Maryland box. The recipients of the District of Columbia box were also found with a notebook containing the names on Gibson's false identifications and an insurance card and a supermarket card issued in Gibson's own name as well as a napkin matching the address to which the Maryland box was delivered.² A reasonable jury could conclude beyond a reasonable doubt, on the evidence presented, that Gibson possessed and conspired to possess cocaine with the intent to distribute it.

Second, Gibson contends that the district court abused its discretion by admitting the identification by Braziel, the Federal Express employee in Los Angeles. According to the testifying agent, Braziel had stated during a photo array that the man in Gibson's photograph seemed familiar and may have been one of the people that actually shipped the boxes from the Federal Express office in Los Angeles. As Braziel's identifications at the lineup and at trial were the most direct evidence placing Gibson in Los Angeles on the day the two boxes were shipped, Gibson contends that admission of the identifications was more prejudicial than probative because of Braziel's lack of certainty at the initial photo lineup. See Fed.R.Evid. 403.

Absent constitutional error, the erroneous admission of evidence is harmless so long as it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); see also United States v. Powell, 334 F.3d 42, 45-48 (D.C.Cir.2003). In light of the strength of the government's other evidence connecting Gibson to...