United States v. Gibson

• Decision Date: 14 February 2013
• Docket Number: 10–15728,Nos. 10–15629,10–15729 and 11–10565.,s. 10–15629
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James L. GIBSON, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sidney Brian Gibson, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sidney Brian Gibson, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Leondray Gibson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

708 F.3d 1256

UNITED STATES of America, Plaintiff–Appellee,

v.James L. GIBSON, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Sidney Brian Gibson, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Sidney Brian Gibson, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Leondray Gibson, Defendant–Appellant.

Nos. 10–15629, 10–15728, 10–15729 and 11–10565.

United States Court of Appeals, Eleventh Circuit.

Feb. 14, 2013.

Terry Flynn, Thomas F. Kirwin, Michael Thomas Simpson, U.S. Attys., Stephen M. Kunz, Asst. U.S. Atty., Tallahassee, FL, Robert G. Davies, U.S. Atty., Pensacola, FL, for Plaintiff–Appellee.

Michael Robert Ufferman (Court–Appointed), Michael Ufferman Law Firm, PA, Tallahassee, FL, Sonya Rudenstine (Court–Appointed), Gainesville, FL, Charles Lee Truncale, Charles L. Truncale, PA, Jacksonville, FL, for Defendants–Appellants.

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

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents two main issues: (1) whether a defendant has standing to challenge the use of a tracking device with a global positioning system to locate a vehicle the defendant possessed when the tracking device was installed, but not when the tracking device was later used to seize incriminating evidence; and (2) whether the district court violated the Double Jeopardy Clause of the Fifth Amendment by instructing the jury that it could convict a defendant for his renewed participation in a drug conspiracy after his earlier conviction for participating in the same conspiracy. In these consolidated appeals by three brothers and codefendants, James Gibson appeals his convictions for conspiracy to possess with intent to distribute cocaine and cocaine base, 21 U.S.C. § 846, and possession with intent to distribute cocaine, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii); Sidney Gibson also appeals his convictions for conspiracy to possess with intent to distribute cocaine and cocaine base, 21 U.S.C. § 846, and possession with intent to distribute cocaine, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii); and Leondray Gibson appeals his conviction and sentence for conspiracy to possess with intent to distribute cocaine base, 21 U.S.C. § 846. James Gibson argues that the district court erred when it refused to suppress evidence obtained through the use of a tracking device installed on a vehicle he frequently drove, but did not own, and the government argues that he lacks standing to raise that objection. Sidney Gibson argues that the district court erred by instructing the jury that it could convict him for his renewed participation in a conspiracy after his prior conviction for participating in that conspiracy and that the district court abused its discretion in admitting evidence of his prior arrest, conviction, and imprisonment. And Leondray Gibson argues that the district court abused its discretion by admitting evidence of his involvement in dog fighting and that his sentence is unreasonable. We conclude that James Gibson lacks standing to complain about the use of the tracking device to seize incriminating evidence when he was neither in possession of nor a passenger in the vehicle and that the district court protected Sidney Gibson's right to be free from being prosecuted twice for the same offense. The Gibsons' remaining arguments fail too. We affirm.

I. BACKGROUND

A federal grand jury indicted James Gibson, Sidney Gibson, Leondray Gibson, and Kelvin Burton on one count of conspiracy to distribute and to possess with intent to distribute more than 5 kilograms of cocaine and more than 50 kilograms of cocaine base, commonly known as crack cocaine, between 2000 and 2009, id. §§ 841(b)(1)(A)(ii), (b)(1)(A)(iii), 846. The grand jury also indicted James Gibson, Sidney Gibson, and Burton on one count of possession with intent to distribute more than 500 grams of cocaine, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). The government later filed an unopposed motion to consolidate the trials of the three Gibson brothers and Burton, which the district court granted.

Our review of the procedural history is divided into ten parts. First, we address Burton's motions to suppress. Second, we address James Gibson's motion to suppress. Third, we address the pretrial proceeding about the admission of Sidney Gibson's prior conviction. Fourth, we address Leondray Gibson's pretrial objection to evidence of his participation in dog fighting. Fifth, we address Burton's plea of guilt and testimony against the Gibson brothers. Sixth, we address the trial testimony of federal prisoners about the Gibsons' cocaine trafficking. Seventh, we address the testimony of state officers and federal agents and employees. Eighth, we address the close of the evidence and James Gibson's motion for a judgment of acquittal. Ninth, we address the jury instructions relevant to this appeal. Tenth, we address the guilty verdicts and the sentencing of the Gibson brothers.

A. Burton's Motions to Suppress

Before trial, Burton filed two motions to suppress all evidence seized during a search of a Chevrolet Avalanche that he was driving on February 20, 2009. In the first motion, Burton alleged that the traffic stop during which the search occurred was an unlawful detention. In the second motion, Burton alleged that the evidence was seized as a result of the warrantless installation of a tracking device on the Avalanche. The district court later held a hearing to consider the motions, during which it heard the testimony of several witnesses.

Agent Greg Millard of the Drug Enforcement Administration testified that, before his agency decided to install the tracking device on the Avalanche, he had reason to suspect that its frequent driver, James Gibson, used the vehicle in drug trafficking. Agent Millard had seen James Gibson driving the Avalanche and had seen it parked at James Gibson's home. But Burton was the registered owner of the vehicle.

The tracking device was installed on the Avalanche without a warrant on January 27, 2009, while it was parked in the driveway of James Gibson's residence. Special Agent Grant Geyer of the Florida Department of Law Enforcement installed the tracking device to the exterior of the Avalanche. No entry into the vehicle was necessary to install the device. The device had no microphone or camera, transmitted only the location of the vehicle, and did not tap the vehicle's power system or interfere with its operations in any way. When Geyer installed the device, the Avalanche was parked so that its rear end extended over the sidewalk, closer to the road than the house. Geyer installed the device on the undercarriage of the rear end of the vehicle in roughly two to three minutes while lying on the sidewalk.

On February 18, 2009, Agent Millard received information suggesting that James Gibson would be traveling in the Avalanche. Using the tracking device, Agent Millard located the Avalanche at an intersection in Tallahassee near a gas station and a mini-storage facility where James Gibson's girlfriend was renting a storage unit. Agent Millard drove to the intersection, but the vehicle had already departed when he arrived. He again used the tracking device to locate the Avalanche as it left the Tallahassee area and traveled north on Highway 59 toward Interstate 10. Agent Millard saw the Avalanche park at a gas station at the intersection of Highway 59 and Interstate 10, where he observed an individual he believed to be James Gibson exit the vehicle.

From February 18 through February 20, 2009, Agents with the Drug Enforcement Administration used the tracking device to locate the Avalanche as it traveled south to Ocala, Florida, and, after a short stay, started to travel back toward Tallahassee. Agent Millard testified that this travel pattern was suspicious because Ocala was a source city for narcotics and the vehicle stayed there for only a brief period. Agent Millard informed Deputy Sheriff Doug Haskell that the Avalanche would be traveling through Madison County, that the Drug Enforcement Administration was tracking the vehicle as part of an ongoing investigation, that Agent Millard believed that James Gibson would be driving the vehicle, and that Deputy Haskell should stop and search the vehicle if he could establish probable cause.

Deputy Sheriff David Harper testified that he worked with Deputy Haskell to locate the Avalanche after Agent Millard advised Deputy Haskell that the vehicle would be traveling through their jurisdiction. Deputy Harper located the Avalanche, observed it drift out of the lane of traffic in which it had been traveling, and communicated his observations to Deputy Haskell. Deputy Harper did not stop the Avalanche because he was not in uniform.

Deputy Haskell testified that Agent Millard called him on February 20, 2009, to tell him that the Avalanche would be traveling through his jurisdiction. Around 10:20 p.m., Deputy Harper reported to Deputy Haskell that he was behind the Avalanche and had observed it fail to maintain its lane of travel. Deputy Haskell intended to stop the Avalanche based on Deputy Harper's observation. As he approached the Avalanche, Deputy Haskell observed the vehicle drift out of its lane and follow too closely behind a tractor trailer. Deputy Haskell stopped the Avalanche for failure to maintain a lane and following the tractor trailer at an unsafe distance, and he identified Burton as the driver. After Deputy Haskell smelled burnt marijuana emanating from the vehicle,Burton consented to a search of the vehicle. Deputy Haskell found two kilograms of cocaine inside the vehicle.

The district court denied Burton's motions to suppress and ruled that neither the installation of the tracking device on the Avalanche nor the traffic stop violated Burton's rights under the Fourth Amendment. The district court reasoned...