USA v. Lamar Gibson

Filing

Opinion issued by court as to Appellant Lamar Gibson. Decision: Affirmed in part and Dismissed in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11174
Non-Argument Calendar
________________________
D.C. Docket No. 2:08-cr-00309-LSC-TMP-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMAR GIBSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 31, 2017)
Before ED CARNES, Chief Judge, MARCUS and FAY, Circuit Judges.
PER CURIAM:

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A jury convicted Lamar Gibson of conspiring to possess cocaine base
(“crack cocaine”) with intent to distribute, distributing crack cocaine, and
attempting to distribute crack cocaine. He contends (1) that he was improperly
excluded from voir dire, (2) that the district court made several erroneous
evidentiary rulings, (3) that the evidence presented at trial was not sufficient to
support his attempt conviction, and (4) that the prosecution impermissibly shifted
the burden of proof onto him during closing arguments. He also contends that he
is entitled to an evidentiary hearing on his motion for a new trial, which is still
pending before the district court.
I.
A.
In August 2007, Jesse Henderson sold drugs to a confidential source
working with the Drug Enforcement Administration and Bessemer Police
Department. He began cooperating with law enforcement, hoping that his future
prison sentence would be reduced as a result. Henderson identified Lamar Gibson
and Sean Greer as participants in the drug trade. He indicated that Greer was a
middleman for Gibson, and that he could contact Greer. Henderson would
eventually participate in three drug-deals involving Gibson and testify about those
transactions at Gibson’s trial.

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1.
The first was a controlled buy that occurred in February 2008. At the DEA’s
behest, Henderson reached out to Greer to set up a purchase of crack cocaine. He
explained that he did not contact Gibson directly because Gibson and Greer were
friends and Greer was “sort of like the middleman.”
Henderson made several calls to Greer in January and early February of
2008, attempting to set up a deal with Gibson. At trial, the government played
recordings of two calls from February 22. During the first call, Henderson asked
Greer if he had spoken to Gibson. Greer responded that he had just spoken to
Gibson and the deal was on. Henderson then asked if Gibson was going to sell him
two ounces or two and a quarter ounces of crack cocaine. Greer said he would talk
to Gibson and find out. Henderson informed Greer that he wanted two and a
quarter ounces (or a “half big”). On the following call, they agreed on a price of
$1,750 for the drugs. During both calls, the men also discussed a time and place
for the deal.
Henderson testified that he eventually agreed to meet Greer later that day in
front of Henderson’s house. The DEA equipped Henderson with a body wire
before the deal. Henderson waited in an SUV outside his home. He testified that
he saw Greer and Gibson arrive and park in front of him in another car. Through
the rear window of that car, he allegedly saw Gibson hand a package to Greer.
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Greer then exited the car and entered Henderson’s SUV, where they exchanged the
money for the package, which contained crack cocaine.
Because the crack cocaine was brown instead of white, Henderson testified
that he got out of his SUV and went to talk to Gibson. Gibson told him that it was
not the sort of “stuff” he usually got, that he was waiting on his supplier to get him
better crack cocaine, and that he hoped the price for the better cocaine would be
lower.
After the transaction was complete, Greer returned to the DEA office and
met with Sergeant Walls. He turned over the crack cocaine he had obtained and it
was tagged as evidence.
At trial, the government played a recording of the transaction taken from
Henderson’s body wire. Henderson also identified a bag of crack cocaine
introduced by the government as the drugs he obtained from Greer and Gibson on
February 22. The parties stipulated that the bag had been tested by forensic
chemists at the DEA laboratory in Dallas, Texas. They also stipulated that the test
revealed that the bag contained crack cocaine and that no fingerprints were located
on the bag.
2.
Henderson testified that the second deal was initiated by Gibson and Greer.
Greer called him, asked where he was, and then showed up a few minutes later
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with some heroin. According to Greer, Gibson had instructed him to give
Henderson a sample of the heroin to see what Henderson’s “people” thought of its
quality. Greer gave Henderson a small sample, which he promptly turned over to
Sergeant Walls and the DEA. The parties stipulated that the sample was tested by
a forensic chemist at the DEA laboratory in Dallas and tested positive for heroin
and several other substances.
3.
The final interaction occurred in May 2008. By this point, Henderson had
obtained Gibson’s phone number so that he could deal with him directly. As
directed by the DEA, Henderson called Gibson on May 19 to set up another
purchase of crack cocaine. Henderson told Gibson he wanted to purchase another
half big of the “brown stuff.” There is some dispute over the meaning of Gibson’s
response, during which he said: “no, no, no, no what are you talking about?” The
defense contends that Gibson was telling Henderson that he only dealt in heroin,
not crack cocaine, and that he did not have any cocaine. Henderson testified that
Gibson was confused and thought Henderson was trying to buy heroin when
Henderson was really trying to buy crack cocaine. In any event, the call dropped
after Henderson tried to clarify that he wanted to buy a half big of crack cocaine,
and he thereafter was unable to get Gibson back on the line.

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Henderson tried again on May 21. This time Gibson said that, even though
he was focused primarily on selling heroin at that time, he had given some crack
cocaine to one of his associates to sell. Gibson said he could get the cocaine from
that associate and sell it to Henderson for $1750. Henderson testified that he and
Gibson were trying to arrange the deal for the following day.
Before Henderson could contact Gibson again, Gibson called him while he
was at the DEA offices. Gibson asked if Henderson still wanted to go forward
with the deal from the day before. Henderson said he did and asked if the deal was
a sure thing. Gibson responded: “Yeah, ain’t no ifs, ands, or buts.” At the DEA’s
urging, Henderson asked if they could add a gram of heroin to the deal. Gibson
agreed. They discussed the quantity, quality, and price of the heroin. Henderson
then turned the conversation back to crack cocaine and tried to haggle with Gibson
over the price. Gibson refused to budge from his original quote of $1,750. They
agreed to conduct the exchange at Henderson’s house and Gibson said he would
call when he was ready. The government introduced a recording of this call as its
Exhibit 9.
The DEA once again equipped Henderson with a body wire and he
proceeded to the meeting place with several agents covertly following him. They
waited for a long time. Then Greer appeared and, according to Henderson,
explained that Gibson had called him. Gibson apparently saw police in the area
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and wanted to move the site of the deal. Henderson and Greer drove to a nearby
restaurant on Gibson’s instructions. But Gibson still wasn’t happy and asked to
move the deal again, this time to his own home. At that point, Sergeant Walls told
Henderson to back out of the deal, which Henderson did.
B.
Gibson and Greer were indicted for conspiracy to possess with the intent to
distribute crack cocaine, distribution of crack cocaine, and attempted distribution
of crack cocaine. Gibson’s jury trial was held in October 2012.
In addition to Henderson, Sergeant Walls testified at Gibson’s trial and
explained how the DEA works with informants to conduct sting operations. He
also described his interactions with Henderson from late 2007 through May 2008.
His description matched Henderson’s account. Greer, who had already pleaded
guilty and agreed to cooperate with the government, also testified against Gibson.
His account of the events leading to his and Gibson’s arrest largely matched
Henderson’s testimony. Two other witnesses’ testimony established that the
vehicle used by Gibson and Greer in February belonged to Gibson’s sister.
The jury convicted Gibson on all three counts. This is his appeal.
II.
We turn first to Gibson’s contention that he was improperly excluded from
voir dire. It is Gibson’s “burden . . . to show he was absent during the [voir dire]
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before he [can] have even an arguable complaint” about his exclusion. United
States v. Bokine, 523 F.2d 767, 769 (5th Cir. 1975). He has not carried that
burden. The transcript of voir dire reveals only that the district court took a recess
towards the end of the process to allow the parties to decide how they wanted to
exercise their peremptory strikes. Gibson points out that the record does not
indicate that he was in the courtroom when proceedings resumed. But the record
doesn’t indicate that Gibson was not in the courtroom during the recess either.
And Gibson points to no other evidence in the record to show that he was
excluded. He only makes a bald assertion in his initial brief to this court that
removal of the defendant from the courtroom during a recess is “standard.” We do
not presume error from a silent record. See id.1
III.
We turn next to the evidentiary issues. Gibson contends that the government
did not properly authenticate the audio tapes that were admitted at his trial. He
also contends that the district court erred when it admitted, under Federal Rule of
Evidence 404(b), evidence that Gibson provided Henderson with a sample of
heroin and discussed selling heroin. See supra Sections I.A.2–3. We disagree.
A.
1

In his reply brief, Gibson asks that — if we conclude the record is not sufficient to
demonstrate that he was excluded from voir dire — we remand the case to the district court for
an evidentiary hearing on the matter. We deny this request. Gibson made no effort in the district
court to raise this issue or to present any additional evidence regarding his exclusion.
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Gibson did not object before the district court to the admission of the
government’s audio tapes. As a result, we review the district court’s decision to
admit those tapes only for plain error. United States v. Deverso, 518 F.3d 1250,
1254 (11th Cir. 2008). Gibson must show that “(1) an error occurred, (2) the error
was plain, and (3) the error affected [his] substantial rights.” United States v.
DiFalco, 837 F.3d 1207, 1220 (11th Cir. 2016). Even if those conditions are met,
we can review the forfeited error “only if (4) the error seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1221.
“An error is plain where it is clear or obvious.” Id. “For the admission of
evidence to constitute plain error, the evidence must have been so obviously
inadmissible and prejudicial that, despite defense counsel’s failure to object, the
district court, sua sponte, should have excluded the evidence.” United States v.
Williams, 527 F.3d 1235, 1247 (11th Cir. 2008). In this case, Gibson has failed to
demonstrate any error occurred, let alone one that is plain.
Evidence is properly authenticated when the proponent of that evidence
produces “sufficient evidence to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). Sergeant Walls explained how the
recordings of the phone calls were made (i.e., by an earpiece attached to a cell
phone that recorded both sides of the conversation) and attested to the accuracy of
some of the recordings admitted by the government. Henderson also testified that
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all of the recordings, except Exhibit 9, were accurate. 2 He wasn’t specifically
asked about that exhibit’s accuracy, but he did testify that he signed Exhibit 9 after
listening to it. The only logical reason to sign the disc containing the recording
would have been to attest to its accuracy. Moreover, Henderson and Greer listened
to the recordings in open court, explained their contents, and never once contested
their accuracy.
As to the identification of the voices on the tapes, a witness’ opinion
identifying a speaker’s voice is sufficient to authenticate evidence so long as the
opinion is “based on hearing the voice at any time under circumstances that
connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5). Both Henderson and
Greer identified the voices on the recordings presented by the government and
testified that they knew Gibson personally.
All of this testimony, taken together, is enough to allow a finder of fact to
conclude that the recordings were what the government claimed them to be. As a
result, the district court did not plainly err by admitting them.

2

In his briefs, Gibson characterizes the government’s failure to ask Henderson whether
Exhibit 9 was accurate as “conspicuous,” implying that the government did not ask because it did
not want to know what the witness’ answer would have been. If this failure was so conspicuous,
one wonders why there was no objection at trial. It is just as likely that the government’s failure
to ask resulted from inadvertence. We will not assume — especially on plain error review —
that there was any improper motive on the government’s part in failing to ask Walls or
Henderson about the accuracy of Exhibit 9.
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B.
Because Gibson preserved his objection to the admission under Rule 404(b)
of evidence showing that he provided Henderson with a sample of heroin and
discussed selling heroin to Henderson, we review the district court’s decision to
admit that evidence for an abuse of discretion. 3 Deverso, 518 F.3d at 1254. “A
district court abuses its discretion if it applies an incorrect legal standard, applies
the law in an unreasonable or incorrect manner, follows improper procedures in
making a determination, or makes findings of fact that are clearly erroneous.”
Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d 1331, 1333
(11th Cir. 2016) (quotation marks omitted). We find no abuse of discretion here.4
1.
Gibson contends that the district court’s decision to admit the heroin
evidence violated Rule 404(b) of the Federal Rules of Evidence. That Rule
provides: “Evidence of a crime, wrong, or other act is not admissible to prove a
3

The government presented other evidence under Rule 404(b) as well. For instance, it
introduced evidence of Gibson’s prior conviction for conspiracy to possess with intent to
distribute cocaine and background information about his relationship with Greer, which involved
drug-dealing and usage. Gibson’s appellate briefs focus only on the introduction of evidence
concerning his involvement with heroin. As a result, he has abandoned any argument about
other forms of Rule 404(b) evidence introduced at trial. United States v. Willis, 649 F.3d 1248,
1254 (11th Cir. 2011) (“A party seeking to raise a claim or issue on appeal must plainly and
prominently so indicate . . . . Where a party fails to abide by this simple requirement, he has
waived his right to have the court consider that argument.”) (quotation marks omitted).
4

Because we conclude that the heroin evidence was admissible under Rule 404(b), we do
not address the government’s argument that it was also admissible as substantive evidence under
the res gestae doctrine.
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person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). In other words, the
government may not introduce evidence that a defendant sold drugs in the past in
order to prove that he probably sold drugs in the present. Nor can the government
argue that, because a defendant sold one type of drug, he probably sold a different
type of drug as well.
But evidence of prior bad acts is admissible to show “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). We have previously held that prosecutors can
demonstrate a defendant’s intent to distribute drugs in the present by demonstrating
that the defendant distributed drugs in the past — even if the past distribution
involved a different type of drug. United States v. Diaz-Lizaraza, 981 F.2d 1216,
1224 (11th Cir. 1993) (“[E]vidence of prior drug dealings . . . is highly probative of
intent in later charges of conspiracy and distribution of a controlled substance.”);
United States v. Williford, 764 F.2d 1493, 1498 (11th Cir. 1985) (“When intent is
at issue, however, extrinsic evidence [of dealing in other types of drugs] is
admissible to show willingness to deal in drugs.”).5
5

Our decision in United States v. Young, 39 F.3d 1561 (11th Cir. 1994) is not to the
contrary. In that case, the government used evidence of a defendant’s prior involvement with the
production of alcohol at an illegal still as extrinsic evidence of intent in a marijuana prosecution.
Id. at 1572–73. We explained that this was improper under Rule 404(b) because “[a]lcohol is not
a controlled substance, and the illegality of its production is distinct in both fact and law from
that involved in growing and selling marijuana.” Id. at 1573. Cocaine and heroin are both
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That is exactly what the government did here: it used the fact that Gibson
provided a sample of heroin to Henderson and discussed selling heroin to him as
evidence of his intent to distribute narcotics, including crack cocaine. Although
Gibson appears to ask us to reconsider our holdings in Diaz-Lizaraza and
Williford, we are bound by the decisions of prior panels of this Court. United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding
is binding on all subsequent panels unless and until it is overruled or undermined
to the point of abrogation by the Supreme Court or by this court sitting en banc.”).
Gibson also argues that it was improper to admit the heroin evidence to
prove intent in his case because his intent was not at issue. But his not guilty plea
put the burden on the government to prove his intent to distribute crack cocaine
beyond any reasonable doubt. United States v. Barron-Soto, 820 F.3d 409, 417
(11th Cir. 2016). Absent a stipulation from Gibson, the government was required
to present evidence of intent and was free to use whatever relevant evidence was
available to it, including evidence of prior drug dealings. Diaz-Lizaraza, 981 F.2d
at 1224–25 (“[T]he government may introduce evidence of the defendant’s
extrinsic acts to prove intent if the defendant does not affirmatively take the

controlled substances. And while the means by which they are produced may differ greatly, the
manner by which they are distributed does not. Moreover, Gibson is not accused of producing
the drugs he sold.
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question of intent out of contention by stipulating . . . [to] the requisite intent.”
(quotation marks omitted) (second alteration in original)).
2.
We also reject Gibson’s argument in the alternative that the heroin evidence
should have been excluded under Rule 403 because it was unduly prejudicial and
confusing. “Under Rule 403, the district court may exclude relevant evidence if its
probative value is ‘substantially outweighed’ by a danger of unfair prejudice,
confusing the issues, or misleading the jury.” Barron-Soto, 820 F.3d at 417. “Rule
403 is an extraordinary remedy” that should be “invoked sparingly.” United States
v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (quotation marks omitted). It
“requires a court to look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue prejudicial impact.” Id.
“Evidence of prior drug dealings is highly probative of intent to distribute a
controlled substance,” even where the prior dealings involved “a smaller amount
and different type of drugs.” Barron-Soto, 820 F.3d at 417. That Gibson’s counsel
admitted that Gibson had entered into an agreement to sell heroin and all but
admitted that he was a heroin dealer does not negate the probative value of the
heroin evidence in this case. Counsel’s statements are not evidence. United States
v. Smith, 918 F.2d 1551, 1561 (11th Cir. 1990). No matter what Gibson’s counsel
said, the government bore the burden of introducing actual evidence of Gibson’s
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intent. It was permissible to use Gibson’s past involvement in drug trafficking as
part of that effort.
Nor is this a case where the government’s other evidence of intent was so
strong that there was no need for the heroin evidence. See United States v. Costa,
947 F.2d 919, 926 (11th Cir. 1991) (“[I]f the government’s case [on intent] is
strong, there is no need for [extrinsic] evidence.”). Nearly all of the government’s
evidence in this case — including the evidence of the heroin transactions — came
from witnesses who had themselves committed crimes. Both Henderson and Greer
are drug dealers themselves and had cooperation agreements with the government.
And the other evidence in the case — i.e., the crack cocaine, the heroin, and the
audio tapes — was connected to Gibson primarily through their testimony.
Moreover, we cannot see how Gibson was unfairly prejudiced by the
admission of the heroin evidence here, given that part of his defense was that he
was a heroin dealer, not a cocaine dealer. Nor are we persuaded that the jury
would have been confused by the admission of the heroin evidence. The district
court specifically instructed the jury to consider the heroin evidence only for the
purposes of determining Gibson’s intent. And we presume jurors follow their
instructions. Jamerson v. Sec’y for the Dep’t of Corr., 410 F.3d 682, 690 (11th
Cir. 2005).

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IV.
Gibson also contends that the evidence introduced against him was not
sufficient to support his conviction for attempted distribution of crack cocaine.
“We review . . . a challenge to the sufficiency of the evidence . . . de novo.”
United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). “In so doing, [we
view] the evidence in the light most favorable to the Government and resolve[ ] all
reasonable inferences and credibility evaluations in favor of the verdict.” United
States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014). “We must affirm
[Gibson’s] convictions unless, under no reasonable construction of the evidence,
could the jury have found the [him] guilty beyond a reasonable doubt.” See United
States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
To sustain a conviction for attempted distribution of crack cocaine, the
government must prove (1) that the defendant acted with the specific intent to
distribute crack cocaine, and (2) that he took a substantial step towards committing
that offense. See United States v. Collins, 779 F.2d 1520, 1530 (11th Cir. 1986).
“[A] substantial step must be more than remote preparation, and must be strongly
corroborative of the firmness of the defendant’s criminal intent.” United States v.
Blalinger, 395 F.3d 1218, 1238 n.8 (11th Cir. 2005) (quotation marks omitted).
Gibson’s attempt conviction is based on the aborted crack cocaine deal that
occurred on May 22, 2008. See supra Section I.A.3. Gibson contends that the
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government has failed to show that he took a substantial step towards distributing
crack cocaine on that date, because it has not shown anything other than remote
preparation. At most, he argues, the government has shown that he talked about
selling crack cocaine. We disagree.
The government’s evidence was sufficient to show that Gibson reached a
firm agreement with Henderson as to the date and location of the transaction as
well as the price of the drugs. It also showed that he dispatched an accomplice —
Greer — to the location at the appointed time to talk to Henderson on his behalf
and change the location of the deal. That is more than enough to establish a
“substantial step” towards the distribution of crack cocaine. See United States v.
Brown, 604 F.2d 347, 350 (5th Cir. 1979) (agreement for the acquisition of
explosives and dispatching of representatives to reconnoiter and inspect the target
location was sufficient to establish a substantial step towards blowing up a grocery
store).
V.
Gibson next contends that his convictions should be reversed because the
prosecution shifted the burden of proof onto him during closing arguments. This is
so, Gibson argues, because — during closing arguments — the prosecutors said
that the defense did not challenge the prosecution’s evidence that a voice in two of
the recorded calls was Gibson’s. Additionally, Gibson complains that the
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prosecutors told the jury that they were not going to hear “an actual contesting of
the facts” from defense counsel and that “the evidence is really unrefuted to you
what happened in this case.”
The parties disagree as to the proper standard of review on this issue. The
government argues that we should apply the plain error standard, because Gibson
failed to object in the district court to the prosecutors’ arguments. Gibson argues
that he did object to the prosecutors’ arguments in the district court, pointing to the
following statement from the defense’s closing argument:
Another thing I wanted you to be worried about and want you to
really focus on [is] if it gets said that the defense wants you to believe
something, wanting [sic] you to see something – not being
disrespectful. I don’t have to present evidence for you to believe
anything. That’s not my job. I can sit there the whole time. I don’t
have to prove anything in this case. That’s called shifting the burden
of proof if your case falls apart, put it on the defense that they didn’t
prove their case.
“To preserve an issue for appeal one must raise an objection that is sufficient
to apprise the trial court and the opposing party of the particular grounds upon
which appellate relief will later be sought. The objection must be raised in such
clear and simple language that the trial court may not misunderstand it.” United
States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (quotation marks and
citations omitted). Defense counsel’s statements to the jury during his closing
argument in this case do not satisfy this standard. They are general instead of

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specific, come in the middle of a closing argument, and are directed at the jury
instead of the judge. As a result, the plain error standard applies.
Even if we assumed that the prosecutors’ statements in this case were plainly
improper, Gibson has not shown that they affected his substantial rights. While “a
comment that is so prejudicial as to shift the burden of proof sometimes requires
reversal[,] . . . any potential prejudice can be cured by an appropriate instruction.”
United States v. Zitron, 810 F.3d 1253, 1259 (11th Cir. 2016); see also United
States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (“This court has held that
the prejudice from the comments of a prosecutor which may result in a shifting of
the burden of proof can be cured by a court’s instruction regarding the burden of
proof.”). Here, the district court informed the jury that “[t]he law does not require
a defendant to prove innocence or to produce any evidence at all,” that “[t]he
government has the burden of proving the defendant guilty beyond a reasonable
doubt,” and that [i]f it fails to do so, you must find the defendant not guilty.” As
we have already observed, we presume that the jury heard and obeyed the
instructions. Jamerson, 410 F.3d at 690.
Because Gibson has failed to demonstrate any effect on his substantial
rights, he cannot prevail on this issue.

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VI.
Finally, Gibson notes that, after he filed his notice of appeal, he filed a
motion for a new trial in the district court alleging that the government failed to
disclose impeachment evidence about Henderson. He raises that argument again
here and requests a remand to the district court for an evidentiary hearing.
When a motion for a new trial is filed with the district court after a notice of
appeal has already been filed, the district court may either deny the motion or
notify this Court of its inclination to grant the motion, in which case we would
consider remanding the case. United States v. Khoury, 901 F.2d 975, 976 n.3
(11th Cir. 1990). But the district court has not done either in this case. So, even
though a notice of appeal can extend to orders resolving post-conviction motions
for a new trial filed after an appeal is taken, United States v. Brester, 786 F.3d
1335, 1338–39 (11th Cir. 2015), there is no order — let alone a final appealable
order — for us to review as far as Gibson’s motion for a new trial is concerned, see
28 U.S.C. § 1291. Moreover, the district court has not indicated that it is inclined
to grant his motion for a new trial or that the motion raises a substantial issue. See
Fed. R. App. P. 12.1. For those reasons, to the extent Gibson’s appeal concerns his
motion for a new trial, we must dismiss it for lack of jurisdiction.

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VII.
Gibson’s contentions concerning his alleged exclusion from voir dire, the
trial court’s evidentiary rulings, the sufficiency of the evidence against him, and
the prosecutors’ closing arguments are without merit. As a result, we affirm the
district court’s judgment of conviction. Because the district court has not yet
resolved Gibson’s motion for a new trial in the first instance, we dismiss for lack
of jurisdiction the portion of his appeal concerning that motion.
AFFIRMED IN PART, DISMISSED IN PART.

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