US v. Maurice Gibson

Filing 920090526

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5088

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICE TAFT GIBSON, a/k/a Mo, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:05-cr-00126-1)

Argued:

March 27, 2009

Decided:

May 26, 2009

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Jay Thornton McCamic, MCCAMIC, SACCO, PIZZUTI & MCCOID, PLLC, Wheeling, West Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted to traffic Maurice in Gibson cocaine on and fifteen counts of drug

conspiracy

oxycodone,

trafficking, conspiracy to launder money, and money laundering. On Gibson's motion for a new trial, the district court granted the motion as to three counts based on the government's failure to disclose pretrial statements of a co-conspirator that were inconsistent with the co-conspirator's testimony at trial. With

respect to the remaining 12 counts, the district court sentenced Gibson to 240 years' imprisonment. The government elected not

to retry Gibson on the three counts and dismissed them. Gibson contends on appeal that (1) the district court

abused its discretion in denying his motion for a mistrial when he discovered that a DEA Special Agent allegedly testified

falsely and, after the verdict was rendered, his motion for a new trial based on the same ground; (2) the district court

abused its discretion in denying his motion for a new trial on all counts based on a Brady and Jencks Act violation committed in connection with the testimony of a co-conspirator; (3) the district court erred in sentencing by applying the first degree murder cross-reference under U.S.S.G. §§ 2D1.1(d) and 2A1.1 and in finding facts under the preponderance-of-evidence standard in doing so; and (4) the district judge abused his discretion in denying Gibson's motion to recuse the judge. 2

For the reasons that follow, we reject Gibson's arguments and affirm. I Gibson's convictions grew out of a year-long investigation that produced hours of audio and video recordings of drug

transactions between Gibson and a cooperating individual, Mike White, who owned a tattoo parlor frequented by Gibson and his co-conspirators. in the tattoo A majority of the controlled buys took place parlor where police were able to view the

transactions in real time through a security camera placed near the ceiling. At the same time, they wired White with an audioThe "Hawk," however, did not

video device called a "Hawk."

transmit in real time but recorded the information for later retrieval. After a rumor surfaced that White was cooperating with the police, he was murdered in front of his tattoo parlor. Police

suspected Gibson's involvement but never charged him with the murder. The district court, however, enhanced Gibson's sentence

based on the court's finding that Gibson ordered the murder. Based on that finding, the district court sentenced Gibson to 20 years' imprisonment on each of the twelve counts of conviction, to run consecutively, for a total of 240 years' imprisonment. This appeal followed.

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II Gibson first contends that the district court abused its discretion in denying his motion for a mistrial, made during trial, and his motion for a new trial made after the verdict was returned, both of which were based on the allegedly false

testimony of DEA Special Agent E. H. Kennedy.

Agent Kennedy

testified that Mike White, the cooperating individual, did not know that the "Hawk" device that he was wearing had a video component in addition to its audio component. Kennedy said that

not only did he not tell White that the "Hawk" recorded video content, but he also explained that it was his regular practice not to advise cooperating individuals of that fact in order to better monitor the informant and ensure the quality of the

evidence being obtained about the drug transaction. Following trial, counsel to Kennedy's for the testimony, government that during directed been a recess of the

defense produced

counsel's to Gibson

attention

two

documents

had

during pretrial discovery.

The documents were handwritten law

enforcement summaries of controlled buys, which were written by law enforcement officers and signed by White. One of the

documents contained a statement that White had been given "an audio/video recorder" by one of the detectives. Gibson moved for a mistrial based on the inconsistency of Kennedy's testimony and the documents 4 and on the fact that

counsel Gibson's motion.

to

the

government earlier.

had

not The

brought district

the

documents denied

to the

attention

court

When Gibson raised the same point after the verdict

through a motion for a new trial, the court again denied the motion. The court found that Special Agent Kennedy did not

testify untruthfully and that the documents did not conclusively establish that Kennedy knew White was told about the video

component of the "Hawk."

The documents were prepared by another

law enforcement officer and were ambiguous since White was also being recorded by a fixed video camera. The video reference The the the the

could have been understood to be referring to that camera. court also found that Gibson's documents government early failure was not to the identify fault of

potentially government documents

inconsistent since before the

provided in the

Gibson discovery

with

trial,

process.

Finally, the court noted that Gibson was still able to present his argument, through cross-examination, that White might have been aware of the camera or could have "swapped" the items given to him by Gibson for other items outside the view of the camera during the controlled buy. We conclude in that the district court did The not point abuse of its

discretion

denying

Gibson's

motions.

Agent

Kennedy's testimony was not central to the case as a whole. Moreover, the video from the "Hawk" was one of two sources of 5

video

for

each

of

the

transactions,

possibly

rendering

the

summary document consistent with Kennedy's testimony.

And even

if the testimony and the document were somewhat inconsistent, they both could be true. White could not read and write well,

and Agent Kennedy did not write the statement which included the reference to the video component of the "Hawk." Thus, these

were matters for the jury to resolve, not a basis to overrule the district court's decision not to grant a mistrial or a new trial. In addition, even if the district court rulings were an

abuse of discretion, Gibson failed to show that they affected the validity of the judgment. F.2d 208, 212 (4th Cir. 1980). See United States v. Nyman, 649

III Gibson also contends that the district court abused its discretion in denying his motion for a new trial based on a Brady violation and Jencks Act violation. Gibson contends that

the government violated its disclosure obligations by failing to produce pretrial statements of Christina Arnoto, a co-

conspirator, whose testimony turned out to be at odds with the undisclosed statements. Arnoto testified at trial that she introduced White to

Gibson; that she was good friends with both; and that she bought drugs from Gibson on more than one occasion. She also testified

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that she knew Gibson was a drug dealer as early as 1998.

This

testimony proved to be inconsistent with statements that Arnoto had given earlier to law enforcement officers on the day White was murdered. In those statements, Arnoto denied knowledge of

Gibson's drug dealing and denied her involvement in any drug dealing. Arnoto's statements were first provided to Gibson after

trial and before sentencing as part of the discovery relating to White's murder, and thus defense counsel did not have them to impeach Arnoto during the trial. After reviewing the

statements, Gibson filed a motion for a new trial.

In response,

the government acknowledged it should have disclosed Arnoto's prior statements earlier and asserted that its error was not deliberate. It argued, however, that the statements were

immaterial to the outcome on the counts with respect to which Arnoto gave her testimony. The Gibson's district motion. court It granted in part his and denied in part the

rejected

assertion

that

nondisclosure was a Brady violation because Gibson failed to show that the results of the trial would have been different had the statements been provided earlier. With respect to the

Jencks Act violation, however, the court concluded it could not find that the defendant suffered no prejudice on account of the nondisclosure. The court accordingly granted Gibson's new trial 7

motion with respect to the three counts on which Arnoto provided testimony, namely the conspiracy count, and two counts dealing with discrete drug transactions. The government thereafter

chose not to retry Gibson on those counts, agreeing to dismiss them with prejudice. We conclude that the district court did not abuse its

discretion in making these rulings.

See Strickler v. Greene,

527 U.S. 263, 280-81 (1999) ("not every violation of [the duty to disclose] necessarily As the establishes Court that noted the in outcome the was

unjust").

Supreme

similar

circumstances in Strickler, even if the witness could have been severely impeached with the pretrial statements had they been disclosed, "the record provides strong support for the

conclusion that petitioner would have been convicted of capital murder and sentenced to death." Id. at 294. Moreover, in

remedying the Jencks Act violations, the district court actually granted Gibson's motion, resulting in the dismissal of three counts. Given the vast amount of evidence available to support

the convictions on the remaining twelve counts, which were not directly addressed by Arnoto's testimony, one cannot reasonably conclude that the statements would have made a difference to the jury's analysis on the remaining counts. Arnoto was a key

witness for only three counts, and the government presented her

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testimony only to prove those three counts.

Accordingly, we

conclude that the district court did not abuse its discretion.

IV Gibson next contends that the district court erred in

applying the first degree murder cross reference under U.S.S.G. §§ 2D1.1(d) and 2A1.1. He argues that because he was never

indicted for the murder of White and because the district court found that Gibson committed the murder only by a preponderance of the evidence, he was "deprive[d]" of "significant liberty interests without the democratic constraint of a grand jury and petit jury and the procedural safeguards of the proof beyond a reasonable doubt evidentiary standard." During the sentencing proceedings, the district court heard evidence that Gibson ordered White's murder and that the likely "trigger man" was one of Gibson's associates. The court

accepted the evidence presented and, using the preponderance of evidence standard, found it appropriate to apply the first

degree murder cross reference under U.S.S.G. § 2D1.1(d)(1). A sentencing of court the can make factual standard findings to under the the

preponderance

evidence

determine

appropriate sentence within the statutory maximum. States v. Benkahla, 530 F.3d 300, 312 (4th

See United Cir. 2008)

("Sentencing judges may find facts relevant to determining a

9

Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury's verdict"); see also Rita v. United States, 127 S. Ct. higher 2456, 2465 (2007) in the

("[M]any presence judge,

individual of special the

Guidelines facts"; will

apply "In

sentences the

many

cases, the

sentencing of those

not

jury,

determine

existence

facts"; and "[a]s far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence . . . in the absence of the special facts"). Moreover, a sentencing

court may enhance a defendant's sentence based on its findings by a preponderance of the evidence, even where the jury has acquitted the defendant of that conduct. See United States v. Accordingly we

Martinez, 136 F.3d 972, 979 (4th Cir. 1998).

reject Gibson's challenge to the district court's application of the first degree murder cross reference under U.S.S.G. §§ 2D1.1 and 2A1.1 and its factfinding under the preponderance of the evidence standard. V Finally, Gibson contends the district judge abused his

discretion in denying Gibson's motion, filed before sentencing, to recuse the judge because of the judge's bias against him. When sentencing two co-conspirators, the judge stated that "two violent deaths have been implicated or are related" to the 10

conspiracy.

He also stated that "Maurice Gibson, we all know

based on the evidence at trial and in related cases that he was a significant drug dealer, and we also know that there were at least two deaths which appear to be related in some way to his drug dealing." Based on these statements, as well as harsh

statements made by the district judge to Gibson's counsel during trial, Gibson filed his motion to disqualify the judge before he sentenced Gibson. The judge denied the motion, finding that he was not biased or unable to fairly sentence Gibson. Under 28 U.S.C. § 455, a judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." personal knowledge bias of He must disqualify himself also "[w]here he has a or prejudice concerning a party, or personal the

disputed

evidentiary

facts

concerning

proceeding."

Id. at § 455(b)(1).

In determining whether a

judge has a disqualifying bias, we have stated: The alleged bias must derive from an extra-judicial source. It must result in an opinion on the merits on a basis other than that learned by the judge from his participation in the matter. The nature of the judge's bias must be personal and not judicial. A judge is not disqualified because his familiarity with the facts of a case stem from his judicial conduct in presiding over earlier proceedings.

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In

re

Diana

R.

Beard,

811

F.2d

818, from

827

(4th

Cir.

1987). in the

Accordingly,

opinions

gathered

"participation Id. not

matter" will not serve as a basis for a recusal. We conclude in that the to district judge did

abuse is

its no

discretion

refusing

disqualify

himself.

There

reasonable basis to believe that the district judge was biased. Gibson failed to show that the judge had any improper

relationships or made any statements about Gibson's guilt or innocence during his trial. The statements made during the

sentencing of Gibson's co-conspirators demonstrated no knowledge of Gibson's activities other than that which was acquired by participation in the proceedings. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED

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