United States v. Gibson , 328 F. App'x 860 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Maurice Gibson on fifteen counts of
conspiracy to traffic in cocaine and oxycodone, drug
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.
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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. A majority of the controlled buys took place
in the tattoo 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 audio-
video device called a “Hawk.” The “Hawk,” however, did not
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 Kennedy’s testimony, during a recess of the
trial, counsel for the government directed defense counsel’s
attention to two documents that had been produced to Gibson
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 and on the fact that
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counsel to the government had not brought the documents to
Gibson’s attention earlier. The district court denied the
motion. 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
could have been understood to be referring to that camera. The
court also found that Gibson’s failure to identify the
potentially inconsistent documents was not the fault of the
government since the government provided Gibson with the
documents before trial, early in the discovery 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 that the district court did not abuse its
discretion in denying Gibson’s motions. The point of 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
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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. See United States v. Nyman, 649
F.2d 208, 212 (4th Cir. 1980).
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 district court granted in part and denied in part
Gibson’s motion. It rejected his assertion that the
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
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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 establishes that the outcome was
unjust”). As the Supreme Court noted in the 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 court can make factual findings under the
preponderance of the evidence standard to determine the
appropriate sentence within the statutory maximum. See United
States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(“Sentencing judges may find facts relevant to determining a
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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. 2456, 2465 (2007)
(“[M]any individual Guidelines apply higher sentences in the
presence of special facts”; “In many cases, the sentencing
judge, not the jury, will determine the existence of those
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.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998). Accordingly we
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
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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.” He must disqualify himself also “[w]here he has a
personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
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, 827 (4th Cir. 1987).
Accordingly, opinions gathered from “participation in the
matter” will not serve as a basis for a recusal. Id.We conclude that the district judge did not abuse its
discretion in refusing to disqualify himself. There is no
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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