United States v. Gibson, Joseph ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2330
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSEPH L. G IBSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 70—Charles R. Norgle, Sr., Judge.
____________
A RGUED M AY 8, 2008—D ECIDED JUNE 26, 2008
____________
Before M ANION, E VANS, and W ILLIAMS, Circuit Judges.
E VANS, Circuit Judge. Following a jury trial, Joseph L.
Gibson was convicted of two counts of using a facility
of interstate commerce for the commission of murder
for hire, in violation of 18 U.S.C. § 1958,1 one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g), and one count of possession of a fire-
arm with an obliterated serial number, in violation of 18
1
The counts were based on two cell phone calls on January 27,
2006.
2 No. 07-2330
U.S.C. § 922(k). He was sentenced to a total of 235 months
in prison. He appeals from his conviction. We start with
the facts, viewed in the light most favorable to the jury’s
verdict.
In 2004, Gibson and a man named Jeff Coleman shared
the management and proceeds of a narcotics distribution
corner, or “drug spot,” near the intersection of Pulaski
Road and Adams Street in Chicago. But Coleman got
himself arrested and imprisoned, leaving Gibson with
complete control of the business. When Coleman was
released from prison in January 2005, he reinserted him-
self into the drug operation.
Tension arose between Coleman and Gibson, and
apparently both thought the way to resolve the problem
was to have the other killed. In conversations during the
summer of 2005 and into early 2006, Gibson talked with
a man named Walter Hampton about his belief that
Coleman was going to “make a move against him
[Gibson]”—meaning that Coleman was going to kill
him. Gibson and Hampton discussed killing Coleman.
Hampton would do the murder in exchange for a 50
percent share of the profits from the drug spot. Conversa-
tions of this nature continued, and in January 2006
Hampton asked Gibson for a “clean” gun to use for the
murder. A “clean” gun is one from which the serial
number has been removed. Gibson said he had one.
Additionally, in January Gibson drove Hampton to the
area in which Coleman lived and continued to offer 50
percent of the drug proceeds for the murder.
Having a change of heart, however, on January 25, 2006,
Hampton went to the Federal Bureau of Investigation to
tell them about Gibson’s plan. Agents asked Hampton to
place a telephone call to Gibson which they would record.
No. 07-2330 3
In the recorded conversation Hampton asked Gibson if
he had the “strap.” “Strap” is a street term for a hand-
gun. Gibson said, “I got it, I got it.” In other recorded tele-
phone conversations the two men continued the dis-
cussion and agreed to meet in order for Gibson to give
Hampton the gun.
Hampton was fitted with a wire, and he and undercover
police officer Alonzo Harris went to a building where
Hampton was to meet Gibson. Another man came out
of the building carrying a “Little Debbie” strawberry
cupcake box from which Harris said he saw the grip of a
gun protruding. The man handed the box to Gibson, who
immediately handed it to Hampton. After the meeting,
Hampton gave the box and the gun to Harris. The serial
number on the gun was filed away.
After this transaction Hampton made another re-
corded call to Gibson. Hampton asked for a “few stacks,”
which is a couple thousand dollars, to “get low” once the
murder took place. Gibson did not answer, but later
Hampton was again wired and met Gibson at a gas
station. Gibson indicated he would give Hampton the
money after the murder. This meeting was also videotaped.
The FBI arrested Gibson at 11:45 p.m. on January 27,
2006, shortly after the meeting at the gas station. He was
taken to the FBI offices and given Miranda warnings.
Gibson waived his Miranda rights and gave a state-
ment about his participation in the plot. He admitted
that he gave a gun to Hampton so Hampton could kill
Coleman. He indicated that he would pay Hampton but
had not yet decided on the amount. After these state-
ments Gibson began to write out a confession. However,
the agents observed that Gibson was tired and offered to
let him sleep and start the interview the next day. The
4 No. 07-2330
agents told Gibson he had a right under a local court rule
to appear before a magistrate judge within 17 hours of
his arrest. He signed a waiver of that right.
At 12:55 p.m. the next day he was brought back to the FBI
office. He had been in custody for about 13 hours. The
agents again reminded Gibson of his Miranda rights.
He then completed a written statement in which he de-
scribed his drug dealing with Coleman and admitted to
complying with Hampton’s request for cash in exchange
for the murder.
A motion Gibson made to suppress his written state-
ment was denied and he proceeded to trial. He was
convicted on all counts. Gibson’s appeal raises issues
regarding the denial of his motion to suppress, the jury
instructions on the murder-for-hire counts and the lack of
a unanimity instruction, and the sufficiency of the evid-
ence on the murder-for-hire count. He also contends
that the errors involving the murder-for-hire charge re-
quire reversal of the entire judgment, including the gun
charges.
We will turn first to the jury instructions on the murder-
for-hire charge. When the challenge to a jury instruction
implicates a question of law, our review is de novo. United
States v. Macedo, 406 F.3d 778 (7th Cir. 2005). But the
“district court is afforded substantial discretion with
respect to the precise wording of instructions so long as
the final result, read as a whole, completely and correctly
states the law.” United States v. Lee, 439 F.3d 381, 387
(7th Cir. 2006).
After all the testimony had been taken, the district
judge, Charles R. Norgle, Sr., held a jury instruction
conference at which each side’s proposed instructions
No. 07-2330 5
were considered. It is notable that Gibson did not pro-
pose an instruction that would require the jury to agree
unanimously on every element of the murder-for-hire
count, and he also did not object to its absence—though
he raises the issue on appeal. The judge rejected the
three instructions Gibson proposed as to elements of
murder for hire and rather used the instructions pro-
vided by the government.
The murder-for-hire statute, 18 U.S.C. § 1958(a), provides
in part:
Whoever travels in or causes another (including the
intended victim) to travel in interstate or foreign
commerce, or uses or causes another (including the
intended victim) to use the mail or any facility in
interstate or foreign commerce, with intent that a
murder be committed in violation of the laws of any
State or the United States as consideration for the
receipt of, or as consideration for a promise or agree-
ment to pay, anything of pecuniary value, or who
conspires to do so, shall be fined under this title or
imprisoned for not more than ten years, or both . . . .
The instructions given tracked the statute and stated that
to sustain the charge the government had to prove three
propositions. As relevant here, the instruction was that
the government had to prove
that anything of pecuniary value was received or
promised or agreed to be paid as consideration for
the murder.
“Anything of pecuniary value” was defined as it is in the
statute: “money, a negotiable instrument, a commer-
cial interest, or anything else the primary significance of
6 No. 07-2330
which is economic advantage.” Finally, the instructions
stated:
In considering whether “anything of pecuniary
value” was received or promised or agreed to be paid
as consideration for the alleged murder, you are
instructed that not only money, but also drugs, guns,
or involvement in future crimes which would yield
cash profits, can also constitute consideration.
The issues Gibson raises involve the meaning of “consider-
ation for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value.” He
contends, in effect, that the word “consideration” imports
civil contract law into the statute. His first proposed
instruction was:
In considering whether something of pecuniary value
was promised or agreed to be paid as consideration
for a murder, you are instructed that the Defendant
must have reached an agreement—that is, a contract—
with a third person in which the Defendant and the
third person exchanged mutual promises whereby
the third person promised to commit the murder in
exchange for the Defendant’s promise to pay some-
thing of pecuniary value to the third person. If you
find from your consideration of all the evidence that
the government has failed to prove beyond a rea-
sonable doubt that the Defendant reached such an
agreement with a third person, then you must acquit
Defendant of Counts One and Two.
He is not entirely without support for the proposition
that civil contract law is somehow involved in the
statute, but he stretches the proposition beyond the break-
ing point. In United States v. Richeson, 338 F.3d 653, 657 (7th
No. 07-2330 7
Cir. 2003), we said that “consideration retains its con-
tract law meaning of a bargained-for exchange of some-
thing of value” and that the statute requires a quid-pro-quo
between the solicitor and the murderer. But we also
cautioned that the use of the word “consideration” “ ‘does
not import all of contract law,’ it should be interpreted
in accordance with its plain meaning, which is ‘in return
for’ or ‘in exchange for,’ ” citing United States v. Hernandez,
141 F.3d 1042, 1057 (11th Cir. 1998).
The instructions given here make clear that the murder
must have been solicited in exchange for something of
pecuniary value. That is exactly what is required under
the statute. To go beyond that and instruct the jury that a
contract is required could mislead them into thinking
that some formal understanding—absurdly, perhaps even
a written document—is required. As Judge Norgle re-
marked to Gibson’s attorney, “From your standpoint it
would be better if it was in written form and notarized?”
Obviously that sort of requirement would render the
statute meaningless. Criminals have a way of agreeing
and conspiring through the use of code language,
which clearly imparts their intentions while hoping to
hide their meaning from law enforcement. They are not
going to make things as clear as businessmen might. Why
would they? They are trying not to get caught, and they
certainly are not going to file a breach of contract action.
The instruction as given here was all that is required.
As to Gibson’s other two proposed instruction, cases
from other circuits provide the impetus for his requests.
He wanted the jury instructed that
In considering whether something of pecuniary
value was promised or agreed to be paid as consider-
ation for a murder, you are further instructed that an
8 No. 07-2330
expectation that committing the murder will result in
some economic benefit or unspecified payment does
not constitute a promise or agreement to pay some-
thing of pecuniary value. Nor does a promise of a
future unspecified favor or benefit or payment consti-
tute a promise or agreement to pay something of
pecuniary value, even if that favor or benefit or pay-
ment might confer significant economic benefit
upon its recipient or otherwise have some value if
tendered.
That instruction mirrors language in United States v.
Frampton, 382 F.3d 213, 218 (2nd Cir. 2004), that “consider-
ation in the form of a ‘favor’ is insufficient to support a
conviction under § 1958 . . . .” Id. at 219. It was not error to
decline the instruction. In Frampton, the only considera-
tion was an unspecified favor. That is not the case here.
There is evidence of consideration in the form of a cut of
the drug proceeds and a money payment. Similarly, it
was not error to reject the third of Gibson’s instructions,
which said that “payment or promise to pay incidental
expenses does not constitute a promise or agreement . . . .”
The only promise of payment which could be remotely
considered incidental was a payment designed to help
Hampton leave town after the murder. But getaway
money is not money necessary to the commission of the
murder and is not an incidental expense. There was no
need for Gibson’s instruction on this point.
Gibson cites other cases in support of his argument. But
the evidence in those cases was far weaker than the
evidence against him. For instance, in United States v.
Chong, 419 F.3d 1076 (9th Cir. 2005), the court said there
was no evidence of any quid pro quo. In that case, there
was no evidence of an agreement or understanding be-
No. 07-2330 9
tween a leader of a gang and the hit man. United States v.
Wickland, 114 F.3d 151 (10th Cir. 1997), is an almost inex-
plicable use of § 1958. There was no hit man at all.
Wickland wanted his wife dead, and while he did talk
with another man about it and had help in obtaining a
firearm, Wickland himself is the one who was going to
commit the murder. The government claimed he would
benefit from the murder of his wife because she would
no longer have an obligation to pay child support to her
former husband and Wickland might receive the pro-
ceeds of her life insurance. But as the court noted, often
murder is intended to benefit the murderer. That does not
convert it into murder for hire. As the court also noted, the
statute is intended to impose liability on both the person
who ordered the murder and the hit man. In other
words, it requires two participants. Obviously, without
two people there can be no consideration, no promise,
no agreement, nor anything else relevant to Gibson’s case.
Gibson also contends there should have been a jury
instruction requiring that the jurors agree unanimously
as to which of the promises Gibson made; that is, 50
percent of the proceeds from the drug spot or a few
hundred or a few thousand dollars. Despite his rather
convoluted argument that he did, we find that Gibson
did not object to the failure to give a unanimity instruc-
tion, and he did not propose one for the court’s consider-
ation.
Gibson’s argument that he did propose a unanimity
instruction is simply that his other proposed instructions
“would—in effect—have required unanimity by ex-
pressly eliminating every alleged agreement or promise . . .
except the thoroughly discredited and insufficient claim
that Gibson promised Hampton half the proceeds from
10 No. 07-2330
a drug spot in exchange for the murder.” The argument
does not withstand scrutiny. It is true that if the judge
had given Gibson’s proposed instructions, the jury
would have had, in effect, only one alleged promise to
evaluate. In that case there would be no conceivable
need for a unanimity instruction. But the judge rejected
Gibson’s instructions. Once his instructions were rejected,
there was nothing to prevent him from proposing a
unanimity instruction. He did not, thus forfeiting the
claim and limiting our review to plain error.
Under Federal Rule of Criminal Procedure 52(b), if a
“forfeited error is ‘plain’ and ‘affect[s] substantial rights,’
the court of appeals has authority to order correction, but
is not required to do so.” In other words, the rule is
permissive, not mandatory. Under the doctrine, there
must first of all be an error and the error must be plain.
“ ‘Plain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734-35
(1993).
We are not convinced that an error exists in this case, and
even were we to say there was error, it is not “plain” error.
Gibson relies on Richardson v. United States, 526 U.S. 813
(1999), for his contention that a unanimity instruction
must be given. Richardson involved 21 U.S.C. § 848, the
continuing criminal enterprise (CCE) statute. A CCE
charge involves a violation of the drug statutes in which
the violation is part of a “continuing series of violations.”
The Court determined that in a CCE case, the jury
must unanimously agree not only that the defendant
committed a continuing series of violations, but must also
agree about which specific violations are involved. The
issue boiled down to whether the phrase “series of viola-
tions” in the statute refers to one element—a series—in
No. 07-2330 11
respect to which the violations would be the “means,” or
whether the phrase created several elements—that is,
each violation is a separate element. If it is the latter, as
the Court decided it was, then the jury must agree on
each violation. But the analysis was specific to the CCE
statute. The Court noted that “a federal jury need not
always decide unanimously which of several possible
sets of underlying brute facts make up a particular
element, say, which of several possible means the defen-
dant used to commit an element of the crime.” At 817.
Using robbery as an example, the Court said:
Where, for example, an element of robbery is force
or the threat of force, some jurors might conclude
that the defendant used a knife to create the threat;
others might conclude he used a gun. But that dis-
agreement—a disagreement about means—would not
matter as long as all 12 jurors unanimously con-
cluded that the Government had proved the neces-
sary related element, namely, that the defendant
had threatened force.
Our present case falls much closer to robbery than to
CCE. The government had to convince the jury that Gibson
promised Hampton some pecuniary gain, but unanimity
was not required as to exactly what form the promise took.
Even were we to decide there was error, however, our
discussion shows how far from clear the error would be. To
be plain, error must be clear under current law. Olano;
United States v. Gaudin, 515 U.S. 506 (1995). Where there
is an unsettled question, the error is not plain and does
not fall with Rule 52.
The Supreme Court has discouraged expansion of
Rule 52 because to expand it “would skew the Rule's
12 No. 07-2330
‘careful balancing of our need to encourage all trial partici-
pants to seek a fair and accurate trial the first time
around against our insistence that obvious injustice be
promptly redressed.’ ” United States v. Young, 470 U.S. 1, 15
(1985), quoting United States v. Frady, 456 U.S. 152, 163
(1982); see also Johnson v. United States, 520 U.S. 461 (1997).
In short, Gibson’s challenge to the jury instructions fails.
Gibson also says that the evidence was insufficient to
sustain the conviction. On this claim he “bears a
heavy burden and faces a nearly insurmountable hurdle.”
United States v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999). In
reviewing a claim based on the insufficiency of the evi-
dence, we view the evidence in the light most favorable
to the government and uphold the verdict if 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 (1979). We do not reweigh evidence or
judge the credibility of witnesses. United States v. Bow-
man, 353 F.3d 546 (7th Cir. 2003). Issues of credibility are
for the jury. United States v. Hodges, 315 F.3d 794 (7th
Cir. 2003).
In this case, there was sufficient evidence of a promise
of consideration for the murder. First of all, Hampton
testified repeatedly—and the jury was entitled to believe
him—that Gibson promised him half of the drug pro-
ceeds from the drug spot. The promise is not so absurd
as Gibson would have us believe. Gibson argues he
would gain nothing from the murder if after the murder
he had to give 50 percent of the proceeds to Hampton
rather than Coleman. But Gibson’s objection was not to
sharing the proceeds; rather, he was afraid Coleman
was going to have him killed. It is possible that Gibson
would be willing to partner with Hampton. At trial, during
No. 07-2330 13
cross-examination, Hampton was specifically asked
about whether Gibson would be better off if Hampton,
rather than Coleman, received 50 percent of the profits.
Hampton testified that removal of a threat was the
motive. The jury was free to believe that it was motive
enough.
As to the promise to pay a few thousand or a few hun-
dred dollars for the murder, Hampton testified that he
asked for the money and Gibson did not refuse. Gibson
admitted in his written statement that he complied
with Hampton’s request for money. In his oral state-
ment Gibson did not deny that he promised to pay
Hampton for the murder but indicated that he had not
yet agreed on the price. Hampton testified that once the
murder was complete he “was supposed to receive
money to get out of town.” He also said, “And then
afterwards I would get 50 percent of the drug proceeds.”
The evidence is sufficient to allow the jury to believe that
Gibson intended to pay Hampton for the murder.
Gibson tries to discredit Hampton’s testimony by
saying that, although Hampton said that he and Gibson
talked about the murder all the time, when the conversa-
tions were recorded there was, suspiciously, no mention
of murder. Hampton explained that during this whole
time, Gibson was aware that the police were watching
his drug spot. Especially on the telephone, but often in
person, he and Gibson were careful about what they said.
Hampton said they did not refer to a pistol over the
phone (but rather a strap) because “pistol” would be
incriminating. He explained that in a recorded conversa-
tion, when he referred to “How I am going to do it and
everything,” he was referring to the murder. In a later
recorded conversation, he said that he was “Ready to do
14 No. 07-2330
this shit tonight.” When asked what he meant, he said,
“Meant that I was ready to do the murder.” It was reason-
able for the jury to credit Hampton’s explanations.
Gibson also contends the evidence was insufficient to
sustain the conviction for possession of a firearm with an
obliterated serial number. We reject the contention.
Hampton asked for a clean gun. Gibson gave him a
gun which had an obliterated serial number. It is reason-
able to infer that Gibson knew the gun was clean.
Gibson also claims that his written statement should
have been suppressed. He says that his waiver of his right
to appear before a magistrate judge within 17 hours after
his arrest was involuntary because he was tired at the
time of the waiver. He also says it violated the McNabb-
Mallory rule [McNabb v. United States, 318 U.S. 332 (1943),
and Mallory v. United States, 354 U.S. 449 (1957)]. On the
denial of a motion to suppress, we review legal conclu-
sions de novo and findings of fact for clear error. United
States v. Mendoza, 438 F.3d 792 (7th Cir. 2006).
At the suppression hearing FBI agents testified that
Gibson was taken to the FBI office after his arrest and
was interviewed for three hours. During that time he
made an oral statement in which he admitted to partic-
ipating in the murder for hire and to the possession of a
firearm. The agents gave Gibson a candy bar and a
Diet Coke and let him use the restroom and make a
phone call. When he began preparing a written state-
ment he placed his head on the table. The agents
thought he looked tired and offered to let him take a
break. They explained that under a local rule of the North-
ern District of Illinois he was entitled to be brought
before a magistrate judge within 17 hours. Gibson signed
a written waiver of that right. He then was allowed to
No. 07-2330 15
sleep. The agents met with him the next day and again
explained the 17-hour rule, and he again signed a
waiver. This was 13 hours after his arrest, well within the
17 hours. He then wrote his statement.
We can find no error in Judge Norgle’s finding that the
waivers were voluntary. Nor could we find a violation of
the McNabb-Mallory rule. The interrogations in those
cases were conducted under circumstances vastly more
coercive than what happened in this case.
The final issue Gibson raises is dependent on our setting
aside his conviction on the murder-for-hire count. Because
that conviction stands, Gibson’s final issue is moot.
Accordingly, the judgment of conviction is A FFIRMED.
USCA-02-C-0072—6-26-08