United States v. Gabourel
692 F. App'x 529
| 10th Cir. | 2017Background
- In May 2015 four men (Thomas, Norman, Grant, Gabourel) traveled/assembled in Oklahoma City and stayed at a sparsely furnished "stash house" that reeked of PCP; police recovered nearly a gallon of PCP and drug paraphernalia.
- Thomas and Norman arranged and completed an undercover two-ounce PCP sale; Grant dropped a third bottle of PCP during arrest; Gabourel was found in the bedroom with a loaded revolver in his pocket.
- Indictments: Gabourel charged with conspiracy (21 U.S.C. §§ 841, 846), possession with intent/aid-and-abet, and § 924(c) firearm-in-furtherance; Grant charged with conspiracy, distribution (or aiding and abetting), and possession with intent (or aiding and abetting).
- Thomas pled guilty and testified for the government; Norman was initially fugitive (later pled guilty); both defendants were convicted by a jury and sentenced (Gabourel 180 months; Grant life).
- On appeal Gabourel argued insufficiency of evidence and plain error for failure to give a drug-addict jury instruction; Grant argued insufficiency and that the district court abused its discretion admitting his prior convictions and gang-affiliation evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict Gabourel of conspiracy, possession with intent, and §924(c) firearm-in-furtherance | Government: testimony (including Thomas), quantity of PCP, Gabourel’s presence, and gun support all elements | Gabourel: Thomas’s testimony inherently incredible; Gabourel’s alibi (Langston) and lack of physical control/containers show mere presence | Affirmed: evidence (direct and circumstantial) was sufficient; jury could credit Thomas; nexus factors support §924(c) conviction |
| Failure to give drug-addict jury instruction (Gabourel) | Gabourel: trial court should have sua sponte given Tenth Circuit addict instruction because government relied on addicted witness (Thomas) | Government: existing credibility, accomplice, prior-conviction, and impeachment instructions plus extensive questioning about addiction adequately informed jury | No plain error: even assuming error, omission was not "plain" given instructions as a whole and examination of witness about addiction |
| Sufficiency of evidence to convict Grant of conspiracy, distribution, and possession with intent | Government: Grant participated (smoked PCP from stash, was present for dinner/arrangements, carried matching bottle, provided protection) — alternative liability theories: Pinkerton, aiding-and-abetting | Grant: mere presence, claimed personal-use bottle, and limited participation do not show knowing, voluntary conspiracy membership or distribution intent | Affirmed: jury could infer participation beyond mere presence; theories of Pinkerton and aiding-and-abetting support convictions |
| Admission of Grant’s prior convictions and gang-affiliation evidence | Government: prior convictions and gang evidence relevant to intent, knowledge, and conspiracy formation; limiting instruction given | Grant: prior convictions and gang evidence were unfairly prejudicial and should have been excluded or trial severed | No abuse of discretion: 404(b) evidence admitted for proper purpose and not unduly prejudicial; gang evidence relevant to conspiracy and partly apparent from tattoos, so admission was not unfairly prejudicial |
Key Cases Cited
- United States v. Oldbear, 568 F.3d 814 (10th Cir.) (standard for reviewing sufficiency of evidence)
- United States v. Patterson, 713 F.3d 1237 (10th Cir.) (elements of drug conspiracy)
- United States v. Jacobs, 579 F.3d 1198 (10th Cir.) (possession with intent standards)
- United States v. Avery, 295 F.3d 1158 (10th Cir.) (actual vs. constructive possession)
- United States v. Robinson, 435 F.3d 1244 (10th Cir.) (factors for firearm in furtherance of drug trafficking)
- United States v. Cardinas Garcia, 596 F.3d 788 (10th Cir.) (inherent incredibility and deference to jury credibility determinations)
- Pinkerton v. United States, 328 U.S. 640 (U.S.) (co-conspirator liability for foreseeable acts in furtherance of conspiracy)
- United States v. Watson, 766 F.3d 1219 (10th Cir.) (Rule 404(b) framework and admission of prior narcotics activity)