United States v. Lamar Gibson
678 F. App'x 823
11th Cir.2017Background
- Lamar Gibson was convicted by a jury of conspiracy to possess crack cocaine with intent to distribute, distribution of crack cocaine, and attempted distribution; convictions arose from three controlled transactions involving informant Jesse Henderson and cooperator Sean Greer.
- February 22, 2008: controlled buy where Henderson (wired) purchased a package of crack; DEA lab confirmed it was crack; recordings and witness ID tied Gibson and Greer to the transaction.
- A later interaction involved Gibson/Greer providing Henderson a heroin sample; forensic testing confirmed heroin.
- May 2008: Henderson arranged another crack purchase with Gibson; calls, price, meeting location, and Gibson’s sending Greer to the site supported a planned transaction that was aborted by agents—basis for attempted-distribution count.
- At trial Henderson and cooperating witness Greer testified; Gibson was convicted on all counts and appealed raising voir dire exclusion, multiple evidentiary challenges (including authentication and Rule 404(b) evidence), sufficiency of attempted-distribution evidence, prosecutorial burden-shifting, and requested remand for a new-trial hearing based on alleged undisclosed impeachment material.
Issues
| Issue | Plaintiff's Argument (Gibson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Exclusion from voir dire | Gibson asserts he was improperly removed/excluded during a recess | Record does not show exclusion; no evidence offered at trial | Affirmed: defendant failed to meet burden to show exclusion; no presumption of error from silent record |
| Authentication of audio recordings | Tapes not properly authenticated; Exhibit 9 not vouched for | Sergeant Walls and Henderson explained recording method; witnesses identified voices and attested accuracy | Affirmed: authentication adequate; plain-error review failed because no clear error |
| Admission of heroin evidence under Rule 404(b) | Prior heroin dealings were irrelevant and unduly prejudicial | Evidence admissible to prove intent, plan, knowledge; probative and properly limited by jury instruction | Affirmed: 404(b) admission not an abuse of discretion; Rule 403 balance acceptable |
| Sufficiency of attempted-distribution conviction | May 22 conduct was mere talk/remote preparation, not a substantial step | Agreement on price, time, place, and dispatching Greer to meet Henderson were strong corroborative steps | Affirmed: evidence permitted reasonable juror to find a substantial step toward distribution |
| Prosecutorial burden-shifting in closing | Prosecutors shifted burden by saying defense didn’t contest voice ID and that facts were unrefuted | Any improper remarks reviewed for plain error; jury instructions correctly stated government’s burden | Affirmed: no reversible error—jury instruction cured any potential prejudice |
| Motion for new trial based on nondisclosure of impeachment material | Requests remand and evidentiary hearing | District court had not ruled or indicated inclination to grant; appeal premature | Dismissed for lack of jurisdiction as district court has yet to resolve the motion |
Key Cases Cited
- United States v. Bokine, 523 F.2d 767 (5th Cir. 1975) (defendant bears burden to show exclusion from voir dire)
- United States v. Deverso, 518 F.3d 1250 (11th Cir. 2008) (plain-error review for forfeited evidentiary objections)
- United States v. Diaz-Lizaraza, 981 F.2d 1216 (11th Cir. 1993) (prior drug dealings admissible to prove intent to distribute)
- United States v. Williford, 764 F.2d 1493 (11th Cir. 1985) (extrinsic evidence of other drug dealing admissible on intent)
- United States v. Blalinger, 395 F.3d 1218 (11th Cir. 2005) (substantial-step standard for attempt)
- United States v. Brown, 604 F.2d 347 (5th Cir. 1979) (dispatching representatives and forming an agreement can constitute a substantial step)
- Jamerson v. Secretary for the Dept. of Corrections, 410 F.3d 682 (11th Cir. 2005) (presumption that jurors follow court instructions)
- United States v. Brester, 786 F.3d 1335 (11th Cir. 2015) (appeal may extend to post-appeal new-trial motions but requires a district-court order)