*4 TJOFLAT, Before PRYOR and KRAVITCH, Judges. Circuit . PRYOR, Judge: Circuit two main appeal presents This issues: (1) standing whether a defendant has challenge tracking the use of device with *5 system a global positioning a to locate possessed vehicle the defendant when the installed, device was but not when tracking tracking device was later used to seize (2). evidence; incriminating and whether Jeop- the district court violated the Double ardy by of the Fifth Amendment Clause instructing jury that it could convict a for participation defendant his renewed a drug conspiracy after his earlier convic- tion for in the same participating conspira- by In cy. appeals these consolidated three codefendants, James brothers and Gibson conspiracy for to appeals convictions possess with intent to cocaine distribute base, § and cocaine and U.S.C. with intent to possession distribute co- caine, 2;§ 18 U.S.C. U.S.C. (b)(l)(B)(ii); 841(a)(1), § Sidney Gibson appeals conspiracy also his convictions for with intent to cocaine possess distribute base, § and cocaine and U.S.C. possession with intent to distribute co- caine, 2;§ 18 U.S.C. 21 U.S.C. Kirwin, Terry Flynn, Thomas F. Mi- 841(a)(1), (b)(l)(B)(ii); Leondray § and Simpson, Attys., chael Thomas U.S. Ste- appeals Gibson his conviction and sentence Kunz, Atty., M. phen Asst. U.S. Tallahas- for with intent conspiracy possess see, FL, Davies, Atty., Robert G. U.S. base, § distribute cocaine 21 U.S.C. Pensacola, FL, Plaintiff-Appellee. argues James Gibson district when it (Court-Ap- suppress Michael Robert Ufferman court erred refused Firm, through Michael Law evidence obtained use of pointed), Ufferman tracking device installed on a vehicle he procedural Our review of the history is drove, own, First, but did not divided into ten frequently parts. and we address government argues Second, that he lacks Burton’s motions to standing suppress. we address James objection. to raise that Gibson ar- Gibson’s motion to sup- Third, press. we pretrial that the address the gues by pro- district court erred in- ceeding about the admission of structing jury that it Gib- could convict him Fourth, prior son’s conviction. we address for his renewed conspira- Leondray pretrial objection Gibson’s to ev- cy prior after his conviction for participat- idence of his participation dog fighting. ing that the and district Fifth, we plea address Burton’s guilt court abused its discretion in admitting testimony against the Gibson brothers. arrest, conviction, prior evidence of his Sixth, we address the trial testimony of imprisonment. And ar- federal prisoners about the Gibsons’ co- gues that the district court abused its dis- Seventh, caine trafficking. we address the cretion evidence in- admitting of his testimony of state officers and federal volvement in dog fighting and that his agents employees. Eighth, we ad- sentence is unreasonable. We conclude dress the close of the evidence and James standing James Gibson lacks to com- Gibson’s judgment motion for a of acquit- plain tracking about the use of the device Ninth, tal. we address the instruc- incriminating to seize evidence when he Tenth, tions appeal. relevant to this we was neither in possession passen- of nor a guilty address the verdicts and the sen- ger in the vehicle and that the district tencing of the Gibson brothers. protected Sidney court right to be *6 being prosecuted free from twice for the A. Burton’s Motions to Suppress same offense. The remaining Gibsons’ ar- trial, Before Burton filed two motions to guments fail too. We affirm. suppress all evidence during seized search of a Chevrolet Avalanche that he I. BACKGROUND driving February was on 2009. In the motion, first Burton alleged that the traffic A federal grand indicted James stop during which the search occurred was Gibson, Gibson, Gibson, an unlawful detention. In the second mo- and Kelvin Burton on one count conspir- of tion, alleged Burton that the evidence was acy to distribute to possess with intent seized as a result of the warrantless instal- kilograms distribute more than 5 of lation tracking of a device on the Ava- kilograms cocaine and more than 50 lanche. The district court later held a base, commonly cocaine known as crack motions, hearing during to consider the cocaine, between 2000 and id. testimony which it heard the of several 841(b)(l)(A)(ii), (b)(l)(A)(iii), §§ 846. The witnesses. grand Gibson, jury also indicted James Gibson, Burton on one count of En- Agent Greg Drug Millard of the possession with intent to distribute more that, forcement Administration testified cocaine, 2;§ than grams 18 U.S.C. before his agency decided to install the (b)(l)(B)(ii). 841(a)(1), § 21 U.S.C. The Avalanche, tracking device on the he had government later filed an mo- unopposed driver, suspect frequent reason to that its tion to Gibson, consolidate the trials of the three drug James used the vehicle in Burton, trafficking. Agent brothers and which the Millard had seen granted. district court driving James Gibson the Avalanche and and, Ocala, Florida, after a short at James Gibson’s south to parked it had seen registered stay, the travel back toward Talla- Burton was started to home. But Millard that this Agent hassee. testified owner of the vehicle. pattern suspicious travel was because Oca- installed on the device was tracking city la was a source for narcotics and the January a warrant on without Avalanche a brief stayed only period. vehicle there for 27, 2009, parked it was the drive- while Agent Deputy Millard informed Sheriff Special residence. way James Gibson’s the Avalanche would be Doug Haskell that Depart- the Geyer Grant Florida Agent traveling through County, Madison Enforcement installed the ment of Law Drug the Enforcement Administration was the exterior of the Ava- tracking device to tracking part ongoing the vehicle as of an the vehicle was entry lanche. No into investigation, Agent Millard believed necessary install the device. The device driving that James Gibson would be camera, microphone or transmitted had no vehicle, Deputy and that Haskell should vehicle, and did not only the location of if stop and search the vehicle he could power system or interfere tap the vehicle’s cause. probable establish any way. operations with its When device, Avalanche Geyer installed the Deputy Harper Sheriff David testified that its rear end extended parked so Deputy that he worked with Haskell to sidewalk, over the closer to the road than Agent locate the Avalanche after Millard Geyer on the house. installed the device Deputy advised Haskell that the vehicle undercarriage of the rear end traveling through jurisdic- would their be two to three roughly vehicle minutes Deputy Harper tion. located the Ava- lying while on the sidewalk. lanche, out of the lane of observed drift traveling, traffic which it had been February Agent
On Millard Deputy communicated his observations to suggesting received information Deputy Harper stop Haskell. did not traveling in the James Gibson would be device, Avalanche not in uniform. because he was tracking Using Avalanche. Agent the Avalanche at an Millard located Deputy Agent Haskell testified that Mil- *7 near a gas intersection in Tallahassee sta- 20, 2009, February lard called him on to facility mini-storage tion and a where tell him that the Avalanche be trav- would girlfriend renting James Gibson’s was a eling through jurisdiction. his Around storage Agent unit. Millard drove to the p.m., Deputy Harper reported 10:20 to intersection, already but the vehicle had Deputy Haskell that he was behind the departed He again when he arrived. used Avalanche and had observed it fail to the Avalanche tracking device to locate Deputy maintain its lane of travel. Has- as it left the Tallahassee area and traveled kell stop intended to the Avalanche based north Highway on 59 toward Interstate 10. Deputy Harper’s on observation. As he Agent park Avalanche at a Millard saw the Avalanche, approached Deputy Haskell gas Highway station at the intersection of observed the vehicle drift out of its lane 59 and where he observed Interstate closely a and follow too behind tractor an individual believed be James Gib- Deputy stopped trailer. Haskell the Ava- son exit the vehicle. lanche for failure to maintain a lane and February through February following
From the tractor trailer at an unsafe distance, Agents Drug with the Enforce- and he identified Burton as the ment tracking Deputy Administration used the de- driver. After Haskell smelled marijuana vice from the vehi- emanating to locate the Avalanche as traveled burnt cle, Burton consented to a search of the should be denied for the same reasons that Deputy vehicle. Haskell found two kilo- the district court had denied Burton’s mo- grams of cocaine inside the vehicle. suppress tions to and that James Gibson standing lacked to contest the installation The district court denied Burton’s mo- tracking of the device and the stop of the suppress tions to and ruled that neither vehicle because James Gibson was neither tracking the installation of the device on the registered owner nor the driver of or a the Avalanche nor the traffic stop violated passenger in the vehicle when Deputy rights Burton’s under the Fourth Amend- Haskell stopped and searched it. ment. The district court reasoned that there a low expectation privacy is in the The district court granted James Gib- location public of vehicle on a road son’s motion to adopt motions, Burton’s that the tracking installation of the device but denied James Gibson’s motion for re- minimally intrusive because it did not consideration. The district court ruled damage the vehicle accomplished and was that James Gibson standing lacked to con- public from a sidewalk. The district court test the installation tracking of the device concluded that the installation of the track- on the Avalanche because he had no rea- ing device and the use of the device to sonable expectation privacy in the vehi- follow the vehicle’s on public movements cle when the device was installed. The supported by roads were reasonable suspi- that, district court also ruled if even James cion that the vehicle was involved crimi- Gibson had standing to contest the instal- activity. nal Avalanche, lation of the device on the
rights were not violated because the instal- B. James Suppress Gibson’s Motion to lation of the minimally device was intrusive justified by reasonable suspicion that James Gibson later filed motion to the vehicle was involved in criminal activi- adopt suppress Burton’s motions to all evi- ty. The district court also ruled that dence seized based on the warrantless in- James standing object Gibson lacked stallation of the device tracking and a mo- the stop of the Avalanche on February 20 tion for reconsideration. James Gibson because Burton occupant was the sole “originally stated that he had not ... during vehicle the stop, which meant a motion to suppress file[d] the evidence that James Gibson then had neither an seized after the traffic stop the [Ava- ownership nor a possessory interest in the because knew of no facts upon lanche] [he] vehicle. which would have standing [he] [had] object to placement either the of the track- C. Pretrial and Trial Proceedings *8 ing device or the stop of the vehicle.” He Sidney About Gibson’s Prior alleged that Agent testimony Millard’s that Conviction the Avalanche in pos- was James Gibson’s session when agents trial, installed the tracking government Before the moved to device that James Gibson Sidney “was seen admit evidence about Gibson’s con- occasions, driving the vehicle on several viction in conspiracy 2004 for to distribute including right before the vehicle began grams more than 500 of cocaine. In moving gave toward Ocala” him standing police County, officer in Columbia Flori- object to da, to the installation of the device stopped Sidney a vehicle in which Gib- stop and to the and search of the Ava- passenger. son was a The officer searched lanche on February government 20. The the vehicle kilogram and found a of cocaine responded that James Gibson’s motion passenger hidden under the rear seat.
1264 cocaine, active partic- con- the that his lack of had been indicted for Sidney Gibson the ipation conspiracy during period cocaine in excess of in the to distribute spiracy irrelevant, and pleaded guilty He to of his incarceration was in 2003. grams value of the evidence probative and was sentenced to 60 that the charge the in 2004 by outweighed prejudicial four was its effect. followed imprisonment months of failed to mention double Sidney release. years supervised of ground suppression as a for jeopardy motion, stated government the In its the evidence. [Sidney “expect[ed] prove to that it actively in the con- participated Gibson] govern- the granted The district court custody” from spiracy following his release during in a conference part ment’s motion Stricklin, v. States United and cited day the trial. with counsel on the first (5th Cir.1979), the 1121 n. F.2d The district court ruled that the evidence coconspirator’s partic- that a proposition Sidney Gibson’s incarceration and ac- upon terminates his ipation conspiracy in a with Turral was admissible. quaintance arrest, participation renewed and his to The district court found that evidence after his arrest constitutes conspiracy the necessary intrinsic because it was to be jeopardy purposes. a new crime for double provide jury the with a full account of government argued evidence Sidney participation Gibson’s in the admissible, Federal Rule of Ev- was under charged conspiracy: 404(b), Sidney prove idence Gibson’s the incarceration evidence of is [T]he intent, and lack of mistake in knowledge, relevant, and it’s not extrinsic. It is charged relation to the offenses and to purely government’s intrinsic to the case that he did not know any argument rebut during chief. It is the time frame on which packages finger- the seized his that is relevant this case. Based cocaine. The prints were found contained indictment, in the charges argued also that the evidence government 2009, this is dab in the through smack prove par- relevant to James Gibson’s was of that. It is intrinsic. I find middle in the activi- ticipation cocaine distribution necessary govern- also that it’s for the Sidney ties for which Gibson was convicted fully present ment its case to the during conspir- which occurred story jury, complete does acy charged in the 2009 indictment. The govern- crime for the from the government contended that evidence of standpoint. ment’s It’s intrinsic. was relevant Sidney Gibson’s incarceration The district court also found that evidence explain Sidney acquaintance Gibson’s conviction prior Gibson’s Turral, with who had been incarcer- Omar in- prove knowledge admissible to Gary whom ated with Gibson and charged tent with to the offenses: respect Shepard identify suppli- would as a cocaine er to Gibson. The actual conviction itself is not [T]he also that the evidence was rele- contended it’s not in conspiracy, evidence of the lack of explain vant conspiracy, and so furtherance of in the dur- active 404(b) subject of a would be *9 ing his incarceration. instruction, be, I and it would would find, knowledge Sidney filed a motion in limine. relevant to the issue of Gibson intent, objected probative. He to the introduction of the Unfortunate- 404(b) ly, But evi- grounds prejudicial. evidence on the that he would not it’s also inherently prejudicial. dence is present knowledge a defense of lack of conference, the the During government jeopardy. double The district court ex- plained clarified that it also intended to introduce that the time frame of the 2008, Sidney charged evidence of Gibson’s arrest in conspiracy overlapped with the which had occurred while he was trans- time frame of the conspiracy for which cocaine in a vehicle porting by Sidney rented Gibson had been convicted government James Gibson. The argued government The responded that pro- its underlying jury instructions, that the conduct the arrest and posed provided which drugs the involved part were of the that could find Sidney Gibson charged conspiracy Sidney guilty and that Gib- of the conspiracy charge only if “continuing son’s conduct” after they his arrest actively determined that he had par- in 2003 ticipated was “more the nature of a conspiracy after his con- renewal than separate rather offense.” viction in any should eliminate con- The district court ruled the evidence cern about jeopardy. double “drug dealing” Sidney of the for which Sidney Gibson’s counsel then stated that ’ Gibson was arrested in 2003 was intrinsic he was “sort of ashamed of [him]self evidence and admissible. wondered why aloud he hadn’t moved to Sidney objected Gibson to the admission dismiss on the jeopardy. basis of double of the evidence of his incarceration as ir- The responded district court that counsel argued government relevant. He that the worry need not forfeiting about the objec- intended to use the evidence “explain tion: during
his absence a large part of [the] what, You know you are safe I because “[wjhether conspiracy,” but or not am considering it based on what has absent he[] [was] not an issue in [was] been raised. It obviously is a double [the] case.” The district court reiterated concern, jeopardy and the—I’m not the that the evidence was admissible to “com- judge go that lets it because the attor- plete story crime” for jury. [the] ney government it’s the or the —whether only tangentially mentioned Sidney argued Gibson also that his defendant — it, or raised it. So it’s framed for the knowledge and intent were not at issue in sufficiently. Court the case. The district court stated that it thought the evidence relevant to Sid- The district court stated that it intended ney knowledge Gibson’s of the contents of research the issue and invited counsel packages the two seized from the Ava- do the same. lanche. The agreed and re- The district court revisited the issue of sponded likely Gibson would jeopardy following day. double argue packages that he did not know the district court acknowledged that the for Avalanche, during stop seized of the on Stricklin, mer Fifth Circuit had stated in found, fingerprints
which his
were
con-
subsequently prosecuted for the same The district court then addressed the conspiracy just but a broader period of indictment itself and the govern- asked time. ment whether it had a “responsibility words, charge in way [an
So other the initial so that offense] convic- [it] ... [did violate jeopardy not] tion that double larger was sort of a subset of the clause.” government responded overall that conspiracy that he later was it had a responsibility charged charge with. of- [an And the Eleventh Cir- cuit, way in a know, fense] which you reflects the evi- says that violates the dence,” and that the evidence in pend- double jeopardy clause. But the distinc- ing suggested case the conspiracy tion between and this case is Benefield “began on or before the year 2000 and Benefield was still serving time when he continued through present”: was got reindicted. He never out of prison[;] chance, [T]he never had a evidence in this so to case is not that speak, to subsequent reinvolve was a conspiracy himself the con- where spiracy. nothing went on suddenly before and they picked up. This is a continuation The district court stated that both the joint activity. charging And the deci- Fourth and Seventh Circuits had ruled sion has to do with trying capture that a defendant’s arrest terminates his correctly liability the criminal of the co- participation in a conspiracy any so that defendants as well. continued following the arrest But the evidence is that conspira- this constitutes a new offense for double jeop cy began on or before year 2000 and ardy purposes. See United States v. Lo continued through present. And the 4536, pez, 97-4601, Nos. 1998 WL 97 — Gibson, Gibson, fact that Mr. 476788, (4th at 11, 1998); *3 Aug. Cir. absent portion for a of that did not Asher, United States v. interrupt the (7th flow of the Cir.1996). conspiracy, and when he was available again, he was The government urged the district court doing just what he was doing before. to “submit jury], beyond-a- [to under a IAnd don’t think logically we can standard, reasonable-doubt the issue of fashion says whether ... Sidney Gibson participated in to “instruct they have to find that he continued to the conspiracy after his guilty that in order to find of the conspiracy, [2003] arrest” and don’t think James and spiring Gibson there’s signed and after a a practical way Gibson back up again. date began to do con- I that. participate after the arrest date.” The that, argued even if it were The district court then asked Sidney
dicta, the statement Stricklin that con- Gibson’s counsel whether he had “anything tinued participation in a conspiracy after to add to discussion.” Sidney [the] Gib- *11 “No, ma’am, responded, event, counsel I son’s we do the best we can with that 404(b). you got right sure don’t. I think the issue on the center.” district court did not objection. Gibson offered no matter, prelimi-
rule on the but stated its nary conclusion that it would allow the D. Leondray Objection Gibson’s jury to go precedent issue to the based on Dog Fighting Evidence of that a coconspirator’s arrest terminates his During a conference with counsel on participation conspiracy any in a and that trial, day second Leondray Gibson acts committed after his ob- arrest to renew jected to the admission of participation conspiracy proposed in the testi- consti- mony separate concerning tute a crime for his involvement jeopardy double in dog fighting. purposes. Leondray Gibson argued that evidence of his involvement in dog fighting jury After the had been excused for the would be prejudicial more than probative day, the district court announced to the charges pending against him. The would admit evidence of Gibson’s district court observed that the evidence before his potentially explain relevant how conviction in provide limiting 2004 and in- Leondray Gibson had become acquainted jury structions to the to avoid a violation of with some of the witnesses and to establish right to be free from dou- that he earned a substantial income not jeopardy: ble attributable to any legitimate source. The I am going to allow the evidence in. I district court stated that it would probably going jury am to instruct the that they admit the evidence with a limiting instruc- any cannot consider evidence on Count 1 tion jury, to the but would not rule on the against Mr. predates Gibson that day. issue until later that date of his conviction .... E. Guilty Burton’s Plea and So it any would include of the circum- Testimony Trial stances surrounding the arrest that form conviction, the basis of the well as as the pleaded guilty Burton and testified at conviction, they would not be able to trial against the Gibsons. Burton testified consider on Count and in order [to] James, that he Sidney, had known find Mr. Gibson guilty on Count the Leondray they Gibson since high attended going is to have to conclude together school in Ocala. Burton moved has beyond established from Ocala to Tallahassee either late a reasonable doubt all of the elements early 2006 or 2007 to an open automobile necessary for a conviction on Count detailing business with James Gibson. based on evidence after that date. Tallahassee, When Burton first arrived in apartment lived an Gary where
As to I going give Count am Shepard residing was also and James Gib- 404(b) instruction that the evidence of occasionally. day, son visited One Burton the arrest and the conviction can Shepard apartment be saw enter the with an considered on the knowledge overnight issue of bag containing multiple kilo- 2 only, and intent on Count but grams of cocaine. Burton testified that deciding whether he Shepard committed the acts argued James Gibson about indictment, charged in usually which how the cocaine should be be- distributed gives glazed eyes. me 14 in any But tween the two of them. *12 2007, began transporting
In Burton Burton Sidney co- and went to a warehouse caine from Ocala Tallahassee for and kilograms James retrieved two of cocaine James Gibson Ordinarily Gibson. would from a man whom Sidney had met in procure transported prison. the cocaine be in Sidney packaged the cocaine and Ocala, put and Burton would retrieve the in speaker co- it a box in the back of the caine transport from James and Sidney Talla- Avalanche. and Burton drove to Tallahassee, Ocala, At in apartment hassee. they where met James Gibson. James, weigh James would the cocaine and call Sidney, Then and Burton drove pick distributors to come it up. and from Bur- Ocala separate toward Tallahassee in apartment vehicles, ton and James leased in with driving Burton the Ava- credit, improve Burton’s name to Burton’s lanche. The three of them communicated Once, but paid monthly James rent. using their cell phones during the drive. 2008, in picked up Burton the cocaine they 10, from After Interstate reached Leondray Gibson in Ocala before and sped up trans- James and left Burton. Bur- porting it to Tallahassee. When explained Burton ton that he did not want cocaine, arrived in with the speed Tallahassee while transporting cocaine. De- James was upset caution, because there spite was as his Burton was stopped aby much thought cocaine as deputy there should who found cocaine hidden in have been. speaker box and arrested him.
Burton also James witnessed Gibson sell F. Testimony Trial brothers, cocaine to two “Relie” and “Rob- Federal Prisoners arrested, ert.” After Relie later Bur- ton and James apartment leased a new for Douglas, Willie a prisoner federal serv- the storage and distribution of cocaine be- ing a sentence cocaine trafficking for who cause Relie knew the location of the first grown up had Ocala, with the in Gibsons apartment. signed Burton the lease for testified that Leondray he and the new apartment, but paid James partners were a company record in deposit monthly and the rent. James and Leondray which $70,000 had invested Avalanche, Burton acquired Chevy also “drug money,” but the record company which James intended to use his auto- never generated any profits. substantial upholstery detailing mobile and business. Douglas drug entered the business when paid James for the vehicle and its insur- he was 15 years or 16 old selling co- ance, they but registered the vehicle in caine base he had obtained from James Burton’s name. Later, Gibson. Douglas and Leondray be-
When asked to describe the events partners came in the sale of cocaine and led to his February arrest on cocaine base. Sometime after Leon- Burton testified that dray James Gibson began acquiring had cocaine from a Mexi- Lauderdale, instructed him to to Fort go can supplier Florida, County, Volusia Florida, with Gibson to retrieve about 50 from Ocala. Douglas minutes something. Burton and Sidney arrived in testified that Leondray supplied both Fort Lauderdale at 3:47 a.m. on February James and Sidney Gibson with cocaine on 20 and rented hotel room in multiple Burton’s Eventually, occasions. Leon- name. explained Burton dray’s could Mexican supplier County Volusia not rent the room arrested, in his name because he was Leondray began pur- was not allowed to leave the chasing directly Tallahassee cocaine from sources in area probation. while on Later that day, Mexico. Leondray were
Douglas part- Leondray also Gibson then moved for the dog fighting operation. They in a ners exclusion of further testimony regarding about between dogs had them and had dog fighting. The $2,000 purchased dogs some of those or prosecutor responded that further testimo- $2,500 each. Douglas ny used would a link establish between Leon- *13 to “match” their dogs against Robert Hen- dray’s dog fighting drug and dealing be- ry dogs. Glanton’s Douglas After testified cause Henry Robert testify Glanton would dog about fighting, judge instructed that Leondray had give offered to him jury, you me remind that the “[L]et better prices drugs for if agree he would to in defendants this case are not on trial for Leondray’s “condition” dogs. The prose- dog fighting. dog fighting There’s no cutor argued also that the testimony would in charges the indictment in this case.” provide context for the drug trafficking operation because many of the participants Gary Shepard, another prisoner federal in that operation acquainted had become serving a sentence for cocaine trafficking, with one another through dog fighting. Leondray testified that he met in Gibson The district court ruled that it would allow 1998 when both were students at Florida Henry Robert Glanton testify about A&M University and that he and Leon- Leondray’s dog fighting, involvement in dray partners became in cocaine traffick- but that it would not allow detailed testi- ing Shepard and distribution. and Leon- mony handled, dogs about how the were dray in large quantities obtained cocaine trained, fought. or The district court stat- suppliers from and sold it in quan- smaller ed that it would issue limiting another tities Shepard to customers. identified jury. instruction to the Omar Turral as one of their suppli- cocaine Sidney ers. government Gibson and the Glanton, Henry Robert prison- a federal later stipulated Sidney and Turral serving er a sentence for were incarcerated at the same institution base, distribute cocaine and cocaine testi- 8, 2007, January from to April fied that he Leondray had known Gibson Leondray Shepard introduced to James since 2002. Robert met James Gibson Gibson, Leondray whom made dog fight Leondray 2007 at a in which clear drug were also involved in the busi- brother, involved and that he and his Shepard ness. saw engage drug Relie, purchased had first cocaine from Shepard transactions. transported also James in late 2007. attempted Robert also cocaine from Ocala to Tallahassee for purchase cocaine Leondray by from James once or twice. occasions, telephone on several but was Leondray unsuccessful. Robert knew well Glanton, Robert Sherelle pris- a federal enough to recognize his voice over the serving oner a sentence for conspiracy to telephone because the two previously had cocaine, distribute testified that goes by he dog fights by telephone. discussed At the the name “Relie” he and his conclusion of Robert’s testimony, dis- brother, Glanton, Henry Robert began trict court lim- gave following purchasing cocaine from James Gibson in iting dog instruction about the evidence of 2007. Relie purchase continued to cocaine fighting: from James until Relie was arrested
August 2008. Relie recalled that James me you again, remind that there [L]et $60,000 once stated that he had lost three charges dog fighting are no in this betting also, weeks in a row on dog fights. case. And the fact that money Relie too dog fights. may had bet on have been involved dog fighting back, business does not mean read “Lump, very call impor- that he committed the offense that jg you he’s tant need peppa phone dis charged been with in this case. Agent dead!” Millard testified that “Lump” Burton, awas nickname for “J.G.” Testimony G. Trial was a of Officers Gibson, known nickname James Agents and “Peppa” referred to Gibson. A message, third sent phone Burton’s presented also testimo- from “J” February 2009, read, on ny from several state officers and federal out, im “[C]hill [sic] route!” The final agents and employees. Deputy Haskell message, which was sent from Burton’s that, February testified on phone to “J” about four hours before Bur- stopped a Chevy Avalanche traveling west *14 20, 2009, ton’s arrest on February read, on Interstate 10 for failure maintain 20 “75 miles.” lane and following closely. too He stated Burton, driver, only the was the occu- Also among included the evidence seized
pant of the vehicle and that Burton con- Chevy from the Avalanche after Burton’s sented to a search Deputy of the vehicle. arrest was a receipt from Interstate Bat- Haskell kilograms discovered two of co- 17, teries February dated Agent speaker caine hidden in a box in the rear Millard testified that he believed the signa- of the vehicle. He then arrested Burton ture on the receipt matched James Gib- for cocaine trafficking and seized a cellular signature. son’s Agent Millard also testi- telephone that Burton posses- had his fied that he Chevy had seen the Avalanche sion. Deputy gave cocaine, Haskell February on as it left Tallahassee the cellular telephone, and the Avalanche and traveled north Highway on 59 toward and its Agent contents to Millard. Interstate 10. He observed the vehicle park a gas at station near the intersection
Agent Millard testified that he received of Highway 10, 59 toward Interstate evidence from Deputy Haskell and other he saw a man leave the vehicle. He be- officers of the Department Sheriffs lieved that the man was James Gibson. personally removed additional items from night Avalanche on the of Burton’s Agent Millard possession also took Agent arrest. Millard testified that Bur- the two packages of cocaine seized from ton’s cellular telephone ringing and the night Avalanche the of Burton’s arrest. receiving messages text given when it was Agent packages Millard sent the to the him, and that the call and the text laboratory of the Drug Enforcement Ad- messages were from telephone numbers ministration in Miami for testing. Jean- recorded the contact list of Perr, the tele- ette a forensic chemist with the Drug phone as “J” and “Cid.” Agent Millard Administration, Enforcement testified that also testified that he looked through sever- performed she several tests on the con- al text messages on telephone. stored tents of the two packages and that results of those tests established that the
The district court admitted four of those packages contained cocaine. Elizabeth text messages into evidence. One of the Foster, a fingerprint specialist with the stored messages had been sent from Bur- Drug Administration, Enforcement testi- ton’s phone to “J” on James Gibson’s forti- fied that she Sidney identified Gibson’s read, birthday eth “Happy day you b fingerprints on both packages of cocaine. big today....” message, Another which had been sent to phone Burton’s The government also called witnesses to from p.m. “Cid” at 9:49 on February testify about prior arrest conspiracy and conviction for to distribute rest commits a new crime for which he Finnell, cocaine. James who had been a may prosecuted. be police City officer with the Lake Police Accordingly, Sidney Gibson cannot be Department testified that he held accountable on Count 1 ... any stopped a vehicle in which conduct in connection with his arrest in passenger February was a on 11 of that 2003 or subsequent conviction. And year. vehicle, During a search of the Fin- only conduct, if any, for which he kilogram nell discovered a of cocaine. may be held accountable on Count is MacKinlay, Scott a United States Proba- that which occurred after 2004 .... Officer, tion supervised testified So to find Sidney Gibson guilty of the Sidney Gibson after his release from pris- charged you Count must MacKinlay on. testified that Gib- unanimously agree that the government son had been convicted of conspiracy to proved beyond has a reasonable doubt distribute more than grams of cocaine each of the of conspiracy, elements as in 2004 years’ and sentenced to five impris- I’ll you instruct on at the conclusion of onment followed four years super- trial, based on evidence that oc- MacKinlay vised release. also testified words, curred after 2004. In other Mr. *15 Sidney that placed Gibson had been on Gibson guilty cannot be of Count un- supervised release on August 2008. you beyond less find a reasonable doubt Immediately MacKinlay’s after that he actively testimo- participated in the con- ny, the spiracy district court instructed after jury the as 2004. Sidney
follows about Gibson’s earlier ar- government The ... prove must all of rest and conviction and the burden of the the elements of the crimes that are government to prove beyond a reasonable charged in the beyond indictment a rea- doubt that Sidney Gibson later participat- sonable doubt. The fact that a defen- in conspiracy again: ed the dant previously has been convicted of a
From the criminal testimony of the last two offense does not mean that the witnesses, you’ve heard defendant a evidence that committed criminal offense Sidney Gibson was in in convicted 2004 for this case or that the government has conspiracy to proved distribute cocaine based on all of the alleged elements of the an arrest that in occurred offenses that have charged been in this case. government
The alleges that this was part of now, the same I just that’s been As said and explained to charged law, in you, this case. Under the a Sidney prior conviction, Gibson’s may prosecuted defendant not be a sec- the conduct that formed the basis for offense, conviction, ond time for the same that including cannot be considered you the offense of conspiracy. any for in purpose deciding the con- spiracy charge against him in Count 1. Once a defendant is arrested for con- spiracy, conspir- You may also not consider evi- acy words, In terminates. other dence of the conviction in deciding if government may prosecute not Sidney Sidney any Gibson committed of the acts again any charged Gibson for conduct in connec- Count 2.
tion with that earlier arrest and convic- however, may, You consider this evi- tion. dence, very conviction from for
However, a actively defendant who purpose, limited which going I’m to ex- participates in a conspiracy plain you after his ar- now. You are instructed you beyond
that if first find 404(b), reasonable acts” admitted under Rule it again case, doubt from other evidence in this asked counsel whether had any evidence other than that comments. occurring Gibson’s coun- [2004], “No, replied, sel 2003 and that he did in fact Your Honor.” com- charged mit the acts Count of the In charge its the jury, the district indictment, you may you’re then —but court repeatedly jurors instructed the required to—consider the evidence it was the responsibility of the government of Mr. prior Gibson’s arrest and convic- prove beyond a reasonable doubt the tion in determining whether he had the necessary facts jury for the to find each of requisite knowledge and intent to com- the defendants guilty of the offenses charged mit the crime Count of the charged in the indictment. district indictment. court also instructed the jury that it could only consider in reaching evidence its H. The Close Evidence and James verdict and that “the evidence” meant “the Judgment Gibson’s Motion testimony of the witnesses and the exhibits Acquittal that were in the admitted record.” The rested, that, After district court explained James in reaching verdict, presented Gibson its testimony jury must disregard any- four witnesses, thing the may district presented court have said oth- er than its testimony instructions on the law. one witness. Gib- present any son did not witnesses to testi- The district court instructed the fy in his defense. that it could not any consider evidence of Sidney Gibson’s participation in the After the con- rested, three Gibson brothers *16 spiracy before his in conviction 2004 in James Gibson judgment moved for a deciding whether Sidney Gibson acquittal guilty as to count two ground on the of the conspiracy charge: government that the prove had failed to that James participated Gibson in acquir- During trial, you’ve course of the ing the two kilograms of cocaine heard seized on evidence Sidney that Gibson was February 2009. The district court convicted in conspiracy de- 2004 for to dis- nied the motion. Neither Sidney tribute Gibson cocaine based on an arrest that Leondray nor moved for 11th, Gibson a occurred on judg- February ment of acquittal. At that time a vehicle in which he was a passenger was stopped, searched and
I. Jury Instructions found to contain kilogram one of cocaine. government The alleges The district that attorney court held an this was con- part of the conspiracy ference to same charged review the in proposed jury in- this case. structions. When the district court re- viewed its proposed instructions relating to Under law, may defendant issue,” “the double jeopardy it asked prosecuted Sid- be a second time for the ney Gibson’s counsel offense, whether he had any same including the offense of comments. Sidney Gibson’s counsel conspiracy. re- Once a defendant is ar- sponded, it, “I’ve it read and reread rested for conspiracy, his it, actually I’ve—I like I Judge. think in it’s that conspiracy terminates. In oth- well written. I think it applies.” words, When er government may not the district court reviewed its proposed prosecute Sidney again any Gibson instructions relating to evidence of “similar conduct in connection with that earlier However, conviction. arrest and a de- other evidence this case Sidney actively participates fendant who in a Gibson committed the charged acts indictment, after Count of the conspiracy you may, his arrest commits a then but are not may required, new crime for which he prose- be consider the evidence of Mr. cuted. Gibson’s arrest and pri- or conviction in determining whether he Accordingly, Sidney Gibson cannot be had the requisite knowledge and intent any held accountable on Count 1 for to commit crime charged in Count conduct in connection with his arrest of the I you indictment. remind again, 2003 or his subsequent conviction. And however, you may not consider evi- conduct, only any, if for which he dence of Sidney Gibson’s pri- arrest and may be held accountable on Count 1 is or any purpose conviction for in deciding that which occurred after 2004. To find against Count 1 him. guilty Gibson of the conspiracy charged you in Count unani- must charge After its jury, to the the district mously agree that the James, has court asked Sidney, Leondray proved beyond a reasonable doubt each Gibson whether they “any objections had conspiracy, previ- James, of the elements of as given.” the instructions as Sid- outlined, ously ney, based on evidence occur- and Leondray Gibson each replied words, ring they objections. after 2004. In other had no jury The Gibson then deliberated. guilty conspira- cannot be of the cy in you beyond Count 1 unless find Guilty J. Sentencing Verdicts and reasonable that he actively partici- doubt pated after 2004. found James guilty Gibson on counts, both guilty found The district court also instructed the counts, on both and it found jury as follows that it could consider Sid- Gibson on count one. ney Gibson’s conviction in only The district court sentenced James Gib- determining whether he later had knowl- son to life imprisonment as to count one edge possession of cocaine and the and 360 imprisonment intent to months of as to distribute cocaine: *17 two, count to run concurrently. The dis- explained you As I to ago, moment trict court that Sidney found Gibson had you cannot Sidney consider evidence of violated the conditions of supervised prior Gibson’s conviction or the conduct release and revoked his supervised release. forming the of basis that conviction for It sentenced Gibson to 120 months any in purpose deciding conspiracy imprisonment toas each of counts one in charge Count 1 of the indictment two, concurrently, and to run and 36 against Sidney may Gibson. You also months of imprisonment violating for not consider evidence of Gibson’s release, supervised conditions of his to run prior conviction in if deciding consecutively to his sentences for counts any Gibson committed the acts one and two. charged in Count of the indictment. may
You consider the evidence for other sentencing hearing Leondray At the very purposes regard limited with to Gibson, argued his counsel that he was “a only Count and Count as I will now gentle man spirit, person a violent explain. certainly any .... anot violent offender of
You you are instructed that if government responded by first sort.” The re- beyond find a reasonable from citing underlying prior doubt the facts convic- received for aggravated tions he had as- The district presentence court found the sault, trespass, robbery armed and by investigation report be accurate. That describing dog the violence inherent report provided Leondray Gibson’s fighting. argued also total offense level was his criminal IV, that distribution of cocaine was itself a history category was only and the rec- violent crime: ommended sentence for him under sentencing guidelines was life imprison- you put
When that much poison on ment. street, only we speculate can how it, many people a result died as how The district Leondray court sentenced ruined, many many lives were how bur- Gibson to imprisonment. life glaries prostitution and acts of and other objected counsel to the reason- crimes were committed so that pa- ableness of the sentence on the ground thetic buy end user could Mr. Gibson’s the district court speculated had product. That is not a nonviolent crime. about lives ruined Leondray Gibson’s regularly
The defendant routinely conduct. The district responded court armed himself. That is not a nonviolent its earlier comment related to the crime. offense, nature of the but did not affect the sentence: After both parties presented had their to the objection [A]s regarding my com- arguments, the district court stated that ruined, ment as to lives that was in quantity drugs question was twice response [Leondray’s argu- counsel’s] the amount that would support a life sen- ... ment about nature of this of- guidelines, tence under the any lesser fense. I simply judicial And would take sentence would result an unwarranted drug notice that dealing is a serious and sentencing disparity, as it given had life offense, dangerous particularly when sentences other cases with similar de- there are weapons involved. But my fendants. The district court stated that a sentence would be the exact same if I harsh necessary sentence was promote didn’t consider anything regards with respect Gibson, for the law and to deter being lives destroyed. whom the district court found to have no crimes, remorse for his from committing II. OF STANDARDS REVIEW
similar crimes the future. The district court also stated that the Gibsons’ lucra- Several govern standards our re tive ruined the many lives of view appeal. of this “In reviewing a dis people: trict court’s denial suppress, of a motion to today
We heard a lot
Leondray,
about
we review
findings
its
of fact for clear
*18
good reason,
and for
it’s
sentencing.
error
application
and its
of law to those
But
noticeably
what’s
absent
from a
Ramirez,
facts de novo.” United
v.
States
hearing of
(11th
this nature on a
1231, 1235
Cir.2007).
crime and a 476 F.3d
“Fur
nature,
crime of
ther,
this
is the testimony or
when considering
ruling
on a mo
evidence of all of the lives ruined as a
suppress,
tion to
all facts are construed in
result of the amount of drugs that
light
was
most favorable to the party pre
out
community,
funneled
into the
both in
vailing
case,
the district court—in this
this district as well as in the
government.”
Middle
Id. at 1235-36. “[A]
Florida,
District of
as a result of this
district court’s
jeopardy
double
ruling is
very lengthy, very
very
subject
lucra-
to de novo review....” Benefield,
lucrative —
tive conspiracy.
1275
error is
if a
harmless
court is convinced on appeal.”
Silvestri,
United States v.
409
“beyond
1311,
(11th
a reasonable doubt that the
Cir.2005).
error
F.3d
1337
We will
... did not contribute to the verdict ob- not
reverse
defendant’s conviction based
Evatt,
391,
tained.” Yates v.
500 U.S.
402-
on a challenge
jury
to the
charge unless
03,
1884, 1892,
111
114
S.Ct.
L.Ed.2d 432 we are “left with a substantial and ineradi-
(1991) (quoting Chapman
California,
v.
cable doubt as to whether
jury
18, 24,
386 U.S.
87 S.Ct.
17 properly guided in its deliberations.”
(1967)),
L.Ed.2d 705
rev’d on other Felts,
1343;
579 F.3d at
United States v.
McGuire,
grounds,
62,
v.
Estelle
502 U.S.
(11th
Dohan,
989,
Cir.2007).
508 F.3d
993
475,
(1991).
112 S.Ct.
1276
Michael,
252,
its
v.
645 F.2d
255-57
the district court abused
States
and whether
1981)
(5th
(en banc).
11,
May
In
Cir.
evidence of his
when
admitted
discretion
argument,
of
alternative
the
Third,
support
its
Leon-
we address
prior conviction.
States,
cites Davis v.
government
United
that the district
dray
arguments
Gibson’s
-
2419, 2434,
-,
131 S.Ct.
180
U.S.
when it admit-
court abused its discretion
(2011),
Supreme
L.Ed.2d 285
where the
dog
his
in
ted evidence of
police
held that “when the
conduct a
Court
unreason-
fighting and that his sentence is
objectively
reasonable reliance
search
able.
binding appellate precedent, the exclu-
on
sionary
apply.”
rule does not
Arguments
Sup-
A.
James
for
the Evidence Gained From
pression of
Supreme
The
Court held Unit
Tracking
the
Device Fail.
—
Jones,
U.S. -,
v.
132
ed States
S.Ct.
(2012),
that all evi
argues
945, 949,
L.Ed.2d 911
that “the
181
James
tracking
from the
device on
dence obtained
installation of a GPS device
Government’s
sup
vehicle,
have been
target’s
the Avalanche should
a
and its use of that
on
movements,
pressed because the installation and use
the
device to monitor
vehicle’s
”
a
tracking
the
device constituted
“search”
a
within the mean
‘search[ ]’
constitutes
ing
without a warrant that violated the Fourth
of the Fourth Amendment. The Court
whether the
expressly
Amendment. He maintains that he has
declined to consider
device,
warrant,
use of the
without a
to
standing
challenge
to
the search because
track a vehicle’s movements is valid under
“subjective
objective expecta
he had a
and
supported by
the Fourth Amendment
if
privacy”
Specifi
tion
in the Avalanche.
suspicion,
cause or
id.
probable
reasonable
cally,
argues
expectation
this
954,
945,
at
132
S.Ct.
privacy
by
possession
was evidenced
argument
raises no such
here. The Court
and control of the Avalanche when the
to consider wheth
expressly
also
declined
installed,
Mil
tracking
Agent
device was
standing
challenge
had
to
er Jones
driving
observation of him
the Ava
lard’s
installation of the device on the car for
lanche,
Agent
testimony
Millard’s
driver,”
which he was “the exclusive
but
purpose
having
tracking
“the
de
registered
that was
in his wife’s name. Id.
...
vice installed on the
Avalanche” was
2, 132
n.
at 949
S.Ct. 945.
his belief that “James Gibson was involved
drug trafficking.”
James Gibson relies
A
chal
standing
defendant has
Miller,
on
States v.
United
if
lenge warrantless search the defendant
(11th Cir.1987),
proposition
for the
“legitimate expectation
privacy”
had a
that the driver of a borrowed vehicle has
property
when it was searched. See
standing
challenge
search of
vehi
Illinois,
128, 143,
v.
Rakas
U.S.
cle.
(1978).
421, 430,
S.Ct.
nor the
the Avalanche.
Avalanche affir-
control of
the
frequently drove
son
that James Gibson
matively established
dissent,
Contrary to the assertion of the
all others from
power
the
to exclude
had
with
only
person
we do not hold that
testimony
Millard’s
Agent
the vehicle.
expecta-
a
legal ownership has
reasonable
Ava-
papers in the
that the officers found
tracking
time a
de-
privacy
tion of
at the
Burton, Sidney
belonged
lanche that
to
If we
vice is installed on a vehicle.
had so
Gibson,
Gibson, Leondray
and James Gib-
concluded,
held,
we
we could not have
as
any argument
that
also undermines
son
do,
standing
that
Gibson has
to
James
custody and
James Gibson had exclusive
tracking
challenge the installation of the
control of the vehicle sufficient to confer
device on the Avalanche when it was
his
of the
standing
challenge
to
search
Instead, we
possession and control.
con-
20,
February
on
vehicle
clude that James Gibson has not estab-
expectation
lished that he had a reasonable
suggests that our deci
The dissent also
only
in the Avalanche
when it
privacy
Sarda-Villa,
v.
sions United States
20, 2009,
February
searched on
be-
(11th Cir.1985), and in
F.2d 1232
United
legal
cause he was not the
owner of the
(11th
Garcia,
v.
States
741 F.2d
Cir.
Avalanche, he
not established that he
has
1984), support James Gibson’s claim to
custody and
of the
had exclusive
control
standing, but we did not conclude that the
of,
Avalanche, and he was neither a driver
defendants
either of those cases had
in,
passenger
nor a
the Avalanche when it
Sardar-Villa,
standing.
recognized
In
we
was searched.
ability
to exclude others from
suggests
also
dissent
property
an
factor in
important
is
problems
police
our
will create
decision
standing analysis, but concluded that a
investigating drug activity
po
because the
bald
that he could
defendant’s
assertion
will
a title search
lice
need to conduct
which
exclude others from a boat on
they apply
when
for warrant to install
was a crewman was insufficient to confer
vehicle,
argu
on a
but that
tracking device
standing
challenge
the search
warrant, police
ment fails. To obtain a
Garcia,
In
boat.
B. Arguments Gibson’s About During conference, a preliminary counsel Jeopardy Double and the Admission instead approved proposed jury in- His Prior Conviction Fail. structions jeopardy about double by stat- it, ing, “I’ve read and reread and I’ve—I Sidney arguments. Gibson raises two it, actually Judge. like I think it’s well court, He contends that the district in its written. I applies.” think it Although instructions, jury right violated his to be likely any invited error free jeopardy. from double He also con- court, by Silvestri, made the district see tends that the district court abused its 1337, 409 F.3d at neither party addressed in admitting discretion evidence of his con- that issue in their briefs or at oral argu- viction in 2004. arguments Both fail.
ment. We need not decide whether Sid- ney error, any Gibson invited because his 1. The District Court Protected argument fails even under de novo review. Right Gibson’s To Be Free From Jeopardy. Double The district court protected Sid Sidney Gibson argues ney being prosecuted Gibson from twice right his violated under the for the Although same offense. the indict Jeopardy Double Clause of charged Sidney the Fifth ment partic Gibson with Amendment to be free multiple pros from ipation conspiracy in the between 2000 and punishments ecutions or for the same of instructions ensured that he fense. He maintains that the conspiracy subject multiple was not prosecutions or charged the 2009 punishments indictment was the for acts he committed in fur conspiracy same for which he had been conspiracy therance of the 2000 between prosecuted “[Djefects and convicted in 2004. He ac and his conviction in 2004. knowledges that a ordinarily defendant an indictment can be harmless or can be bears the burden of establishing prima cured jury.” instructions to the United (11th facie Martin, 1404, 1407 case for dismissal of a conspiracy States v. 1280
Cir.1984)
States,
(citing Ford v. United
273 when it admitted evidence of his arrest in
531, 534,
U.S.
S.Ct.
L.Ed.
imprisonment
conviction in
(1927)).
operation of
“Further
[an]
from
through
2008. The district
being charged
‘old’
after
with
court admitted
evidence of
that crime becomes a new
pur-
offense for
prior
prove
conviction to
knowledge
poses
jeopardy
double
claim.”
[a]
Unit-
respect
and intent with
to the possession
*23
Sturman,
840,
v.
ed States
679 F.2d
844 n.
charge,
Sidney
but
argues
Gibson
that his
(11th Cir.1982)
Stricklin,
9
(quoting
591 knowledge and intent were not at issue
2).
F.2d at 1121 n.
because his counsel had stated that he
We need not
precise point
decide the
at
deny
would not
that
finger-
his client’s
which further
in conspiracy
prints
packages
were on the
of cocaine nor
becomes a new
purposes
crime for
of dou
deny that his client knew what
inwas
the
jeopardy.
ble
States v.
United
Rosen
Cf.
package. He also contends that the evi-
thal,
(11th Cir.1986).
793 F.2d
1227
dence was
probative
more
than
prejudicial
The district court
Sidney
limited
Gibson’s and that the jury would have been espe-
liability on
charge
the conspiracy
to those
cially tempted to use the evidence of his
performed
acts
in furtherance of the con prior conviction as direct evidence of his
spiracy
after his conviction in
guilt because
conviction
the
was for the
limitation,
doubt,
that
without
ensured that
same conspiracy charged in the indict-
he was not
placed
twice
in jeopardy for the
ment. He argues that the district court
same conduct.
impact
increased the prejudicial
of the evi-
Sidney Gibson’s
precedents
rebanee on
by
dence
instructing
jury,
“At [the]
about withdrawal
anas
affirmative defense
arrest,]
time
Sidney
[of
Gibson’s 2003
charge
to a
of conspiracy
misplaced.
is
vehicle in which he was a passenger was
See,
Arias,
e.g., United
v.
States
431 F.3d
stopped,
searched
found to contain one
(11th Cir.2005);
United States v.
kilogram of
argues
cocaine.” He
that this
(11th
Starrett,
Cir.1995).
nity, preparation, plan, knowledge, 2. The District Did Court Not Abuse Its identity, or absence of mistake or acci
Discretion It When Admitted Evi- 404(b) (2010). dent.” Fed.R.Evid. “Evi dence About Gibson’s Prior dence, not part the crime charged but Conviction. pertaining to the chain explain of events ing also the context argues properly is if admitted the district court abused its linked in time discretion with and circumstances crime, integral forms an charged or effect of the evidence of Sidney Gibson’s an account of the crime part natural prior arrest and providing conviction complete story of the crime for the contemporaneous limiting instructions and jury.” Wright, United States v. 392 F.3d by repeating limiting those instructions (11th Cir.2004) (alterations 1269, 1276 during jury charge. We must assume omitted). Federal Rule of Evidence 403 jury followed these instructions. provided may that courts exclude relevant Butler, United States v. “if probative
evidence its value is substan (11th Cir.1997). tially by the outweighed danger of unfair The district court did not plainly err in (2010). prejudice.” Fed.R.Evid. instructing jury. The district court extraordinary remedy “Rule 403 is an instructed the repeatedly that it was only sparingly which should be used since the burden of the government prove permits the trial court to exclude con- *24 beyond a reasonable doubt the facts neces- cededly probative evidence.” United sary jury Sidney for the to find Gibson (11th Merrill, 1293, 1301 States v. 513 F.3d guilty charged of the offenses. The dis- Cir.2008). cases, In doubtful bal “[t]he trict court also instructed the that it ance under Rule 403 be should struck could not consider statements made the admissibility.” favor of United States v. district court other than its instructions on (11th Cir.1989). Elkins, 885 F.2d the law when the jury at “arriv[ed] [its] The district court did not abuse its dis- concerning decision the facts.” We con- cretion when it admitted evidence of Sid- jury instructions, clude that “the taken arrest, conviction, ney prior Gibson’s together, accurately express appli- the law imprisonment. Sidney imprison- Gibson’s cable to the case without confusing prej- or was, ruled, ment as the district court in- udicing the jury.” Beasley, 72 at F.3d trinsic evidence relevant prove his ac- quaintance with Turral and explain years Gibson’s absence for several Leondray Arguments C. Gibson’s About conspiracy. Wright, the See Dog Fighting Evidence and the Rea- at 1276 (explaining that evidence is intrin- sonableness His Sentence Fail. “necessary sic if it is complete the sto- ry of the or ... in- inextricably crime[ ] Leondray arguments. Gibson raises two tertwined with the regarding evidence the First, argues he court district offense”). charged prior Gibson’s abused its it discretion when admitted evi- conviction in 2004 prove was relevant dence of in dog fighting. his involvement his knowledge respect and intent with to Second, argues that his sentence is packages the contents of the seized from arguments unreasonable. These fail. February the Avalanche on 2009. His argue counsel’s disclaimer of an intent to 1. The District Not Court Did Abuse Its Gibson did not know the Discretion When It Admitted Testi- packages contained cocaine was not a mony Leondray About Par- Gibson’s stipulation knowledge. Sidney ticipation Dog Fighting. prior arrest in prove 2003 was relevant to Leondray participation argues James Gibson’s in the that the co- district court trafficking caine activities abused its discretion when because James testimony Gibson had rented the car in which Sid- admitted about his ney transporting dog fighting probative Gibson was cocaine. because the value prejudicial substantially district court limited the of that evidence was out- drug that it would un- as a result of his involvement
weighed by
danger
that,
result, the
as a
dis-
jury. Leondray
Gib- distribution
fairly prejudice
imposed
substantively
trict court
unrea-
limiting instructions
son contends that the
Leondray Gibson as-
sonable sentence.
testimony
not diminish its
about this
did
court admitted that
serts that the district
the instructions
prejudicial impact because
of all
“testimony
there was no
or evidence
Gib-
jury only
informed the
the lives ruined as a result of
amount
charged
dog fight-
not
with
son had
been
drugs
...
funneled out into the commu-
involvement in
ing
potential
and that his
nity” through Leondray Gibson’s activities.
guilt
with
dog fighting did
establish
This
fails.
argument
with which he had
respect to
offense
charged.
been
dis
“A district court abuses its
trial,
At
time of
Federal Rule of
(1)
when it
to afford consider
cretion
fails
may
provided
Evidence 403
that courts
ation to relevant factors that were due
probative
exclude relevant
“if its
(2)
evidence
significant weight,
gives significant
substantially
by the
outweighed
value is
factor,
weight
improper
to an
or irrelevant
danger
prejudice.”
of unfair
Fed.R.Evid.
(3)
judgment
or
commits a clear error of
(2010).
extraordinary
an
“Rule 403 is
considering
proper
Irey,
factors.”
remedy
only sparing-
which
be
should
used
party
challenges
F.3d at 1189.
who
“[T]he
ly
permits
since it
the trial court to ex-
*25
sentence
the burden of establish
bears
[a]
concededly probative
clude
evidence.”
in
ing that
the sentence is unreasonable
Merrill,
2.
Gibson’s Sentence
sentencing disparities,
promote respect
Is Reasonable.
law,
Leondray
for the
and to deter
Leondray
argues
committing
Gibson also
that
from
similar crimes
the fu-
gave significant weight
among
district court
ture. These are
the factors that
improper sentencing
an
factor
it
section 3553 instructs courts to consider in
when
sentence,
speculated
calculating
as to the number of lives ruined
a
as are “the nature
and circumstances of
offense and the
that
analysis
this
overlooks several critical
history and characteristics of the defen-
facts that establish that James Gibson was
(2)(A)-
3558(a)(1),
§
borrower,
See 18 U.S.C.
not merely
dant.”
a
but was rather
(6).
(B),
And the district court
co-owner,
clarified effectively a
awith
reasonable
that its statement regarding
expectation
privacy
number
in the Avalanche.
by Leondray
lives ruined
Carter,
Gibson’s activi- See
Minnesota v.
525 U.S.
“in response
ties was
(1998)
[his
counsel’s]
S.Ct.
AFFIRM the judgment of conviction and Burton testified that he drive the “didn’t *26 sentence of Sidney Gibson. And AF- we was, truck.” The Avalanche according to judgment FIRM the of conviction sen- and Burton, “used as a work truck for the tence of Gibson. [upholstery detailing] and business” that AFFIRMED. James owned. As Gibson of his busi- part expenses, ness James paid the in- KRAVITCH, Judge, Circuit concurring surance and maintenance on the Ava- part in and in dissenting part: lanche. And Burton was a partner never I in concur in the or even a majority’s any decision to business of it in part way. affirm the convictions and of sentences But, and Leondray Gibson. be- Rather, the business in which James I cause believe that James Gibson had partnered Gibson and Burton was their standing to challenge the search of the drug trade. The two had different roles in for, paid of,
vehicle he controlled the use registered this task: Burton the Ava- drove, routinely I respectfully dissent lanche, it, while James Gibson maintained portion majority’s from that the of opinion. insurance, paid for always its and almost majority opinion,
The Indeed, with little drove testimony factual it. at sup- the analysis, concludes that pression James Gibson was hearing shows ownership merely a Chevy borrower of the Avalanche the of instruments the crime—stash hous- and therefore standing challenge lacked es the part Avalanche—was a central the vehicle’s when Kelvin search Burton of role in conspiracy. Burton’s the That stopped driving it. I while believe Burton an shared interest does ownership is, deprive expecta
not
James Gibson of his
That
police’s
the
interest
in the truck
privacy
tion of
in the Avalanche. Based on
exclusively
was tied
to their interest
evidence,
totality
apparent
of the
it is
James Gibson—not Burton.
to me that James Gibson controlled use of
that,
majority
despite
concludes
Avalanche, usually
to the exclusion of
James Gibson’s consistent use of the Ava
Burton, and that he had a reasonable ex
lanche,
payment
for its insurance and
pectation
privacy
the vehicle. See
expenses,
use,
and his control over its
he
McKennon,
United States v.
814 F.2d
standing
lacked
to challenge the vehicle’s
(11th Cir.1987) (“Whether
1539, 1543
an
light
search.
In
of the pragmatism with
possesses
individual
a constitutionally pro
expectations
which we must view
priva
privacy
depends
tected
interest
upon the
cy protected by
Amendment,
the Fourth
I
totality
(citing
of circumstances.”
Rawlings
agree
cannot
that these facts are insuffi
v. Kentucky, 448 U.S.
100 S.Ct.
cient to confer standing on James Gibson
(1980))).
1285
right
police
James Gibson’s
to exclude others
investigating drug activity. This
use, payment
from the vehicle’s
of the
provides
apt example:
case
an
If police
sought
expenses,
regular possession
vehicle’s
secure a warrant
for a GPS
device,
tracking
practical
required by
of the vehicle blinks
now
facts
Su-
preme
ruling
Court’s
relatively minor
United States v.
overemphasizes
legal
—
Jones,
-,
945, 949,
McKennon,
U.S.
132 S.Ct.
ones.3 See
it also has the problems to create majority 3. The Testimony seems to confuse a defendant’s in this case shows that Gibson con- sistently custody others,” had and control over the ability “control and to exclude Avalanche, and was even able to exclude Bur- Chaves, 169 F.3d at with “exclusive cus- ton, legal owner of the car. I fail to see tody "power and control” and to exclude all majority require what more the can of Gibson Although power others.” to exclude all precedent. under our certainly others would be indicative a rea- expectation privacy, sonable this court has government, 4. The for the first time in a letter required never a defendant to demonstrate the citing supplemental authority, argued that the latter, majority requires exclusionary apply as the now rule Gibson. should not because America, STATES
UNITED
Plaintiff-Appellee,
v. Anthony CAPERS,
Bishop Leon Little,
Frederick, Larry
Defendants-Appellants. 10-14332, and 10-15074. 10-14521
Nos. Appeals, States Court
United
Eleventh Circuit. 14, 2013.
Feb.
14, 2011);
binding precedent
police reasonably
Cunning
relied on
v.
see also United States
ham,
(11th Cir.1998)
tracking
they placed
at the time
the GPS
—
States,
(emphasizing
argument
device. See
v.
U.S.
that failure
Davis United
to offer
-,
2419, 2428-29,
appeal
an
131 S.Ct.
L.Ed.2d
on
ment).
issue on
constitutes abandon
(2011).
gov
Notably,
I
that the
would conclude
the cases the
argument by failing
support
proposition
ernment abandoned this
cites in
of this
were de
brief,
though
briefing
to raise it in its initial
even
cided before the
case;
in this
deadlines
Supreme
already granted
accordingly, they
improper
Court had
certiorari
are an
basis
authority regardless
supplemental
in Jones when that brief was due. See United
of their
*29
Jones, - U.S. -,
See,
Davis,
e.g.,
States v.
131 S.Ct.
substantive merit.
131 S.Ct.
(decided
(2011)
2011);
(granting