United States v. Jermaine Gibson ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13628
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00440-TWT-JSA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE GIBSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 19, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
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Jermaine Gibson appeals his conviction for being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and his 72-month
prison sentence. He first challenges his conviction on Batson grounds. Next he
contends that the government improperly vouched for its witnesses in closing
argument and that the district court improperly instructed the jury on the meaning
of “constructive possession.” Finally, he challenges the substantive reasonableness
of his sentence, contending that the district court’s application of the 18 U.S.C.
§ 3553(a) factors violated his First Amendment rights.
I.
The firearm Gibson was convicted of possessing was discovered in a home
that he was unlawfully occupying in Lithonia, Georgia. A woman purchased that
home from a bank in January 2013, with the closing date set for April 26, 2013.
Gibson, along with several other people, unlawfully moved into the home during
that time period. The purchaser and the bank’s listing agent tried to get Gibson to
leave. He refused. When the police visited it to investigate his occupancy, he told
them that he owned the home. He claimed ownership based on a number of
documents that he posted on the front door and windows of the home. 1 The gist of
1
Those documents consisted of a “dispossessory warrant,” an “affidavit of awareness,” a
“realtor and state agent notice,” two quitclaim deeds, a “notification of reservation of rights UCC
1-308/1-207,” and an “affidavit of truth.”
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those documents was that Gibson owned the home and that he was a “sovereign
citizen” not subject to the jurisdiction of the United States or any state. 2
Gibson continued to occupy the home through the closing date. The
purchaser and the bank then went to court in DeKalb County, Georgia to settle the
ownership dispute. Gibson attended those proceedings. The court ordered him to
leave the home immediately. At the end of those proceedings, law enforcement
officers arrested Gibson for various state law charges related to his occupation of
the home. That same day the officers searched the home. They found fraudulent
identification documents with Gibson’s name on them and a Smith & Wesson
revolver under the bedsheets in the master bedroom.
The officers also interviewed Gibson twice on the day of his arrest. During
those interviews, Gibson insisted that he owned the home, citing some of the
documents that he had posted on the windows and door. He stated that he slept in
the master bedroom most of the time and pointed to the location of that bedroom
on a schematic drawing of the home.
The officers also asked him whether there were any firearms in the home.
Gibson replied that another occupant had a shotgun. When asked about the
2
For example, the “affidavit of truth” provided that Gibson was “not a ‘person’ when
such term is defined in statutes of the United States or statutes of the several states when such
definition includes artificial entities.” It also stated that Gibson “voluntarily [chose] to comply
with the man-made laws which serve to bring harmony to society, but no such laws, nor their
enforcers, have any authority over [him].”
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handgun (which the officers did not describe in detail) that had been found during
the search, Gibson described it as a five-shot, black-handled revolver and stated
that he had moved it around the home. His description of the handgun matched the
revolver the officers found in the master bedroom.
The government charged Gibson with one count of being a convicted felon
who knowingly possessed a firearm (the handgun) in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He agreed to stipulate at trial that he was a convicted
felon at the time of the indictment.3 However, he continued to assert his sovereign
citizen status. On the first day of trial, he filed pro se an “affidavit of
competency,” which alleged (among other things) that the court was a “tribunal
operated as a private corporation” instead of a real court. At the end of trial
Gibson stated that the district court lacked jurisdiction over him because he was a
sovereign citizen. The jury found Gibson guilty of being a felon in possession of a
firearm, and the district court sentenced him to 72 months imprisonment. This is
his appeal.
II.
Gibson first contends that the district court clearly erred when it rejected his
Batson challenge to the government’s strikes of five African American venire
members. He focuses particularly on the strike of Prospective Juror 1, a 24-year-
3
Gibson had prior felony convictions for burglary and first degree forgery.
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old African American. When asked by the district court to provide a race-neutral
reason for that strike, the government stated that he was young, unemployed,
previously worked at a grocery store, and did not own a home. Based on those
characteristics, the government did not believe that he would be a “suitable juror”
for the case because of the evidence relating to Gibson’s fraudulent deeds to the
home where he had been residing. Gibson agreed that Prospective Juror 1 was a
renter but argued that the government’s explanation was mere pretext for
discrimination. The district court accepted the government’s explanation, stating
that Prospective Juror 1’s “youth and lack of experience with real estate
transactions of any kind” was a “legitimate, non-discriminatory reason” for striking
him.
The Supreme Court held in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712 (1986), that a “prosecutor’s use of peremptory strikes in even a single case to
remove blacks from the jury on account of their race violates the Equal Protection
Clause.” United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995). The
framework for evaluating Batson challenges involves three steps. Id. at 923–24.
The party challenging the strike must first establish a prima facie case of
discrimination. Id. at 923. If the challenger succeeds in showing a prima facie
case, the striking party must then articulate a race-neutral reason for the strike. Id.
Once the striking party articulates a race-neutral reason, the district court “must
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evaluate the credibility of the stated justifications based on the evidence placed
before it.” United States v. Houston, 456 F.3d 1328, 1335 (11th Cir. 2006).
The district court’s determination concerning the actual motivation behind
each challenged strike” is “pure factfinding” that we review for clear error. Id.; see
also Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir. 2011) (“[T]he determination
on the ultimate question of discriminatory intent . . . represents a finding of fact of
the sort accorded great deference on appeal.”) (quotation marks and alterations
omitted).
The district court did not clearly err in denying Gibson’s Batson challenge.
As to the first step, the issue of whether Gibson established a prima facie case of
discrimination is moot. Although the establishment of a prima facie case is an
“absolute precondition to the prosecution’s burden to articulate race-neutral
reasons” for its strikes, Houston, 456 F.3d at 1335–36, that issue becomes moot
when the district court rules on “the ultimate issue of intentional discrimination”
without “explicitly determin[ing]” whether the defendant made out a prima facie
case, at least where his challenge fails on steps two and three. Id.; see also United
States v. Gamory, 635 F.3d 480, 495 (11th Cir. 2011); United States v. Edouard,
485 F.3d 1324, 1342–43 (11th Cir. 2007). That is what happened here.4
4
After Gibson argued that he had established a prima facie case of discrimination and the
government responded that he had not, the district court stated: “Well, I don’t know.
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Regardless of step one, Gibson’s Batson challenge fails on steps two and
three. Step two only requires an explanation for the strikes that is legitimate,
reasonably specific, and facially nondiscriminatory. United States v. Folk, 754
F.3d 905, 914 (11th Cir. 2014); United States v. Alston, 895 F.2d 1362, 1366 (11th
Cir. 1990). The district court did not clearly err in finding that the government’s
asserted reasons for striking Prospective Juror 1 — that he was young,
unemployed, previously worked at a grocery store, and did not own a home — are
race neutral.
As for step three, the district court did not clearly err in finding the
government’s explanation for the strike credible and non-pretextual.5 In evaluating
whether the rationale for a strike is mere pretext, the key question is the
“genuineness of the [government’s] explanation, rather than its reasonableness.”
United States v. Walker, 490 F.3d 1282, 1294 (11th Cir. 2007). We evaluate the
credibility of that explanation based on all the relevant facts. Parker v. Allen, 565
F.3d 1258, 1271 (11th Cir. 2009).
Technically, [the government may be correct] . . . but I’m going to insist that you put on the
record a racially neutral reason for exercising the strikes that you did.”
5
Gibson also argues that the district court improperly combined steps two and three. It
did not. A district court improperly condenses steps two and three where it “summarily
overrul[es]” the challenging party’s objections “and/or fail[s] to consider whether [the
challenging party] ha[s] refuted” the government’s race-neutral explanations. United States v.
Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). The Batson hearing transcript shows that the
district court properly conducted the analysis. It first asked the government to provide race-
neutral reasons for its strikes (step two), heard Gibson’s response, and then independently
assessed the credibility of the government’s proffered reasons (step three).
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Gibson argues that the government’s explanation for the strike was mere
pretext for two reasons. First, he points to the government’s failure to strike a
similarly situated white venire member who was also young and did not own a
home. 6 Second, he asserts that the government’s inquiry about whether the venire
members owned or rented their dwellings was not a meaningful voir dire on the
issue of their ability to understand real estate transactions because even
homeowners might not know much about real estate transactions.
The district court did not clearly err in finding that the reasons for the
government’s strike were credible and non-pretextual. Even if a more meaningful
voir dire were possible, it was not clear error for the district court to accept the
government’s race neutral reasoning that most homeowners are likely to know
more about real estate transactions than someone who has never purchased a home.
See Stewart, 65 F.3d at 926 (“[Where] there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”)
(quotation marks and alterations omitted). Gibson’s focus on the government’s
decision not to strike the young, white venire member who did not own a home is
misplaced because there were relevant differences between that venire member and
6
Gibson notes in his brief to this Court that it was never actually established at voir dire
whether Prospective Juror 1 had ever owned a home. That is correct. However, Gibson did not
raise that point in the district court, and in his appellate brief he later states that Prospective
Juror 1 had never owned a home. In any event, the government’s failure to clarify whether he
had ever owned a home does not prove that its explanation was pretextual. See Parker, 565 F.3d
at 1271 (“Neither a prosecutor’s mistaken belief about a juror nor failure to ask a voir dire
question provides clear and convincing evidence of pretext.”) (quotation marks omitted).
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the one who was struck. See Parker, 565 F.3d at 1271 (“The prosecutor’s failure to
strike similarly situated jurors is not pretextual . . . where there are relevant
differences between the struck jurors and the comparator juror[].”) (quotation
marks omitted).7
There were also five African Americans in the thirteen-member jury (twelve
jurors and an alternate), out of twelve African Americans in the 32-person venire.
See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (“Although the
presence of [African American] jurors does not dispose of an allegation of race-
based peremptory challenges, it is a significant factor tending to prove the paucity
of the claim.”). For all of these reasons, the district court did not clearly err in
finding that the government’s reasons for the strike were credible and non-
pretextual.
III.
Gibson also contends that the government improperly vouched for its
witnesses in closing argument. In his closing argument, defense counsel asserted
that the officers who testified about Gibson’s statements concerning his possession
of the handgun essentially fabricated those statements after the interview. In
rebuttal, the government provided various reasons why the officers’ testimony was
credible. In the course of doing so, the government stated: “I submit to you,
7
The juror who was not struck was pursuing a bachelor’s degree and was employed.
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Ladies and Gentlemen, that these officers and these agents, their testimony is
worthy of belief.” The district court overruled Gibson’s objection to that
statement. According to Gibson, that decision was erroneous because the
government improperly put its prestige behind the officers by assuring their
credibility.
We review claims of improper vouching de novo. United States v. Epps,
613 F.3d 1093, 1100 (11th Cir. 2010). Improper vouching occurs where the
government places its prestige “behind the witness, by making personal assurances
of the witness’ veracity.” Id. (quotation marks omitted). The government’s
remarks must also “prejudicially affect the substantial rights of the defendant.” Id.
(quotation marks omitted).
Contrary to Gibson’s argument, the government’s statement did not
improperly place prestige behind the officers. The transcript of the closing
arguments establishes that the government was attempting to respond to Gibson’s
attacks on the officers’ credibility. An argument that fairly responds to an
argument is permissible. See United States v. Smith, 700 F.2d 627, 634 (11th Cir.
1983) (“[T]his Court has recognized an exception to [the prohibition on improper
vouching], the so-called ‘fair response’ rule, that entitles a prosecutor to respond to
arguments advanced by defense counsel in his or her statement to the jury.”). The
government did not base that response on evidence not before the jury, nor did it
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use its own reputation to defend the officers’ credibility. See United States v.
Lopez, 590 F.3d 1238, 1256–57 (11th Cir. 2009) (“[The] prohibition against
vouching does not . . . forbid prosecutors from arguing credibility; rather, it forbids
arguing credibility based on the reputation of the government office or on evidence
not before the jury.”). The district court therefore did not err in overruling
Gibson’s objection.
IV.
Gibson’s final challenge to his conviction is that the district court erred in
instructing the jury on constructive possession. The court instructed the jury that
“[c]onstructive possession of a thing occurs if a person doesn’t have actual
possession of it but has both the power and the intention to take control over it
later.” The court then instructed the jury that a “person who owns or exercises
dominion and control over a residence in which contraband is knowingly
concealed may be deemed to be in constructive possession of the contraband.”8
According to Gibson, that instruction allowed the jury to find him guilty based
solely on the fact that he possessed the property, even if one of the other occupants
of the home had knowingly concealed the handgun.
We review jury instructions under a deferential standard of review. Johnson
v. Breeden, 280 F.3d 1308, 1314 (11th Cir. 2002). “As long as they accurately
8
The district court defined “knowingly” as an act done “voluntarily and intentionally and
not because of a mistake or by accident.”
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reflect the law, the trial judge is given wide discretion as to the style and wording
employed.” Id. (quotation marks omitted). We reverse only where there is
“substantial and ineradicable doubt as to whether the jury was properly guided in
its deliberations.” United States v. Cochran, 683 F.3d 1314, 1319 (11th Cir. 2012)
(quotation marks omitted). “We analyze the objected-to portion of the instructions
in light of the entire charge and we keep in mind that isolated statements which
appear prejudicial when taken out of context may be innocuous when viewed in
light of the entire trial.” Id.
“A person who owns or exercises dominion and control over a . . . residence
in which contraband is concealed may be deemed to be in constructive possession
of the contraband.” United States v. Vera, 701 F.3d 1349, 1357 (11th Cir. 1983).
However, a jury should not be “instructed that control of premises can serve as a
sole basis of conviction.” Cochran, 683 F.3d at 1320. Instead, “the essence of
constructive possession is the power to control the contraband itself,” and “control
of the premises simply permits an inference of that power.” Id.
Gibson’s argument that the instruction allowed the jury to convict him for
constructive possession of the handgun based solely on his control of the premises
fails. The instruction states that the person who controls the premises where the
“contraband is knowingly concealed can be deemed to be in constructive
possession of the contraband,” and goes on to state that the government must prove
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that Gibson was the one who committed the crime of possessing the firearm. See
id. at 1319–21 (upholding a constructive possession instruction with “a number of
problems” because those problems were mitigated by “the totality of the
instructions”). The evidence at trial showed that Gibson slept most of the time in
the master bedroom, law enforcement found the handgun in that bedroom, and
Gibson’s description of it matched the one that law enforcement found. He also
admitted to moving the handgun around the house. Even if the instruction could
have been clearer in terms of specifying that Gibson must control the handgun
itself (and not merely the premises), that lack of clarity was “innocuous” in light of
the evidence that Gibson did exercise control over the handgun. Id. at 1319
(quotation marks omitted).
V.
Gibson also challenges the substantive reasonableness of his sentence,
contending that the district court’s application of the 18 U.S.C. § 3553(a) factors
violated his First Amendment rights. Neither party objected to the district court’s
calculation of 41 to 51 months imprisonment as the guidelines range. However,
the government requested an upward variance of 21 months (to 72 months total),
arguing that the guidelines range did not adequately reflect Gibson’s criminal
history or the relevant conduct underlying his conviction (his unlawful occupation
of the home). The district court agreed. In explaining why the upward variance
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was appropriate, it referred to Gibson’s “filing of the documents the first day of
trial that refused to admit that he was subject to the charges that were pending in
this case.” Gibson argues that reference makes his sentence substantively
unreasonable. Essentially, he argues that the district court improperly followed
§ 3553(a)(2)(A)’s directive to consider the need to promote respect for the law
when the court found that the documents he had filed evidenced disrespect for the
law. See 18 U.S.C. § 3553(a)(2)(A) (“The court, in determining the particular
sentence to be imposed, shall consider . . . the need for the sentence . . . to promote
respect for the law . . . .”). We disagree.
The transcript from the sentence hearing establishes that the district court
based the variance on the need to promote respect for the law as well as on
Gibson’s offense conduct and criminal history. Imposing an upward variance
based on a defendant’s disrespect for law is permissible. See United States v.
Early, 686 F.3d 1219, 1222–23 (11th Cir. 2012) (upholding a “substantial” upward
variance based partly on the defendant’s “disrespect for the law”). The district
court referred to the documents Gibson filed as exemplifying his disrespect for the
law. Given that Gibson had filed documents asserting that he was not subject to
the laws of the United States, the district court did not clearly err in making that
finding. See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
(explaining that when reviewing a sentence, “[t]o the extent that the district court
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has found facts, we accept them unless they are clearly erroneous.”). And the court
did not apply an improper factor when it followed the statutory directive to
consider need to promote respect for the law.
AFFIRMED.
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