United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
September 19, 2007
No. 06-50979 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LENNOX CONSTANTINE GORDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, Pecos
USDC No. 4:05-CR-137-ALL
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Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Lennox Gordon appeals his convictions for
conspiracy to possess with intent to distribute marijuana, aiding
and abetting possession with intent to distribute marijuana, and
obstruction of justice. Gordon also challenges the
reasonableness of his 97-month sentence.
I. BACKGROUND
On June 14, 2004, Border Patrol Agents were conducting
traffic checks at the Sierra Blanca checkpoint. A drug-detection
canine alerted to the rear of a semi-tractor truck hauling a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-50979
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trailer carrying eight vehicles. The driver, Steven Del Norman,
was questioned regarding his citizenship. After the alert, an
agent climbed onto the trailer and smelled a strong scent of air
freshener and marijuana from one of the vehicles. Upon further
inspection, the agents found 305 pounds of marijuana. The
marijuana was packaged in two different colors.
Subsequently, DEA agents debriefed Norman, who stated that
he was transporting the drugs from Phoenix to Atlanta for a man
who called himself “James Nails.” Nails had given Norman $4,000
and the key to the vehicle loaded with marijuana. Norman agreed
to make a recorded phone conversation with Nails. During this
conversation, Nails told Norman “Everything will be all-right
[sic]. Let me tell ya. Just, you got a phone call, ok, you need
a car moved. Somebody brings you the car and you move it.”
Nails instructed Norman to tell the agents that “he got the car
from a little Spanish guy named James.” Nails also said “They
can’t do nothing to you, so you just listen to what I’m saying.
We’re going to get through it though, so just basically, you
don’t know. You have no idea.” Norman identified “James Nails”
as Gordon.
Norman also agreed to set up a controlled delivery of
marijuana with Manuel Navarro, Gordon’s co-conspirator, who owned
200 of the 305 pounds of marijuana seized from Norman’s trailer.
As a result of Norman’s cooperation, Navarro was arrested and
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agreed to testify against Gordon. Navarro testified that he
began selling Gordon small quantities of marijuana while they
attended high school in 1993 or 1994. After Navarro completed a
prison sentence from 1996 to 2001, he resumed selling Gordon
marijuana, but in larger shipments of 30-40 pounds.
Navarro further testified that the instant drug transaction
was a joint venture and that his marijuana was packaged in one
color, and Gordon’s marijuana was packaged in a different color.
Gordon had provided Norman as the driver for the shipment.
Gordon testified that he had no involvement with any illegal
drug transportation. He stated that he employed Norman to
transport vehicles. He admitted using the alias of “James
Nails,” but claimed it was in his capacity as a professional
athlete.
The jury found Gordon guilty on all counts. The Presentence
Report (PSR) recommended a base offense level of 26, and an
enhancement of two levels for Gordon’s aggravating role as
organizer, leader, manager, or supervisor pursuant to U.S.S.G. §
3B1.1(c), and two levels for obstruction of justice pursuant to §
3C1.1. Gordon objected to the base offense level and the
enhancements. The district court overruled the objections and
adopted the recommendations in the PSR, sentencing Gordon to 97
months of imprisonment.
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II. ANALYSIS
A. Voir Dire
Gordon argues that the district court failed to conduct
adequate voir dire regarding the possible existence of bias in
favor of law enforcement. A district court has broad discretion
in determining how best to conduct voir dire. Rosales-Lopez v.
United States, 451 U.S. 182, 189 (1981); Fed.R.Crim.P. 24(a).
“On appeal, we will not disturb the scope and content of voir
dire without a showing that there was insufficient questioning to
allow defense counsel to exercise a reasonably knowledgeable
right of challenge.” United States v. Flores, 63 F.3d 1342, 1353
(5th Cir. 1995).
Gordon complains that three jurors had relatives in law
enforcement, one juror previously worked at a detention center,
and five jurors had grand jury experience. He asserts the
“prejudice is clear.” Gordon is mistaken. This Court has opined
that “[m]arriage to a law enforcement official, without more, is
insufficient to constitute bias.” United States v. Crooks, 83
F.3d 103, 107 n.16 (5th Cir. 1996). Additionally, “[i]t is well
settled that prior jury service alone, even in the same term of
court, is not a sufficient basis to support a challenge for
cause.” United States v. Garza, 574 F.2d 298, 302 (5th Cir.
1978).
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Gordon also complains that he had to use the majority of his
11 peremptory challenges to strike persons with law enforcement
experience. Because Gordon has failed to demonstrate bias, the
use of his peremptory strikes did not harm him. Cf. Garza, 574
F.2d at 303 (explaining that “utilization of a peremptory
challenge to strike a juror with prior jury experience is no
different than using such a challenge to strike a juror who, for
example, is the wife of a policeman or who is elderly”).
More to the point, Gordon admits that in general the court
made a “full inquiry as to the existence or absence of bias.”
The court specifically asked the venire whether anyone had a bias
with respect to the testimony of law enforcement officers. Also,
the court asked whether prior service on a grand jury would
impact their ability to be fair and impartial. Defense counsel
did not request any further questions for the venire.1 On this
record, we are not persuaded that Gordon has shown that the voir
dire was inadequate, and therefore we find no abuse of
discretion.
B. Rule 404(b) Evidence
Gordon contends that the district court erred in admitting
prior alleged drug transactions which were remote in time and
1
It is worth noting that the district court granted all
the defendant’s challenges for cause.
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significantly different from the offense conduct in violation of
Rule 404(b) of the Federal Rules of Evidence. Evidence of
extrinsic acts is admissible, if as required by Rule 404(b), the
evidence is relevant to an issue other than the defendant’s
character, and if, as Rule 403 requires, its probative value is
not substantially outweighed by its prejudicial impact. United
States v. Beechum, 582 F.2d 898 (5th Cir. 1978). More
specifically, “[t]he rule provides that [e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.’” United States v.
Arnold, 467 F.3d 880, 884-85 (5th Cir. 2006) (second brackets in
opinion)(quoting Fed.R.Evid. 404(b)). The district court’s
decision to admit such evidence is reviewed for abuse of
discretion. Id.
Gordon argues that Navarro’s testimony regarding the small
amounts of marijuana allegedly purchased in high school was
prejudicial. The district court found that Navarro’s testimony
was relevant to the contested issue of knowledge. “The rationale
for admitting this evidence is ‘that because the defendant had
unlawful intent in the extrinsic offense, it is less likely that
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he had lawful intent in the present offense.’” Arnold, 467 F.3d
at 885 (quoting Beechum, 582 F.2d at 911).
Gordon contends that the remoteness of the prior
transactions render the testimony inadmissible. Although the
high school drug transactions had taken place several years
earlier, this Court has “upheld the admission of Rule 404(b)
evidence where the time period in between was as long as 15 and
18 years.” Arnold, 467 F.3d at 885 (citing United States v.
Hernandez-Guevara, 162 F.3d 863 (5th Cir. 1998); United States v.
Chavez, 119 F.3d 342 (5th Cir. 1997)).
Gordon also complains that the intent for purchasing small
amounts of marijuana in high school does not equate with intent
to transport large amounts of marijuana. Although the prior
marijuana transactions were much smaller, that evidence does make
it less likely that Gordon had no knowledge of the marijuana in
the instant case. Moreover, during Navarro’s testimony regarding
these prior transactions, the court instructed the jury to limit
its consideration of the testimony to the issue of Gordon’s
knowledge. Gordon has failed to show that the probative value of
the evidence was substantially outweighed by its prejudicial
impact, and thus the district court did not abuse its discretion.
C. Violation of The Court Reporter Act
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Gordon next contends that a new trial is required because
the court reporter failed to transcribe recorded conversations
between co-conspirators that were played to the jury. The Court
Reporter Act provides, inter alia, that a reporter shall record
verbatim by shorthand or other means all proceedings in criminal
cases held in open court. 28 U.S.C. § 753(b). “One narrow
exception that renders harmless the failure to transcribe exists
when both the defendant and the reviewing court can review for
errors and defects those tapes played to the jury but not
transcribed into the written record.” United States v. McCusker,
936 F.2d 781, 785 (5th Cir. 1991). In the instant case, the
taped recording was entered into evidence. Because the tape is
in the record and available for review, any failure to transcribe
constitutes harmless error.
D. Sentence
Finally, Gordon challenges his 97-month sentence. Gordon
argues that the guideline enhancements should have been charged
in the indictment and decided by a jury. Contrary to his
argument, the district court “is entitled to find by a
preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range.” United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
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Gordon also asserts that there was no evidence to support
the finding that he was a leader and manager pursuant to U.S.S.G.
§ 3B1.1(c). The evidence showed that Gordon recruited Norman as
the driver. Gordon paid Norman and provided instructions
regarding the transportation of loads of marijuana. Gordon also
instructed Norman regarding what he should tell the authorities.
Gordon further argues that the sentence was unreasonable
because the court failed to take into account mitigating factors
under 18 U.S.C. § 3553(a). He neglects, however, to state what
factors were not considered. Further, he has failed to show that
his sentence was not properly calculated under the guidelines. A
sentence within a properly calculated guideline range is
presumptively reasonable. Rita v. United States, __ U.S. __, 127
S.Ct. 2456 (2007); United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Gordon has failed to rebut this presumption.
The judgment of the district court is AFFIRMED.
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