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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2003 Decided December 30, 2003
No. 02-3023
UNITED STATES OF AMERICA,
APPELLEE
v.
ALONZO GIBSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 94cr00193–02)
Jonathan L. Katz, appointed by the court, argued the cause
and filed the briefs for appellant.
Alonzo Gibson was on the pro se brief for appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
McLeese, III, and Martin D. Carpenter, Assistant U.S. Attor-
neys.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Alonzo Gibson appeals his convic-
tion of possession of cocaine with intent to distribute, see 21
U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii) (2003), and conspiracy to
possess cocaine with intent to distribute, see id. § 846, on the
ground that the imposition of his sentence over seven years
after the jury returned a guilty verdict violated his right to
speedy sentencing under the Sixth Amendment. Assuming
that such a right exists, we hold that it was not violated. The
delay was extraordinarily long, but Gibson, far from being
prejudiced, actively contributed to it and never requested
prompt sentencing. With the exception of a 35–month insti-
tutional delay due to the loss of Gibson’s pro se motions in
chambers, the remaining delay was caused by Gibson, who
filed multiple motions and requests for continuances and
repeatedly resisted sentencing by the district court. These
circumstances defeat his attempt to shift course on appeal.
Gibson’s other sentencing challenge, under Apprendi v. New
Jersey, 530 U.S. 466 (2000), is identical to a claim that was
rejected in United States v. Graham, 317 F.3d 262, 273–74
(D.C. Cir. 2003). Because Gibson’s remaining challenges to
his conviction are without merit, we affirm the judgment of
conviction.
I.
The evidence, which we must view in the light most favor-
able to the government, see United States v. Wilson, 160 F.3d
732, 736–37 (D.C. Cir. 1998), shows that Gibson was involved
in arranging for Federal Express to ship from Los Angeles
two boxes containing cocaine, one to an apartment in Silver
Spring, Maryland and one to an address in the District of
Columbia. The government’s evidence showed that three
men, who claimed not to be together although they conversed
together, entered a Federal Express office in Los Angeles on
3
April 14, 1994. Two of the men each carried a box, and the
third man leaned on the counter. Gonzaver Braziel, a Feder-
al Express employee who processed one of the packages,
identified Gibson in a photo array as possibly being the third
man and at trial identified Gibson as that man. After the
three men left, Federal Express employees, whose suspicions
were aroused by the behavior of the three men and certain
details of the shipments, notified security personnel, who
determined, upon x-raying the boxes, that they appeared to
contain drugs. Federal Express employees opened one box
and found a white powdery substance. The box was resealed,
and both boxes were shipped to Federal Express headquar-
ters in Memphis, Tennessee, and then to the District of
Columbia, where Federal Express delivered the two boxes to
United States Drug Enforcement Administration (‘‘DEA’’)
agents.
After searching the boxes pursuant to search warrants,
DEA agents found that the powdery substance field-tested
positive for cocaine: the box addressed to Maryland con-
tained 2.994kg of 86% pure cocaine hydrochloride, and the
box addressed to the District of Columbia contained 3.007kg
of 90% pure cocaine. DEA agents, dressed as Federal Ex-
press employees, delivered the Maryland box, which indicated
the sender was ‘‘Greg Smith’’ and the addressee was ‘‘Larry
Davis,’’ to the Maryland address, which turned out to be an
apartment rented by Fatoumata Doumbia, Gibson’s girl-
friend. A few minutes after delivery, DEA agents executed a
search warrant for the apartment. They found Gibson in a
bedroom bending over the box that had just been delivered;
with him were two pink sender’s receipts, one for each of the
boxes sent from Los Angeles. Also in the bedroom were two
identification cards that bore Gibson’s photograph, one show-
ing the name ‘‘Greg Smith’’ and the other ‘‘Larry Davis.’’
Gibson told agents that the box belonged to him and that he
had been instructed to call an answering service upon deliv-
ery and say that ‘‘Snoop–Doggie–Dog’’ had called, and some-
one would call back and tell him where to deliver it. Gibson
also told agents that the box contained marijuana. At trial,
Doumbia testified about Gibson obtaining the fake identifica-
4
tion cards and confirmed that Gibson had gone to Los Ange-
les twice in April 1994, calling her on April 15, 1994, to pick
him up at the airport. She also testified that she gave the
box to Gibson because he had told her he was expecting it.
The second box listed the sender as ‘‘Denise Jones’’ and
was addressed to ‘‘Twanna Jones’’ at an apartment in the
District of Columbia. Vi–Ki Dennis Taylor, Gibson’s co-
defendant, met the agent outside of the apartment and of-
fered to accept delivery for Twanna Jones, whom he claimed
was his sister. The agent refused, left, and later returned
and delivered the box to Twanna Jones, who said the package
was for Taylor. Before DEA agents could execute a search
warrant, Twanna Jones and Taylor drove off with the box in a
car registered to Antoine Jones, Twanna’s brother, who had
told her to expect a package for Taylor to be sent to her.
Taylor was later arrested at his own apartment in Maryland,
and DEA agents found the empty box nearby. The DEA
agents also found 992.4 grams of 88% pure cocaine hydrochlo-
ride in the trunk of the car Taylor had been driving, along
with a notebook containing addresses for ‘‘Greg Smith’’ and
‘‘Larry Davis,’’ the names on Gibson’s false identifications,
one of which was the Maryland address at which Gibson had
been arrested. A search of Antoine Jones’ apartment in
Virginia later uncovered supermarket and insurance cards in
Gibson’s name, as well as a yellow sticker and a napkin each
bearing the Maryland address where Gibson had been arrest-
ed.
Gibson and Taylor were indicted on two counts: possession
of with intent to distribute, see 21 U.S.C. §§ 841(a)(1) &
(b)(1)(A)(ii), and conspiracy to possess with intent to distrib-
ute, see id. § 846, more than five kilograms of cocaine.
Pursuant to then-prevailing precedent in this circuit, the jury
was not instructed to determine the relevant drug quantity
beyond a reasonable doubt, only whether Gibson possessed or
conspired to possess ‘‘a detectable or measurable amount of
cocaine.’’ The jury returned its verdict on November 9, 1994,
finding Gibson guilty of both counts. On February 8, 2002,
the district court sentenced Gibson to concurrent terms of 240
months imprisonment, to be followed by concurrent three-
5
year terms of supervised release, and imposed a special
assessment of $50 on each count.
II.
Of the multiple challenges by Gibson to his conviction, only
five require discussion. Part II discusses three trial-related
claims, and Parts III and IV address the two challenges to his
sentence.
First, it is clear that Gibson’s contention that his conviction
rested on insufficient evidence fails. The court reviews chal-
lenges to the sufficiency of the evidence de novo, see United
States v. Fennell, 53 F.3d 1296, 1298 (D.C. Cir. 1995), in order
to determine whether ‘‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt,’’ Jackson v. Virginia, 443 U.S. 307, 319 (1979) (empha-
sis in original). That standard is met here.
Gibson was arrested with the Maryland box in his posses-
sion,1 and the jury heard testimony both that he had been
expecting the box and that he intended to deliver it to a third
party. Moreover, he had sender’s receipts from both the
Maryland and District of Columbia boxes, and the jury heard
testimony that he had traveled to Los Angeles around the
time they were shipped. He was found with false identifica-
tions matching the names of the shipper and addressee of the
Maryland box. The recipients of the District of Columbia box
were also found with a notebook containing the names on
Gibson’s false identifications and an insurance card and a
supermarket card issued in Gibson’s own name as well as a
napkin matching the address to which the Maryland box was
delivered.2 A reasonable jury could conclude beyond a rea-
1 In his pro se brief, Gibson contends that the search warrant
was issued ex post facto. Other than the fact that the warrant does
not list the specific time at which it was signed, only a date, which is
not improper under Fed. R. Crim. P. 41, Gibson presents no
evidence to support this contention.
2 To the extent that Gibson pro se challenges the search of
Jones’ apartment as well, he fails to articulate how his, as opposed
6
sonable doubt, on the evidence presented, that Gibson pos-
sessed and conspired to possess cocaine with the intent to
distribute it.
Second, Gibson contends that the district court abused its
discretion by admitting the identification by Braziel, the
Federal Express employee in Los Angeles. According to the
testifying agent, Braziel had stated during a photo array that
the man in Gibson’s photograph seemed familiar and may
have been one of the people that actually shipped the boxes
from the Federal Express office in Los Angeles. As Braziel’s
identifications at the lineup and at trial were the most direct
evidence placing Gibson in Los Angeles on the day the two
boxes were shipped, Gibson contends that admission of the
identifications was more prejudicial than probative because of
Braziel’s lack of certainty at the initial photo lineup. See
Fed. R. Evid. 403.
Absent constitutional error, the erroneous admission of
evidence is harmless so long as it did not have a ‘‘substantial
and injurious effect or influence in determining the jury’s
verdict.’’ Kotteakos v. United States, 328 U.S. 750, 776
(1946); see also United States v. Powell, 334 F.3d 42, 45–48
(D.C. Cir. 2003). In light of the strength of the government’s
other evidence connecting Gibson to the conspiracy, any error
was harmless. See, e.g., United States v. Bailey, 319 F.3d
514, 519 (D.C. Cir. 2003). The conclusion that Gibson pos-
sessed cocaine with the intent to distribute was supported by
the evidence of his involvement on the East Coast end of the
alleged conspiracy, and does not require him to have been
present in Los Angeles when the packages were shipped.
Gibson’s possession of the sender’s receipts and false identifi-
cations bearing the shipper’s and the addressee’s names, as
well as Doumbia’s testimony that Gibson had gone to Los
to Jones’, Fourth Amendment rights were violated. Co-
conspirators enjoy no special exemption from the rule that defen-
dants may not invoke the exclusionary rule vicariously. See United
States v. Padilla, 508 U.S. 77, 81 (1993); Alderman v. United
States, 394 U.S. 165, 171–76 (1969).
7
Angeles at the relevant time, independently connected Gibson
to the shipments in any event.
Third, likewise without merit is Gibson’s contention that
reversal of his conviction is required because the district
court abused its discretion in the manner and extent to which
it investigated Gibson’s complaints that a juror was making
facial expressions indicating bias against him. Gibson,
through counsel, twice requested that the juror be removed
because Gibson believed she had already reached a decision in
light of her facial expressions and general demeanor. After
his second request, the district court responded that it had
watched the challenged juror since Gibson’s first complaint
and had seen nothing to suggest the juror had made up her
mind about Gibson’s guilt or innocence. Gibson maintains
that the court erred by failing to question the juror regarding
her fairness.
District courts have wide latitude in choosing appropriate
means of investigating claims of juror bias, and ‘‘[a]mong the
factors [the district court] should consider are the strength
and seriousness of the allegations,’’ United States v. White,
116 F.3d 903, 929 (D.C. Cir. 1997) (per curiam). Interrupting
a trial to question jurors about their fairness carries with it
risks of placing undue emphasis on the challenged conduct,
see United States v. McVeigh, 153 F.3d 1166, 1187 (10th Cir.
1998), and district courts, having first-hand observation of
jurors and their demeanor, see, e.g., United States v. Gart-
mon, 146 F.3d 1015, 1029 (D.C. Cir. 1998), are in the best
position to decide whether inappropriate conduct meriting an
investigation has occurred, see White, 116 F.3d at 929. De-
fense ‘‘counsel’s unsubstantiated suspicion’’ does not, on its
own, require the district court to conduct jury questioning.
United States v. Thornton, 746 F.2d 39, 50 (D.C. Cir. 1984).
Gibson relies on United States v. Nell, 526 F.2d 1223 (5th
Cir. 1976), where a district court refused to question a juror
after his responses at voir dire reasonably called his objectivi-
ty into question. But Gibson presents no evidence that
anything of the sort happened at his trial. On appeal, he
points to no evidence, for instance, that the juror was making
8
inappropriate facial expressions, or that she ceased doing so
during the period she was being watched by the district court.
Absent any proffer to indicate that the district court’s evalua-
tion was inadequate, we have no basis on which to second-
guess the decision that observing the juror, rather than
interrogating her, was an appropriate way to investigate so
generalized a claim of bias.3
III.
Challenging the lawfulness of his sentence, Gibson contends
that the lengthy delay between the date the jury returned its
verdict and the date he was sentenced violated his Sixth
Amendment right to speedy sentencing by leaving his life in
limbo and in uncertainty. The plain text of the Sixth Amend-
ment confers only ‘‘the right to a speedy and public trial,’’ and
does not expressly refer to sentencing. The Supreme Court
has yet to hold that there is such a right although some
circuits have done so.4 In Pollard v. United States, 352 U.S.
354, 361 (1957), however, the Supreme Court ‘‘assume[d]
arguendo that sentence is part of the trial for purposes of the
Sixth Amendment.’’ This court did likewise in United States
3 The remainder of Gibson’s pro se challenges, which we have
carefully reviewed, also fail to demonstrate that his conviction
should be reversed, essentially for reasons stated by the govern-
ment in its brief. See Appellee’s Br. at 45–54.
4 The Third, Fifth, and Sixth Circuits have held the Sixth
Amendment applicable to sentencing, see United States v. Thomas,
167 F.3d 299, 303–05 (6th Cir. 1999); United States v. Abou–
Kassem, 78 F.3d 161, 167 (5th Cir. 1996); Burkett v. Cunningham,
826 F.2d 1208, 1220 (3rd Cir. 1987). The Ninth Circuit stated in
Tinghitella v. California, 718 F.2d 308, 312 (9th Cir. 1983), that the
Sixth Amendment applies to sentencing, but the analysis in the case
treats this statement as an assumption rather than a holding. Id.
at 313. Several other circuits assume such a right exists. See
United States v. Nelson–Rogriguez, 319 F.3d 12, 60 (1st Cir. 2003);
United States v. Rothrock, 20 F.3d 709, 711 (7th Cir. 1994); Perez v.
Sullivan, 793 F.3d 249, 252–57 (10th Cir. 1986); Brady v. Superin-
tendent, Anne Arundel County Detention Ctr., 443 F.2d 1307, 1310
(4th Cir. 1971).
9
v. Yelverton, 197 F.3d 531, 535–39 (D.C. Cir. 1999), cert.
denied, 528 U.S. 1195 (2000). As have other circuits, see
supra n.4, the court in Yelverton reviewed the defendant’s
speedy-sentencing claim under the four-part test of Barker v.
Wingo, 407 U.S. 514, 530 (1972), which looks to the ‘‘[l]ength
of the delay, the reason for the delay, the defendant’s asser-
tion of his right, and prejudice to the defendant,’’ id. We do
so again. Assuming therefore without deciding that the
guarantee of a ‘‘speedy and public trial,’’ U.S. CONST. amend.
VI, also provides a defendant a right to be promptly sen-
tenced, accord Yelverton, 197 F.3d at 535, we hold that
Gibson has failed to make the showing under Barker neces-
sary to obtain relief.
As to length, the jury returned its verdict on November 9,
1994, and the district court imposed sentence more than
seven years later, on February 8, 2002. In the pre-trial
context, delays exceeding a year are sufficient to invoke
judicial scrutiny, see Yelverton, 197 F.3d at 537 n.8; United
States v. Lindsey, 47 F.3d 440, 443 (D.C. Cir. 1995), vacated
on other grounds, Robinson v. United States, 516 U.S. 1023
(1995). Even assuming that the different nature of the
possible prejudice faced by defendants in the sentencing
context might call for a more permissive standard before the
delay can be considered ‘‘presumptively prejudicial,’’ cf. Bark-
er, 407 U.S. at 530, seven years clearly suffices to trigger
judicial scrutiny under the first prong of Barker. The district
court’s discretion with regard to the time of sentencing is not
without constraint, for Fed. R. Crim. P. 32(b) instructs that
‘‘[t]he court must impose sentence without unnecessary de-
lay,’’ see Yelverton, 197 F.3d at 535; United States v. Campi-
si, 583 F.2d 692, 693 (3rd Cir. 1978); United States v.
Flowers, 983 F. Supp. 159, 167–71 (E.D.N.Y. 1997); United
States v. DeLuca, 529 F. Supp. 351, 354–55 (S.D.N.Y. 1981).
Gibson does not invoke the rule on appeal.
The reasons for the delay are mixed. Beginning in March
1995, Gibson filed several post-conviction motions attacking
various aspects of his trial. After the district court ruled the
motions untimely, Gibson’s counsel requested multiple contin-
uances to prepare for sentencing. Six months after the
verdict date, the district court set a July 1996 sentencing
10
date, but at that point, because Gibson was dissatisfied with
his attorney, the district court granted a continuance for
Gibson to file his motions pro se. Gibson filed pro se motions
in October 1996 and again in July 1997. Then, following staff
turnover in the district court’s chambers, an intern’s work on
Gibson’s motions was lost, resulting in a 35–month delay.
When, in June 2000, the district court resumed consideration
of the case, it appointed new counsel for Gibson. In Novem-
ber 2000, six years after the verdict date, Gibson renewed his
motions for a new trial. The district court ruled in February
2001 that the motions were untimely, and set an August 2001
sentencing date. This date passed without any action by the
district court.
Gibson never asserted in the district court that he had a
right to speedy sentencing. Instead, in October 2001, the
district court sua sponte raised the question of whether
Gibson’s Sixth Amendment rights had been compromised and
found no violation. The court pointed to Gibson’s role in
perpetuating the delay, the inadvertent nature of the delay
attributable to the court itself, and the lack of prejudice to
Gibson. The district court denied Gibson’s renewed motions
for a new trial, indicating that the court would move forward
to sentencing. Even at this point, Gibson insisted that he
was still interested in locating transcripts of the hearing at
which he claimed the district court had granted him an
extension of time to file his initial post-trial motions. The
court granted the continuance to search for the transcripts,
and ultimately imposed sentence on Gibson on February 8,
2002.
The only prejudice Gibson claims is having his life kept in
‘‘limbo and uncertainty.’’ In Barker, the Supreme Court
acknowledged that in the pre-trial context there is some
prejudice from living under a ‘‘cloud of suspicion and anxi-
ety,’’ but that it is ‘‘minimal.’’ 407 U.S. at 534. Similarly in a
post-verdict, presentence context, ‘‘mere generalized anxiety’’
is not enough to show prejudice, Yelverton, 197 F.3d at 538
n.9, particularly where a defendant, as here, is serving a
mandatory minimum term of imprisonment while awaiting
sentencing. Although Gibson was incarcerated in a District
11
of Columbia facility throughout the presentencing period
rather than in a federal correctional institution, Gibson makes
no claim that the delay in sentencing deprived him of pro-
grammatic and other rehabilitative benefits for which he
would be eligible as a federal prisoner in the custody of the
Federal Bureau of Prisons. Moreover, as the United States
advised during oral argument, Gibson’s incarceration in the
District of Columbia, rather than in a federal correctional
institution, allowed him to be near his family.
What saves this court from confronting a difficult decision,
including defining an appropriate remedy for a violation of a
Sixth Amendment sentencing right, is Gibson’s conduct
throughout the period between verdict and sentencing and his
failure to show any prejudice as a result of the delay. While
the first Barker factor weighs heavily in Gibson’s favor and
the second factor weighs in his favor to the extent of the
institutional delay, although less so as to the remaining delay,
the other two factors weigh overwhelmingly against him.
Gibson never asserted a right to speedy sentencing in the
district court. Rather, he continually filed motions attacking
his trial in order, effectively, to delay the imposition of
sentence. Even when the district court set sentencing dates,
Gibson persisted in seeking further delays. Nor does Gibson
contend on appeal that the institutional delay of almost three
years was the product of any abuse by the district court or
the prosecutor’s office. As the court stated in Barker, 407
U.S. at 531, delay caused by mere ‘‘negligence or crowded
courts TTT should be considered,’’ but ‘‘weighted less heavily’’
than ‘‘a deliberate attempt to delay TTT in order to hamper
the defense.’’ Finally, and importantly, Gibson shows no
prejudice as a result of the delay, cf. Yelverton, 197 F.3d at
538, articulating no way in which he has been harmed by
being sentenced seven years into a twenty-year sentence for
an offense that carried a mandatory 10–year minimum, see 21
U.S.C. § 841(b)(1)(A); see also 18 U.S.C. § 3585(b)(1) (2003).
An overview of the record reveals, therefore, that the extraor-
dinary delay was exactly what Gibson wanted and continuous-
ly sought. Under the circumstances, Gibson fails to show a
miscarriage of justice warranting relief.
12
IV.
Gibson also contends that under Apprendi v. New Jersey,
530 U.S. 466 (2000), his sentence under 18 U.S.C.
§ 841(b)(1)(A) was unconstitutional because the district court,
rather than the jury, determined the quantity of drugs for
which he was responsible, which, in turn, affected the length
of his sentence. This contention was rejected in United
States v. Graham, 317 F.3d 262, 273–74 (D.C. Cir. 2003).
Under 28 U.S.C. § 841, maximum and minimum sentences
vary based both on the quantity and type of drug involved.
In United States v. Fields, 242 F.3d 393, 395–96 (D.C. Cir.
2001), the court explained that Apprendi prohibits the sen-
tencing judge from being the finder of fact with regard to the
relevant drug quantity under 21 U.S.C. § 841 where the
result is a higher sentence than would have been possible
under the jury’s findings. Specifically, where a jury has only
found that a defendant possessed a ‘‘detectable amount’’ of
drugs, as here, it is clear error for the district court to make a
quantity finding on its own that leads to the imposition of a
sentence higher than the maximum permitted under the
jury’s findings. Id. On rehearing, the court explained that
‘‘Apprendi does not apply to sentencing findings that elevate
a defendant’s sentence within the applicable statutory limits.’’
United States v. Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001)
(emphasis in original). In United States v. Webb, 255 F.3d
890, 896–99 (D.C. Cir. 2001), the court recognized that be-
cause § 841 is a tripartite statute that establishes separate
offenses based on drug quantity, drug quantity is an element
of the offense under § 841(b)(1)(A) and (b)(1)(B) and must be
submitted to the jury. Failure to do so, however, is not plain
error so long as the defendant is sentenced within the range
authorized by § 841(b)(1)(C), id. at 898, and is harmless
under those circumstances, see Graham, 317 F.3d at 273–74.
This is precisely what happened to Gibson.
At sentencing, the district court recognized, in light of the
cases decided since the jury’s verdict, that, although it deter-
mined that the quantity of cocaine involved was 6.9 kilograms,
its discretion to sentence Gibson under § 841(b)(1)(A) was
13
limited. Even though the relevant sentencing guidelines
made Gibson eligible for a punishment range between 210 and
262 months under § 841(b)(1)(A), the jury, whose verdict was
issued prior to Fields and Webb, was not instructed to make a
quantity finding and found only that Gibson had possessed a
‘‘detectable or measurable amount of cocaine’’ with the intent
to distribute. Apprendi, also decided subsequent to the
jury’s verdict, thus prohibited the imposition of any sentence
greater than 240 months, the maximum statutory penalty to
which Gibson could have been sentenced under
§ 841(b)(1)(C). On February 8, 2002, the district court there-
fore imposed the statutory maximum of 240 months on both
the possession and conspiracy counts, running concurrently.
This was a permissible approach under Graham, 317 F.3d at
273–74.
Accordingly, we affirm the judgment of conviction.