UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10084
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES CLIFTON GIBSON,
Defendant-Appellant.
94-10649
JAMES CLIFTON GIBON,
Appeals from the United States District Court for the Northern District of Texas
(June 5, 1995)
Before REYNALDO G. GARZA, HIGGINBOTHAM, and PARKER, Circuit Judges. ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant James Clifton Gibson ("Gibson") appeals
his criminal conviction and the denial of his post-trial motions.
We affirm.
PROCEEDINGS IN THE COURT BELOW
On November 17, 1992, Gibson and Melvin Boyd Hazelton
("Hazelton") were named in a four count indictment. The defendants
were jointly charged in three counts: Count 1, conspiracy to
manufacture and to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841 (a)(1); Count 2,
possession of methylamine, a listed chemical, in violation of 21
U.S.C. § 841(d)(2); and Count 4, maintaining a place for the
purpose of manufacturing and distributing a controlled substance,
in violation of 21 U.S.C. § 856(a)(1). Hazelton was also charged
with possession of phenylacetic acid, a listed chemical, in
violation of 21 U.S.C. § 841(d)(2).
On March 15, 1993, Hazelton pleaded guilty to Count 4 and,
pursuant to a plea agreement, testified as a government witness at
Gibson's trial. Hazelton was subsequently sentenced to 120 months
imprisonment. A jury found Gibson guilty on all counts on March
26, 1993.
Gibson retained new counsel approximately one week after he
was convicted, and his trial counsel later withdrew. Gibson filed
a motion to suppress evidence, for new trial, to dismiss the
indictment, and for release pending appeal on July 28, 1993. The
motion for new trial was based on his claim that he received
ineffective assistance of counsel at trial because his trial counsel failed to file a motion to suppress evidence, conducted
inadequate pretrial investigation, and failed to call certain
witnesses identified by the new lawyer. The trial court denied the
motion, finding that it was not based on newly discovered evidence
and was outside the seven day limit for filing motions for new
trial imposed by FED. R. CRIM. P. 33. The district court also denied
Gibson's motion to suppress evidence, finding that he had waived
his right to object to its admission by failing to timely file for
suppression and that he had not shown cause sufficient to merit
relief from that waiver under FED. R. CRIM. P. 12(f). The district
court likewise denied the motions for dismissal of the indictment
and for release, although Gibson was granted release after
sentencing, pending appeal. Gibson moved for reconsideration of
those orders, which motion was denied on December 3, 1993, with a
finding that no grounds existed for granting new trial or
acquittal.
The district court sentenced Gibson on January 18, 1994 to
135 months imprisonment and a 5 year term of supervised release.
Gibson appealed. On April 15, 1994, Gibson filed a motion for new
trial based on newly discovered evidence, and this Court stayed the
appeal. The district court denied the motion, finding that the
same arguments had been advanced in earlier post-trial motions and
were without merit. Gibson filed a notice of appeal from that
order as well, and this Court consolidated the two appeals.
FACTS
Gibson is an arguably bright, professionally successful
3 mechanical engineer in his early thirties. He holds patents on and
receives royalties from two tow truck designs. He is married and
has two young children and testified that he considers himself a
strong Christian.
Hazelton is a forty year old high school graduate with
mechanical aptitude and a history of drug use and failed
relationships. The two met in the late eighties when Gibson had
Hazelton overhaul the engine in his car. Gibson enjoyed Hazelton's
company and liked to "pick his brain" about technical design
problems. Over time, the two became close friends, vacationing
together, and eventually Hazelton moved in with Gibson's family.
Gibson and Hazelton developed a plan to go into business
together. Gibson was going to do design work and, with Hazelton's
help, manufacture his own prototypes. In the Spring of 1992, they
jointly purchased a 132.5 acre piece of land just outside of
Loving, Texas, which included a residence and several outbuildings.
Both contributed to the down payment on the real estate, but the
lien note and title to the land were taken in the Gibsons' names
because of Hazelton's past credit problems. Hazelton moved onto
the ranch first, and Gibson and his family moved onto the ranch a
short while later. From April through August, Gibson and Hazelton
worked to convert the barn into a workshop. Neither Gibson nor
Hazelton had jobs off the ranch, and devoted much of their time to
the renovation.
When law enforcement officers executed a search warrant on the
ranch, they found glassware adequate to set up a methamphetamine
4 lab, some of which contained methamphetamine residue, in boxes in
the barn. Authorities found a fingerprint identified as Gibson's
on one of the pieces of glassware. They also found a jar in the
workshop refrigerator containing a small amount of methamphetamine.
The officers found a pair of jeans that smelled like a
methamphetamine cook, approximately $40,000 cash, several guns, a
notebook with chemical formulas, and a receipt for a mini-warehouse
rental among Hazelton's belongings in the house. They also found
a telephone scrambler, several loaded guns, and more cash among
Gibson's belongings. One officer testified that Gibson made an
oral confession during the search, admitting that he was aware of
the chemicals on the property, but explaining that Hazelton had
offered him money to store the chemicals temporarily.
A subsequent search of the mini-warehouse revealed a large
quantity of phenylacetic acid. Hazelton had signed the mini-
warehouse lease and listed Gibson's name on the lease document.
Gibson had a key to the mini-warehouse which he told his wife to
turn over to authorities during his incarceration after the search.
Hazelton and Gibson both testified at trial, giving two very
different versions of the facts. Hazelton testified that he had
cooked methamphetamine at the ranch three times during the Spring/
Summer of 1992. He testified to a several-year-long collaboration
between himself and Gibson in the manufacture, distribution, and
use of methamphetamine, and fully implicated Gibson in the
methamphetamine cooks on the ranch.
Gibson testified that he was not aware of the presence of any
5 controlled substances on the property, that he did not conspire or
intend to manufacture methamphetamine, and that he was ignorant of
Hazelton's extensive drug involvement. He explained that he kept
large sums of cash on hand because a potential problem with the
Internal Revenue Service precluded depositing the funds in a bank
account. He explained that his fingerprint was on the piece of
glassware in the workshop because he had been nosing around in
Hazelton's boxes one time, but he maintained that he did not know
what the glassware was for. He denied that he made a statement to
an officer at the time of the search admitting knowledge of the
presence of chemicals on the property. Finally, he attributed to
Hazelton the motive of getting a better deal from the government on
sentencing by lying about their partnership.
SUPPRESSION ISSUES
Gibson claims that his conviction should be reversed because
the physical evidence used against him at trial was
unconstitutionally seized. He specifically alleges that the
judge's signature on the search warrant was forged and that the
underlying affidavit included deliberate or reckless
misrepresentations.
a. The judge's signature on the warrant.
Appellant submitted a post-trial motion alleging that State
District Judge Jim R. Wright's signature on the search warrant was
a forgery. He submitted affidavits from two handwriting experts.
One reached the "tentative opinion" that the signature on the
warrant was written by a person other than Judge Wright. The other
6 expert submitted a report that the signature on the warrant was
"probably" not written by Judge Wright. Judge Wright submitted an
affidavit stating that he did sign the search warrant. Finding
himself "unconvinced that the judge's signature on the search
warrant is a forgery," the district court denied the motion.
Having reviewed this factual determination for clear error, United
States v. Carrillo-Morales, 27 F.3d 1054, 1061 (5th Cir. 1994),
cert. denied, 115 S.Ct. 1163 (1995), we find no merit in this
ground of error.
b. Adequacy of the affidavit of probable cause.
The affidavit for the search warrant was signed by deputy
sheriff Houston Johnson ("Johnson"). He stated under oath that he
and three other officers were on a hill across the road from the
ranch at 9:34 p.m. on August 1, 1992 conducting surveillance when
each of them "smelled an odor associated with the manufacture of
amphetamine, methamphetamine or phenylacetone coming from the
direction of the [Gibson ranch]." The affidavit stated that all
four officers had training in the detection of clandestine labs and
were familiar with odors associated with such labs.
Gibson filed a post-trial motion contending that Johnson's
allegations that the officers smelled a clandestine lab were
deliberately false or were made with reckless disregard of the
truth. In determining whether a search warrant establishes
probable cause, a court must disregard any intentional or reckless
misrepresentations made by the affiant in the affidavit. United
States v. Cherry, 50 F.3d 338, 341 (5th Cir. 1995). Without
7 question, there was a substantial basis on the face of the
affidavit for Judge Wright's determination that probable cause
existed for the issuance of a search warrant, Illinois v. Gates,
462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527
(1983); however, the affidavit would not have been adequate without
the allegations of the odors. See United States v. McKeever, 906
F.2d 129, 132 (5th Cir. 1990), cert. denied, 498 U.S. 1070 (1991)
("Distinctive odors, detected by those qualified to know them, may
alone establish probable cause.")
Gibson relies on trial testimony and information garnered
after trial to establish that the officers could not have smelled
odors associated with a clandestine drug lab at the time and place
alleged in the search warrant affidavit. The evidence established
that methamphetamine had been cooked on the property prior to the
night in question, but that no drugs were being cooked at the time
stated in the affidavit. Evidence also established that officers
could detect the illicit odor when they executed the search warrant
in the barn and at least in Hazelton's bedroom during the search of
the residence. Further, officers testified that waste products
from previous cooks, disposed of on the property, could have given
off the odor, although Hazelton testified that he disposed of some
of the waste in sealed containers.
After considering the arguments advanced by Gibson, the
district court found that grounds for acquittal or new trial did
not exist. The court went on to find that a recorded conversation
8 among law officers who were conducting the search1, presented post-
trial by Gibson in support of his argument that the search was
unconstitutional, was "equivocal at best." We agree.
Gibson has attempted to establish that because of the distance
between the surveillance and the property, because there was no
contemporaneous methamphetamine cook, and because other people who
were on or near the property testified that they had not noticed
the odor, Johnson must have lied about smelling the odor. Gibson
also points to discrepancies between the time the affidavit states
that Johnson detected the odor and the time as reported by another
officer who was present (a difference of less than an hour) as
support for the proposition that Johnson's affidavit contained
This issue presents a compound question: Did the district
court resolve the fact question presented -- that is, did the
district court determine whether Johnson's affidavit contained
misrepresentations? Next, is that fact determination clearly
1 The identity (or even the number) of speakers on the tape are not identified in the record:
Were they gone? (inaudible whispering) Well, was it set up? Ha, ha,...shit. I don't know if they found any dope already cooked up or what. They hadn't even started cooking yet.
* * *
I'm sure there's gonna be some problems... That's gonna create a mess, man. Generate some paper.
9 erroneous?
The district court's written order finding that the evidence
was equivocal, and that no grounds existed for a grant of new trial
or acquittal adequately resolved the factual issues presented.
Gibson does not dispute that there is evidence in the record that
supports the statements made in the affidavit. His argument
amounts to an invitation that we find, as a matter of law, that it
was physically impossible for the officers to smell the odor of a
clandestine methamphetamine lab on the hill across from the ranch
on the night of the surveillance. Fifth Circuit precedent would
allow us to intervene, and declare testimony incredible as a matter
of law, "when testimony is so unbelievable on its face that it
defies physical laws." United States v. Casteneda, 951 F.2d 44, 48
(5th Cir. 1992), quoting United States v. Lindell, 881 F.2d 1313,
1322 (5th Cir. 1989), cert. denied, 110 S.Ct. 2621 (1990). This is
a close question that we may have decided differently, had it been
presented to us in the first instance. The evidence raises serious
credibility questions, some of which even approach scientific
impossibility. However, neither the scientific and anecdotal
evidence in this record, nor our ability to take judicial notice of
the laws of nature lead us to the conclusion that the district
court's decision is clearly erroneous. The evidence that
methamphetamine had been cooked on the property, that its
distinctive odor could have lingered in the vicinity of the cooks,
that waste water may have been disposed of outside the buildings,
and the direction of the wind the night of the surveillance all
10 support Johnson's statement in the affidavit that the surveillance
officers smelled the odor of a clandestine lab on a hilltop some
distance off the property. We must therefore affirm the district
court's decision.
We note further that Gibson does not contend that he was
entitled to a hearing or other evidentiary procedure more extensive
that he was provided prior to the court's resolution of the
disputed facts.
Gibson's arguments that "the district court's double jeopardy
fears are baseless" and "the district court had ample jurisdiction
to grant a new trial" are not instructive to us in our task of
determining whether the district court reversibly erred in this
case. Although the record reflects that the district court had
doubts about his power to remedy Fourth Amendment violations after
a verdict was returned, we are convinced that the Gibson did not
establish the necessary facts to support his constitutional claims.
We therefore do not reach the question of whether the prohibition
against double jeopardy or jurisdictional limitations would have
precluded Gibson's motion for suppression of evidence raised for
the first time post-trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
Gibson contends that his conviction must be reversed because
he did not receive effective assistance of counsel at trial.
Specifically, he alleges his trial counsel conducted no pretrial
investigation, failed to file a motion to suppress the evidence,
and failed to present a complete defense. As a general rule, Sixth
11 Amendment claims of ineffective assistance of counsel cannot be
litigated on direct appeal, unless they were adequately raised in
the district court. United States v. Wallace, 32 F.3d 921, 930
(5th Cir. 1994). Because Gibson's post-trial motions in the
district court raised allegations of trial counsel's deficiencies,
this case is one of the rare instances where ineffective assistance
of counsel claims are ripe for review on direct appeal.
To establish ineffective assistance of counsel, it is
incumbent upon Gibson to show that counsel's representations fell
below an objective standard of reasonableness and, that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 694,
104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Our scrutiny of
counsel's performance must be highly deferential. Id., at 689.
Gibson's contention that trial counsel's failure to file a
motion to suppress evidence based on a faulty search warrant
constitutes ineffective assistance of counsel is without merit.
Counsel is not required by the Sixth Amendment to file meritless
motions.
His other complaints are equally without basis. The record
does not support the allegations that trial counsel failed to
conduct a reasonable investigation or put on a complete defense.
Gibson's trial counsel conducted an inspection of the ranch two
days after the execution of the warrant. He filed five pre-trial
motions going to discovery and other matters. He reviewed and
inspected all physical evidence prior to trial, and subpoenaed six
12 defense witnesses. At trial, he aggressively and thoroughly cross-
examined the government's witnesses, and called five defense
witnesses who attacked the credibility of the government's case,
and developed a coherent defensive theory of the case.
Trial counsel did a professional job and certainly did not
fall below the objective reasonableness required by the Sixth
Amendment.
RULE 404(b) EVIDENCE
a. Admissibility
The district court admitted testimony of Kevin Capers
("Capers"), who testified that Gibson had sold him "speed" several
times during 1987-1988. There was no allegation that Capers was
involved in any of the charged conduct, and his involvement with
Gibson ended in approximately September 1988.
Evidence of other similar bad acts is admissible only if (1)
it is relevant to an issue other than the defendant's character to
show, inter alia, opportunity, intent, knowledge, or plan, and (2)
the probative value of the evidence is not substantially outweighed
by the danger of unfair prejudice. FED. R. EVID. 403, 404; United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc),
cert. denied 440 U.S. 920 (1979). A trial court should be
particularly wary where the prior bad acts alleged did not result
in a criminal conviction. Id. at 914. However, the decision by the
district court to admit evidence of an extrinsic offense under FED.
R. EVID., 404(b) will not be disturbed on appeal absent a clear
showing of abuse of discretion. United States v. Bruno, 809 F.2d
13 1097, 1106 (5th Cir.) cert. denied, 481 U.S. 1057 (1987).
The trial court admitted Capers's testimony on rebuttal after
Gibson testified. Gibson portrayed himself to be completely
innocent of involvement or even knowledge of the production and
distribution of methamphetamine that Hazelton described beginning
in 1988, and continuing through the August 2, 1992 search of the
ranch. He testified that Hazelton's testimony was a lie and that
his fingerprint was on the boxed glassware only because he was
"nosing" through "glass jars." In this case, the rebuttal evidence
that merely completed the picture as to appellant's true
involvement in and knowledge of the drug world, thereby correcting
a distorted view of appellant's testimony, was relevant. See
United States v. Blake, 941 F.2d 334, 339 (5th Cir. 1991), cert.
denied, 113 S.Ct. 596 (1992). Simply stated, Gibson's testimony
opened the door and the Government walked right in.
Gibson next argues that even if Capers's testimony is
relevant, the probative value is substantially outweighed by unfair
prejudice because the jury might have convicted Gibson not for the
offense charged but for the extrinsic offense, citing United States
v. Ridlehuber, 11 F.3d 516 (5th Cir. 1993). Ridlehuber was charged
with possession of an unregistered, short-barrelled shotgun found
by officers on an open shelf in the kitchen of his residence.
Officers also located in the residence some items that might have
been used to manufacture illicit drugs, but that also had a
legitimate purpose related to Ridlehuber's business. This Court
remanded because the evidence of the charged offense, possession of
14 the shotgun, was weak and because there was insufficient evidence
that Ridlehuber had committed the extrinsic act of operating a
clandestine drug lab.
Ridlehuber is inapposite to the case before us. Capers
testified that Gibson made multiple deliveries of methamphetamine
to him. Secondly, Hazelton's testimony, the fingerprint, and the
evidence that Gibson made an admission to a law officer at the time
of the search make a much stronger case against Gibson on the
charged offense than the circumstantial evidence relied on in
Ridlehuber. We therefore hold that the district court did not
abuse its discretion in admitting Capers's testimony.
b. Limiting instruction
Although Gibson failed to request a limiting charge, we review
the court's charge, complained about for the first time on appeal,
for plain error. United States v. Parziale, 947 F.2d 123, 129 (5th
Cir. 1991), cert. denied, 503 U.S. 946 (1992). Under this standard
of review, Gibson must show that the charge as a whole was
"deficient so as to result in a likelihood of a grave mistake of
justice." Id. We must determine whether the need for the
instruction was so obvious that the failure to give it affected the
defendant's substantial rights. United States v. Prati, 861 F.2d
82, 86 (5th Cir. 1988). In Prati, this Court found that there was
no danger of a serious miscarriage of justice because the court
carefully instructed the jury as to the offenses charged, the
elements, and what the jury must find to convict the appellant,
then added, "The defendant is not on trial for any act or conduct
15 or offense not alleged in the indictment." Id, at 87. The court
below likewise instructed the jury on the elements necessary to
convict Gibson and used language identical to that approved in
Prati to limit their consideration to the charged offense.
Gibson's claim that there was plain error in the district court's
charge is without merit.
SUFFICIENCY OF THE EVIDENCE
a. Conspiracy and possession of a precursor chemical
Gibson contends that the evidence was insufficient to
establish Gibson's criminal knowledge or intent with respect to
Counts 1 and 2 of the indictment. This Court will reverse a guilty
verdict only if, upon viewing the evidence in the light most
favorable to the government, a rational trier of fact must
necessarily have a reasonable doubt as to any essential element of
the crime. United States v. Onick, 889 F.2d 1425, 1428 (5th Cir.
1989). In reviewing the evidence, we make all reasonable
inferences and credibility choices in support of the jury's
verdict. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.
1987, cert. denied, 484 U.S. 1026 (1988).
In order to convict Gibson of conspiracy as alleged in Count
1, the jury must have found beyond a reasonable doubt: (1) the
existence of an agreement between two or more persons, (2) Gibson's
knowledge of the agreement, and (3) Gibson's voluntary
participation in the conspiracy. United States v. Lechuga, 888
F.2d 1472, 1476 (5th Cir. 1989). Count 2 requires that Gibson (1)
knowingly or intentionally possess methylamine, (2) knowing or
16 having reasonable cause to believe that it will be used to
manufacture an illicit drug. 21 U.S.C. § 841 (d)(2). Hazelton
testified that he and Gibson jointly participated in manufacturing
and distributing methamphetamine, at the ranch and for several
years prior to purchasing the ranch. A conviction may rest solely
on the uncorroborated testimony of one accomplice if the testimony
is not insubstantial on its face. United States v. Gardea-
Carrasco, 830 F.2d 41, 44 (5th Cir. 1987). We find that the
evidence adequately supports the jury's verdict on Counts 1 and 2.
b. 21 U.S.C. § 856, The Crackhouse Statute.
Gibson contends that there was no evidence that Gibson bought
his share of the ranch "for the purpose of" manufacturing
methamphetamine in violation of 21 U.S.C. § 856(a)(1), sometimes
referred to as the "crackhouse statute." His theory of the case
was that he purchased the ranch to have a facility to work on his
engineering designs and prototypes and Hazelton manufactured drugs
on the property without his knowledge or complicity.
In order to prove a violation of § 856(a)(1), the government
must demonstrate that Gibson (1) knowingly (2) opened or maintained
the ranch (3) for the purpose of manufacturing, distributing or
using methamphetamine. United States v. Banks, 987 F.2d 463, 466
(7th Cir. 1993). Proof that manufacturing, distributing or using
illegal drugs is one among several uses for which a facility is
maintained is sufficient to meet the purpose prong of § 856(a)(1).
United States v. Roberts, 913 F.2d 211, 220 (5th Cir. 1990), cert.
denied, 500 U.S. 955 (1991). "It is highly unlikely that anyone
17 would openly maintain a place for the purpose of manufacturing and
distributing [illicit drugs] without some sort of 'legitimate'
cover -- as a residence, a nightclub, a retail business, or a
storage barn." Id. Liability under the statute does not require
the drug related use to be the sole or even the primary purpose of
maintaining the property. Id. The record supports the jury's
conclusion that manufacturing, distribution and use of
methamphetamine was one of the purposes for which Gibson maintained
the ranch. We find that there is sufficient evidence to support
Gibson's conviction under 21 U.S.C. § 856.
CONCLUSION
Based on the foregoing, we AFFIRM Gibson's convictions.