United States v. Gordon

248 F. App'x 521
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 19, 2007
Docket06-50979
StatusUnpublished
Cited by3 cases

This text of 248 F. App'x 521 (United States v. Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gordon, 248 F. App'x 521 (5th Cir. 2007).

Opinion

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 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. *523 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 Pm 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 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. § 3Bl.l(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.

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, 101 S.Ct. 1629, 68 L.Ed.2d 22 (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 *524 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).

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 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 [ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

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United States v. John Garcia
625 F. App'x 680 (Fifth Circuit, 2015)

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Bluebook (online)
248 F. App'x 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gordon-ca5-2007.