NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 19-1234

UNITED STATES OF AMERICA

v.

DAMIEN GIBSON,

Appellant

_____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No.: 2-15-cr-00256-008) District Court Judge: Honorable Cathy Bissoon _____________________________________

Submitted under Third Circuit LAR 34.1(a) on April 22, 2020

(Opinion filed: June 10, 2020)

Before: HARDIMAN, RENDELL and FISHER, Circuit Judges _________

O P I N I O N* _________

RENDELL, Circuit Judge:

Damien Gibson appeals his conviction of conspiracy to possess with intent to

distribute and distribute less than 500 grams of cocaine as well as his resulting sentence.

He specifically challenges the District Court’s denial of his motion for judgment of

acquittal, arguing the evidence was insufficient to support the conviction. He also objects

to the District Court’s finding that he was convicted of summary harassment in 2014,

which increased his criminal history score. Because we conclude that neither challenge

has merit, we will affirm.

I. Background In 2015, the FBI’s Safe Streets Task Force was investigating cocaine trafficking in

and around Pittsburgh under the leadership of Special Agent John Orlando. The Task

Force became aware of Appellant Damien Gibson in the course of their investigation into

distributer William Chaffin.

In August 2015, the Task Force obtained wiretap authorization under Title III and

targeted Chaffin’s cellphone. Task Force officers began to monitor Chaffin’s

communications, including those with a number ending in 8571, which officers learned

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 belonged to Damien Gibson. On August 15, that number texted Chaffin “1+1,” which

Agent Orlando knew, from earlier controlled purchases from Chaffin, referred to how

many ounces of cocaine the customer wanted. Agent Orlando understood Gibson’s text

to be a request for one ounce of crack and one ounce of powder cocaine.

On August 18, at 6:55 pm, Gibson texted that he was “up here at happy hour.”

Supp. App. 121, 297. Chaffin was running late, and after exchanging text messages

about the delay, Chaffin called Gibson at the 8571 number, and Gibson complained about

having to wait. At 10:04 pm, Chaffin received another text from Gibson’s 8571 number,

complaining that he was “still here at this damn bar waiting on u” and moments later

noting that someone was waiting for Chaffin to pay the DJ. Supp. App. 133, 135, 300.

Officers believed these comments referred to the 1313 Tavern, which Chaffin managed,

and a surveillance camera confirmed that Gibson was at the 1313 Tavern that night and

stepped outside to take a phone call. The surveillance footage also showed that Chaffin

eventually picked Gibson up and parked two blocks away, where the two sat for a few

minutes before Gibson left in his own car.

On August 19, 2015, Gibson called Chaffin, and Chaffin asked whether he could

give Gibson’s number to someone named “Meech.” Gibson said no, explaining, “I got a

different number for that, man, . . . this is my family line. . . . that’d defeat the purpose if

I[ ] do it to this line.” Supp. App. 370. He noted that the 8571 number was only for his

brothers, cousins, daughter, and son, but assured Chaffin that he would give “Meech” his

“throw away number” the next time he saw him. Supp. App. 370-71.

3 Gibson and Chaffin met on several other occasions. On August 21, 2015, Chaffin

called Gibson, and the two attempted to arrange a meeting. At 4:09 pm, Gibson texted

Chaffin “1.” After some delay, the two agreed to meet at a gas station, and surveillance

confirmed that this meeting occurred. On August 25, 2015, the two again agreed to meet,

and Chaffin was late. Gibson complained that he had to wait for 45 minutes and was

“startin to look funny as hell.” Supp. App. 309-10. They then arranged to meet at an

alternate location. On August 29, Gibson called Chaffin, they arranged to meet, and

Gibson texted Chaffin “1+1.” Surveillance confirmed that Chaffin then drove to

Gibson’s house.

On September 11, 2015, the two met again. Gibson initially texted Chaffin “1+1.”

After Chaffin was late meeting Gibson, they spoke on the phone, and Chaffin agreed to

come to the movie theater where Gibson was. In that conversation, Gibson said he was

going to send Chaffin a text message and told Chaffin to look at his texts. After hanging

up, Gibson texted Chaffin “4 ½,” which Agent Orlando recognized as a term used in a

previous controlled buy to refer to 4.5 ounces, or an eighth of a kilogram of cocaine. At

2:46 pm, Chaffin called Gibson to say he was waiting in front of the theater. At the same

time, Allegheny County Police Detective Lane Zabelsky was surveilling the front parking

lot of the theater. After Chaffin’s call, Detective Zabelsky saw Gibson walk out of the

theater, speak briefly with Chaffin, who was on a motorcycle, and then reach into the

saddlebag on the motorcycle and remove a small object. Gibson went back into the

theater, and Chaffin drove away.

4 On September 17, 2015, Gibson again texted Chaffin “4 ½.” When Chaffin did

not respond to numerous messages, Gibson texted Chaffin, “I worked 4 1/2 hours at the

door last ni[ght].” Supp. App. 159, 330. Orlando inferred that this was a way of again

requesting 4.5 ounces of either cocaine or cocaine base, because surveillance footage

showed that Gibson only went to the 1313 Tavern for minutes at a time unless waiting for

Chaffin, and as far as Agent Orlando was aware, Gibson was not employed at all. On

September 21, 2015, Gibson again texted Chaffin “1+1.” The two continued to

communicate in October, including one instance when Gibson asked Chaffin to “hit me

as soon as possible” because Gibson had “bills” to pay. Supp. App. 372.

Gibson was arrested on December 9, 2015, and a cellphone recovered from him

contained contact information for Chaffin. The Task Force never conducted a search of

Gibson’s home, but in Chaffin’s house they found evidence that he had been converting

cocaine powder into crack.

In December 2015, Gibson and sixteen others, including Chaffin, were indicted for

conspiracy to possess with intent to distribute and distribute less than 500 grams of

cocaine from approximately June 2015 until November 2015. Gibson was jointly tried

with one co-defendant, Keith Thomas, in August 2018. At trial, the prosecution

produced evidence to show the foregoing facts, relying heavily on the surveillance

footage, recorded calls, and text messages. Agent Orlando also interpreted some of the

language in the text messages and calls, and Pennsylvania State Police Trooper Michael

Warfield testified as a drug-trafficking expert, interpreting some additional language.

5 The District Court denied Gibson’s motion for judgment of acquittal, as well as his

renewed motion. The jury then convicted him of the one count of conspiracy.

At sentencing, Gibson objected to the calculation of his Sentencing Guideline

range. The District Court calculated the range by including a prior conviction for

summary harassment, but Gibson denied having suffered that conviction. After hearing

from the probation officer who wrote the Presentence Report and from Gibson, the

District Court chose to apply its calculated range.

II. Discussion On appeal, Gibson challenges the sufficiency of the evidence and the District

Court’s determination at sentencing that he had been convicted of summary harassment.

Because the District Court properly denied Gibson’s motion for judgment of acquittal and

did not clearly err in finding that Gibson was convicted of summary harassment, we will

affirm.

A. Sufficiency of the Evidence

First, Gibson contends that the evidence was insufficient to sustain the verdict of

guilt on the count of conspiracy to possess with intent to distribute less than 500 grams of

cocaine. We review the denial of a motion for judgment of acquittal de novo. United

States v. Repak,

(3d Cir. 2017). “In reviewing a jury verdict for

sufficiency of the evidence . . . we must consider the evidence in the light most favorable

to the government and affirm the judgment if there is substantial evidence from which

any rational trier of fact could find guilt beyond a reasonable doubt.” United States v.

Iglesias,

(3d Cir. 2008) (quoting United States v. Lore,

,

6 204 (3d Cir. 2005)). Because there was plenty of evidence from which a rational juror

could find Gibson guilty beyond a reasonable doubt of conspiracy to possess with intent

to distribute and distribute less than 500 grams of cocaine, the District Court rightly

denied the motion for judgment of acquittal.

To convict Gibson of conspiracy, the jury had to find beyond a reasonable doubt:

(1) a shared unity of purpose between co-conspirators, (2) an intent to achieve a common

goal, and (3) an agreement to work together toward that goal. Id. at 156. 1 The evidence

revealed extensive communications between Gibson and Chaffin—a known distributor of

crack and powder cocaine—using language that, according to the testimony of multiple

witnesses, referred to drug quantities. 2 The government introduced evidence that

between August 15 and September 21, 2015, Gibson requested 14 ounces—almost 400

grams—of cocaine from Chaffin. Further, Gibson was often anxious about his meetings

with Chaffin, had a separate “throw away” phone number for this activity, Supp. App.

370-71, and referred to “bills” he had to pay as the reason he needed the cocaine soon,

Supp. App. 372. The jury could certainly have found from this evidence that Gibson was

1 Gibson argues in part that the prosecution failed to prove possession beyond a reasonable doubt. But actual possession is not an element of the conspiracy offense, as the Court properly instructed the jury. See id.; 3d Cir. Model Crim. Jury Instr. §§ 3.03, 6.21.846B; App. 608-13. 2 Some of Gibson’s arguments suggest that we should not credit the lay and expert opinion testimony interpreting the language of the text messages and calls. But Gibson has never challenged the admissibility of this testimony. He challenges only the sufficiency of the evidence, and in reviewing that challenge, we “must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown,

(2010) (citation omitted). 7 guilty beyond a reasonable doubt of conspiracy to possess with intent to distribute and

distribute less than 500 grams of cocaine.

B. Criminal History Calculation

Gibson next argues that the District Court erred when, at sentencing, it determined

he had been convicted of summary harassment for purposes of calculating his criminal

history score. Sentencing courts may rely on facts the government proves by a

preponderance of the evidence. United States v. Berry,

(3d Cir. 2009).

If the prosecution meets that burden, the defendant has the burden of producing credible

evidence to rebut the prosecution’s evidence. See United States v. Gray,

(3d Cir. 2019). We review the District Court’s factual decisions regarding criminal

history calculations for clear error.

; United States v. Audinot,

(3d Cir. 1990).

Given the evidence presented to the District Court, we cannot conclude that the

Court clearly erred in finding Gibson was convicted of summary harassment. Gibson’s

PSR indicated that he had been convicted of harassment in Pennsylvania Magisterial

District Court in May 2014 following a fight with an ex-girlfriend. The conviction

increased Gibson’s criminal history score by one point, resulting in a score of four and

criminal history category of III. Gibson objected to the PSR, denying that he was found

guilty of harassment. After considering testimony from both parties, the District Court

determined that a preponderance of the evidence showed Gibson was convicted of

summary harassment.

8 The District Court did not clearly err in finding that the government had shown

Gibson was convicted of summary harassment. The Probation Office explained, in

response to Gibson’s objection, that after the 2014 incident with Gibson’s ex-girlfriend,

some charges were withdrawn and Gibson pled guilty to one summary count of

harassment, which was moved to the non-traffic docket. Although the non-traffic court

records had been destroyed, the Probation Office stated that it had confirmed the

movement of the case to the non-traffic docket and the imposition of fines and costs

through a call to the Magisterial District Court.

At the sentencing hearing, U.S. Probation Officer Kristie McVay, who had

prepared the PSR, corroborated this account. She testified that she had first examined

Gibson’s rap sheet, which indicated that he had been convicted of harassment. She then

looked to the docket, and when the public docket showed only that the matter had been

moved from the criminal docket to the non-traffic docket, she contacted the Magisterial

District Judge’s chambers. A staff member in the Judge’s chambers confirmed that the

docket number represented the harassment charge. When asked on cross-examination if

she had anything to show Mr. Gibson was convicted of harassment, McVay stated that

his rap sheet and her conversation with the Magisterial Judge’s staff confirmed the

conviction.

The Court also heard from Gibson but did not find that he offered credible

evidence that he was not convicted of harassment. Gibson testified that, in Magisterial

District Court, the ex-girlfriend involved in the offense had admitted to lying about the

incident. According to Gibson, the Judge imposed a fine on the woman for lying, and

9 Gibson paid the fine for her because she could not afford it. Gibson claimed he did not

plead guilty to any crime and that it was his understanding that all the charges against

him had been dropped. The District Court considered this testimony, but concurred with

the Probation Office’s assessment, concluding that a preponderance of the evidence

showed the conviction occurred.

Despite Gibson’s arguments to the contrary, the District Court did not clearly err

in crediting Probation Officer McVay’s testimony. Gibson criticizes the testimony as

speculative and dependent on hearsay. Because the Federal Rules of Evidence do not

apply in sentencing proceedings, however, hearsay evidence need only have minimal

indicia of reliability to be considered. United States v. Robinson,

(3d

Cir. 2007). The District Court could certainly have found such minimal indicia of

reliability satisfied by Probation Officer McVay’s account of her call to the Magisterial

Judge’s chambers.

Gibson nonetheless insists that the non-traffic docket number could not have

reflected the harassment conviction noted on the rap sheet and in the presentence report.

Gibson primarily points to the fact that the relevant public records of the conviction did

not exist or had been destroyed, and the destruction of such records would have violated

Pennsylvania’s expungement statute,

(b). In Gibson’s view, this

conclusively showed that the non-traffic docket number could not represent the

harassment conviction, and therefore no conviction occurred. We disagree. However

unusual, or even improper, it may be that the public records are no longer available, that

fact alone does not prove that the conviction did not occur, nor does it show that the

10 chambers’ staff member’s statement was unreliable. The District Court did not err in

crediting the testimony that, although the records of the conviction were destroyed, the

conviction nonetheless occurred. The District Court considered the rap sheet and docket,

heard testimony from both the Probation Officer and the defendant, and credited the

Probation Officer’s account rather than Gibson’s. In doing so, it did not clearly err.

III. Conclusion For the foregoing reasons, we will affirm.

11