Case: 13-11174   Date Filed: 01/31/2017   Page: 1 of 21


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11174
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:08-cr-00309-LSC-TMP-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LAMAR GIBSON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (January 31, 2017)

Before ED CARNES, Chief Judge, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      A jury convicted Lamar Gibson of conspiring to possess cocaine base

(“crack cocaine”) with intent to distribute, distributing crack cocaine, and

attempting to distribute crack cocaine. He contends (1) that he was improperly

excluded from voir dire, (2) that the district court made several erroneous

evidentiary rulings, (3) that the evidence presented at trial was not sufficient to

support his attempt conviction, and (4) that the prosecution impermissibly shifted

the burden of proof onto him during closing arguments. He also contends that he

is entitled to an evidentiary hearing on his motion for a new trial, which is still

pending before the district court.

                                           I.

                                          A.

      In August 2007, Jesse Henderson sold drugs to a confidential source

working with the Drug Enforcement Administration and Bessemer Police

Department. He began cooperating with law enforcement, hoping that his future

prison sentence would be reduced as a result. Henderson identified Lamar Gibson

and Sean Greer as participants in the drug trade. He indicated that Greer was a

middleman for Gibson, and that he could contact Greer. Henderson would

eventually participate in three drug-deals involving Gibson and testify about those

transactions at Gibson’s trial.




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                                          1.

      The first was a controlled buy that occurred in February 2008. At the DEA’s

behest, Henderson reached out to Greer to set up a purchase of crack cocaine. He

explained that he did not contact Gibson directly because Gibson and Greer were

friends and Greer was “sort of like the middleman.”

      Henderson made several calls to Greer in January and early February of

2008, attempting to set up a deal with Gibson. At trial, the government played

recordings of two calls from February 22. During the first call, Henderson asked

Greer if he had spoken to Gibson. Greer responded that he had just spoken to

Gibson and the deal was on. Henderson then asked if Gibson was going to sell him

two ounces or two and a quarter ounces of crack cocaine. Greer said he would talk

to Gibson and find out. Henderson informed Greer that he wanted two and a

quarter ounces (or a “half big”). On the following call, they agreed on a price of

$1,750 for the drugs. During both calls, the men also discussed a time and place

for the deal.

      Henderson testified that he eventually agreed to meet Greer later that day in

front of Henderson’s house. The DEA equipped Henderson with a body wire

before the deal. Henderson waited in an SUV outside his home. He testified that

he saw Greer and Gibson arrive and park in front of him in another car. Through

the rear window of that car, he allegedly saw Gibson hand a package to Greer.


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Greer then exited the car and entered Henderson’s SUV, where they exchanged the

money for the package, which contained crack cocaine.

         Because the crack cocaine was brown instead of white, Henderson testified

that he got out of his SUV and went to talk to Gibson. Gibson told him that it was

not the sort of “stuff” he usually got, that he was waiting on his supplier to get him

better crack cocaine, and that he hoped the price for the better cocaine would be

lower.

         After the transaction was complete, Greer returned to the DEA office and

met with Sergeant Walls. He turned over the crack cocaine he had obtained and it

was tagged as evidence.

         At trial, the government played a recording of the transaction taken from

Henderson’s body wire. Henderson also identified a bag of crack cocaine

introduced by the government as the drugs he obtained from Greer and Gibson on

February 22. The parties stipulated that the bag had been tested by forensic

chemists at the DEA laboratory in Dallas, Texas. They also stipulated that the test

revealed that the bag contained crack cocaine and that no fingerprints were located

on the bag.

                                           2.

         Henderson testified that the second deal was initiated by Gibson and Greer.

Greer called him, asked where he was, and then showed up a few minutes later


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with some heroin. According to Greer, Gibson had instructed him to give

Henderson a sample of the heroin to see what Henderson’s “people” thought of its

quality. Greer gave Henderson a small sample, which he promptly turned over to

Sergeant Walls and the DEA. The parties stipulated that the sample was tested by

a forensic chemist at the DEA laboratory in Dallas and tested positive for heroin

and several other substances.

                                         3.

      The final interaction occurred in May 2008. By this point, Henderson had

obtained Gibson’s phone number so that he could deal with him directly. As

directed by the DEA, Henderson called Gibson on May 19 to set up another

purchase of crack cocaine. Henderson told Gibson he wanted to purchase another

half big of the “brown stuff.” There is some dispute over the meaning of Gibson’s

response, during which he said: “no, no, no, no what are you talking about?” The

defense contends that Gibson was telling Henderson that he only dealt in heroin,

not crack cocaine, and that he did not have any cocaine. Henderson testified that

Gibson was confused and thought Henderson was trying to buy heroin when

Henderson was really trying to buy crack cocaine. In any event, the call dropped

after Henderson tried to clarify that he wanted to buy a half big of crack cocaine,

and he thereafter was unable to get Gibson back on the line.




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      Henderson tried again on May 21. This time Gibson said that, even though

he was focused primarily on selling heroin at that time, he had given some crack

cocaine to one of his associates to sell. Gibson said he could get the cocaine from

that associate and sell it to Henderson for $1750. Henderson testified that he and

Gibson were trying to arrange the deal for the following day.

      Before Henderson could contact Gibson again, Gibson called him while he

was at the DEA offices. Gibson asked if Henderson still wanted to go forward

with the deal from the day before. Henderson said he did and asked if the deal was

a sure thing. Gibson responded: “Yeah, ain’t no ifs, ands, or buts.” At the DEA’s

urging, Henderson asked if they could add a gram of heroin to the deal. Gibson

agreed. They discussed the quantity, quality, and price of the heroin. Henderson

then turned the conversation back to crack cocaine and tried to haggle with Gibson

over the price. Gibson refused to budge from his original quote of $1,750. They

agreed to conduct the exchange at Henderson’s house and Gibson said he would

call when he was ready. The government introduced a recording of this call as its

Exhibit 9.

      The DEA once again equipped Henderson with a body wire and he

proceeded to the meeting place with several agents covertly following him. They

waited for a long time. Then Greer appeared and, according to Henderson,

explained that Gibson had called him. Gibson apparently saw police in the area


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and wanted to move the site of the deal. Henderson and Greer drove to a nearby

restaurant on Gibson’s instructions. But Gibson still wasn’t happy and asked to

move the deal again, this time to his own home. At that point, Sergeant Walls told

Henderson to back out of the deal, which Henderson did.

                                          B.

      Gibson and Greer were indicted for conspiracy to possess with the intent to

distribute crack cocaine, distribution of crack cocaine, and attempted distribution

of crack cocaine. Gibson’s jury trial was held in October 2012.

      In addition to Henderson, Sergeant Walls testified at Gibson’s trial and

explained how the DEA works with informants to conduct sting operations. He

also described his interactions with Henderson from late 2007 through May 2008.

His description matched Henderson’s account. Greer, who had already pleaded

guilty and agreed to cooperate with the government, also testified against Gibson.

His account of the events leading to his and Gibson’s arrest largely matched

Henderson’s testimony. Two other witnesses’ testimony established that the

vehicle used by Gibson and Greer in February belonged to Gibson’s sister.

      The jury convicted Gibson on all three counts. This is his appeal.

                                          II.

      We turn first to Gibson’s contention that he was improperly excluded from

voir dire. It is Gibson’s “burden . . . to show he was absent during the [voir dire]


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before he [can] have even an arguable complaint” about his exclusion. United

States v. Bokine, 

, 769 (5th Cir. 1975). He has not carried that

burden. The transcript of voir dire reveals only that the district court took a recess

towards the end of the process to allow the parties to decide how they wanted to

exercise their peremptory strikes. Gibson points out that the record does not

indicate that he was in the courtroom when proceedings resumed. But the record

doesn’t indicate that Gibson was not in the courtroom during the recess either.

And Gibson points to no other evidence in the record to show that he was

excluded. He only makes a bald assertion in his initial brief to this court that

removal of the defendant from the courtroom during a recess is “standard.” We do

not presume error from a silent record. See id.1

                                              III.

       We turn next to the evidentiary issues. Gibson contends that the government

did not properly authenticate the audio tapes that were admitted at his trial. He

also contends that the district court erred when it admitted, under Federal Rule of

Evidence 404(b), evidence that Gibson provided Henderson with a sample of

heroin and discussed selling heroin. 

Sections I.A.2–3. We disagree.

                                               A.

       1
          In his reply brief, Gibson asks that — if we conclude the record is not sufficient to
demonstrate that he was excluded from voir dire — we remand the case to the district court for
an evidentiary hearing on the matter. We deny this request. Gibson made no effort in the district
court to raise this issue or to present any additional evidence regarding his exclusion.
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      Gibson did not object before the district court to the admission of the

government’s audio tapes. As a result, we review the district court’s decision to

admit those tapes only for plain error. United States v. Deverso, 

,

1254 (11th Cir. 2008). Gibson must show that “(1) an error occurred, (2) the error

was plain, and (3) the error affected [his] substantial rights.” United States v.

DiFalco, 

, 1220 (11th Cir. 2016). Even if those conditions are met,

we can review the forfeited error “only if (4) the error seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.” 

      “An error is plain where it is clear or obvious.” 

admission of

evidence to constitute plain error, the evidence must have been so obviously

inadmissible and prejudicial that, despite defense counsel’s failure to object, the

district court, sua sponte, should have excluded the evidence.” United States v.

Williams, 

, 1247 (11th Cir. 2008). In this case, Gibson has failed to

demonstrate any error occurred, let alone one that is plain.

      Evidence is properly authenticated when the proponent of that evidence

produces “sufficient evidence to support a finding that the item is what the

proponent claims it is.” Fed. R. Evid. 901(a). Sergeant Walls explained how the

recordings of the phone calls were made (i.e., by an earpiece attached to a cell

phone that recorded both sides of the conversation) and attested to the accuracy of

some of the recordings admitted by the government. Henderson also testified that


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all of the recordings, except Exhibit 9, were accurate. 2 He wasn’t specifically

asked about that exhibit’s accuracy, but he did testify that he signed Exhibit 9 after

listening to it. The only logical reason to sign the disc containing the recording

would have been to attest to its accuracy. Moreover, Henderson and Greer listened

to the recordings in open court, explained their contents, and never once contested

their accuracy.

       As to the identification of the voices on the tapes, a witness’ opinion

identifying a speaker’s voice is sufficient to authenticate evidence so long as the

opinion is “based on hearing the voice at any time under circumstances that

connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5). Both Henderson and

Greer identified the voices on the recordings presented by the government and

testified that they knew Gibson personally.

       All of this testimony, taken together, is enough to allow a finder of fact to

conclude that the recordings were what the government claimed them to be. As a

result, the district court did not plainly err by admitting them.




       2
          In his briefs, Gibson characterizes the government’s failure to ask Henderson whether
Exhibit 9 was accurate as “conspicuous,” implying that the government did not ask because it did
not want to know what the witness’ answer would have been. If this failure was so conspicuous,
one wonders why there was no objection at trial. It is just as likely that the government’s failure
to ask resulted from inadvertence. We will not assume — especially on plain error review —
that there was any improper motive on the government’s part in failing to ask Walls or
Henderson about the accuracy of Exhibit 9.


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                                              B.

       Because Gibson preserved his objection to the admission under Rule 404(b)

of evidence showing that he provided Henderson with a sample of heroin and

discussed selling heroin to Henderson, we review the district court’s decision to

admit that evidence for an abuse of discretion. 3 

. “A

district court abuses its discretion if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.”

Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 

, 1333

(11th Cir. 2016) (quotation marks omitted). We find no abuse of discretion here.4

                                               1.

       Gibson contends that the district court’s decision to admit the heroin

evidence violated Rule 404(b) of the Federal Rules of Evidence. That Rule

provides: “Evidence of a crime, wrong, or other act is not admissible to prove a


       3
          The government presented other evidence under Rule 404(b) as well. For instance, it
introduced evidence of Gibson’s prior conviction for conspiracy to possess with intent to
distribute cocaine and background information about his relationship with Greer, which involved
drug-dealing and usage. Gibson’s appellate briefs focus only on the introduction of evidence
concerning his involvement with heroin. As a result, he has abandoned any argument about
other forms of Rule 404(b) evidence introduced at trial. United States v. Willis, 

,
1254 (11th Cir. 2011) (“A party seeking to raise a claim or issue on appeal must plainly and
prominently so indicate . . . . Where a party fails to abide by this simple requirement, he has
waived his right to have the court consider that argument.”) (quotation marks omitted).
       4
         Because we conclude that the heroin evidence was admissible under Rule 404(b), we do
not address the government’s argument that it was also admissible as substantive evidence under
the res gestae doctrine.
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person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). In other words, the

government may not introduce evidence that a defendant sold drugs in the past in

order to prove that he probably sold drugs in the present. Nor can the government

argue that, because a defendant sold one type of drug, he probably sold a different

type of drug as well.

       But evidence of prior bad acts is admissible to show “motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2). We have previously held that prosecutors can

demonstrate a defendant’s intent to distribute drugs in the present by demonstrating

that the defendant distributed drugs in the past — even if the past distribution

involved a different type of drug. United States v. Diaz-Lizaraza, 

,

1224 (11th Cir. 1993) (“[E]vidence of prior drug dealings . . . is highly probative of

intent in later charges of conspiracy and distribution of a controlled substance.”);

United States v. Williford, 

, 1498 (11th Cir. 1985) (“When intent is

at issue, however, extrinsic evidence [of dealing in other types of drugs] is

admissible to show willingness to deal in drugs.”).5


       5
          Our decision in United States v. Young, 

(11th Cir. 1994) is not to the
contrary. In that case, the government used evidence of a defendant’s prior involvement with the
production of alcohol at an illegal still as extrinsic evidence of intent in a marijuana prosecution.

We explained that this was improper under Rule 404(b) because “[a]lcohol is not
a controlled substance, and the illegality of its production is distinct in both fact and law from
that involved in growing and selling marijuana.” 

Cocaine and heroin are both
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       That is exactly what the government did here: it used the fact that Gibson

provided a sample of heroin to Henderson and discussed selling heroin to him as

evidence of his intent to distribute narcotics, including crack cocaine. Although

Gibson appears to ask us to reconsider our holdings in Diaz-Lizaraza and

Williford, we are bound by the decisions of prior panels of this Court. United

States v. Archer, 

, 1352 (11th Cir. 2008) (“[A] prior panel’s holding

is binding on all subsequent panels unless and until it is overruled or undermined

to the point of abrogation by the Supreme Court or by this court sitting en banc.”).

       Gibson also argues that it was improper to admit the heroin evidence to

prove intent in his case because his intent was not at issue. But his not guilty plea

put the burden on the government to prove his intent to distribute crack cocaine

beyond any reasonable doubt. United States v. Barron-Soto, 

, 417

(11th Cir. 2016). Absent a stipulation from Gibson, the government was required

to present evidence of intent and was free to use whatever relevant evidence was

available to it, including evidence of prior drug dealings. 

–25 (“[T]he government may introduce evidence of the defendant’s

extrinsic acts to prove intent if the defendant does not affirmatively take the




controlled substances. And while the means by which they are produced may differ greatly, the
manner by which they are distributed does not. Moreover, Gibson is not accused of producing
the drugs he sold.
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question of intent out of contention by stipulating . . . [to] the requisite intent.”

(quotation marks omitted) (second alteration in original)).

                                            2.

      We also reject Gibson’s argument in the alternative that the heroin evidence

should have been excluded under Rule 403 because it was unduly prejudicial and

confusing. “Under Rule 403, the district court may exclude relevant evidence if its

probative value is ‘substantially outweighed’ by a danger of unfair prejudice,

confusing the issues, or misleading the jury.” 

. “Rule

403 is an extraordinary remedy” that should be “invoked sparingly.” United States

v. Lopez, 

, 1247 (11th Cir. 2011) (quotation marks omitted). It

“requires a court to look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial impact.” 

prior drug dealings is highly probative of intent to distribute a

controlled substance,” even where the prior dealings involved “a smaller amount

and different type of drugs.” 

. That Gibson’s counsel

admitted that Gibson had entered into an agreement to sell heroin and all but

admitted that he was a heroin dealer does not negate the probative value of the

heroin evidence in this case. Counsel’s statements are not evidence. United States

v. Smith, 

, 1561 (11th Cir. 1990). No matter what Gibson’s counsel

said, the government bore the burden of introducing actual evidence of Gibson’s


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intent. It was permissible to use Gibson’s past involvement in drug trafficking as

part of that effort.

       Nor is this a case where the government’s other evidence of intent was so

strong that there was no need for the heroin evidence. See United States v. Costa,

, 926 (11th Cir. 1991) (“[I]f the government’s case [on intent] is

strong, there is no need for [extrinsic] evidence.”). Nearly all of the government’s

evidence in this case — including the evidence of the heroin transactions — came

from witnesses who had themselves committed crimes. Both Henderson and Greer

are drug dealers themselves and had cooperation agreements with the government.

And the other evidence in the case — i.e., the crack cocaine, the heroin, and the

audio tapes — was connected to Gibson primarily through their testimony.

       Moreover, we cannot see how Gibson was unfairly prejudiced by the

admission of the heroin evidence here, given that part of his defense was that he

was a heroin dealer, not a cocaine dealer. Nor are we persuaded that the jury

would have been confused by the admission of the heroin evidence. The district

court specifically instructed the jury to consider the heroin evidence only for the

purposes of determining Gibson’s intent. And we presume jurors follow their

instructions. Jamerson v. Sec’y for the Dep’t of Corr., 

, 690 (11th

Cir. 2005).




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                                         IV.

      Gibson also contends that the evidence introduced against him was not

sufficient to support his conviction for attempted distribution of crack cocaine.

“We review . . . a challenge to the sufficiency of the evidence . . . de novo.”

United States v. Gamory, 

, 497 (11th Cir. 2011). “In so doing, [we

view] the evidence in the light most favorable to the Government and resolve[ ] all

reasonable inferences and credibility evaluations in favor of the verdict.” United

States v. Isnadin, 

, 1303 (11th Cir. 2014). “We must affirm

[Gibson’s] convictions unless, under no reasonable construction of the evidence,

could the jury have found the [him] guilty beyond a reasonable doubt.” See United

States v. Garcia, 

, 1269 (11th Cir. 2005).

      To sustain a conviction for attempted distribution of crack cocaine, the

government must prove (1) that the defendant acted with the specific intent to

distribute crack cocaine, and (2) that he took a substantial step towards committing

that offense. See United States v. Collins, 

, 1530 (11th Cir. 1986).

“[A] substantial step must be more than remote preparation, and must be strongly

corroborative of the firmness of the defendant’s criminal intent.” United States v.

Blalinger, 

, 1238 n.8 (11th Cir. 2005) (quotation marks omitted).

      Gibson’s attempt conviction is based on the aborted crack cocaine deal that

occurred on May 22, 2008. 

Section I.A.3. Gibson contends that the


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government has failed to show that he took a substantial step towards distributing

crack cocaine on that date, because it has not shown anything other than remote

preparation. At most, he argues, the government has shown that he talked about

selling crack cocaine. We disagree.

          The government’s evidence was sufficient to show that Gibson reached a

firm agreement with Henderson as to the date and location of the transaction as

well as the price of the drugs. It also showed that he dispatched an accomplice —

Greer — to the location at the appointed time to talk to Henderson on his behalf

and change the location of the deal. That is more than enough to establish a

“substantial step” towards the distribution of crack cocaine. See United States v.

Brown, 

, 350 (5th Cir. 1979) (agreement for the acquisition of

explosives and dispatching of representatives to reconnoiter and inspect the target

location was sufficient to establish a substantial step towards blowing up a grocery

store).

                                           V.

          Gibson next contends that his convictions should be reversed because the

prosecution shifted the burden of proof onto him during closing arguments. This is

so, Gibson argues, because — during closing arguments — the prosecutors said

that the defense did not challenge the prosecution’s evidence that a voice in two of

the recorded calls was Gibson’s. Additionally, Gibson complains that the


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prosecutors told the jury that they were not going to hear “an actual contesting of

the facts” from defense counsel and that “the evidence is really unrefuted to you

what happened in this case.”

       The parties disagree as to the proper standard of review on this issue. The

government argues that we should apply the plain error standard, because Gibson

failed to object in the district court to the prosecutors’ arguments. Gibson argues

that he did object to the prosecutors’ arguments in the district court, pointing to the

following statement from the defense’s closing argument:

      Another thing I wanted you to be worried about and want you to
      really focus on [is] if it gets said that the defense wants you to believe
      something, wanting [sic] you to see something – not being
      disrespectful. I don’t have to present evidence for you to believe
      anything. That’s not my job. I can sit there the whole time. I don’t
      have to prove anything in this case. That’s called shifting the burden
      of proof if your case falls apart, put it on the defense that they didn’t
      prove their case.

      “To preserve an issue for appeal one must raise an objection that is sufficient

to apprise the trial court and the opposing party of the particular grounds upon

which appellate relief will later be sought. The objection must be raised in such

clear and simple language that the trial court may not misunderstand it.” United

States v. Straub, 

, 1011 (11th Cir. 2007) (quotation marks and

citations omitted). Defense counsel’s statements to the jury during his closing

argument in this case do not satisfy this standard. They are general instead of



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specific, come in the middle of a closing argument, and are directed at the jury

instead of the judge. As a result, the plain error standard applies.

      Even if we assumed that the prosecutors’ statements in this case were plainly

improper, Gibson has not shown that they affected his substantial rights. While “a

comment that is so prejudicial as to shift the burden of proof sometimes requires

reversal[,] . . . any potential prejudice can be cured by an appropriate instruction.”

United States v. Zitron, 

, 1259 (11th Cir. 2016); see also United

States v. Simon, 

, 1087 (11th Cir. 1992) (“This court has held that

the prejudice from the comments of a prosecutor which may result in a shifting of

the burden of proof can be cured by a court’s instruction regarding the burden of

proof.”). Here, the district court informed the jury that “[t]he law does not require

a defendant to prove innocence or to produce any evidence at all,” that “[t]he

government has the burden of proving the defendant guilty beyond a reasonable

doubt,” and that [i]f it fails to do so, you must find the defendant not guilty.” As

we have already observed, we presume that the jury heard and obeyed the

instructions. 

.

      Because Gibson has failed to demonstrate any effect on his substantial

rights, he cannot prevail on this issue.




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                                          VI.

      Finally, Gibson notes that, after he filed his notice of appeal, he filed a

motion for a new trial in the district court alleging that the government failed to

disclose impeachment evidence about Henderson. He raises that argument again

here and requests a remand to the district court for an evidentiary hearing.

      When a motion for a new trial is filed with the district court after a notice of

appeal has already been filed, the district court may either deny the motion or

notify this Court of its inclination to grant the motion, in which case we would

consider remanding the case. United States v. Khoury, 

, 976 n.3

(11th Cir. 1990). But the district court has not done either in this case. So, even

though a notice of appeal can extend to orders resolving post-conviction motions

for a new trial filed after an appeal is taken, United States v. Brester, 

, 1338–39 (11th Cir. 2015), there is no order — let alone a final appealable

order — for us to review as far as Gibson’s motion for a new trial is concerned, see

28 U.S.C. § 1291. Moreover, the district court has not indicated that it is inclined

to grant his motion for a new trial or that the motion raises a substantial issue. See

Fed. R. App. P. 12.1. For those reasons, to the extent Gibson’s appeal concerns his

motion for a new trial, we must dismiss it for lack of jurisdiction.




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                                         VII.

      Gibson’s contentions concerning his alleged exclusion from voir dire, the

trial court’s evidentiary rulings, the sufficiency of the evidence against him, and

the prosecutors’ closing arguments are without merit. As a result, we affirm the

district court’s judgment of conviction. Because the district court has not yet

resolved Gibson’s motion for a new trial in the first instance, we dismiss for lack

of jurisdiction the portion of his appeal concerning that motion.

      AFFIRMED IN PART, DISMISSED IN PART.




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