* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50442

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR GIBBS, also known as Bossman, 

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-00-CR-2084-12-DB

--------------------

Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Victor Gibbs, also known as Bossman, appeals his conviction 

after a jury trial of conspiring to possess with intent to

distribute 1000 kilograms or more of a mixture or substance

containing a detectable amount of marijuana and conspiring to

launder monetary instruments, in violation of 21 U.S.C. §§ 841,

846 and 18 U.S.C. § 1956.

Gibbs argues that the district court erred when it allowed

lay witness testimony by Richard Seabrooks regarding whether
No. 02-50442

-2-

Gibbs’ voice, heard on an exemplar recorded by law enforcement

agents, was the voice of “Bossman,” who spoke only through wire

tap tapes and whose conspiracy involvement is undisputed. 

Seabrooks was familiar with Gibbs’ voice through prior dealings

with Gibbs. His testimony was limited to opinions and/or

inferences that were rationally based on his own perception, his

testimony was helpful to a clear understanding of a fact in

issue, i.e. whether Gibbs was, in fact, “Bossman,” and his

testimony was not based on scientific, technical, or other

specialized knowledge within the scope of FED. R. EVID. Rule 702,

testimony by experts. Therefore, Seabrooks’ testimony did not

run afoul of FED. R. EVID. 701. Moreover, the rules of evidence

allow voice identification “by opinion based upon hearing the

voice at any time under circumstances connecting it with the

alleged speaker.” FED. R. EVID. 901(b)(5). Seabrooks’ voice

identification was provided after Seabrooks’ familiarity with

Gibbs’ voice was established. Therefore, his opinion was

admissible, and arguments regarding the testimony go to the

testimony’s weight, not admissibility. See United States v.

Lampton, 158 F.3d 251, 259 (5th Cir. 1998). 

Gibbs also argues that Seabrooks’ identification testimony

violates due process because the identification procedure was

impermissibly suggestive and presented a substantial likelihood

of misidentification because Seabrooks was an FBI agent. 

However, the jury did not learn that Seabrooks was an FBI agent,
No. 02-50442

-3-

and there is nothing inherently suspect regarding an in-court

voice identification by an FBI agent whose testimony otherwise

complies with the Federal Rules of Evidence. Although Seabrooks’

in-court identification was made approximately nine years after

Seabrooks heard Gibbs’ voice, this fact was elicited from

Seabrooks during cross-examination and thus was available for the

jury to consider.

Additionally, during the trial, the exemplar and numerous

wiretap recordings were played for the jury, and the recordings

were admitted into evidence. The jurors were free to evaluate

the similarity of Bossman’s voice and Gibbs’ voice and use their

opinion to assess Seabrooks’ testimony. Therefore, Seabrooks’

testimony did not violate Gibbs’ due process rights. See, e.g.,

Neil v. Biggers, 409 U.S. 188, 199 (1972) (analyzing totality of

circumstances to evaluate due process concerns raised by

identification testimony). Based on the foregoing, the district

court did not abuse its discretion when it admitted Seabrooks’

testimony. See United States v. Virgen-Moreno, 265 F.3d 276, 295

(5th Cir. 2001).

Gibbs argues that the voice identification evidence is

insufficient to support the verdict. It was for the jury to

determine the weight to accord Seabrooks’ voice identification

testimony. United States v. Cuesta, 597 F.2d 903, 915 (5th Cir.

1979). Additionally, the jury heard the exemplar and numerous

wiretap phone conversations in which Bossman spoke, and the
No. 02-50442

-4-

recordings were admitted into evidence. Thus, the jury was free

to make its own determination whether the voice on the exemplar

and the wiretap phone conversations belonged to the same man. 

This court does not substitute its opinion for that of the jury

in a sufficiency review. See United States v. Landerman, 109

F.3d 1053, 1066 (5th Cir. 1997). Based on the foregoing, a

reasonable jury could find that the evidence established Gibbs’

guilt beyond a reasonable doubt. United States v. GonzalezRodriguez, 966 F.2d 918, 920 (5th Cir. 1992).

Gibbs also argues that the district court erred when it

determined that he was an organizer or leader of criminal

activity and added four levels to his base offense level pursuant

to U.S.S.G. § 3B1.1(a). While Gibbs argues that the presentence

report (PSR) contains only conclusional statements regarding his

role, Gibbs fails to identify any PSR paragraph that sets forth

erroneous facts. Contrary to Gibbs’ argument, the PSR contains

numerous uncontested facts that indicate the adjustment was

warranted. Therefore, the district court did not err when it

concluded that Gibbs was an organizer or leader of a conspiracy

involving five or more participants and sentenced Gibbs

accordingly. See United States v. West, 58 F.3d 133, 138 (5th

Cir. 1995).

The judgment of the district court is therefore AFFIRMED.