United States v. Iris Collette Jackson Dwight Dean Jackson
Docket: 98-6487, 99-6090
Court: Court of Appeals for the Tenth Circuit; June 2, 2000; Federal Appellate Court
Iris Collette Jackson and Dwight Dean Jackson appeal their convictions stemming from a crack cocaine distribution operation in Elk City, Oklahoma. Iris raises six issues while Dwight raises three in their appeal. The Tenth Circuit Court, after reviewing these arguments, finds none to have merit and affirms the convictions.
The investigation into the crack cocaine distribution began in 1997, led by local and federal law enforcement. Agents identified two primary organizations responsible for approximately 95% of the crack cocaine sales in the area: the Wilson and Jackson organizations. To gather evidence, law enforcement set up video surveillance at the residences of Iris Jackson and another suspected leader, Regina Evans. The surveillance equipment, while capable of capturing detailed images, did not record sound or provide views inside the homes.
An informant, Gina Bromlow, was recruited after her arrest for cocaine possession. She assisted by making controlled purchases of crack cocaine and recording conversations with dealers in exchange for promises of leniency regarding her own charges. On November 17, 1997, Bromlow purchased crack cocaine from Dwight Jackson, who indicated that Iris would provide the drugs. Following this, he and his girlfriend retrieved the drugs from Iris's residence for the transaction, which was recorded.
FBI agents provided Ms. Bromlow with varying sums of money to conduct controlled purchases of crack cocaine from individuals including Regina Evans, Vicky Edmondson, and Leonard Jackson. Ms. Bromlow made several transactions, the first occurring after she was instructed to pick up Ms. Evans, who entered Ms. Jackson's house and returned with $300 worth of crack. This interaction was recorded by the FBI. In subsequent buys, Ms. Bromlow purchased crack from Mr. Jackson and Ms. Warren, with transactions captured on video, revealing conversations about the profits made from selling crack for Ms. Jackson.
On December 12, 1997, Ms. Bromlow used $320 given by Agent Manns to buy crack from Ms. Jackson and Leonard Jackson, during which Ms. Jackson inquired if Ms. Bromlow was working for the police. Ms. Bromlow denied this and completed the purchase. A transaction on December 17, 1997, was not video recorded due to equipment failure, but Ms. Bromlow testified that she again purchased crack from Leonard Jackson after hearing him confirm the availability of the drugs with Ms. Jackson.
Further transactions took place on January 27 and February 10, 1998. On January 27, Ms. Bromlow purchased $300 worth of crack while Mr. Jackson attempted to buy a smaller amount. On February 10, after discussing prices, Ms. Bromlow was given $900 by the FBI to buy an ounce of crack from Ms. Jackson, but Ms. Jackson was unavailable at the time. Mr. Jackson encouraged Ms. Bromlow to purchase from either him or Ms. Jackson, asserting he was managing things in her absence.
On the same day, Ms. Jackson, along with Judy Wiseman, Nequita Hicks, and Wanitha Randall, was at Ms. Jackson's residence when she received a page, left briefly, and then returned. Shortly after, Ms. Jackson prompted the group to leave, and they drove to Hobart, Oklahoma. There, Ms. Jackson stopped at a store and later parked on the side of the road, asking Ms. Wiseman to retrieve a large sum of money from the glove compartment. After receiving the money, Ms. Jackson approached a vehicle driven by Charles Perry and returned with a significant amount of crack cocaine, having disposed of the money. She instructed Ms. Wiseman to cut the crack in half and concealed her portion between her legs.
Upon returning to Elk City, Officer Joey Bales stopped their vehicle based on an anonymous tip regarding Ms. Jackson transporting crack cocaine from Lawton. Before being stopped, Ms. Jackson handed Ms. Wiseman half of the crack to hide, which Ms. Wiseman placed between her legs, while Ms. Jackson concealed her share in her vagina. During individual interviews with Officer Bales, Ms. Jackson claimed to have been in Clinton for bingo, while the others corroborated their bingo story. Subsequent to a police dog alerting to cash in the ashtray and a used crack pipe in one of the purses, the women were taken to the Elk City police station. Ms. Wiseman later revealed the crack hidden between her legs, claiming ownership. Ms. Jackson was asked to consent to a search but implied that drugs might be found, although no drugs were discovered in the search, which did not include a body cavity search. She was released afterward and later boasted about her concealment method.
The following day, Ms. Bromlow encountered Ms. Jackson and Mr. Jackson, during which Ms. Jackson accused Ms. Bromlow of setting her up for the police stop. Ms. Bromlow denied the accusation, prompting a suggestion to confirm with a mutual acquaintance, Regina Evans. Ms. Jackson insisted on going to Ms. Evans' house, with Mr. Jackson accompanying Ms. Bromlow. Upon arrival, Ms. Evans did not come out to speak to them, leading them to return to Ms. Jackson's house. There, Ms. Jackson demanded Ms. Bromlow strip to check for a wire, which Mr. Jackson left the room for. After confirming no wire was found, Ms. Jackson allowed Ms. Bromlow to dress and threatened her with harm if she had indeed set her up.
On May 6, 1998, a warrant execution at Ms. Jackson's residence revealed an address book with names linked to drug distribution, a police scanner, and a money transfer order for Charles Perry, but no illegal drugs were found. Concurrently, a search of Charles Perry's apartment uncovered a dinner plate with a white powdery substance, razor blades, and an address book containing Ms. Jackson's details. Both Ms. Jackson and Mr. Jackson were arrested for their involvement in crack cocaine distribution, leading to seventy-two controlled buys and the arrest of thirty-four individuals.
Ms. Jackson was convicted on six counts, including conspiracy and distribution of cocaine base, and sentenced to 360 months for several counts and 240 months for maintaining a distribution place, all to run concurrently. Mr. Jackson was found guilty on four counts, including conspiracy and distribution of cocaine base, receiving a total sentence of 262 months after being acquitted on one count.
Ms. Jackson appealed, claiming the trial court made several errors, including denying her motions to suppress evidence obtained from surveillance, suppress testimony from Ms. Bromlow, and for judgment of acquittal due to insufficient evidence. She argued that the surveillance footage violated the Electronic Communication Privacy Act and the Fourth Amendment.
The district court's denial of Ms. Jackson's motion to suppress evidence is reviewed for clear error regarding factual findings, while legal conclusions about the reasonableness of a search or seizure are reviewed de novo. Title I of the U.S. Code prohibits the intentional interception of communications but does not regulate silent video surveillance, which must still comply with the Fourth Amendment. Ms. Jackson argues that the installation of video cameras on telephone poles violated her Fourth Amendment rights due to lack of a warrant. The court evaluates her expectation of privacy in the areas observed by the cameras, referencing precedents that highlight that activities visible to the naked eye generally do not warrant Fourth Amendment protections. The district court found that the cameras could not view inside homes and only captured what any passerby could observe, concluding Ms. Jackson had no reasonable expectation of privacy. Consequently, her Fourth Amendment rights were not violated, and a warrant was unnecessary.
Additionally, Ms. Jackson challenges the denial of her motion to suppress evidence from audio and video equipment in an undercover FBI vehicle. The district court ruled that the recordings did not violate the Fourth Amendment or Title I because one participant, Ms. Bromlow, consented to the recordings. Ms. Jackson contends that evidence of consent was insufficient due to inadmissible hearsay, but the district court's determination stands.
Agent Manns testified that Ms. Bromlow consented to the recording of conversations in the FBI car. Although this constitutes hearsay under Federal Rule of Evidence 801(c), it is permissible in suppression hearings, as federal evidentiary rules do not apply in such contexts. The court referenced United States v. Matlock and Federal Rules 104(a) and 1101(d)(1) to support that hearsay can be admitted during preliminary matters regarding evidence admissibility. Ms. Jackson did not contest the voluntariness of Ms. Bromlow's consent nor object to the hearsay at the hearing, and there was no indication in the record that consent was involuntary. Consequently, the government was not obligated to present further evidence of consent, and the district court correctly denied Ms. Jackson's motion to suppress the recorded conversations.
The evidence from video cameras on telephone poles and recordings in the undercover FBI car did not violate Title I or the Fourth Amendment, leading to the affirmation of the district court's decision to deny the motion to suppress.
Regarding Ms. Bromlow's testimony, Ms. Jackson argued it should be suppressed because the FBI failed to withhold taxes on payments to her as a confidential informant, claiming she was an "employee" under 26 U.S.C. 3402(a)(1) and Oklahoma law. The district court denied this motion, deeming it without legal basis, a decision that was upheld.
The suppression of Ms. Bromlow's testimony was deemed inappropriate despite potential violations of Oklahoma and federal tax statutes by the FBI. The exclusionary rule, intended to deter police misconduct, is only applicable when the evidence is directly linked to illegal government actions. In this case, the alleged tax violations were too distant from the evidence against Ms. Jackson to warrant suppression. No violation of Ms. Jackson's rights was found, and the societal interest in presenting testimony outweighed any potential deterrent effect from suppressing it. The district court's ruling on this matter was affirmed.
Regarding the sufficiency of evidence for Ms. Jackson's conviction of conspiracy to distribute crack cocaine under 21 U.S.C. § 846, she claimed the evidence was inadequate to prove an agreement to distribute or that crack cocaine was a type of cocaine base. The standard for reviewing the sufficiency of evidence is de novo, focusing on whether reasonable jurors could find guilt beyond a reasonable doubt, without weighing evidence or assessing witness credibility. After reviewing the record, the court determined there was sufficient evidence to support all of Ms. Jackson's convictions and upheld the district court's denial of her acquittal motion.
Ms. Jackson claims the district court erred by rejecting her objections to the presentence report, specifically regarding the drug quantity attributed to her and her designation as a leader in a drug distribution operation. The court's factual findings are reviewed for clear error, while its application of sentencing guidelines is reviewed de novo. Ms. Jackson contests the attribution of 6,243.86 grams of crack cocaine, arguing that only 451.59 grams should have been considered for her base offense level of 38, as the remainder was based on testimony from Judy Wiseman, which she argues lacks reliability. The court's drug quantity determination is a factual finding, requiring the government to prove drug amounts by a preponderance of the evidence with reliable evidence. When actual drugs are not seized, estimates can be used if supported by case facts and deemed reliable. The defendant may be sentenced based on drugs she reasonably foresaw or that fell within her conspiracy agreement. The district court can consider relevant information without regard to standard trial evidentiary rules, provided it has factual support and reliability. Ms. Jackson's main argument against Wiseman's testimony is its credibility due to her status as a coconspirator seeking leniency, but the assessment of credibility is a determination for the district court. Ultimately, the court's attribution of 6,243.86 grams of crack cocaine to Ms. Jackson was upheld.
Ms. Jackson contests the district court's finding that she was the leader of a crack distribution ring, which resulted in a four-level enhancement to her base offense level under USSG 3B1.1(a). The standard of review for this determination is for clear error. The Sentencing Guidelines allow for this enhancement if the defendant is deemed an organizer or leader of a criminal activity involving five or more participants. The government must prove the applicability of the enhancement by a preponderance of the evidence. Relevant factors for the court's consideration include decision-making authority, participation in the offense, recruitment of accomplices, and the level of control exercised over others. It is noted that not all factors need to be met for the enhancement to apply, with the key focus being on control and organization.
Ms. Jackson asserts there is no evidence of her directing or organizing her coconspirators, a claim found to be without merit as the record indicates she exercised control and was central to an organized drug distribution operation. The court concludes that the district court did not err in applying the four-level enhancement.
Additionally, Ms. Jackson argues that the court erred by denying her request for a special verdict form to determine if the substance was "crack" cocaine and to ascertain the quantity attributable to her. Jury instructions are reviewed under an abuse of discretion standard, and the court considers the instructions as a whole to assess their accuracy in conveying the law. The district court's decision not to submit the requested instruction is also reviewed for abuse of discretion, with the overall charge needing to adequately state the law. The determination of whether an issue is a matter of law for the court or a factual question for the jury is reviewed de novo.
Ms. Jackson argues that the district court made errors regarding jury instructions and the suppression of testimony. Firstly, she contends the court should have instructed the jury to determine if the cocaine base was "crack." However, she acknowledges that circuit precedent, specifically United States v. Johnson, establishes that the distinction between cocaine base and other forms is a matter for the court during sentencing, not the jury. Consequently, her argument fails as a three-judge panel cannot overrule established circuit precedent.
Secondly, Ms. Jackson asserts the jury should determine the quantity of crack attributed to her, but she fails to provide legal authority for this claim. The determination of quantity is left to the sentencing court, as supported by guidelines and case law, including USSG 1B1.3 and United States v. Boonphakdee, which clarify that the amount of narcotics does not need to be proven as an element of the offense.
Lastly, Ms. Jackson seeks to suppress the testimony of Ms. Bromlow, a confidential informant, based on the earlier decision in United States v. Singleton. The district court rejected her motion, noting that Singleton I had been vacated. Although Ms. Jackson argues that Singleton I retains relevance according to Singleton II, the court maintained its stance, emphasizing that the testimony's admission did not violate statutory provisions against incentivizing witness testimony.
The panel found that the prosecuting attorney breached 18 U.S.C. 201(c)(2) by offering a witness leniency for testimony, leading to the conclusion that the testimony of a codefendant should have been suppressed, which was deemed a non-harmless error. Consequently, the defendant's conviction was reversed, and a new trial was ordered. However, in Singleton II, the court en banc ruled that 18 U.S.C. 201(c)(2) does not apply to U.S. officials acting within their official capacity, as the term "whoever" in the statute does not pertain to the government when its representatives act in traditional sovereign roles. The court argued that Congress did not intend to limit the prerogatives of government officials without explicit intent. Ms. Jackson contended that the case differed from Singleton II because Ms. Bromlow was offered cash instead of just leniency, asserting that cash payments are not a traditional practice of the sovereign and thus violate 201(c)(2). The court noted that while government officials cannot extend beyond their traditional roles in offering inducements, they retain immunity under the statute when acting as the sovereign's alter ego. The court reiterated that the interpretation of federal statutes is a legal issue reviewed de novo and acknowledged that the applicability of the bribery statute in scenarios involving government payments for testimony remains unresolved. Previous cases have upheld that the statute does not apply in contexts involving leniency offers from government attorneys.
In the case of United States v. Haese, the court addresses the issue of whether paying a witness for testimony constitutes a violation of 18 U.S.C. § 201(c)(2). While no other circuit has directly ruled on this matter, the court notes a precedent from United States v. Medina, which suggests that payment for testimony could potentially violate the statute depending on the circumstances. The government contends that prior rulings in Singleton II preclude any arguments regarding violations by government attorneys under this statute. However, the court clarifies that Singleton II did not preclude such arguments, particularly when government attorneys exceed their traditional roles, such as offering leniency for testimony.
The court then identifies a key legal question: who bears the burden of proof in establishing a violation of § 201(c)(2)? It concludes that the defendant must initially demonstrate a prima facie case, consistent with the general principle that the proponent of a motion to suppress bears the burden of proof. Therefore, the defendant must show that the government promised the witness something of value in exchange for testimony and that this promise was outside the normal prerogatives of the government. In the current case, there is no evidence that Ms. Bromlow received payment for her testimony.
Ms. Jackson did not demonstrate that Ms. Bromlow was compensated specifically for her testimony, as the evidence indicates Ms. Bromlow was paid for her investigative services and reimbursed for related expenses prior to trial. The practice of compensating confidential informants is established and does not violate the bribery statute, even if testimony was anticipated. Relevant case law, including United States v. Persico and others, supports that the jury should evaluate the testimony of paid informants, and it is not necessary to exclude such testimony based on a contingency fee arrangement. Ms. Jackson's argument regarding a violation of 18 U.S.C. § 201(c)(2) is insufficient, as she failed to prove Ms. Bromlow was paid for her testimony. Therefore, there is no need to determine whether paying a witness for trial testimony constitutes a violation of the statute. Ms. Jackson's claims, referencing Singleton II, are rejected, and the district court's decisions in her case are affirmed.
Regarding Mr. Jackson's appeal, he argues that the trial court improperly denied his requests for jury instructions on diminished capacity and the lesser included offense of simple possession. He contends that evidence supported his claim of diminished capacity due to being under the influence of crack cocaine when committing the alleged crimes, asserting he lacked the specific intent required for a conviction. The district court denied his request, finding insufficient evidence to warrant the instruction. The review of this decision is conducted for abuse of discretion.
A de novo review is employed to assess whether jury instructions accurately reflected the governing law and adequately informed the jury about the relevant issues and standards. A defendant cannot receive an instruction that lacks a reasonable legal and factual foundation. A criminal defendant is entitled to a theory of defense instruction if it is legally justified and supported by sufficient evidence for a favorable jury verdict. The review examines whether a district court erred in not submitting a requested theory of defense instruction. Specifically, Mr. Jackson could only claim entitlement to a diminished capacity/voluntary intoxication instruction if supported by law and evidence sufficient for a jury's favorable finding. The diminished capacity defense assesses whether the defendant had the mental capacity to form the specific intent required for the crime.
A defendant is not guilty of a specific intent crime if voluntary intoxication prevents the formation of the necessary mens rea. Specific intent crimes require that the act is committed with the intention of achieving an unlawful objective, as opposed to general intent crimes, which are committed voluntarily and intentionally without intent to violate the law. The analysis focuses on Counts 1 and 9, both of which involve specific intent crimes. Count 9 involves charges of knowingly and intentionally possessing cocaine base with the intent to distribute, which is classified as a specific intent crime requiring proof that the defendant knowingly possessed the drug with intent to distribute.
Mr. Jackson faces charges under an aiding and abetting theory in Count 9, where individuals who aid or abet a crime are punishable as principals according to 18 U.S.C. § 2(a). To be found guilty of aiding and abetting, a defendant must willfully associate with the criminal venture and take action to make it succeed, as established in United States v. Anderson and United States v. Smith. Liability requires evidence of the defendant’s association with the crime, participation in its commission, and intent to aid its success. Aiding and abetting is classified as a specific intent crime, allowing for a defense of voluntary intoxication if it negates the requisite intent, supported by United States v. Nacotee and United States v. Sayetsitty.
Count 1 charges Mr. Jackson with conspiracy to possess and distribute cocaine base, a violation of 21 U.S.C. § 841(a)(1). Conspiracy crimes, including those involving controlled substances, are also specific intent crimes, requiring the intent to promote the unlawful objectives of the conspiracy. To convict for conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the jury must find: an agreement to violate the law, knowledge of the conspiracy's objectives, voluntary involvement, and interdependence among conspirators. The essence of conspiracy is an agreement to commit an unlawful act, which can be inferred from circumstantial evidence indicating a concerted effort towards a common goal.
To prove Mr. Jackson conspired to distribute crack cocaine, the government needed to demonstrate that he agreed to facilitate this distribution with his coconspirators, requiring evidence of his specific intent to aid in their possession with intent to distribute. The court noted that since possession with intent to distribute was the unlawful objective of the conspiracy, Mr. Jackson could be considered to have possessed the controlled substance through his coconspirators. Evidence indicated Mr. Jackson was a habitual crack cocaine user and may have been under its influence during transactions; however, the district court found that this did not impair his ability to form the required mental state for the charged crimes. Witness testimonies highlighted Mr. Jackson's active participation in details of the drug transactions without any indication of diminished capacity. The court observed his demeanor on video evidence from FBI surveillance, which reinforced their conclusion. Although some co-defendants acknowledged their addiction and its effects on their mental processes, none indicated that Mr. Jackson lacked the specific intent to possess or distribute crack cocaine. His motivation to participate in the conspiracy was likely tied to his addiction, but that alone does not negate his mental capacity to commit the crimes. Ultimately, the lack of evidence suggesting Mr. Jackson's voluntary drug use impaired his mental capacity led the district court to correctly deny the requested jury instruction on this matter.
Mr. Jackson argues that the district court erred by not providing a diminished capacity instruction for Counts 3 and 4, which charged him with distributing crack cocaine under 21 U.S.C. § 841(a)(1). This statute classifies the crime as a specific intent crime requiring proof of both knowledge or intent to possess and intent to distribute. In contrast, simple distribution is a general intent crime, requiring only proof that the defendant knowingly or intentionally distributed the substance. Voluntary intoxication is not a defense for general intent crimes, making the proposed diminished capacity instruction inapplicable, and the district court did not err in declining to instruct the jury on this basis.
Additionally, Mr. Jackson contends that the district court improperly denied an instruction for simple possession of a controlled substance (21 U.S.C. § 844) as a lesser included offense of the charges in Counts 1, 3, and 4. For a lesser included offense instruction to be warranted, four criteria must be met: a proper request, inclusion of some but not all elements of the charged offense, disputed elements, and a reasonable basis for the jury to convict on the lesser charge while acquitting on the greater charge. The district court found that the evidence did not support a conviction for mere possession without distribution. On appeal, Mr. Jackson argues that his addiction could infer a lack of intent to distribute. However, the government contends that the evidence was insufficient to warrant the instruction, particularly because the second criterion from Moore was not satisfied.
The government contends that simple possession of a controlled substance has an element—possession—that is not required for the conspiracy or distribution offenses charged in Counts 1, 3, and 4. A defendant is entitled to an instruction on a lesser included offense if it is necessarily included in the charged offense, as per Federal Rule of Criminal Procedure 31(c). The Supreme Court's "elements" test determines that a lesser offense is not included unless its elements are a subset of those of the charged offense. Since simple possession includes an element absent in conspiracy offenses (the element of possession), it is not a lesser included offense of conspiracy to possess with intent to distribute or distribution. This conclusion aligns with the precedent set in United States v. Horn.
For Counts 3 and 4, which charge Mr. Jackson with knowingly distributing crack cocaine under 21 U.S.C. § 841(a)(1), it is evident that Congress established separate crimes for distribution and possession with intent to distribute. The statute clearly delineates multiple offenses, reinforcing that distribution and possession with intent are distinct crimes. Consequently, the district court appropriately declined to provide a simple possession instruction for Count 1 and similarly for Counts 3 and 4.
Simple possession is established as a lesser included offense of possession with intent to distribute under 21 U.S.C. § 841(a)(1), as per United States v. Lacey. However, it does not follow that simple possession is a lesser included offense of distribution under the same statute. Distribution is defined as delivering a controlled substance and includes actions beyond mere possession, such as arranging or supervising a transfer or negotiating for payment. Courts have interpreted "distribution" broadly, allowing for liability even if the defendant does not physically possess the substance but engages in related acts.
Cases demonstrate that a defendant can be guilty of distribution without direct possession, for example, by arranging drug deals or accepting payments. The definition of "distribute" encompasses acts that may traditionally be seen as aiding and abetting. While it is atypical for someone to distribute a controlled substance without at least momentary possession, it is not impossible, as highlighted by various circuit rulings.
Thus, simple possession is not a lesser included offense of distribution under the "elements test" because possession with intent to distribute requires an element not inherent in the distribution charge itself. This conclusion is supported by multiple precedents that affirm distribution can be proven without the necessity of possession.
Holding possession is not necessary for a distribution charge, as established by *cert. denied*, 474 U.S. 1062 (1986). The district court correctly denied Mr. Jackson's request for a lesser included instruction for distribution regarding Counts 3 and 4. Regarding the sufficiency of the evidence, Mr. Jackson argued that the evidence was inadequate to support his convictions. However, the court applies a de novo review standard, assessing whether a reasonable jury could find him guilty beyond a reasonable doubt based on the totality of the evidence. After reviewing the record, the court found sufficient evidence for Mr. Jackson's convictions on Counts 1, 3, 4, and 9.
For Count 1, which involved conspiracy to possess and distribute crack cocaine under 21 U.S.C. 846, evidence indicated that Mr. Jackson conspired with Ms. Jackson, understood the conspiracy's objectives, and actively participated in the distribution. His status as a crack addict did not negate his intent or involvement in the crime. Mr. Jackson also contested the sufficiency of evidence for being part of a single conspiracy, citing *United States v. McIntyre*, 836 F.2d 467 (10th Cir. 1987), which requires a common illicit goal and interdependence among coconspirators. He claimed the government failed to prove interdependence, arguing that Ms. Jackson's operation would not have failed without him. However, the government needed only to show that the conspirators relied on each other for their shared criminal objective. The evidence demonstrated that Ms. Jackson relied on Mr. Jackson for various roles within the drug distribution conspiracy, including acting as a runner, middleman, and guard.
The excerpt outlines the legal analysis and conclusions related to Mr. Jackson's involvement in crack cocaine distribution and his convictions. It establishes that Mr. Jackson's actions, such as traveling with a coconspirator to purchase cocaine, contributing funds, and attending relevant meetings, demonstrated interdependence in a criminal conspiracy, as supported by the precedent in *United States v. Fox*. In regards to Count 9 (possession with intent to distribute), Mr. Jackson argued that the evidence was insufficient to prove he possessed crack cocaine on the specified date. However, he was also charged under an aiding and abetting theory, which allows for conviction based on circumstantial evidence, even with slight participation. The ruling concluded that Mr. Jackson aided Ms. Jackson in her possession of crack cocaine, violating 18 U.S.C. 2. His argument that being a drug addict negated his mens rea for distribution was rejected, affirming that evidence supported his knowing and intentional distribution of crack cocaine. Finally, Mr. Jackson contested the inclusion of 224 grams of crack cocaine in his sentencing calculations, which will be reviewed for clear error as per *United States v. Vaziri*.
The appellate court will reverse a district court's finding only if it lacks factual support or if there is a firm conviction of error. The government is required to prove necessary factors at sentencing by a preponderance of the evidence. Evidence presented at sentencing is not bound by the Federal Rules of Evidence, provided it has sufficient reliability. Reliable hearsay may be considered, and estimates of drug quantity can be based on minimally reliable information. In Mr. Jackson's conspiracy conviction, the court could consider not just the crack cocaine he personally handled but also amounts he reasonably foresaw or that fell within his agreement with co-conspirators.
At the sentencing hearing, Agent Manns testified about Mr. Jackson's trips with Ms. Jackson to obtain crack cocaine, relying on statements from witnesses Ms. Warren and Mr. Nunn, both deemed credible by the court. Ms. Warren stated Mr. Jackson accompanied Ms. Jackson at least four times, while Mr. Nunn corroborated frequent trips claimed by Mr. Jackson. Despite conflicting testimony regarding the quantity of crack cocaine obtained per trip, with estimates ranging from one to two ounces, the court concluded there was no indication of unreliability in the witnesses' statements. Therefore, the appellate court affirmed the district court's assessment of the amount of crack cocaine attributable to Mr. Jackson.
The court affirmed the district court's rulings in Mr. Jackson's case, concluding that Agent Manns' testimony was reliable despite being based on out-of-court statements. The judgments from cases 98-6487 and 99-6090 were upheld. The document discusses Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was amended by the Electronic Communications Privacy Act of 1986. It clarifies that Title I does not prohibit silent video surveillance, as established by various circuit cases, and that the requirements for obtaining a warrant for such surveillance are not applicable due to the absence of Fourth Amendment implications in this case. Additionally, it states that recordings made with the consent of one party do not violate Title I or the Fourth Amendment. The excerpt further details payments made to Ms. Bromlow for expenses and services related to controlled purchases of crack, including relocation assistance.
The document questions whether Ms. Bromlow qualifies as an FBI employee, which impacts the applicability of federal and Oklahoma tax withholding laws. As a confidential informant, she may not meet the common law standards for employee status, particularly regarding the control exerted by the FBI over her work. Although Agent Manns directed her actions, there is no evidence that he specified how to conduct controlled buys, suggesting limited control. The text references legal precedents indicating that the burden of proof lies with the defendant to show that a search or seizure was pretextual, and also emphasizes that the defendant must prove any claims of unlawful surveillance. Ms. Jackson's assertion that cash payments for informants fall outside traditional prosecutorial practices lacks supporting legal authority and is deemed insufficient to substantiate a violation of bribery statutes. Thus, the trial court's application of relevant case law to Ms. Bromlow's testimony is questioned but not found to constitute error.
The Singleton II opinion should not be interpreted as narrowly as suggested by Ms. Jackson, particularly regarding the applicability of the bribery statute to prosecutors acting as the "alter ego" of the sovereign. Ms. Jackson's criticism of the district court for not suppressing Ms. Bromlow's testimony, based on Singleton II, is undermined by her failure to request a continuance while awaiting the en banc decision, thereby not presenting her arguments to the trial court. Mr. Jackson sought a jury instruction indicating that evidence of his mental state could be considered to determine if the government proved he had the intent to commit the charged act. It was clarified that voluntary intoxication and substance use do not excuse criminal acts but may negate specific intent if proven. Mr. Jackson referenced United States v. Soundingsides, where the court recognized that diminished capacity instructions could apply when evidence shows the defendant was too intoxicated to form the necessary mens rea for specific intent crimes. However, Soundingsides also established that voluntary intoxication is not a defense for general intent crimes, such as second-degree murder and voluntary manslaughter. A distinction exists between specific intent crimes, which require proof of intent to achieve a further consequence, and general intent crimes, which need only the intent to perform the act itself. Although this circuit has not definitively classified aiding and abetting as a specific intent crime, it has suggested approval of the majority rule regarding this classification in United States v. Hatatley.
Allowing the government to proceed against the defendant solely for voluntary manslaughter and second-degree murder renders expert testimony on voluntary intoxication irrelevant, as these are general intent crimes where intoxication is not a defense. Other circuits view aiding and abetting as a specific intent crime, necessitating proof of the intent to facilitate the crime, guilty knowledge of the crime being committed, and participation in its commission. The government must demonstrate that the underlying crime was perpetrated by another and that the defendant acted with specific intent to promote that crime; mere suspicion of the crime is insufficient. While most circuits require specific intent for aiding and abetting, there is a dissenting view that only the intent to commit the underlying offense is necessary. The defendant argued for a diminished capacity instruction related to Count 4, but this was rejected, as the jury could find guilt based on aiding or abetting. The district court provided a lesser included instruction on Count 9 regarding possession with intent to distribute, and even if the court did not directly address certain issues, its decisions can be upheld if supported by the record. Lastly, in prior cases, while distributions charges were included, the court found that proper instructions on possession were sufficient and did not constitute reversible error.
The trial court's decision not to instruct the jury to disregard the distribution charge was upheld as it did not constitute reversible error. Possession is considered a lesser included offense of distribution, but the court noted that the earlier statement in Burns was dicta and not binding precedent. The Eighth Circuit has recognized simple possession as a lesser included offense of distribution, but this view is seen as a minority position. The court found that the district court acted within its discretion by not giving a lesser included offense instruction, as the evidence did not provide a rational basis for the jury to convict Mr. Jackson of simple possession while acquitting him of the greater charges. Evidence indicated Mr. Jackson was actively facilitating drug transactions and was involved in negotiations for the sale of crack cocaine, undermining his claim of only seeking drugs for personal use. Additionally, the aiding and abetting charge in Count 4 was not directly addressed, but the court concluded that simple possession is not a lesser included offense of aiding and abetting distribution. On February 10, 1998, Mr. Jackson assisted Ms. Jackson in arranging a sale of crack cocaine, demonstrating his involvement in the drug distribution process.
Mr. Jackson's brief includes an argument regarding the sufficiency of evidence related to Counts 3 and 4, referencing Count 2, for which he was acquitted. The court interprets this reference to Count 2 as a typographical error. Additionally, Mr. Jackson claims that the attribution of 224 grams of crack cocaine to him led to a higher statutory minimum sentence of twenty years, but he acknowledges that he did not contest the enhancement under 21 U.S.C. 851 due to a prior felony. Ultimately, he received a sentence of 262 months, as the guidelines sentence surpassed the statutory minimum, which the court indicates will not be further addressed. Circuit Judge McKay concurs with the court’s decision, except for certain parts he views as dicta, particularly regarding the government's cash payments for testimony and the burden of proving such payments are "traditional." He cites United States v. Medina, which suggests that the government has the unique ability to demonstrate any established tradition of such payments. McKay emphasizes that these issues remain unresolved and that any implications in the court's opinion that suggest otherwise are merely dicta.
