April 6, 2018
from the United States District Court for the Western
District of Wisconsin. No. 3:15-cr-00122-wmc-4 William M.
Easterbrook, Ripple, and Hamilton, Circuit Judges.
RIPPLE, CIRCUIT JUDGE.
found Hurley C. Jackson guilty of conspiracy to distribute
over 1, 000 grams of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 846; possession with intent to
distribute a substance containing heroin, in violation of 21
U.S.C. § 841(a)(1); and distribution of a substance
containing heroin, also in violation of 21 U.S.C. §
841(a)(1). He claims that the district court abused its
discretion when it allowed a witness to testify that Mr.
Jackson had threatened to kill her. He also maintains that
the prosecutor's closing argument included improper
vouching and invited the jury to consider matters other than
his guilt in reaching its verdict. According to Mr. Jackson,
these remarks so infected the jury's deliberations as to
require a new trial.
Jackson's arguments are unpersuasive. The threat
testimony was both relevant to, and probative of, the central
issue in this case: whether Mr. Jackson conspired to
distribute heroin. Additionally, even if the prosecutor's
comments were improper, the evidence against Mr. Jackson was
substantial. Consequently, the prosecutor's comments did
not affect the jury's verdict. We therefore affirm Mr.
conspiracy charged in the indictment began on December 11,
2013, when Mr. Jackson, an admitted heroin distributor, was
arrested in Plover, Wisconsin. Immediately after his
admission at the Portage County Jail, Mr. Jackson called his
brother, Charles D. Hall, and told Hall to retrieve heroin
that Mr. Jackson had hidden at the hotel where he had been
staying. Hall did so and, at Mr. Jackson's
instructions, took the heroin to Cody Thompson. Thompson
showed Hall how to break down the heroin and to sell it.
Mr. Jackson was incarcerated, Hall continued to procure
heroin through Mr. Jackson's contact, Dewight Williars,
and to dispense the heroin to Mr. Jackson's
sub-distributors. When Hall was incarcerated in February 2014
for driving while intoxicated, he recruited Marguerite
Tompkins to continue the operation. Like Hall, Tompkins
obtained heroin from Williams, broke it down, and provided it
was released from custody in May 2014. Later in the summer of
2014, Mr. Jackson instructed Hall to pay a visit to Tiffany
Bell, Mr. Jackson's former girlfriend and distributor,
who recently had been released from prison. Hall and Williams
went to see Bell. During the visit, Mr. Jackson placed a call
to Hall's cell phone so that he could speak to Bell and
try to persuade her to sell heroin on their behalf. Bell was
noncommittal, but, when Mr. Jackson was released from custody
in September 2014, she began selling heroin for him.
December 2014, Bell was involved in the sale of heroin to a
user and police informant, Casey Edlebeck. Edlebeck had come
to know Mr. Jackson when he called Hall to purchase heroin,
and Mr. Jackson had made the delivery. At the request of the
police, Edlebeck texted Mr. Jackson to arrange to purchase
heroin. Mr. Jackson told Edlebeck to go to a local
McDonald's, where the sale would take place. When
Edlebeck arrived at the McDonald's, he again texted Mr.
Jackson, who instructed him to look for a gold Cadillac. Bell
arrived at the McDonald's in a gold Cadillac, and the
exchange was made. Photographs of the text messages and of
the transaction confirm these events.
the latter part of 2014 and into 2015, Mr. Jackson, his
brother Terrance Jackson,  Hall, and Williams pooled their funds
to make bulk heroin purchases. They employed several
individuals who were addicted to heroin-Hannah Hovick,
Thompson, Megan Pray-Genett, and Tanya Kluck-to help
transport, test, and distribute the heroin. For instance,
Hovick, who was both a user and in a romantic relationship
with Terrance, traveled with Terrance numerous times to Mr.
Jackson's home to pick up Terrance's heroin. Terrance
would give her approximately ten to twenty grams of heroin
per day for delivery to customers, in exchange for which she
would obtain heroin for her own use.
2015, Hovick also made the first of three trips to Chicago
for Terrance, Williams, and Mr. Jackson. Her role on these
trips was to test the quality of the heroin before it was
brought back to Wisconsin for distribution. The night before
the first trip, Hovick was in a car with Terrance and Mr.
Jackson. Mr. Jackson put his arm around Hovick's neck,
held a gun to her head, and stated, "If you ever talk to
the police, I will kill you."
coordinated distribution efforts among Williams, Hall,
Terrance, and Mr. Jackson continued throughout 2015.
January 2016, a grand jury charged Mr. Jackson, Terrance,
Hall, and Williams in a fourteen-count indictment with
conspiracy to distribute, possession with intent to
distribute, and distribution of a substance containing
heroin. Terrance, Hall, and Williams all reached plea
agreements with the Government. Mr. Jackson proceeded to
trial on the three counts of the indictment in which he was
named: conspiracy to possess with intent to distribute 1, 000
grams or more of heroin (Count 1); possession with intent to
distribute a substance containing heroin on December 11, 2013
(Count 2); and distribution of a substance containing heroin
on December 9, 2014 (Count 3).
to trial, Mr. Jackson moved to exclude the testimony of
Hovick regarding the threat. He asserted that this testimony
was impermissible character evidence under Federal Rule of
Evidence 404(b). When the motion was argued before the
court, however, Mr. Jackson submitted that the testimony
should be excluded under Federal Rule of Evidence 403 because
the danger of prejudice substantially outweighed its
probative value. The court concluded that the testimony
should not be excluded under Rule 403:
I understand the potential prejudice any time a gun is
introduced into any transaction. But I have to confess, given
Ms. Hovick's role and the reasons why your client, if she
is believed, may have wanted to intimidate her and her
conduct during the course of her involvement in the alleged
conspiracy I think outweighs that.
court therefore allowed Hovick to testify as to Mr.
trial, the Government offered the testimony of fifteen
witnesses: six law enforcement officers, one records
custodian, and eight cooperating witnesses. The exhibits
included photographs, cell phone records, text messages,
recordings of jail calls, wire transfers, and a letter
written by Mr. Jackson to Bell shortly before his trial
promising that, should he be acquitted, he would visit Bell
in prison and "send [her] money all the
Jackson also testified. He admitted that he was a heroin
dealer, but denied the existence of a conspiracy to
distribute heroin. He testified that Hall, Terrance, and
Williams were all his "competition" and that