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United States v. Jackson

United States Court of Appeals, Seventh Circuit

August 3, 2018

United States of America, Plaintiff-Appellee,
v.
Hurley C. Jackson, Defendant-Appellant.

          Argued April 6, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cr-00122-wmc-4 William M. Conley, Judge.

          Before Easterbrook, Ripple, and Hamilton, Circuit Judges.

          RIPPLE, CIRCUIT JUDGE.

         A jury 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.

         Mr. 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. Jackson's conviction.

         I

         BACKGROUND

         A.

         The 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.[1] 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.

         While 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 to sub-distributors.

         Hall 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.

         In 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.

         During the latter part of 2014 and into 2015, Mr. Jackson, his brother Terrance Jackson, [2] 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.

         In May 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."[3]

         The coordinated distribution efforts among Williams, Hall, Terrance, and Mr. Jackson continued throughout 2015.

         B.

         In 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).

         Prior 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).[4] 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.[5] 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.[6]

         The court therefore allowed Hovick to testify as to Mr. Jackson's threat.

         At 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 time."[7]

         Mr. 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 ...


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