United States v. Dominique Jackson , 849 F.3d 540 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-3712
________________
UNITED STATES OF AMERICA
v.
DOMINIQUE JACKSON,
a/k/a DOMINIQUE GREEN
Dominique Jackson,
Appellant
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2-10-cr-00199-004)
Honorable Donetta W. Ambrose, District Judge
________________
Argued December 7, 2016
BEFORE: FISHER*, KRAUSE, and GREENBERG, Circuit
Judges
____________________
*Judge Fisher assumed senior status on February 1, 2017.
(Filed: February 24, 2017)
______________
David S. Hickton
United States Attorney
Donovan J. Cocas (argued)
Assistant U.S. Attorney
Rebecca R. Haywood
Assistant U.S. Attorney
Michael L. Ivory
Assistant U.S. Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
F. Clinton Broden (argued)
Broden & Mickelsen
2600 State Street
Dallas, TX 75204
Attorneys for Appellant
______________
OPINION OF THE COURT
______________
2
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on Dominique
Jackson’s appeal from his conviction for conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846.
Jackson’s principal contention is that the District Court
erroneously denied his pretrial motions to suppress evidence
derived from what he claims were unlawfully intercepted
cellphone calls. In addition he argues that the Court made
prejudicial plain errors at his trial.
Before trial, Jackson moved to suppress evidence of co-
conspirators’ cellphone calls intercepted as authorized by district
court orders. These interceptions, pursuant to Title III of the
federal Omnibus Crime Control and Safe Streets Act of 1968,
governing wiretaps, comprised a significant amount of the
evidence at trial, though Jackson was a participant in only a
small number of calls. A Pennsylvania state court had
authorized wiretaps sought by state law enforcement officers
and information obtained from those wiretaps was used in
affidavits when federal wiretap orders were sought. Jackson
challenges the district court authorized wiretaps because he
contends that the state court lacked jurisdiction to permit the
underlying wiretaps of cellphones outside of Pennsylvania. In
this case intercepted calls were placed and received outside of
that state, even though the calls in part concerned cocaine
trafficking in Pennsylvania. Accordingly, Jackson contends that
the evidence obtained through the federal interceptions was the
3
fruit of illegal conduct and should have been suppressed.1
Jackson also claims that during the trial there were three
unchallenged prejudicial plain errors: (1) the admission of a case
agent’s testimony interpreting the contents of certain telephone
calls; (2) the admission of co-conspirators’ testimony about their
convictions and guilty pleas for the same crime; and (3) the
prosecutor’s mention of a co-conspirator’s Fifth Amendment
right not to testify when she was prompted to identify the
evidentiary rule that permitted the admission into evidence of
what otherwise would have been inadmissible hearsay. Jackson
urges that those errors separately and cumulatively require
reversal of his conviction.
We conclude that inasmuch as the District Court did not
err in denying Jackson’s motions to suppress the wiretap
evidence and his other contentions of error, even if correct,
would not make claims rising to the level of plain errors
entitling him to relief, we will affirm Jackson’s conviction.
II. STATEMENT OF JURISDICTION AND
STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C.
1
There were transcripts of the phone calls supplied to the jury
but the District Court told the jury that “[t]he recordings
themselves are the evidence. If you notice any differences
between what you hear in the recordings and what you read in
the transcripts, you must rely on what you hear, not on what you
read.” Supp. App’x at 100.
4
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291.
“We review the denial of a suppression motion for clear
error as to the underlying facts, but exercise plenary review as to
its legality in light of the district court’s properly found facts.”
United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). To the
extent that Jackson failed to object to any of the issues during
the trial that he raises for the first time on appeal, our review is
for plain error. See Fed. R. Crim. P. 52(b); United States v.
Christie, 624 F.3d 558, 567 (3d Cir. 2010). When exercising
such a review, an appellate court may evaluate whether there has
been “[a] plain error that affects substantial rights.” Fed. R.
Crim. P. 52(b). To be a “plain” error, the error must be “clear
under current law.” United States v. Olano, 507 U.S. 725, 734,
113 S. Ct. 1770, 1777 (1993). Moreover, the error must involve
substantial rights and prejudice the defendant by “affect[ing] the
outcome of the district court proceedings.” Id., 113 S.Ct. at
1778. The plain error rule “leaves the decision to correct the
forfeited error within the sound discretion of the court of
appeals.” Id. at 732, 113 S.Ct. at 1776. A court of appeals will
decline to grant relief on a plain error basis unless the error
“seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation
omitted).
III. BACKGROUND
A. Procedural History
A grand jury indicted Jackson and seven co-defendants
on one count of “conspiracy to distribute and possess with intent
5
to distribute five kilograms or more of cocaine from in and
around July 2010 and continuing thereafter to on or about
October 7, 2010.” Supp. App’x at 487. Jackson was the only
one of the eight defendants who went to trial. Before his trial,
he submitted multiple motions to suppress wiretap evidence of
intercepted cellphone conversations, but the District Court
denied of all these motions. The jury found Jackson guilty, and
on July 24, 2014, the Court sentenced him to a 135-month
custodial term to be followed by five years of supervised
release.2
B. The Evidence at Trial
The evidence at trial mainly was comprised of: (1)
numerous cellphone calls intercepted in part pursuant to Title III
of the Omnibus Crime Control and Safe Streets Act of 1968; (2)
testimony from case agents who engaged in surveillance and
testimony from Jackson’s co-conspirators Dietrick Bostick and
Christopher Stanley; and (3) documents such as hotel, plane, and
bus receipts that corroborated witness testimony.3
This case grew out of a joint federal and state
investigation. One of the case agents, Detective Shane
Countryman of the Allegheny County Sheriff’s Office, who was
assigned to the Greater Pittsburgh Safe Streets Task Force with
2
The custodial sentence later was reduced to 120 months, a
sentence that Jackson does not challenge on this appeal.
3
Our summary of the evidence focuses on Jackson and the
relevant co-conspirators, and does not address evidence
concerning other co-conspirators.
6
the Federal Bureau of Investigation, testified at length about the
results of his investigation. See Supp. App’x at 67. He detailed
an initial investigation into a street-level drug dealer and
explained how that investigation led to wiretaps of cocaine
suppliers Damell Gaines and Dietrick Bostick.4 Id. at 79-81.
After the FBI determined that a co-conspirator, Arthur Gilbert,
supplied Bostick with cocaine, it obtained an order to wiretap
Gilbert’s phone as well. Id. at 80-81.
Co-conspirator Bostick testified at the trial describing his
work as a middleman in the cocaine distribution network during
the time period in which Jackson was engaging in cocaine
distribution and for which Jackson was indicted and convicted.
Bostick also interpreted a number of the calls to which he was a
party. See id. at 291. He informed the jury that he used his
Monroeville, Pennsylvania, house to hold cocaine for out-of-
state distributors. See id. at 240, 282. He testified that about
twice a month he received between five and 20 kilograms of
cocaine from Gilbert, who was Jackson’s cousin. Id. at 252-55,
337. Gilbert told Bostick that he paid between $24,600 and
$25,700 per kilogram of cocaine. Id. at 259. Bostick, in turn,
paid Gilbert around $30,000 per kilogram and sold each
kilogram for around $34,500 to a number of distributors,
including Gaines. Id. at 259-60, 264.
Both Gilbert and co-conspirator Christopher Stanley
informed Bostick that the cocaine had been obtained from an
individual named “Dom” in Texas. Id. at 255. Bostick testified
that he understood that his payments went to “Dom,” that
“Dom” was Jackson, and that he had met Dom once in a strip
4
The spelling of the name Damell Gaines is inconsistent
throughout the record.
7
club in Atlanta. Id. at 254, 263-65, 272. An intercepted call
supporting Bostick’s testimony showed Gilbert telling Bostick
that “I just heard from, uh, Dom, he is just, uh, said everything
was alright.” Id. at 644. Bostick stated that Jackson in July
2010 travelled to the Pittsburgh area, staying in the Doubletree
Hotel in Monroeville. Id. at 261-62. Bostick testified that he
took Gilbert to the same hotel. Id. Bostick admitted that he did
not deal directly with Jackson even though he participated in the
distribution chain involving Jackson. Id. at 283.
Bostick testified that from July to October 2010 co-
conspirators Arthur Brown, Melinda Adams, Philip Gilbert, and
Shari Williams once or twice a month delivered between one to
three kilograms of cocaine to him in Pennsylvania that they had
obtained in Texas. Id. at 256, 261-62. Bostick stated that these
persons smuggled the cocaine in their pants when travelling by
plane or Greyhound bus. Id. at 257. When Bostick received the
cocaine he paid the persons who delivered it. Id. at 262-63. On
the day he was arrested, Bostick was expecting to receive a
shipment from Brown and Williams. Id. at 261.
Co-conspirator Christopher Stanley testified about his
experience trafficking cocaine with Jackson. He detailed a
number of instances during which he acted at Jackson’s
direction as the intermediary between Jackson and Bostick. One
such instance was on June 27, 2010, when Jackson directed
Stanley to fly to Pittsburgh after two associates already had
delivered cocaine to Bostick for Jackson. Id. at 325. Jackson
told Stanley to call Bostick to obtain approximately $34,800 as
payment for the cocaine. Id. at 325-29. Stanley subsequently
travelled to Bostick’s house in Monroeville and collected the
cash. Id. at 327. Stanley and other persons with him stayed at
the Doubletree Hotel in Monroeville that night. Id. On June 28,
8
2010, Stanley and the others hid the cash on their bodies and, at
Jackson’s direction, transported the cash to Dallas. Id. at 326,
330-31.
Jackson then directed Stanley on July 1, 2010, to fly back
to Pittsburgh to transfer cocaine to Bostick. Id. at 332-33.
Jackson gave one kilogram of cocaine to Stanley and his
associate and directed Stanley to book a room for Jackson in
Pittsburgh. Id. Upon arriving in Pittsburgh, Stanley and his
associate went to the Doubletree Hotel in Monroeville, where
they delivered the kilogram of cocaine to Bostick. Id. at 334.
Stanley testified that Jackson took a flight to Pittsburgh the day
after the delivery and met him at the Doubletree Hotel. Id. at
335-36. Jackson obtained payment for the cocaine the following
day and flew with Stanley back to Dallas on July 4, 2010. Id. at
338. The transfers at that time included three kilograms of
cocaine and $64,000 in cash. Id. at 338-39. Detailed cellphone
records showing that Jackson’s cellphone on June 30, 2010,
accessed a cell tower in Monroeville corroborated this testimony
as did Bostick’s testimony that Jackson in July 2010 stayed at
the Doubletree Hotel in Monroeville to obtain payment, and
Stanley’s receipt for the Doubletree Hotel in Monroeville for the
dates June 29, 2010, through July 4, 2010. Id. at 261-62, 300-
01, 387.
Stanley also testified about other trips to Pittsburgh in
which he acted as an intermediary between Bostick and Jackson.
On one occasion, Jackson directed Stanley to travel to
Pittsburgh to assist in delivering two kilograms of cocaine to
Bostick and to transport the payment for the cocaine to Jackson
in Dallas. Id. at 341-43. Stanley testified that Jackson supplied
the cocaine for the transaction. Id. Stanley obtained $35,000
for each kilogram of cocaine, and he and his associates turned
9
the money over to Jackson in Dallas. Id. at 343-346. Stanley
stated that overall he came to Pittsburgh four times. Id. at 346.
Stanley detailed two times when he stayed in Dallas
while working for Jackson. Both times Jackson in Dallas gave
him cocaine that Stanley, in turn, delivered to co-conspirator
Brown. On August 11 or 12, 2010, Brown came to Dallas from
Pittsburgh. Id. at 347-48. Intercepted phone calls showed that
Brown told Gilbert that he was going to a Denny’s restaurant on
the afternoon of August 12, 2010. Id. at 666. Stanley arranged
with Brown to meet him there. Id. at 668. Detective
Countryman observed Stanley pick up Brown and Brown’s
luggage at the restaurant. Id. at 174-76. In an intercepted call
later that night, Gilbert asked Bostick for “Dom’s” number. Id.
at 670. After Brown made a number of intercepted calls to
Gilbert and Stanley, Stanley in an intercepted call gave
Jackson’s phone number to Brown. Id. at 671-79. Even though
there was no subsequent call to Jackson that night at least that
was admitted into evidence, Stanley testified that Jackson told
Brown to ask Stanley to check to see “how he got it tucked,”
meaning “how he had the cocaine placed on his body.” Id. at
348. The intercepted phone call in which Brown asked Stanley
to do so was evidence in the trial. Id. at 685. Stanley dropped
Brown off at the Greyhound bus station in Dallas, and Brown
transported the cocaine back to Pittsburgh. Id. at 347-48.
In mid-September 2010, Jackson again gave Stanley two
kilograms of cocaine to deliver to Brown, who was staying at a
hotel in Dallas. Id. at 350-51. At the Greyhound bus station on
September 17, 2010, Officer Ryan Miller watched Brown arrive
on a bus and observed Stanley with him. Id. at 156. There was
a text message on Jackson’s phone sent to Gilbert on September
17, 2010, at 5:17 p.m., which read: “Western Union 800 to
10
Christopher Stanley, Dallas, Texas. Need for the rest of the
deal. I’m going to be on the plane.” Id. at 133. In an
intercepted phone call at 5:33 p.m., Gilbert told Jackson that
“when they ask for [the] sender where its [sic] from just say
Pittsburgh” and Jackson responded that “my partner gonna call
you so because, he gonna get everything together. . . . So when I
land it’ll be straight.” Id. at 613. After Stanley delivered the
two kilograms of cocaine, Stanley called Gilbert, who gave him
the details about the Western Union payment. Id. at 351-53,
618. In an intercepted call, Stanley told Gilbert to send the
Western Union number via text message. Id. at 618. A
corresponding text message with a number and a Western Union
receipt with that same number as its confirmation number listing
Bostick as the sender and Stanley as the payee were admitted
into evidence at trial. Id. at 133, 138-39.
Later that evening, Jackson in a call to Gilbert stated that
“I’m tryin [sic] to um coordinate it.” Id. at 629. In that call,
Gilbert told Jackson that he gave $800 to “Chris” but was $400
short. Id. at 630-31. In an intercepted call made at 1:48 a.m. on
September 18, 2010, Stanley told Gilbert, “[E]verything one
hundred.” Id. at 633. Stanley testified that the statement was
code that the deal had been completed. Id. at 352. The next
morning, September 18, 2010, Officer Miller observed Brown
leave the Greyhound bus station from Dallas. Id. at 156-57.
Stanley testified about Jackson’s unsuccessful attempt to
deliver cocaine to Brown. Brown came to Texas in October
2010 to obtain three kilograms of cocaine from Jackson. Id. at
355. Brown paid Jackson around $90,000 in cash for the three
kilograms of cocaine before Jackson had the cocaine. Id. at 356.
Stanley watched Jackson use a money counter to count the cash
in an apartment in Dallas. Id. But Jackson was unable to supply
11
the cocaine, so Brown obtained the cocaine from another
supplier. Id. at 355-57. Jackson then needed to return the
payment that Brown had made to him for the undelivered
cocaine. Id. at 357. Stanley testified that Jackson returned the
payment at a hotel with Crowne in the name in downtown
Dallas. Id.
Countryman provided testimony about his surveillance
that aligned with Stanley’s description of the failed cocaine deal.
He testified that on October 4, 2010, he observed Brown and
another co-conspirator, Shari Williams, travel from the Dallas
Greyhound bus station to the Crowne Plaza Hotel in that city.
Id. at 104. In a phone conversation between Gilbert and Brown
on October 4, 2010,5 Brown told Gilbert to meet him at the
“Crowne Plaza.” Id. at 603. There were two receipts for two
different rooms in the Crowne Plaza Hotel for October 4
through October 5, 2010, in Shari Williams’s name. Id. at 106-
07.
Countryman observed Jackson in the lobby of the
Crowne Plaza Hotel at around 4:00 p.m. on October 4, 2010. Id.
at 108, 110. He testified that Jackson was wearing a backpack.
Id. at 111. About ten minutes later, Jackson left the hotel with a
“much fuller” backpack. Id. at 112. A pen register trap and
trace of one of Jackson’s cellphone numbers indicated that
Jackson was in the vicinity of the Crowne Plaza at that time. Id.
at 113-15. On October 5, 2010, Countryman once again
observed Jackson entering the Crowne Plaza Hotel with the
same backpack. Id. at 115-16. Jackson entered the same room
5
The date on the exhibit is October 4, 2010, but Countryman
read it as October 1, 2010, at trial and was not corrected. Supp.
App’x at 104, 603.
12
that Countryman had watched Gilbert leave “[m]ultiple times.”
Id. at 116. Countryman testified that based on Stanley’s
interview with him, he determined that Jackson’s actions at the
Crowne Plaza Hotel involved Jackson receiving and then
returning the money for the failed cocaine purchase about which
Stanley testified. Id. at 118.
An Allegheny County Sheriff’s Department officer
testified that on October 7, 2010, he participated with the FBI in
the arrest of Brown and Williams at the Greyhound bus station
in Pittsburgh. Id. at 63. He and other officers had been waiting
for them to arrive on the bus from Texas. Id. at 63-64. When
they arrested Brown, a kilogram of cocaine fell out of his
waistband. Id. at 64. Further, they found a kilogram of cocaine
in Brown’s suitcase. Id. at 98. Williams also had a kilogram of
cocaine in her luggage. Id. at 99. In a phone call placed on
October 2, 2010, from Gilbert to Brown, Brown told Gilbert
“[t]wo on and two in.” Id. at 600. Countryman interpreted that
code to mean that Brown had kilograms of cocaine on his person
and in his suitcase, and contended that these facts corroborated
what they found on Brown at the time of the arrest. Id. at 102.
According to Stanley, Jackson used an apartment in
Dallas to store cocaine which he directed a friend, Allen Russell,
to rent in Russell’s name. Id. at 357-58. Stanley testified that
Stanley and others “stayed there 95 percent of the time.” Id. at
358.
The FBI searched an apartment in Stanley’s name on
October 7, 2010, and seized a credit card in Jackson’s name,
court and other documents in Jackson’s birth name, a utility bill
in Jackson’s birth name, a magazine with ammunition, a food
sealer with sealing bags, cling wrap, rubber gloves, cellphone
13
receipts in Stanley’s name, various credit and identification
cards in Stanley’s name, an auto insurance policy jointly in
Stanley’s and Jackson’s names, and a money counter, along with
other documentation relating to other names including Allen
Russell. Id. at 34-59. FBI agent Detective Jason Preece stated
that cling wrap, gloves, food sealers and sealing bags are used to
package either money or illegal drugs and the money counter is
associated with drug trafficking because of the large sums of
cash involved in drug transactions. Id. at 44, 53. Preece also
testified that he saw Jackson and Stanley entering and leaving
the apartment when conducting surveillance of the property. Id.
at 56. The prosecutor introduced a text message from October
8, 2010, sent from a phone seized from Jackson stating, “I wish
you would listen to me when I told you that shit was hot fbi [sic]
went by da crib with search warrant meet me somewhere.”
Appellant’s br. at 16 n.6; see Supp. App’x at 228, 230-31.
The FBI also searched Bostick’s house on October 7,
2010. In the search they recovered a money counter, $4,700 in
cash, numerous cellphones, marijuana, cocaine, a shotgun, an
ammunition magazine, and a razor blade near a food scale. An
FBI agent testified that these items were indicative of drug
trafficking. Supp. App’x at 196-203. Before he was arrested
Bostick attempted to flush cocaine down the toilet. Id. at 201.
Jackson testified and claimed that a voice in cellphone
recordings in evidence attributed to him was not actually his
voice. Id. at 463. He contended that evidence admitted at the
trial was fabricated. Id. at 460. The jury convicted Jackson of
one count of conspiracy to distribute and possess with intent to
distribute five or more kilograms of cocaine. In the face of the
overwhelming evidence against him Jackson does not contend
that the evidence at trial, if admissible, did not support his
14
conviction.
IV. DISCUSSION
A. The Federal Wiretap Orders
Jackson contends evidence derived from the execution of
two federal orders authorizing wiretaps of cellphones pursuant
to Title III of the Omnibus Crime Control and Safe Streets Act
of 1968 should have been suppressed because the court that
entered the orders based its finding of probable cause for their
authorization on affidavits including information received from
what he contends were illegal state wiretaps. He claims that the
state court lacked authority to authorize those wiretaps because
it did not have jurisdiction over the cellphones being tapped
when they were outside of Pennsylvania. He maintains that a
“state’s jurisdiction is limited to the confines of its own
borders.” Appellant’s br. at 27. Thus, he argues in his brief that
the Pennsylvania wiretap statute authorizing “the interception of
wire, electronic or oral communications anywhere within the
Commonwealth” permits courts to authorize interception of
communications only if all the phones are located within the
borders of Pennsylvania at the time of the communication. 18
Pa. Cons. Stat. § 5710; Appellant’s br. at 24-27. When pressed
at oral argument, he conceded that the Pennsylvania statute itself
permitted a “listening post” theory but emphasized a
constitutional argument that the principles of federalism and the
historical relationship between the federal and state governments
preclude a state from authorizing a wiretap if one party is
15
outside the state’s borders.6 Oral Argument at 3:21-53.
Inasmuch as several conversations concerning and involving
Jackson occurred while the cellphones being used were located
outside of Pennsylvania, Jackson claims that the interceptions of
the conversations were illegal and evidence derived from the
interceptions must be suppressed, even though Pennsylvania was
one of the loci of the conspiracy. See Appellant’s br. at 24
(citing United States v. Giordano, 416 U.S. 505, 533, 94 S. Ct.
1820, 1835 (1974)).
The government responds that Jackson lacks standing in
part to complain of the use of the interceptions because, except
for six cellphone calls to which he was a party and therefore the
use of which he has standing to challenge, he was not a party to
the intercepted calls. Appellee’s br. at 13. It contends that Title
III, rather than state law, applies to the determination of the
evidence’s admissibility, and that Title III permits the
interception of out-of-state calls if the interception, or “listening
post,” itself is located within the jurisdiction of the court
authorizing the interception. Appellee’s br. at 14-15. It also
asserts that the Pennsylvania statute is “‘generally modeled’
after Title III” and follows its listening post requirement. Id. at
16 (quoting Commonwealth v. Spangler, 809 A.2d 234, 237 (Pa.
2002)). It further argues that any error with respect to the state
interception was harmless, or, if harmful, the “good faith”
exception to the exclusionary rule should apply so evidence
derived from the state interceptions was admissible. Id. at 18-
20.
First, we address the government’s standing argument
6
Jackson’s change of emphasis modified his position in his
brief.
16
with respect to cellphone calls to which Jackson was not a party.
“Standing” in the context in which the government uses the
term on this appeal is shorthand for whether Jackson is an
“aggrieved party” under Title III, not a jurisdictional
requirement as it may be in other contexts. See 18 U.S.C. §§
2518, 2510; United States v. Faulkner, 439 F.3d 1221, 1223
(10th Cir. 2006); United States v. Thompson, 944 F.2d 1331,
1339 (7th Cir. 1991).7 If standing is not a jurisdictional
requirement the government cannot challenge a party’s standing
on an appeal if it did not object to the party’s standing before the
district court. Alderman v. United States, 394 U.S. 165, 175 n.9
(1969) (“Congress has provided only that an ‘aggrieved person’
may move to suppress the contents of a wire or oral
communication intercepted in violation of the Act. The Act’s
legislative history indicates that ‘aggrieved person’ . . . should
be construed in accordance with existent standing rules.”)
(citation omitted). In point of fact, the government did not claim
in the District Court that Jackson lacked standing to be treated as
an “aggrieved person” per the terms of Title III and thus was
without authority to move to suppress the interceptions.
Accordingly, it cannot raise that argument on appeal. See 18
U.S.C. § 2518.
Inasmuch as Jackson has standing to challenge use of all
7
To the extent that Jackson makes a Fourth Amendment
argument, see Oral Arg. at 4:08-10, we note that “standing” in
the Fourth Amendment context is “shorthand” for a “legitimate
expectation of privacy” and is not a jurisdictional requirement to
pursue an argument. United States v. Stearn, 597 F.3d 540, 551,
551 n.11 (3d Cir. 2010) (internal quotation marks and citations
omitted). Thus, arguments based on a lack of Fourth
Amendment “standing” are also waivable. Id.
17
the interceptions, we consider the statutory requirements for
suppression on the merits. Title III governs suppression of
evidence of interceptions offered in a district court trial. See
United States v. Williams, 124 F.3d 411, 426 (3d Cir. 1997). It
reads in relevant part:
Any aggrieved person in any trial . . . before any
court . . . of the United States . . . may move to
suppress the contents of any wire or oral
communication intercepted pursuant to this
chapter, or evidence derived therefrom, on the
grounds that—
(i) the communication was unlawfully
intercepted;
(ii) the order of authorization or approval
under which it was intercepted is
insufficient on its face; or
(iii) the interception was not made in
conformity with the order of authorization
or approval.
18 U.S.C. § 2518(10)(a). The foregoing bases are the
“exclusive grounds for suppression under Title III.” Williams,
124 F.3d at 427. The Supreme Court has held that subsection (i)
includes constitutional violations, such as those that Jackson
alleges took place in this case, and outlaws “official
interceptions without probable cause.” Giordano, 416 U.S. at
526, 94 S.Ct. at 1832. The Court also has held that
“communications intercepted pursuant to [an] extension order
[based on an illegal initial wiretap] were evidence derived” from
18
the invalidly intercepted communications and thus required
suppression. Id. at 531-32, 94 S.Ct. at 1834.
We must determine whether the Title III wiretap orders
were derived from unlawfully intercepted communications.
Inasmuch as Jackson contends that Title III does not “authorize
a state court to allow its law enforcement officials to eavesdrop
on citizens of other states simply by locating the ‘listening post’
in the state where the state court is located[,]” we must consider
whether Title III permits Pennsylvania courts to authorize
within-jurisdiction interceptions of conversations that took place
wholly outside of Pennsylvania. Appellant’s br. at 28. Title III
in relevant part permits a “State court judge of competent
jurisdiction,” 18 U.S.C. § 2516(2), to authorize “the interception
of wire, oral, or electronic communications within the territorial
jurisdiction of the court in which the judge is sitting,” Id. §
2518(3). “[I]ntercept” is defined as “the aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or
other device.” Id. § 2510(4).
We join the other courts of appeals that have addressed
this issue in adopting the “listening post” theory that under Title
III either the interception of or the communications themselves
must have been within the judge’s territorial jurisdiction. See
United States v. Cano-Flores, 796 F.3d 83, 87 (D.C. Cir. 2015),
cert. denied, 136 S. Ct. 1688 (2016) (adopting the “listening
post” theory and reasoning that requiring a new “wiretap order
in every district where [the government] thought a target could
make calls . . . seems unworkable”); United States v. Henley,
766 F.3d 893, 911-12 (8th Cir. 2014), cert. denied, 135 S. Ct.
2065 (2015); United States v. Luong, 471 F.3d 1107, 1109 (9th
Cir. 2006) (“The most reasonable interpretation of the statutory
19
definition of interception is that an interception occurs where the
tapped phone is located and where law enforcement officers first
overhear the call.”); United States v. Jackson, 207 F.3d 910, 914
(7th Cir. 2000), vacated on other grounds, 531 U.S. 953, 121
S. Ct. 376 (2000); United States v. Denman, 100 F.3d 399, 403
(5th Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1138
(10th Cir. 1994) (holding that the Oklahoma wiretap statute, like
the federal statute, authorizes wiretaps within the territorial
jurisdiction where the contents were first heard); United States
v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (holding that
“[i]t seems clear that when the contents of a . . . communication
are captured or redirected in any way, an interception occurs at
that time” but also “since the definition of interception includes
the ‘aural’ acquisition of the contents of the communication, the
interception must also be considered to occur where the
redirected contents are first heard”).
We need not determine whether a conversation recovered
from a federally authorized wiretap has been “unlawfully
intercepted” when the authority for the interception was based
on information obtained from an unlawful state wiretap because
the state wiretaps that were the sources of information in this
case were lawful.8 The Pennsylvania statute is “generally
8
Jackson claims that in situations in which state laws
authorizing wiretaps are more restrictive than those in Title III,
if a state court has authorized a wiretap, a federal court must
determine whether the wiretap violated state as well as federal
law. Appellant’s br. at 24 n.10. The government disagrees.
Appellee’s br. at 15. Here, because we hold that federal and
Pennsylvania law both utilize the “listening post” theory of
determining territorial jurisdiction, we have no need to address
this issue.
20
modeled” after the federal statute. Spangler, 809 A.2d at 237.
Pennsylvania’s wiretap statute, in a provision similar to a
provision in Title III permits a state court to authorize the
interception of calls outside of Pennsylvania if the
“interception” is “anywhere within the Commonwealth.” 18 Pa.
Cons. Stat. § 5710. Indeed, it was after cases like Rodriguez
expressly interpreted Title III as defining the location of the
intercept to include the listening post that Pennsylvania’s statute
was amended specifically to clarify that the definition of
“intercept” “include[s] the point at which the contents of the
communication are monitored by investigative or law
enforcement officers.” Id. § 5702. See H. 187-47, 1997 Sess.,
at 1567 (Pa. 1997). These provisions make clear that for the
interception to be lawful only the interception had to have been
in Pennsylvania. There is no dispute that the interceptions at
issue in this case were made in Pennsylvania. Hence evidence
from the state wiretaps upon which the federal orders were
partially premised is lawful.9 Accordingly, we uphold the
9
Jackson also argues that the listening post theory violates the
Fourth Amendment by permitting the interception of calls
occurring in other states or even other countries, untethered
from any Pennsylvania connection. In support of his argument,
Jackson offers only United States v. Cosme, No. 10-3044, 2011
WL 3740337 (S.D. Cal. Aug. 24, 2011), aff’d sub nom. United
States v. Luis, 537 F. App’x 752 (9th Cir. 2013), and Cano-
Flores, 796 F.3d 83. In each of those cases, however, the court
recognized that Title III permits the wiretap of phones located in
Mexico so long as the calls are intercepted within the United
States. See Cosme, 2011 WL 3740337, at *10; Cano-Flores,
796 F.3d at 86. Pennsylvania’s authorization of interceptions of
21
District Court’s denial of Jackson’s motions to suppress the
evidence derived from the federal wiretaps that, in part, used
state-wiretap-based affidavits to establish probable cause.
B. The Alleged Trial Errors
calls placed in Texas is at least as jurisdictionally proper as the
United States’ interception of calls made in Mexico, a foreign
sovereign.
While Jackson conceded in oral argument that the
Pennsylvania statute codifies a “listening post” theory, he
maintained that it went beyond the permissible scope of a state’s
jurisdiction. Oral Arg. at 3:21-53. Jackson claims that “it is a
long standing principle, dating back to the common law, that a
state’s jurisdiction is limited to the confines of its own borders.”
Appellant’s br. at 27. But that claim overstates the limitations
on state courts’ jurisdiction. After all, the Supreme Court long
has held that “[a]cts done outside a jurisdiction, but intended to
produce and producing detrimental effects within it, justify a
state in punishing the cause of the harm as if [the defendant] had
been present [in the state] at the effect.” United States v. Lee,
359 F.3d 194, 206 (3d Cir. 2004) (quoting Strassheim v. Daily,
221 U.S. 280, 285, 31 S. Ct. 558, 560 (1911)). Moreover,
Pennsylvania law permits a person to be convicted only for “an
offense committed by his own conduct or the conduct of another
for which he is legally accountable” that has a conduct or result
element that has a nexus in Pennsylvania. 18 Pa. Cons. Stat. §
102. Therefore, while there may not be per se territorial
restrictions in Pennsylvania regarding intercepting out-of-state
calls, there are, in effect, territorial limitations on the state’s use
of such calls.
22
1. The Admission of the Case Agent’s Testimony
Jackson asserts that the District Court plainly erred in not
sua sponte precluding the government’s case agent,
Countryman, from interpreting the meaning of certain
intercepted telephone calls. Appellant’s br. at 29. Though he
does not dispute the propriety of Countryman’s testimony about
“arguable code terms” like “one in and one out,” he claims that
Countryman’s testimony exceeded the limited scope of proper
use. Id. at 32. He lists a number of questions that the prosecutor
asked Countryman that he claims were impermissible. Id. at 32-
33. Jackson also details a number of times when Countryman
“interpret[ed]” a call to include situational and contextual
information that is lacking in the call. Id. at 33-36. The
government contends that the phone conversations were unclear
and needed interpretation. Appellee’s br. at 23. It also
maintains that Countryman’s testimony properly involved only
his personal observations. Id. It further asserts that any error in
the testimony regarding interpretations was not plain and that if
there was such an error it did not prejudice Jackson. Id. at 25-
30.
Inasmuch as Countryman’s testimony was not admitted
as expert testimony, Federal Rule of Evidence 701 governed the
admission of his interpretation testimony as it deals with lay
witness opinion testimony. Under Rule 701, lay witnesses may
testify as to their opinions so long as the testimony is “rationally
based on the witness’s perception,” is “helpful to clearly
understanding the witness’s testimony or to determining a fact in
issue,” and is “not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” “In
layman’s terms, Rule 701 means that a witness is only permitted
to give her opinion or interpretation of an event when she has
23
some personal knowledge of that incident.” United States v.
Fulton, 837 F.3d 281, 291 (3d Cir. 2016).10 The goal of Rule
701 is to give the trier of fact an “accurate reproduction of the
event.” Id. (internal quotation marks omitted). The evidence is
permitted because it “has the effect of describing something that
the jurors could not otherwise experience for themselves by
drawing upon the witness’s sensory and experiential
observations that were made as a first-hand witness to a
particular event.” Id. (internal quotation marks omitted).
Rule 701(b)’s helpfulness requirement with respect to
Countryman’s testimony is at issue in this case. Under this
requirement, lay witnesses may provide opinions about their
understandings of recorded conversations when “[t]o the
uninitiated listener, [the speaker] speaks as if he were using
code” and the witness’s “opinions are based upon his direct
perception of the event, are not speculative, and are helpful to
the determination” of a fact in the case if the “trial court
vigorously police[s] the government’s examination of [the
witness] to ensure that he [is] not asked to interpret relatively
clear statements.” United States v. De Peri, 778 F.2d 963, 977-
78 (3d Cir. 1985). But “the interpretation of clear conversations
is not helpful to the jury, and thus is not admissible” under Rule
701. United States v. Dicker, 853 F.2d 1103, 1108 (3d Cir.
1988).
Rule 701(b)’s helpfulness requirement mandates the
exclusion of “testimony where the witness is no better suited
than the jury to make the judgment at issue.”11 Fulton, 837 F.3d
10
We decided United States v. Fulton on September 19, 2016,
three months after Jackson filed his brief in this Court.
11
Jackson does not make this argument directly, but relies
24
at 293 (quoting United States v. Meises, 645 F.3d 5, 16 (1st Cir.
2011) (internal quotation marks omitted)). A case agent’s
testimony may not “simply dress[] up argument as evidence.”
Id. (quoting Meises, 645 F.3d at 17). Testimony may be so
characterized when a witness “infer[s] [the defendant’s] roles
not from any direct knowledge, but from the same circumstantial
evidence that was before the jury—effectively usurping the
jury’s role as fact-finder.” Id. (quoting Meises, 645 F.3d at 16).
“[W]here a case agent’s testimony leaves the jury ‘to trust that
[the case agent] had some information—information unknown
to them—that made him better situated to interpret the words
used in the calls than they were,’ when, in fact, he does not, such
testimony is inadmissible under Rule 701(b).” Id. (quoting
United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013))
(citing United States v. Hampton, 718 F.3d 978, 982-83 (D.C.
Cir. 2013); Meises, 645 F.3d at 16-17; United States v. Johnson,
617 F.3d 286, 292-93 (4th Cir. 2010); United States v. Freeman,
498 F.3d 893, 905 (9th Cir. 2007); United States v. Garcia, 413
F.3d 201, 213-14 (2d Cir. 2005); United States v. Grinage, 390
F.3d 746, 750-51 (2d Cir. 2004)). After all, the role of the
“prosecutor [is] to argue in summation” what inferences to draw
from the evidence. Id. (quoting Meises, 645 F.3d at 17).
We are satisfied that the District Court erroneously
permitted Countryman on several occasions to express his
understanding of the meaning of clear conversations. One of the
most egregious examples is when Countryman interpreted
Jackson’s statement “you can go ahead and send him” to mean
“it is okay now to send [a co-conspirator] to purchase cocaine in
heavily on similar propositions from a court of appeals in United
States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013). See
Appellant’s br. at 30.
25
Dallas.” Supp. App’x at 129, 605. Further, Countryman
provided unhelpful argument in the guise of evidence. In
interpreting one unclear call, he testified: “So, [Jackson] lays out
the conspiracy for you in this telephone call that Gilbert is
sending Brown with the money. Brown gives the money to
either the defendant or Stanley at the direction of the defendant
and the defendant takes the money and goes and purchases the
cocaine, gives the money back to Brown, Brown takes the
cocaine back to Monroeville where it is sold and distributed.”
Id. at 144. While the call’s meaning is unclear, there is
seemingly no mention of code words for cocaine, money, or
Monroeville in the call that Countryman interpreted, and nothing
seems to indicate that any part of that conversation can be
interpreted as broadly as Countryman did. Id. at 628-31.
Countryman seems to infer the knowledge for his testimony on
other evidence, rather than on his direct knowledge of the
events.12 In these circumstances his testimony was improper.
12
Countryman improperly testified with respect to the
interpretation of phone calls at other times. For example, he
testified in detail about Gilbert’s state of mind. He interpreted a
call to mean that Gilbert “is not aware of Christopher Stanley’s
involvement in this set-up. . . . He is uncomfortable with
Christopher Stanley being involved in these transactions because
he doesn’t know him.” Supp. App’x at 140, 620. But the
content of that call does not support that interpretation, and the
parties to the call apparently did not use coded language. Id. at
620-21. The prosecutor asked Countryman, “We’ll learn that in
a subsequent call, we’ll learn more detail about that?,” to which
he responded, “Correct.” Id. at 140. Overall it is evident that
Countryman was in no better position than the jury to interpret
these calls.
26
Although the District Court erred in not sua sponte
precluding the objectionable evidence that we have identified,
we cannot conclude that the Court’s error can be characterized
as plain. Inasmuch as we decided Fulton, a case that would
have been useful to the Court, after the trial in this case had
concluded, the Court did not have the benefit of that opinion at
the trial. Thus, we decline to hold that the error in admitting
evidence regarding the interpretation of the calls was plain or
obvious. Furthermore, even if we held otherwise, Jackson
would bear the burden of showing that the error was prejudicial
by impacting on the outcome of the trial, thereby affecting his
substantial rights. Olano, 507 U.S. at 734-35, 113 S.Ct. at 1777.
The testimony of Jackson’s co-conspirators Dietrick Bostick
and Christopher Stanley provided much of the same information
as Countryman set forth in his interpretations of the phone calls,
and the jury on its own could review the calls that Countryman
wrongfully interpreted to reach its own conclusion as to their
meaning in light of Bostick’s and Stanley’s testimony and the
other evidence.13
2. The Admission of the Co-Conspirators’ Testimony about
13
In his brief Jackson contends that the testifying co-
conspirators though “to a lesser extent” than Countryman,
Appellant’s br. at 36, gave improper evidence interpreting
telephone calls. He does not, however, make reference to this
testimony in his statement of issues in his brief, see id. at 9-10,
and therefore he has waived the argument. See Laborers’ Int’l
Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26
F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party
raises it in its opening brief, and for those purposes ‘a passing
reference to an issue . . . will not suffice to bring that issue
before this court.’”) (citation omitted).
27
their Convictions and Pleas of Guilty
Jackson contends that the government wrongfully
attempted to use two of his co-conspirators’ guilty pleas as
substantive evidence of his guilt, although he “recognizes that it
is not always error to inform a jury as to a co-defendant’s guilty
plea[,] especially when the jury is given a cautionary
instruction” such as the District Court gave here. Appellant’s
br. at 40. In arguing that the admission of evidence of the guilty
pleas was a plain error, Jackson in his brief cites our statement
in United States v. Gullo that
[t]he guilty plea to a conspiracy charge carries
with it more potential harm to the defendant on
trial because the crime by definition requires the
participation of another. The jury could not fail to
appreciate the significance of this and would
realize . . . that ‘it takes two to tango.’
Id. at 41 (quoting United States v. Gullo, 502 F.2d 759,
761 (3d Cir. 1974) (citation omitted)).
We have “repeatedly held that the government may
introduce neither a witness’s guilty plea nor his or her
concomitant plea agreement as substantive evidence of a
defendant’s guilt.” United States v. Universal Rehabilitation
Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir. 2000). Yet, a
witness’s guilty plea is admissible under Federal Rule of
Evidence 403 for at least three purposes: “(1) to allow the jury
accurately to assess the credibility of the witness; (2) to
eliminate any concern that the jury may harbor concerning
whether the government has selectively prosecuted the
defendant; and (3) to explain how the witness has first-hand
28
knowledge concerning the events about which he/she is
testifying.” Id. at 665. We have noted that
[w]hen a co-conspirator testifies he took part in
the crime with which the defendant is charged, his
credibility will automatically be implicated.
Questions will arise in the minds of the jurors
whether the co-conspirator is being prosecuted,
why he is testifying, and what he may be getting
in return. If jurors know the terms of the plea
agreement, these questions will be set to rest and
they will be able to evaluate the declarant’s
motives and credibility.
United States v. Gaev, 24 F.3d 473, 477 (3d Cir. 1994). We
held that “[a]s such, we are satisfied that the government may
seek to introduce a witness’s guilty plea and/or plea agreement
even in the absence of a challenge to the witness’s credibility.”
Universal Rehabilitation Servs. (PA), 205 F.3d at 666.
Here, the government’s use of the co-conspirators’ guilty
pleas was permissible. Co-conspirator Bostick testified while
wearing prison attire. Supp. App’x at 240. The prosecutor
asked him why he was wearing that clothing and questioned him
about the charges against him. Id. at 240-41. The prosecutor
then discussed the terms of his guilty plea with him, making the
jury aware that Bostick was testifying because of his plea
agreement with the hope that he might receive a reduced
sentence in return for his testimony. Id. at 241-45. The
prosecutor also elicited testimony from Bostick that he had not
been guaranteed that he would be given a reduction in sentence
for testifying and that he would not perjure himself at the trial.
Id. Then, the prosecutor asked Bostick about his prior felonies
29
and drug use. Id. at 246-51. After completing that line of
questioning, the prosecutor addressed the current case, asking,
“Now, you already indicated you pled guilty for your role in a
drug trafficking conspiracy, correct?” Id. at 251. She then
asked a number of questions about the conspiracy before she
finally asked about Jackson. Id. at 251-54.
The prosecutor engaged in the same type of examination
of co-conspirator Christopher Stanley. The prosecutor started
her examination of Stanley by asking him about his current
incarceration and the charges to which he pleaded guilty. Id. at
310-11. She then elicited that he was testifying in the hope that,
per his plea agreement, his sentence would be reduced. Id. at
312-13. As was the case with Bostick, the prosecutor drew
testimony from Stanley recognizing his understanding that the
judge, not the prosecution, would determine his sentence, and he
could be prosecuted if he lied in giving his testimony. Id. After
that testimony, he testified about his prior crimes and whether he
was in the same jail as other co-conspirators. Id. at 313-16.
Only then did the prosecutor ask him about his drug trafficking
history, at which time he mentioned Jackson. Id. at 316.
Neither of these uses of the co-conspirators’ guilty pleas
was impermissible. The evidence regarding the guilty pleas all
went to the heart of whether the co-conspirator witnesses were
credible, whether the government selectively was prosecuting
Jackson, and whether the co-conspirators had firsthand
knowledge of the crime for which Jackson was being tried. The
evidence clearly was not offered as substantive evidence of
Jackson’s guilt. Furthermore, the District Court provided an
appropriate limiting instruction with respect to the guilty plea
evidence at the end of the case. Id. at 495-96. Therefore, the
Court did not err at all, let alone commit plain error, in allowing
30
the guilty plea testimony.
3. The Government’s Mention of a Co-Conspirator’s Fifth
Amendment Right Not to Testify
Jackson argues that the District Court made a plain error
when, in response to its question about which exception to the
hearsay rule applied to the admission of Gilbert’s otherwise-
hearsay testimony, the prosecutor stated that “[t]he exception is
Arthur Gilbert cannot take the stand. He has a Fifth
Amendment privilege where the government cannot force him to
come in to testify. He is unavailable to this Court and thereby it
would be an exception to hearsay.” Id. at 253.
We have recognized that it may be improper for a
prosecutor to refer to the invocation of a Fifth Amendment
privilege to encourage a jury to infer a witness’s guilt. See, e.g.,
Nezowy v. United States, 723 F.2d 1120, 1124 (3d Cir. 1983);
United States ex rel. Fournier v. Pinto, 408 F.2d 539, 541 (3d
Cir. 1969). “[W]e may reverse” on plain error review, however,
“only if we find an error in the prosecutor’s comments so
serious as to undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice.” United States v.
Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990) (internal
quotation marks and citation omitted). “[O]ur objective is not to
penalize the prosecutor for an inopportune remark, but to ensure
that the appellant[] received a fair trial.” Id.
Here, the prosecutor’s response to the District Court’s
31
question about the applicable hearsay exceptions was a failed
and incomplete attempt to claim a Federal Rule of Evidence 804
exception which applies when a witness is unavailable based on
his invocation of privilege pursuant to Rule 804(a)(1). The
Court instead ruled that it was admissible as a statement of a co-
conspirator under Evidence Rule 801(d)(2)(E). While the
prosecutor’s mention of a witness’s invocation of the Fifth
Amendment in front of the jury was inopportune, the error in the
admission of the evidence was not so serious that it was a plain
error.
4. The Cumulative Effect of the Aforementioned Actions
Inasmuch as we hold that none of the issues that Jackson
raises demonstrates that there was a plain error at his trial, we
need not analyze whether the cumulative effect of plain error on
the trial requires that we reverse Jackson’s conviction.
V. CONCLUSION
For the foregoing reasons, we will affirm Jackson’s
judgment of conviction and sentence entered on July 24, 2014.
32