United States v. Jerry Jackson , 544 F. App'x 380 ( 2013 )


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  •      Case: 12-40508       Document: 00512241362         Page: 1     Date Filed: 05/14/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 14, 2013
    No. 12-40508
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JERRY LESTER JACKSON,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:09-CR-136-2
    Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
    PER CURIAM:*
    Jerry Lester Jackson, proceeding pro se, appeals his conviction for
    conspiracy to possess with intent to distribute five kilograms or more of cocaine,
    arguing that the evidence was insufficient to support his conviction. A review
    of the evidence in the light most favorable to the verdict indicates that a rational
    trier of fact could have found beyond a reasonable doubt that Jackson was guilty
    as charged. See United States v. Thomas, 
    690 F.3d 358
    , 366 (5th Cir. 2012);
    United States v. Jara-Favela, 
    686 F.3d 289
    , 301 (5th Cir. 2012). The evidence
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 12-40508     Document: 00512241362     Page: 2   Date Filed: 05/14/2013
    No. 12-40508
    overwhelmingly established that Jackson, Lonnie Johnson, and numerous other
    coconspirators pooled their money to purchase kilograms of powder cocaine at
    a lower price from sources in Dallas and Fort Worth, Texas, including Benito
    Figueroa and Salvador Alvarez. Alvarez delivered the cocaine to Johnson and
    others at three stash houses. After Johnson, Jackson, and others obtained the
    powder cocaine, they used the houses on Jo Lyn Street to store it, convert it into
    crack cocaine, and sell it to their own individual customers. Although the
    evidence did not establish that Jackson personally knew the conspirators named
    in the indictment, the evidence established that he was aware that there were
    other participants in a large scale conspiracy in which numerous persons agreed
    to possess large quantities of cocaine with the intent to distribute it as charged
    in the indictment. The Government was not required to prove that Jackson
    knew all the details of the objectives of the conspiracy or the identity of all
    coconspirators, as long as he knowingly participated in some fashion in the
    larger objectives of the conspiracy. See United States v. Brown, 
    553 F.3d 768
    ,
    781 (5th Cir. 2008); United States v. Rodriguez, 
    553 F.3d 380
    , 391 n.4 (5th Cir.
    2008).
    Next, Jackson argues that there was a material variance between the
    allegations of a single conspiracy in the indictment and the trial evidence which
    allegedly proved multiple conspiracies. He has not shown that there was a
    material variance between the indictment and the trial evidence as the evidence
    established Jackson’s involvement in a single conspiracy with the common goal
    of possession with intent to distribute cocaine. See United States v. Morris, 
    46 F.3d 410
    , 414-15 (5th Cir. 1995). The evidence established that there was a
    common scheme and continuous operation that required the actions of the
    suppliers as well as the purchasers, who then converted the powder cocaine to
    crack cocaine and distributed it to their customers. See 
    id.
     Further, there were
    core participants, including Figueroa, Alvarez, and Johnson, who supplied
    cocaine to Jackson and others. See 
    id. at 416
    . Moreover, because Jackson was
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    No. 12-40508
    tried alone, there was no danger of transference of guilt from one codefendant
    to another, and he cannot show any error under the rules of joinder and
    severance. See United States v. Mitchell, 
    484 F.3d 762
    , 770-71 (5th Cir. 2007).
    Additionally, because the Government provided Jackson’s counsel with the
    witnesses’ debriefing statements, Jackson has not shown that any variance
    affected his substantial rights because he was not surprised by the witnesses’
    testimony concerning persons and dates not alleged in the indictment. See
    United States v. Valencia, 
    600 F.3d 389
    , 432 (5th Cir. 2010).
    The remaining claims raised by Jackson are raised for the first time on
    appeal and therefore are reviewed for plain error. See Puckett v. United States,
    
    556 U.S. 129
    , 135 (2009). To show plain error, Jackson must demonstrate that
    the district court committed an error that was clear or obvious, and that affected
    his substantial rights. 
    Id.
     If he makes such a showing, this court has the
    discretion to correct the error but only if it seriously affects the fairness,
    integrity or public reputation of judicial proceedings. 
    Id.
    According to Jackson, the district court erred in admitting hearsay
    statements in the plea agreements. Because the plea agreements were not
    introduced to prove the truth of the matter asserted, they were not hearsay. See
    United States v. Gonzalez, 
    967 F.2d 1032
    , 1035 (5th Cir. 1992). The district
    court also instructed the jury that the accomplices’ guilty pleas were not
    evidence of the guilt of any other person. Regardless, Jackson has not shown
    reversible plain error as he has not shown that the error affected his substantial
    rights in light of the overwhelming evidence of his guilt. See Puckett, 
    556 U.S. at 135
    .
    Next, Jackson argues that the district court erred in not giving a jury
    instruction on the proper use of his coconspirators’ plea agreements at the time
    they were admitted into evidence. The district court’s failure to sua sponte give
    a limiting instruction when the plea agreements were admitted into evidence did
    not constitute plain error. See United States v. Lucas, 
    516 F.3d 316
    , 324 (5th
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    No. 12-40508
    Cir. 2008). The district court’s actual instruction fairly and adequately covered
    the issue presented. See United States v. Simkanin, 
    420 F.3d 397
    , 410 (5th Cir.
    2005). Jackson’s reliance on United States v. Harrell, 
    436 F.2d 606
    , 614 (5th Cir.
    1970), is misplaced as it is easily distinguished. Unlike in Harrell, the plea
    agreements were introduced to blunt their impact on the credibility of the
    witnesses, and the district court gave an instruction limiting the jury’s
    consideration of the witnesses’ guilty pleas.
    In his next argument, Jackson contends that the admission of Agent
    Martinez’s testimony concerning Lonnie Johnson’s post-arrest statement
    violated the Confrontation Clause. Even if the admission of Agent Martinez’s
    testimony violated the Confrontation Clause, Jackson has not shown reversible
    plain error. In light of the overwhelming evidence of his guilt, he has not shown
    a reasonable probability that but for the Confrontation Clause violation, the
    result of the proceeding would have been different.        See United States v.
    Martinez-Rios, 
    595 F.3d 581
    , 587 (5th Cir. 2010).
    Jackson also argues that the district court erred in permitting the
    introduction of evidence of other similar crimes that occurred prior to the dates
    alleged in the indictment, in violation of Federal Rule of Evidence 404(b). The
    Government presented the evidence as direct evidence that the conspiracy and
    Jackson’s involvement in it began before the date alleged in the indictment and
    continued through the date alleged in the indictment and within the five-year
    statute of limitations period.    Because the evidence established that the
    conspiracy continued through the time stated in the indictment, the district
    court did not err in admitting it. See United States v. Girod, 
    646 F.3d 304
    , 316
    (5th Cir. 2011); United States v. Lokey, 
    945 F.2d 825
    , 832 (5th Cir. 1991).
    Further, because the Government provided all of its witnesses’ debriefing
    statements to Jackson, any variance between the dates in the indictment and
    the evidence did not affect his substantial rights because he was not surprised
    by the evidence. See Valencia, 
    600 F.3d at 432
    .
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    No. 12-40508
    Additionally, Jackson argues that the prosecutor made the following
    misstatements during closing argument: (1) Alvarez testified he dealt directly
    with Jackson after Johnson was arrested on murder charges, and (2) Rodgers
    testified that he and Jackson sold cocaine to each other. Because the statements
    at issue were an isolated, small portion of the overall closing argument, and
    because the evidence of Jackson’s guilt was overwhelming, the prosecutor’s
    remarks did not “cast serious doubt on the correctness of the jury’s verdict.” See
    United States v. Gracia, 
    522 F.3d 597
    , 603 (5th Cir. 2008) (internal quotation
    marks and citation omitted); see also United States v. Mendoza, 
    522 F.3d 482
    ,
    492 (5th Cir. 2008).
    Finally, Jackson argues that his trial counsel was ineffective in that he did
    not object to the introduction of Agent Martinez’s testimony as a violation of the
    Confrontation Clause; he failed to discuss the defense with Jackson and failed
    to investigate information relevant to Jackson’s defense, such as the credibility
    of the Government’s witnesses; and he failed to investigate the facts, interview
    witnesses, and seek independent tests of the alleged controlled substances.
    Because Jackson’s ineffective assistance claims were not presented to the district
    court, we decline to review them at this time. See United States v. Cantwell,
    
    470 F.3d 1087
    , 1091 (5th Cir. 2006).
    In one sentence, Jackson states that the district court committed clear
    error in misapprehending its authority to grant a downward departure pursuant
    to 
    18 U.S.C. § 3553
    (a) and U.S.S.G. § 4A1.3. Jackson has abandoned this issue
    on appeal by failing to brief it adequately. See United States v. Green, 
    964 F.2d 365
    , 371 (5th Cir. 2002).
    AFFIRMED.
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