United States v. Jackson, Angela L. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2223
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGELA L. JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 643--Charles R. Norgle, Sr., Judge.
Argued January 19, 2000--Decided April 3, 2000
Before BAUER, CUDAHY, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case is about a
tragic waste of talent. Angela Jackson probably
would be sitting in a comfortable law firm today-
-instead of doing time in a federal penitentiary-
-if she had devoted as much energy to her legal
studies as she did trying to rip off the United
Parcel Service in a bizarre and elaborate scheme
that included sending hate mail to a number of
prominent African-Americans. Her activities led
to a bevy of federal charges, and a jury found
her guilty on every count in the indictment.
Today, her appeal is up for consideration.
In 1996-1997 Jackson (a young African-American
woman) was enrolled at the William Mitchell
College of Law in St. Paul, Minnesota. She
previously lived in Chicago for several years
while working and attending the Chicago-Kent law
school. In the fall of 1996 Jackson and a friend
incorporated a business that planned to sell
prints and paintings depicting African-American
culture. She purchased several prints from
Chicago artist Bayo Iribhogbe for a total of
$2,000. She then sent Iribhogbe four United
Parcel Service mailers preaddressed to her St.
Paul address and on which she had written in bold
letters "Kwanzaa," an African-American holiday.
Iribhogbe packed his artwork in the mailers and
sent them off.
UPS delivered the packages to Jackson’s St.
Paul apartment building on December 4, 1996. The
UPS driver, the apartment building’s
receptionist, and the apartment building’s
concierge who handed the packages directly to
Jackson all testified that there were four
packages and that none were damaged or defaced.
Jackson, however, reported to UPS that she had
received only three packages and that all were
damaged and contained racial epithets. Though she
had paid only $2,000 for the artwork, though her
company had received no orders for the art, and
though Iribhogbe never previously sold a single
print for more than $15, Jackson filed a $572,000
claim with UPS. When UPS balked, Jackson faxed
letters to various African-American officials,
claiming that "racist elements" within UPS were
responsible for defacing her packages and for
refusing to compensate her.
That evidence alone might well have been enough
to convict Jackson of the fraud charges that were
ultimately filed against her, but there was much
more. Much more. On December 3, 1996, a search of
federal cases and statutes for the words
"united," "parcel," "service," "damaged," and
"packages" in the same paragraph was done on the
LEXIS-NEXIS research service on Jackson’s
computer under the LEXIS password of Jacqueline
Whittmon. Whittmon testified that when she worked
in the Chicago-Kent law library she gave Jackson
her password, that she never used her LEXIS
password after leaving her position at Chicago-
Kent in the spring of 1996, that Jackson called
her from Minnesota in the fall of that year to
ask if her LEXIS password still was activated,
and that she never gave her password to anyone
else. Also gleaned from Jackson’s computer was
evidence that it was used in November of 1996 to
search the Internet for "white supremacy"
organizations and to visit the web sites for the
"Euro-American Student Union" and the "Storm
Front," two such groups.
On November 25, 1996, seven letter packs were
placed in a UPS mailing box in Chicago that were
addressed to three African-American members of
Congress, two African-American newspapers in
Washington, D.C., the NAACP, and the Rainbow
Coalition. The Euro-American Student Union’s
address was listed as the return address. The
packages never were delivered because the UPS
driver noticed racial slurs on the outside of the
items and turned them over to his supervisor. UPS
opened the packages and inside found racially
offensive materials under the UPS logo. On that
day, Jackson made a withdrawal from an ATM
machine located next to the UPS drop box. A piece
of paper with the UPS billing identification
number for these packages later was found in
Jackson’s apartment and Jackson initially gave
that number when she called UPS in December to
complain about her allegedly defaced packages.
On December 22, 1996, letter packs were dropped
in a UPS mailing box in Chicago addressed to 14
African-American individuals, including the
Reverend Al Sharpton, NAACP president Kweisi
Mfume, the Reverend Jesse Jackson, Representative
Jesse Jackson, Jr., Representative Bobby Rush,
other members of Congress, former Department of
Justice Civil Rights Division head Deval Patrick,
New York state comptroller H. Carl McCall, and
the defendant herself. These packages also
contained racial epithets under the UPS logo.
Seven of the packages listed Storm Front as the
sender. Jackson had flown into Chicago that day
and had rented a car during a layover at the
airport. Although Jackson did not receive her
package until January 6, 1997, she called Rush’s
office on December 30, 1996, to report that she
had received hate mail from Storm Front.
On January 3, 1997, McCall received another
package--sent under the same UPS account number
as the December 22 mailings--that contained
racial slurs and prompted McCall’s wife to summon
the New York Police Department bomb squad. On
March 31, 1997, seven more packages with racially
offensive materials under the UPS logo were
dropped at a Chicago UPS drop box and were sent
to the artist Iribhogbe, two government offices,
and four African-American members of the House of
Representatives.
Records and testimony at trial also indicated
that Jackson enrolled a UPS employee in the
National Rifle Association, sent Confederate
flags to a UPS employee, and placed telephone
calls, telegrams, and ordered merchandise that
attempted to connect UPS employees to white hate
groups.
In June 1998 the government filed a motion
alleging that Jackson had created false email
correspondence on May 20, 1998, that attempted to
frame David Stennett, the head of the Euro-
American Student Union, for the hate mail.
Evidence at the trial showed that Jackson
subsequently tried to create an alibi by altering
and falsifying records to make it appear that she
was being treated at Meharry Medical Clinic in
Tennessee on May 20, 1998, when she actually was
treated there on other dates.
Before any of these events, Jackson was
arrested for battery in June 1996 by Chicago
Police Sergeant Bernadette Heelan. After the
arrest and before her court date, Jackson used
her credit card to order bottles of wine,
Playgirl magazine, and sex toys that were
delivered to Heelan’s home. Jackson then filed a
complaint with the Internal Affairs Division of
the Chicago Police Department accusing Heelan of
stealing her credit card number during the arrest
and using it to make these unauthorized
purchases. A piece of paper found in Jackson’s
apartment contained Heelan’s name and address,
the telephone numbers of the wine companies, and
the words "Sex Devices."
The guilty verdicts against Jackson were
returned on five counts of mail fraud, four
counts of wire fraud, and one count of
obstruction of justice. The presiding judge,
Charles R. Norgle, Sr., sentenced her to 60
months in prison on the fraud charges and
concurrently to 65 months in prison on the
obstruction of justice charge. Jackson appeals
her conviction on the eight fraud counts
involving UPS on the grounds that Judge Norgle
excluded admissible evidence, and she appeals her
conviction on the one fraud count involving the
Chicago police sergeant on the grounds that it
was improperly joined with the rest of the case.
Curiously, she does not attack the obstruction of
justice charge, for which she received the
stiffest sentence.
Jackson’s defense is that she didn’t do it--in
other words, the original four packages sent to
her actually were damaged and defaced by UPS and
the hate mail really was sent by white
supremacists. She says her defense was stymied,
however, by Judge Norgle’s refusal to allow
Stennett to testify and the judge’s refusal to
admit postings from the web sites of the white
supremacy groups. We review the exclusion of
evidence for abuse of discretion. United States
v. Wiman, 77 F.3d 981, 985 (7th Cir. 1996).
Before trial the government represented that
Stennett knew nothing about these crimes and
moved to preclude Jackson from calling him as a
witness absent a preliminary good-faith showing
as to the substance of his testimony. The defense
failed to set forth the substance of Stennett’s
anticipated testimony, saying only that Stennett
would be questioned about the UPS packages and
the email sent in his name. Because Stennett’s
denial of any involvement would not have aided
Jackson’s defense, the only conceivable purpose
in calling him would be to air his odious views
before the jury. However, a witness may not be
called simply to bring in evidence through
impeachment that would be otherwise inadmissible.
See United States v. Kane, 944 F.2d 1406, 1411
(7th Cir. 1991); United States v. Medley, 913
F.2d 1248, 1257 (7th Cir. 1990). In fact, because
Jackson never made known the substance of the
evidence Stennett would have provided, the
exclusion of this evidence cannot have been
error. See Federal Rule of Evidence 103(a)(2).
Jackson’s brief makes casual mention of the
court denying costs for "certain key out-of-town
witnesses," and at oral argument Jackson’s
counsel briefly referred to Sharon Nault, who
allegedly saw Jackson receive hate mail. This
argument would not succeed even if it were
sufficiently developed for us to consider. Such
testimony would hardly have turned the tide
against the flood of evidence against Jackson,
and so its absence can only be chalked up as
harmless error, if it was error at all.
Jackson also wanted to bring in web site
postings from the Euro-American Student Union and
Storm Front. Jackson’s appeal is imprecise about
exactly what evidence she wanted to introduce,
but she apparently means web site postings in
which the white supremacist groups gloat about
the Jackson case, take credit for the racist UPS
mailings, discuss the McCall bomb scare, report
that a group member traveled to Chicago to mail
the November 25 packages, and note that the
November 25 packages were confiscated. The
government says the evidence was properly kept
out because it was prejudicial, irrelevant,
hearsay, and lacked foundation.
The vile and inflammatory nature of these
racist rants might have distracted a jury. On the
other hand, the government already had touched
upon the supremacists’ loathsome views while
presenting the evidence that Jackson had visited
their web sites, and those additional details
might not have been all that prejudicial. Whether
any probative value of the web postings would
have been substantially outweighed by the danger
of unfair prejudice under Federal Rule of
Evidence 403 is a close call and, given the
standard of review, one on which we are not
inclined to second-guess the trial judge on the
front line.
The government contends that this evidence is
irrelevant because it is not true, arguing that
Jackson concocted these documents and posted them
on the supremacists’ web sites in an attempt to
cover up her crimes. Under this novel theory of
relevance, defense evidence should be excluded
whenever the prosecution pronounces it phony.
Sorting truth from fiction, of course, is for the
jury. "[A] judge in our system does not have the
right to prevent evidence from getting to the
jury merely because he does not think it deserves
to be given much weight." Western Indus., Inc. v.
Newcor Canada Ltd., 739 F.2d 1198, 1202 (7th Cir.
1984). The government makes more headway in
pointing out that the fraud charges stem not from
the hate mail, but from Jackson’s claim of
damaged packages. Evidence that Jackson was
sending fake hate mail under the UPS logo to make
the company appear racist was relevant to proving
the falsity of her claim that UPS defaced her
packages with racial slurs. But if someone else
actually sent the fake hate mail under the UPS
logo, that would have little relevance to the
veracity of Jackson’s claim that someone at UPS
defiled her packages.
The web postings were not statements made by
declarants testifying at trial, and they were
being offered to prove the truth of the matter
asserted. That means they were hearsay. Fed. R.
Evid. 801. Jackson tries to fit the web postings
in as a hearsay exception under Federal Rule of
Evidence 803(6) as business records of the
supremacy groups’ Internet service providers.
Internet service providers, however, are merely
conduits. The Internet service providers did not
themselves post what was on Storm Front and the
Euro-American Student Union’s web sites. Jackson
presented no evidence that the Internet service
providers even monitored the contents of those
web sites. The fact that the Internet service
providers may be able to retrieve information
that its customers posted or email that its
customers sent does not turn that material into
a business record of the Internet service
provider. "[A]ny evidence procured off the
Internet is adequate for almost nothing, even
under the most liberal interpretations of the
hearsay exception rules." St. Clair v. Johnny’s
Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775
(S.D. Texas 1999).
Even if we are wrong about the web postings
being unfairly prejudicial, irrelevant, and
hearsay, Judge Norgle still was justified in
excluding the evidence because it lacked
authentication. See Fed. R. Evid. 901. Jackson
needed to show that the web postings in which the
white supremacist groups took responsibility for
the racist mailings actually were posted by the
groups, as opposed to being slipped onto the
groups’ web sites by Jackson herself, who was a
skilled computer user. "[C]omputer data
compilations are admissible as business records
under Fed. R. Evid. 803(6) if a proper foundation
as to the reliability of the records is
established." United States v. Briscoe, 896 F.2d
1476, 1494 (7th Cir. 1990). Even if these web
postings did qualify for the business records
hearsay exception, "the business records are
inadmissible if the source of information or the
method or circumstances of preparation indicate
a lack of trustworthiness." United States v.
Croft, 750 F.2d 1354, 1367 (7th Cir. 1984).
Jackson was unable to show that these postings
were authentic.
In addition to her evidentiary complaints,
Jackson says the one fraud count concerning
Heelan, the Chicago police sergeant, was
improperly joined with the eight counts of fraud
and the one count of obstruction of justice
concerning UPS. Whether joinder is proper is
reviewed de novo. United States v. Jamal, 87 F.3d
913, 914 (7th Cir. 1996). Federal Rule of
Criminal Procedure 8(a) allows the joinder of
offenses that "are of the same or similar
character." Judicial efficiency motivates a
strong policy preference in favor of joinder and
offenses should be compared for categorical, not
evidentiary, similarities. United States v.
Alexander, 135 F.3d 470, 476 (7th Cir.), cert.
denied, 119 S. Ct. 136 (1998). Because the charge
against Jackson pertaining to Heelan, attempted
fraud in violation of 18 U.S.C. sec. 1341, is
identical to the charge against Jackson
pertaining to UPS, joinder was proper. See Jamal,
87 F.3d at 914.
Jackson did not contend that the Heelan count
should have been severed, the usual twin argument
to a misjoinder claim, but such an argument would
have been to no avail. Fed. R. Crim. P. 14
provides for severance if the defendant would be
prejudiced by the joinder of offenses. There
always is some danger of cumulative prejudice
when offenses start getting stacked up against a
defendant, but the real hazards of multiple
charges are jury confusion or jury bias if it
hears evidence about crime B that it would not
have heard if it only were considering crime A.
The jury would have had no trouble keeping
straight Jackson’s attempt to discredit Heelan
from her attempts to smear UPS. Because Jackson
took the stand to deny the UPS ploy, the evidence
about her efforts to set up Heelan would have
been admissible on cross-examination under
Federal Rule of Evidence 608(b) anyway. Even if
Jackson had not testified, her modus operandi was
so unusual that the Heelan evidence would have
been admissible in a trial on the UPS charges
under Federal Rule of Evidence 404(b).
For these reasons, the judgment of conviction
of Jackson is AFFIRMED.