United States v. Jyshawn Jackson ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2408
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JYSHAWN JACKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:19-cr-20067-MMM-EIL-1 — Michael M. Mihm, Judge.
____________________
ARGUED FEBRUARY 18, 2021 — DECIDED JULY 14, 2021
____________________
Before BRENNAN, SCUDDER, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Jyshawn Jackson, together with
Marnetta Walker, sold drugs on six occasions to a confidential
source (“CS”) during a two-month span in 2019. This appeal
concerns only the last sale, for which Jackson was indicted on
one count of distributing 28 grams or more of crack cocaine.
That sale occurred in two steps, but that was not how the sale
was originally structured—Jackson, through Walker, had
agreed to sell 35 grams of crack cocaine to the CS for $1,800.
2 No. 20-2408
But when the CS arrived with Walker to the location for the
buy, Jackson handed over only 24.92 grams of crack cocaine.
After some handwringing about the shorted amount, the CS
paid Jackson $1,500, and Jackson said that he would retrieve
and provide the CS the full amount discussed previously.
Jackson then traveled to a nearby town to get more crack co-
caine before again meeting the CS and Walker at a location
one mile from the original meet-up. Once there, Jackson ex-
changed 6.28 grams of crack cocaine for the remaining $300.
At trial, a jury found Jackson guilty of distributing more than
28 grams of crack cocaine.
Jackson argues that the district court erred when it denied
his motion for acquittal under Federal Rule of Criminal Pro-
cedure 29 because the government’s evidence showed that the
sale involved two transactions, not one, each amounting to
less than 28 grams of crack cocaine. He also asserts that the
district court should have given a lesser-included-offense in-
struction to allow the jury to find Jackson distributed less than
28 grams of crack cocaine. We disagree and, for the reasons
below, affirm Jackson’s conviction.
I
A
The drug sale at issue began on August 12, 2019, when a
Drug Enforcement Administration CS contacted Marnetta
Walker, the middleman for Jyshawn Jackson’s drug dealing
operations. The CS asked to buy 35 grams of crack cocaine
from Jackson, specifying to Walker that the crack cocaine
should be divided into two bags, one with 28 grams and the
other with 7 grams. Walker agreed to facilitate the sale, which
was to take place on August 15, 2019, for $1,800.
No. 20-2408 3
The drug transaction on August 15 began when the CS
called Walker at 10:42 a.m. Walker then called Jackson.
Around that time, the federal agents with whom the CS
worked provided the CS with $1,800, recording devices, and
a digital scale. The CS then picked up Walker and drove to the
agreed-upon meeting spot at 904 North Fourth Street in
Champaign, Illinois. They arrived around 11:12 a.m. Once
Jackson arrived, Walker got out of the CS’s car and into Jack-
son’s car. After about five minutes, Walker returned to the
CS’s car and handed the CS one bag of crack cocaine. The CS
weighed the bag and realized it was “short”—the bag
weighed less than the agreed-upon 35 grams, coming in at
24.92 grams. The CS then asked Walker, “It should have a
quarter in it, too, right? An ounce and a quarter?” Walker re-
plied, “Give me the money and I’ll go ask him.” The CS re-
fused, gave the bag back to Walker, and told her to take it back
to Jackson and to ask him “if it was short of a quarter.” When
Walker returned, she told the CS, “Here is what we are going
to do. Give me fifteen [i.e., $1,500] … and then he’ll go get the
rest … .” The CS agreed and pulled his vehicle alongside Jack-
son’s. Walker took the $1,500 and walked over to Jackson’s
vehicle. Jackson then spoke directly to the CS, promising that
it would be “like 20 minutes” to pick up the crack cocaine and
that he would “be right there and back.” Jackson drove away
(by this time, it was 11:22 a.m.) and headed toward Rantoul,
Illinois, a town about 16 miles from Champaign. Jackson and
Walker also left the 904 North Fourth Street location.
As Jackson traveled to Rantoul, he spoke often with
Walker, providing updates on where he was and when he
would return. Jackson initially instructed Walker to meet him
at the 904 North Fourth Street location. At some point, how-
ever, Jackson changed the meeting location to 1501 North
4 No. 20-2408
Lincoln Avenue in Urbana, Illinois. The North Lincoln Ave-
nue location was about one mile from the 904 North Fourth
Street location.
Walker remained with the CS throughout the time Jackson
traveled to pick up the crack cocaine in Rantoul, and Walker
and the CS drove together to meet Jackson at the 1501 North
Lincoln Avenue location. While Jackson was away, the CS
eventually grew annoyed by how long Jackson took to re-
trieve the crack cocaine. At some point, the CS asked Walker
to cancel the deal. She refused.
At about 12:17 p.m., Jackson arrived at the 1501 North Lin-
coln Avenue location. Walker and the CS were already in the
parking lot. The CS handed Walker the remaining $300, and
Walker exited the car. She then walked over to Jackson’s car,
handed him the cash, and he handed Walker another bag of
crack cocaine. When Walker returned to the CS’s car, the CS
weighed the crack cocaine; this bag came in at 6.28 grams. In
total, the two sales amounted to 31.2 grams of crack cocaine.
Jackson drove away, and the CS drove Walker to a nearby res-
idence.
B
A grand jury indicted Jackson on one count of “knowingly
and intentionally distribut[ing] 28 grams or more of cocaine
base (‘crack‘) … [i]n violation of Title 21, United States Code,
Sections 841(a)(1) and (b)(1)(B)(iii).” R. 9. Jackson proceeded
to trial. In opening statements, Jackson admitted that he sold
crack cocaine to the CS on August 15, 2019. He then intro-
duced his theory of the case:
[T]he government has charged Jyshawn Jackson
with one count – one distribution – of 28 or more
No. 20-2408 5
grams of crack cocaine. But that is not what hap-
pened in this case. There were two transactions,
one in the morning and one in the afternoon;
and neither of them reached that threshold
amount of 28 grams of crack cocaine.
R. 80 at 23.The government did not object during Jackson’s
opening statement, but later that evening moved in limine to
exclude Jackson’s argument as duplicitous under Federal
Rule of Criminal Procedure 12(b)(3)(B)(i). 1 Jackson responded
in opposition, parroting the argument he now makes on ap-
peal that he “committed two separate acts of distribution on
August 15, 2019,” and that “only the facts as brought forth at
trial could vindicate” him. R. 43 at 5. The following morning,
the court initially granted the government’s motion, but upon
reconsideration, denied it. 2
At the close of the government’s evidence, Jackson moved
for acquittal under Federal Rule of Criminal Procedure 29.
Jackson reiterated his opening remarks, arguing that “the ev-
idence here shows, based on what the case law says is a single
versus a double transaction, that two transactions occurred,”
1 In relevant part, Rule 12(b)(3)(B)(i) states: “The following defenses, ob-
jections, and requests must be raised by pretrial motion if the basis for the
motion is then reasonably available and the motion can be determined
without a trial on the merits: … joining two or more offenses in the same
count (duplicity).”
2 In denying the motion, the district judge stated: “I have reconsidered,
and I’m going to change my ruling. I think ultimately it is a jury question
of fact. I feel very uncomfortable with the fact that it wasn’t brought to the
Court’s attention before trial; but taking everything into account and the
arguments that I’ve heard, I now believe my initial decision is wrong, so
I’m going to change it. So, that’s it.” R. 82 at 22.
6 No. 20-2408
and emphasizing that the “case law is very clear on [that]
point.” R. 83 at 57. After a brief exchange with defense coun-
sel, the district court denied the motion. 3
In closing arguments, Jackson again admitted that he sold
crack cocaine to the CS on August 15, 2019. Jackson then
turned back to the theory he debuted in opening:
There was one transaction. Then there was a
gap. And then there was a second transaction.
… This isn’t hiding. This is the law. And it’s
your duty as jurors to follow it. … Find Jyshawn
Jackson guilty of distributing crack cocaine in
two separate transactions, neither of which
reached the threshold of 28 grams.
R. 82 at 92–93.
The jury found Jackson guilty of distributing crack cocaine
and that he was responsible for more than 28 grams. See R. 48
(verdict form). On the verdict form, the jury was instructed to
mark whether it found Jackson guilty or not guilty “of the
3 The exchange, in full:
THE COURT: So if this goes forward, there’d be--the jury
would decide first the question of guilt and then go on to
decide the separate issue of the amount, correct?
MR. DRYSDALE: That is correct, Judge.
THE COURT: So is your motion directed to the basic find-
ing of guilty or to the amount?
MR. DRYSDALE: It’s directed towards the amount, Your
Honor.
THECOURT: Okay, thank you. The motion is denied.
R. 82 at 59.
No. 20-2408 7
offense of distribution of cocaine base (‘crack cocaine’) as
charged in Count 1 of the Indictment.” Id. The jury wrote
“Guilty” in the space provided. The district court then in-
structed the jury that, if it found Jackson guilty of that count,
it must also answer the following question: “Did the govern-
ment prove beyond a reasonable doubt that the quantity of
cocaine base involved in the offense was 28 grams or more of
mixtures or substances containing a detectable amount of co-
caine base?” Id. The jury was given the option of answering
“Yes” or “No.” The jury wrote “Yes” in the space provided.
Jackson did not make any objection to the verdict form.
Several days after the trial, Jackson renewed his Rule 29
motion. He made two principal arguments: (1) the govern-
ment did not meet its evidentiary burden to show Jackson dis-
tributed 28 grams or more of crack cocaine in one transaction;
and (2) the government failed to ask for a lesser-included of-
fense instruction, the remedy for which should be acquittal or
an amended judgment under Federal Rule of Criminal Proce-
dure 31(c).4 After hearing argument from Jackson and the
government and discussing the details of the drug sale with
both parties, the district court denied Jackson’s motion from
the bench. The court reasoned that the drug deal on August
15 was “one transaction” based on: (1) Jackson deciding to
structure the deal as one sale to the CS for 35 grams of crack
cocaine; (2) Walker staying with the CS while Jackson picked
up more crack cocaine; and (3) Jackson and Walker “main-
tain[ing] contact by text and by way of conversation” while
4 Rule 31(c)(1) provides, in relevant part, that “[a] defendant may be found
guilty of any of the following: (1) an offense necessarily included in of-
fense charged … .”
8 No. 20-2408
Jackson retrieved the crack cocaine. The court concluded that
the “jury properly found” the same. R. 85 at 13–14.
At sentencing, Jackson admitted that his trial strategy was
to “win a Rule 29 motion” because he believed the “govern-
ment mischarged the case” as involving one distribution of 28
grams or more of crack cocaine. R. 84 at 11. The district court
imposed a 120-month term of imprisonment, the statutory
minimum under 21 U.S.C. § 841(b)(1)(B). 5
II
Jackson first challenges the district court’s denial of his
Rule 29 motion. He largely reprises his argument to the dis-
trict court, asserting that his sale of crack cocaine to the CS on
August 15, 2019, occurred in two distinct transactions, each
totaling less than 28 grams. Jackson admits that the govern-
ment could have charged him with two § 841(a)(1) and
(b)(1)(C) counts. But because the government charged only
one count of distributing crack cocaine totaling 28 grams or
more under § 841(a)(1) and (b)(1)(B), it failed to meet its bur-
den to introduce evidence sufficient to satisfy each element of
the charged crime.
A
Before reaching the merits of Jackson’s argument, we ad-
dress the government’s position that Jackson’s argument de-
scribed above is, in fact, a duplicity argument and, because
Jackson strategically chose not to raise the argument before
5 At the time of Jackson’s offense, § 841(b)(1)(B)(iii) imposed a mandatory
minimum term of imprisonment of 10 years for a violation of § 841(a)(1)
involving 28 grams or more of crack cocaine when the defendant was pre-
viously convicted of a serious violent felony. The parties stipulated that
Jackson had one prior conviction for a serious violent felony.
No. 20-2408 9
trial as required under Federal Rule of Criminal Procedure
12(b)(3)(B)(i), he cannot rely upon it now. We agree with the
government that if Jackson were to rely on a duplicity argu-
ment on appeal, that argument would have been waived.
A charged count is “duplicitous if it charges two or more
distinct offenses within the count.” United States v. O’Brien,
953 F.3d 449, 454 (7th Cir. 2020) (quotation omitted). When
faced with a duplicity challenge, the court must first deter-
mine what Congress established as the unit of prosecution for
the statute at issue. See 1A CHARLES ALLEN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 143 (5th ed.
2021); Bell v. United States, 349 U.S. 81, 81 (1955). To do so,
courts look to the text of the statute. See United States v. Gray-
son Enters., Inc., 950 F.3d 386, 403 (7th Cir. 2020). Of course,
any statutory interpretation problem presents a legal ques-
tion. See, e.g., United States v. Burkos, 543 F.3d 392, 396 (7th Cir.
2008). So Jackson’s argument, as framed by the government,
presented a legal question for the court, not a question of fact
for the jury.
Federal Rule of Criminal Procedure 12(b)(3)(B)(i) provides
that the defense must raise a duplicity argument “by pretrial
motion if the basis for the motion is then reasonably available
and the motion can be determined without a trial on the mer-
its.” If the defendant fails to make such a motion before trial,
as here, it is “untimely.” FED. R. CRIM. P. 12(c)(1), (3). Even if
untimely, however, “a court may consider the defense, objec-
tion, or request if the party shows good cause.” Id.; see United
States v. Boliaux, 915 F.3d 493, 496 (7th Cir. 2019). Normally we
review a district court’s good-cause determination for abuse
of discretion. See United States v. McMillian, 786 F.3d 630, 636
(7th Cir. 2015). But where, as here, a good-cause
10 No. 20-2408
determination was not made due to defendant’s failure to
make a duplicity argument, “we ask whether the district court
would have abused its discretion had it denied a request to
present an untimely motion.” Id. at 636 n.4. The district court
does not abuse its discretion when the defendant cannot “ar-
ticulate[] any rationale that would support a good-cause de-
termination.” Id.; see Boliaux, 915 F.3d at 496.
Jackson does not suggest that he lacked the information
necessary to make a duplicity argument before trial, which
would ordinarily preclude a finding of good cause. The basis
upon which Jackson’s argument hinges (the indictment) was
filed two months before trial, providing him ample time to
advance the argument he raised in opening statements. A de-
fendant that denies he is making an argument leaves no room
for later attempts to justify his timing in raising it. We also
note that Jackson’s reasons for not raising his argument until
trial sound in strategy—he admitted to the district court that
he waited to raise his argument until after trial began in hopes
of acquittal under Rule 29. But that strategy, “deferring mat-
ters until it was too late for the prosecutor either to amend the
indictment or appeal from an adverse decision,” is precisely
the harm Rule 12 was “designed to block.” Boliaux, 915 F.3d
at 496. Accordingly, the district court would not have abused
its discretion had it denied an untimely request from Jackson
to make a duplicity argument. Thus, the government is cor-
rect that Jackson cannot pursue a duplicity argument on ap-
peal.
B
But Jackson insists that he is not making a duplicity argu-
ment. Rather, he challenges only the sufficiency of the govern-
ment’s evidence to prove he distributed more than the 28
No. 20-2408 11
grams of crack cocaine. If the government failed to meet its
burden on drug quantity, Jackson contends that
§ 841(b)(1)(B)(iii)’s mandatory minimums could not apply.
Under Federal Rule of Criminal Procedure 29(a), “the
court on the defendant’s motion must enter a judgment of ac-
quittal of any offense for which the evidence is insufficient to
sustain a conviction.” We review a district court’s denial of a
Rule 29 motion de novo, viewing the evidence in a light most
favorable to the government. See, e.g., United States v. Ingram,
947 F.3d 1021, 1024 (7th Cir. 2020); United States v. Friedman,
971 F.3d 700, 712 (7th Cir. 2020). Our de novo analysis is lim-
ited, however, to “the ‘legal’ question whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” Musacchio v.
United States, 577 U.S. 237, 243 (2016) (quotation omitted); see
Ingram, 947 F.3d at 1024. Accordingly, we overturn a district
court’s Rule 29 denial only if “no rational trier of fact could
have found the defendant guilty,” United States v. Doody, 600
F.3d 752, 754 (7th Cir. 2020), a burden for defendants that we
have described as “nearly insurmountable.” United States v.
Garcia, 580 F.3d 528, 535 (7th Cir. 2009) (quotation omitted).
Jackson’s argument is, ultimately, frivolous. The district
court properly instructed the jury that, to convict Jackson un-
der § 841(a)(1), the government must prove that he knowingly
distributed crack cocaine, and that Jackson knew that it was
some kind of controlled substance. 6 Jackson admitted both
6 Jackson did not object to the jury instructions. The district court errone-
ously instructed the jury—in no small part because the parties provided
the agreed-upon instruction—that a distribution offense under § 841(a)(1)
is a continuing offense. It is not. See United States v. Rowe, 919 F.3d 752,
12 No. 20-2408
elements, first throughout the trial’s proceedings and now on
appeal. The verdict form asked not only whether he was
guilty of the § 841(a)(1) offense but also whether “the quantity
of cocaine base involved in the offense [i.e., distribution of
crack cocaine on August 15] was 28 grams or more.” R. 48.
Again, Jackson admitted as much. No one questions whether
he passed 31 grams of crack cocaine to the CS on August 15.
So the only answer the jury could have given to the verdict
form’s special interrogatory was “Yes.” By Jackson’s own ad-
missions, then, the evidence at trial was more than sufficient
to sustain his conviction.
C
Jackson next proposes that, if the district court had
granted his Rule 29 motion, the government then would have
been required to move to amend the indictment under Fed-
eral Rule of Criminal Procedure 31(c) and request an instruc-
tion “on the amended § 841(b)(1)(C) count.” He also notes
that the government did not ask for a lesser-included-offense
instruction concerning drug weight thresholds under
§ 841(b)(1)(C), an error that Jackson suggests requires either
756–59 (3d Cir. 2019) (collecting cases). But Jackson did not object to that
instruction at trial and does not raise the issue on appeal, so we need not
address it. We note, however, that possession with intent to distribute un-
der § 841(a)(1) is a continuing offense. See United States v. Muhammed, 502
F.3d 646, 653 (7th Cir. 2007). Had Jackson made a duplicity argument pre-
trial, it is likely the government would have superseded its original indict-
ment to charge him with possession with intent to distribute 28 grams or
more of crack cocaine. But with that change in the charging document,
Jackson’s argument (that two distributions occurred, instead of one)
would have vanished. It appears that Jackson made a strategic decision to
couch his argument as a sufficiency challenge rather than address duplic-
ity. But that argument fails.
No. 20-2408 13
acquittal under Rule 29 or remand to the district court for en-
try of judgment of conviction under § 841(b)(1)(C).
Jackson’s first argument is easily dispatched. It is prem-
ised upon a counter-factual—the district court’s hypothetical
grant of his Rule 29 motion—without which the remainder of
the argument makes little sense.
His second argument, too, lacks merit. As a preliminary
matter, Jackson attempts to foist a new requirement on the
government, namely that it must request lesser-included-of-
fense instructions in circumstances like those presented here.
But Jackson only offers policy arguments in support, and we
have found no legal basis for such a rule. Accordingly, we de-
cline his invitation to create that novel requirement. Even so,
and assuming without deciding that § 841(b)(1)(C) is the
lesser-included offense of § 841(b)(1)(B), the jury was permit-
ted to find a lesser drug quantity. It did not. The verdict form
first asked whether the jury found beyond a reasonable doubt
that Jackson distributed crack cocaine. Only if the jury an-
swered that question “Yes” was it instructed to move to a sec-
ond question, asking whether the drug quantity Jackson dis-
tributed was over 28 grams. As instructed, the jury could have
answered the first question “Yes” and the second question
“No,” finding the government did not meet its burden as to
the 28-gram drug weight.
We AFFIRM Jackson’s conviction and sentence.