United States v. Larry Jackson ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2657
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the Northern
Larry Jackson, Jr., * District of Iowa.
*
Defendant - Appellant. *
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Submitted: January 11, 2000
Filed: February 18, 2000
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Before WOLLMAN, Chief Judge, FLOYD R. GIBSON and MURPHY, Circuit
Judges.
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MURPHY, Circuit Judge.
Larry Jackson was convicted by a jury of conspiracy to distribute crack cocaine
and marijuana and of distributing crack cocaine and marijuana in violation of 21 U.S.C.
§§ 841 and 846 and was sentenced by the district court1 to 324 months imprisonment.
He now appeals from the judgment on the basis of insufficiency of the evidence,
improper admission of certain evidence, failure to grant his motions for a continuance
and for a new trial, and ineffective assistance of counsel.
1
The Honorable Michael J. Melloy, Chief Judge, United States District Court
for the Northern District of Iowa.
The evidence at trial indicated that Jackson had sold drugs in and around
Dubuque, Iowa since 1993. Witnesses testified that Jackson regularly traveled to
Indiana and Wisconsin to purchase large quantities of cocaine and marijuana to take
back to his apartment in Dubuque, Iowa, and that he weighed, cut, and repackaged the
drugs for sale. Jackson sold drugs to drug users and to other dealers, drawing a
substantial number of people into the conspiracy over the years. The government
introduced evidence that Jackson met with other Iowa dealers to negotiate the areas in
which each could sell drugs and that he was in business with at least nine other co-
conspirators in Iowa, including Leon Durrah. A search of his apartment in Dubuque
turned up marijuana, pagers, a handgun, large sums of currency, and an electronic
scale. After he was charged with the offenses in this case, police stopped a vehicle
near Milwaukee, Wisconsin in which he and Leon Durrah were passengers; two pounds
of marijuana were found in the trunk.
After trial Jackson moved for a judgment of acquittal on the basis of insufficient
evidence and for a new trial on the basis that the court should have granted a
continuance and excluded evidence of the Wisconsin stop. The court denied the
motions but permitted Jackson to replace his counsel. His new lawyer filed a second
motion for a new trial, this time alleging ineffective assistance of trial counsel. The
district court denied this motion as well.
Jackson challenges the sufficiency of the evidence supporting his convictions.
We reverse for insufficient evidence only if, viewing the evidence in the light most
favorable to the verdict, no reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Ryan, 186 F.3d 901 (8th Cir. 1999).
Jackson argues that a key witness against him, Climmie Jones, was not credible, but
credibility is a matter for the jury to decide. See United States v. Cunningham, 83 F.3d
218, 222 (8th Cir. 1996); United States v. Gordon, 974 F.2d 97, 100 (8th Cir. 1992).
Jackson claims that there was no direct evidence connecting him to the conspiracy, but
a conviction may rest on indirect or circumstantial evidence. See United States v.
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Copple, 827 F.2d 1182, 1187 (8th Cir. 1987). Circumstantial evidence can be as
probative as direct evidence to prove a conspiracy. See United States v. American
Grain & Related Indus., 763 F.2d 312, 315 (8th Cir.1985). The government produced
ample evidence linking Jackson to the conspiracy to distribute drugs, and the evidence
was sufficient to support the convictions. See United States v. Oates, 173 F.3d 651,
660 (8th Cir. 1999); United States v. Mendoza, 121 F.3d 441, 443 (8th Cir. 1997);
United States v. Delgado, 914 F.2d 1062, 1066 (8th Cir. 1990).
Jackson argues that the district court abused its discretion by admitting evidence
of the Wisconsin stop of Jackson and co-conspirator Leon Durrah. During a routine
traffic stop, police found two pounds of marijuana in the car in which Durrah and
Jackson were passengers. In admitting the evidence under Fed. R. Evid. 403 the court
said it was "part of the continuing conspiracy." Jackson argues that the evidence was
inadmissible under Rule 404(b), that it was other crimes evidence and more prejudicial
than probative. Acts that are closely related in time and nature to the charged conduct
may be part of an ongoing conspiracy rather than separate crimes. United States v.
Bass, 121 F.3d 1218, 1221-22 (8th Cir. 1997). The evidence of the Wisconsin stop
revealed Jackson's continuing involvement with co-conspirator Durrah, traveling in a
state which was a source for drugs for the conspiracy and in a vehicle with a large
amount of marijuana. The evidence was probative and the district court did not abuse
its discretion by admitting it under Rule 403, but it could also have been admitted under
Rule 404(b) as evidence of a common scheme or plan, knowledge, and intent. United
States v. Alaniz, 148 F.3d 929, 934-35 (8th Cir. 1998).
Jackson complains that he should have been granted a continuance when the
government indicated it would introduce evidence about the Wisconsin stop. The
government learned about the evidence on the eve of trial. On the first day of trial, the
judge delayed jury selection for an hour to allow defense counsel to discuss the
situation with Jackson and to learn from him what had happened. When the evidence
was introduced three days later, Jackson's attorney conducted a competent cross
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examination of the government witnesses and made timely objections, successfully
excluding some evidence. Jackson has not shown that he was prejudiced by the denial
of a continuance, see United States v. Heine, 920 F.2d 552, 555 (8th Cir. 1990), and
the court did not abuse its discretion by denying his motion. See United States v.
Sheehy, 670 F.2d 798, 800 (8th Cir. 1982); Beran v. United States, 580 F.2d 324, 327
(8th Cir. 1978).
Jackson asserts that the district court erred in denying his motion for a new trial
based on a claim of ineffective assistance of counsel. We review the district court's
decision for abuse of discretion. Peerless Corp. v. United States, 185 F.3d 922, 927
(8th Cir. 1999). The court denied the motion on the grounds that it was untimely (nine
months after trial) and that the claim should be addressed in a collateral action under
28 U.S.C. § 2255. Federal Rule of Criminal Procedure 33 requires that a new trial
motion on grounds other than newly discovered evidence be made within seven days
after verdict or that an extension be obtained within that period. Jackson's motion was
untimely. Moreover, § 2255 is normally the appropriate means to raise claims of
ineffectiveness of counsel. United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994).
The district court did not abuse its discretion in denying the motion. See United States
v. Holy Bear, 624 F.2d 853, 856 (8th Cir. 1980).
Jackson now asks this court to consider his ineffective assistance of counsel
argument. The record is not sufficiently developed for the argument to be considered,
however. See Jennings, 12 F.3d at 840.
Accordingly, the judgment of the district court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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