778 F.2d 933 (2nd Cir. 1985), 56, United States v. Jackson

Docket Nº:56, Docket 85-1102.
Citation:778 F.2d 933
Party Name:UNITED STATES of America, Appellee, v. Velleeta JACKSON, Defendant-Appellant.
Case Date:December 03, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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778 F.2d 933 (2nd Cir. 1985)

UNITED STATES of America, Appellee,


Velleeta JACKSON, Defendant-Appellant.

No. 56, Docket 85-1102.

United States Court of Appeals, Second Circuit

December 3, 1985

Argued Sept. 3, 1985.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 6, 1986.

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Thomas M. O'Brien, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City), for appellant.

Thomas H. Roche, Asst. U.S. Atty., E.D. New York, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Allyne R. Ross and Jane Simkin Smith, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y.), for appellee.

Before FRIENDLY, PIERCE and PRATT, Circuit Judges.

FRIENDLY, Circuit Judge.

Appellant Velleeta Jackson, Rudolph Whyte and David Phillips were charged in a two-count indictment with conspiring between January and March, 1984, to possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 846, and with possession of heroin with intent to distribute on March 1, 1984, in violation of 21 U.S.C. Sec. 841(a)(1). The jury convicted Whyte on both counts, acquitted Phillips of possession but could not reach a verdict on conspiracy, and acquitted Jackson of conspiracy but could not reach a verdict on possession. A superseding indictment named Phillips alone in the conspiracy count and Jackson alone in the possession count. Jackson and Phillips were retried together on this indictment, and the jury returned verdicts of guilty on both counts.

Jackson's appeal raises two principal issues. One concerns the admission of evidence seized and of statements made during a search of her apartment. The other concerns the admission of evidence similar to that given at her first trial, allegedly in violation of the principle of collateral estoppel as required to be applied in criminal trials, see, e.g., Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Although these contentions require thorough discussion, we conclude that they, as well as Jackson's contention that it was error to deny a severance, are ultimately lacking in merit and therefore affirm Jackson's conviction.

The indictment sprang from the arrest of Maxwell Onunkwo and his wife at Atlanta International Airport on February 28, 1984, as they attempted to import heroin into the United States from Nigeria. Onunkwo admitted his guilt and agreed to cooperate with the Government, which promised that his sentence would not exceed five years and that his wife would be sent back to Nigeria.

Onunkwo testified at the first trial that in late January 1984 he bought 80 grams of heroin for $1500 in Nigeria to sell in New York. On arrival at Kennedy Airport later that month he asked a man, to wit, defendant Phillips, who looked Nigerian, to help him make a telephone call to that country, which the man did, paying for the call by use of his own credit card. Onunkwo asked Phillips if he could help him sell the heroin, and Phillips agreed to do so. After a number of unsuccessful attempts to find buyers, Phillips introduced Onunkwo to a woman named Marsha who appeared to have many contacts. After several more unsuccessful tries, Marsha remembered a friend who she thought would pay cash for the heroin. They went to the apartment of appellant Jackson. After giving them some drinks, Jackson said her husband was

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not at home but that they would buy the heroin. Five minutes later the "husband," defendant Rudolph Whyte, returned. Whyte tasted the heroin and approved it, indicating his desire to make a substantial purchase. No agreement as to price was reached at the time because Phillips wanted to consult with others about this.

On their next visit to Jackson's apartment to speak to Whyte, the latter took Phillips and Onunkwo into a bedroom and shut the door. After some haggling, they agreed on a price of $200 per gram. Having borrowed a scale from Whyte, Phillips and Onunkwo later measured 55 grams of heroin at their apartment, put it into a cellophane bag, and took it to Whyte. They again went into a bedroom and locked the door. Whyte measured and approved the amount but said he would need a little time to make the necessary sales to pay for it because he had lost his old customers after his former source of supply had dried up, and he needed to let them know that he was back in business. Whyte asked Phillips and Onunkwo to be patient and to accept payment on a daily basis as sales were made.

Phillips and Onunkwo returned the next day. Whyte told Jackson to go into the bedroom and get the money. She entered the bedroom and came back with $1100 which she gave to Whyte who gave it to Phillips. Phillips and Onunkwo came back the next day. Whyte again told Jackson to go into the bedroom and get the money; she returned with $640 which she gave to Phillips. This process was repeated the following day, with Phillips receiving $800 that had been retrieved from the bedroom by Jackson, and again within a few days thereafter, Jackson this time retrieving $300 for Phillips. Several days later, when Phillips and Onunkwo came to the apartment for their fifth payment, Whyte paid them $200 from his pocket.

On the second of these occasions, Onunkwo and Phillips spoke to Jackson immediately upon their arrival, when Whyte was not present. She offered to go to Nigeria with Onunkwo and bring back heroin concealed in her vagina. When Whyte arrived and heard of Jackson's proposal, he said that he did not want her to talk like that or to do anything like that.

On Onunkwo's final visit with Phillips to see Whyte before leaving to return to Nigeria, Whyte advised Onunkwo to come with a woman the next time he smuggled heroin from Nigeria and to use the Atlanta airport rather than Kennedy. With Jackson again retrieving the money from the bedroom, Whyte gave Phillips and Onunkwo another $5000. After paying Phillips a $2000 commission, Onunkwo departed for Nigeria, with Phillips instructing him to return with at least 200 grams of heroin and to use a woman as a courier. Onunkwo carried out these instructions, resulting in the arrest of himself and his wife in Atlanta on February 28, 1984, and in his agreement to cooperate with the Government, as stated at the outset.

Onunkwo traveled to New York with two DEA agents. On March 1, 1984, he made a tape-recorded telephone call informing Whyte of his arrival. Whyte instructed him to come immediately to Jackson's apartment. Onunkwo went to the apartment, wearing a tape-recording device and accompanied by Agent Murray, whom he introduced to Whyte as his brother Ozzie. After Whyte let them in, Onunkwo said he wanted some money, and Whyte said he had $500 for him, fetching it from a bedroom. Onunkwo gave Whyte a parcel of heroin which had been provided by the DEA agents, and Whyte returned to the bedroom to weigh the heroin. Agent Murray opened the apartment door and, in accordance with a prearranged signal from him, other agents entered the apartment with guns drawn and arrested Whyte and placed handcuffs on him.

The agents, who had been informed by Onunkwo that others besides Whyte were involved in the transactions, and that Whyte resided in the apartment with his girlfriend and two children, conducted what the Government calls "a brief security check for any other persons in the apartment." In the course of this security

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check, Special Agent Featherly entered the master bedroom with his gun still drawn and discovered Jackson, wearing a bathrobe, on the bed. Featherly yelled "Police" and asked Jackson not to move until he had pulled up a blanket that was covering her to see if she had any weapons in her hands. After Jackson slowly brought up her hands to reveal that there were no weapons, Featherly asked her to get up, and acceded to her request that she be permitted to get her clothes and dress in the bathroom, which the agents first checked without result. When she emerged and inquired what was going on, Featherly told her they were federal narcotics agents and had just arrested Whyte. He then advised her of her Miranda rights, using a DEA card, and asked permission to search the apartment, making a full explanation of her right to refuse to consent and to stop the search at any time. The only restriction placed on Jackson's freedom to move about the apartment was that she could not open drawers or reach for anything quickly. Jackson gave permission for the search, said "before you break up the place, let me show you where he keeps it," walked over to a dresser, opened the top drawer, and pointed out a lady's shoe box. This contained glassine envelopes, mixing bowls, a strainer, measuring spoons, mannitol, and two packages of heroin, one of which contained 24.17 grams of heroin with a purity of 50.5% and the other of which contained 1.61 grams of heroin with a purity of 2.7%. The paraphernalia, which Agent Featherly testified to be tools of the narcotics trade, contained traces of heroin and cocaine. When Featherly asked where the heroin had come from, Jackson replied that Onunkwo had brought it, explaining that he had been in the apartment on two other occasions and telling of her offer of her services to bring heroin from Nigeria in her person.

Upon searching further, the agents found the recently delivered package of heroin, containing one gram of heroin with a purity of 61.2% and 127.38 grams of cornstarch, and a scale on the floor of the bedroom. Featherly testified that after the completion of the initial security check, the DEA officers reholstered their guns. Their more thorough search of the apartment with Jackson's consent turned up little else. Featherly also testified that heroin in the quantities and with the degrees of purity found in the shoebox were suitable for sale in some cases to wholesale distributors and in others to heroin users.

When Jackson and Phillips were retried together on the possession and conspiracy counts,...

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