U.S. v. Jackson

• Decision Date: 28 May 1996
• Docket Number: No. 95-30211,95-30211
• Parties: 96 Cal. Daily Op. Serv. 3758, 96 Daily Journal D.A.R. 6110 UNITED STATES of America, Plaintiff-Appellee, v. Darryl E. JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1154

84 F.3d 1154

96 Cal. Daily Op. Serv. 3758, 96 Daily Journal

D.A.R. 6110

UNITED STATES of America, Plaintiff-Appellee, v. Darryl E. JACKSON, Defendant-Appellant.

No. 95-30211.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1996.

Decided May 28, 1996.

Thomas M. Gannon, United States Department of Justice, Washington, DC, and Ronald W. Skibbie, Assistant United States Attorney, Spokane, Washington, for plaintiff-appellee.

Brian C. O'Brien, Dorn & O'Brien, Spokane, Washington, for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington, Fred L. Van Sickle, District Judge, Presiding. D.C. No. CR-94-00284-FVS.

Before: LAY, ^* WRIGHT and LEAVY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge.

Jackson was convicted of possession of cocaine base with intent to distribute and conspiracy to possess cocaine base with intent to distribute. On appeal he complains of several trial errors and argues that his sentence is unconstitutional. We affirm.

FACTS

In October 1994, the Spokane police orchestrated several drug transactions in which their confidential informant ("CI") bought crack cocaine from Steven Brown. On October 19, Brown's girlfriend, Angela Brasch, dropped him off at a gas station for another transaction. The CI was expecting Brown to give him crack in exchange for a handgun, but Brown demurred, saying he had to replenish his drug supply. He offered instead to give the CI cash for the gun. They made the trade, then Brown was arrested. He told the police they could find Brasch at Tracy Nowacki's apartment.

The police found Brasch sitting with Jackson in Brown's car outside Nowacki's apartment. While the police watched, Jackson went into the apartment and came out again. After he returned, they searched the car and found a bag containing 4.3 grams of cocaine. They arrested Brasch and Jackson.

With Nowacki's consent, the police searched the apartment. They found 852 grams of crack cocaine behind the freezer compartment of her refrigerator. They also found a cell phone, a pager, a black bag containing $2,000 and a pager receipt in the name of John Davis (an alias Jackson used); $6,400 in a denim vest in the closet, and a digital scale.

Brown, Brasch and Jackson were indicted for conspiracy to possess cocaine base with intent to distribute and possession of cocaine base with intent to distribute. Brown and Brasch pleaded guilty and testified against Jackson.

At trial, Nowacki testified that Jackson lived with her and her boyfriend Kenny Conway from time to time. He put a bag of crack cocaine in her refrigerator in December, 1993. He and Conway (who was Jackson's cousin and was in jail at the time of Jackson's arrest) regularly took drugs from the refrigerator, weighed them and bagged them. Nowacki drove Jackson to several drug transactions while he stayed with her. He had a key to the apartment and came by regularly to pick up crack. Even when he was not sleeping at her apartment, he kept drugs there, along with the black bag in which the police found the money and pager receipt. She also testified that on October Brasch testified that she dated Jackson from January to March, 1994. When they broke up, she took some of his belongings, including five ounces of crack. She said that when Jackson learned of the theft, he threatened to kill her or members of her family unless she sold drugs for him to work off her debt. She made several sales between March and October. She told the jury that on the day of their arrest she was meeting Jackson to pick up a quarter-ounce of cocaine for Steve Brown.

19, just before his arrest, Jackson came to her apartment and got something out of the refrigerator.

Jackson testified at trial. He claimed to have no knowledge of the cocaine in Nowacki's refrigerator. He said he was meeting with Brasch, who was pregnant, to discuss arrangements for their unborn child.

Jackson was convicted of conspiracy to possess 4.3 grams of cocaine base with intent to distribute, and of possession of 856.3 grams with intent to distribute. He was sentenced to 188 months.

DISCUSSION

I. "Immunized Witness" Instruction

Nowacki was never arrested in connection with the cocaine found in her apartment. In return for her cooperation, the government paid her $700 for relocation expenses. The court was prepared to instruct the jury that, because Nowacki received "compensation" from the government, it should "examine Miss Nowacki's testimony with greater caution than that of ordinary witnesses."

The defense argued that in addition to paying her, the government implicitly immunized Nowacki, promising that she would not be prosecuted if she testified that the drugs belonged to Jackson. Defense counsel suggested an instruction that would identify Nowacki as an immunized witness and caution the jury to examine her testimony with greater care and consider her motive to falsify.

The court found that there was no evidence in the record that Nowacki had been immunized. The judge agreed, over government objection, to replace the word "compensation" in the instructions with the word "benefits" so as to "allow both of you to argue your theories of the case." Jackson argues that this instruction was insufficient to permit him to present his theory that Nowacki was effectively immunized and had a motive to implicate him. ¹

"It is settled law that a defendant is entitled to have the judge instruct the jury on his theory of the case, provided that it is supported by law and has some foundation in the evidence." United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir.1995) (quotations omitted). We review for abuse of discretion the district court's "determination of the factual basis for a requested instruction," as well as the "form in which the court has expressed the defendant's theory of the case." Id.

This record reveals no evidence that Nowacki was immunized, and we therefore find no error in the court's instruction. Contrary to Jackson's argument, the word "benefits" gave his implicit immunity theory the weight it deserved. ²

II. Prosecutorial Vouching

Jackson contends that the prosecutor vouched for Nowacki's credibility in his closing argument. Because there was no objection to his comments, we review for plain error. We reverse only if the error is plain, affects substantial rights, and "seriously affects the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (quotation and alteration omitted).

"As a general rule, a prosecutor may not express his ... belief in the credibility of government witnesses. Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony." United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993) (citations omitted). But the prosecutor must have "reasonable latitude in fashioning closing arguments," and can make reasonable inferences based on the evidence. Id.

Jackson points to two incidents of vouching. In one, the prosecutor told jurors, "I imagine the police officers would have been a little bit upset if it was found out later that Miss Nowacki had been lying to them [about ownership of the cocaine]." This was not vouching. It was a reasonable inference from the evidence. The police had questioned Nowacki and relied on her account. The prosecutor gave no personal assurance that she was telling the truth and never suggested that the police would be able to determine whether she lied. Cf. United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980) (improper for prosecutor to tell jury that police were monitoring the trial to determine that witness testified truthfully); United States v. Shaw, 829 F.2d 714, 717 (9th Cir.1987) (finding vouching where prosecutor implied that he would be able to determine whether witness was testifying truthfully).

The prosecutor also told jurors that "[t]here was no benefit of lack of incarceration to Ms. Nowacki in this case. She's not guilty of a crime." He argued that she did not possess the cocaine under the legal definition of "possession" laid out in the jury instructions.

Even if we were to hold that these comments were vouching, we would not reverse because they did not "seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 736, 113 S.Ct. at 1779. In deciding whether to reverse for vouching, we consider the form of the statement, the degree of personal opinion asserted, the seriousness of the vouching, the timing, the importance of the witness and the vouching to the case, the extent to which the witness's credibility was attacked and any curative instructions. Necoechea, 986 F.2d at 1278. Few of these factors favor Jackson.

The prosecutor's remarks were an invited response to the defense's attempt to paint Nowacki as an uncharged accomplice. United States v. de Cruz, 82 F.3d 856, 863 (9th Cir.1996) (holding prosecutor's improper rebuttal argument to be harmless in part because it was an invited response). There was abundant evidence against Jackson, and although Nowacki was an important witness, her testimony was corroborated in most respects by physical evidence and by Brasch. The jury was instructed to view her testimony with caution and was told that the arguments of counsel were not evidence. There was no plain error in allowing this argument.

III. Evidence of Other Acts

Jackson moved the court to prohibit any mention of his alleged membership in the Crips gang, his prior arrest for cocaine possession at a notorious nightclub and any prior drug sales. After hearing argument, the court ruled that his gang membership and prior arrest could not be mentioned but that incidents of prior drug sales could be admitted "as [they] relate[ ] to issues concerning [the conspiracy...