United States v. Jackson, 14-3712

• Citation: 849 F.3d 540
• Decision Date: 24 February 2017
• Docket Number: No. 14-3712,14-3712
• Parties: UNITED STATES of America v. Dominique JACKSON, a/k/a Dominique Green Dominique Jackson, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

849 F.3d 540

UNITED STATES of America

v. Dominique JACKSON, a/k/a Dominique GreenDominique Jackson, Appellant

No. 14-3712

United States Court of Appeals, Third Circuit.

Argued December 7, 2016

Filed: February 24, 2017

Donovan J. Cocas, Esq. (argued), Assistant U.S. Attorney, Pittsburgh, PA, Attorney for Appellee .

F. Clinton Broden, Esq. (argued), Broden & Mickelsen, Dallas, TX, Attorney for Appellant .

BEFORE: FISHER^* , KRAUSE, and GREENBERG, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on Dominique Jackson's appeal from his conviction for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Jackson's principal contention is that the District Court erroneously denied his pretrial motions to suppress evidence derived from what he claims were unlawfully intercepted cellphone calls. In addition he argues that the Court made prejudicial plain errors at his trial.

Before trial, Jackson moved to suppress evidence of co-conspirators' cellphone calls intercepted as authorized by district court orders. These interceptions, pursuant to Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, governing wiretaps, comprised a significant amount of the evidence at trial, though Jackson was a participant in only a small number of calls. A Pennsylvania state court had authorized wiretaps sought by state law enforcement officers and information obtained from those wiretaps was used in affidavits when federal wiretap orders were sought. Jackson challenges the district court authorized wiretaps because he contends that the state court lacked jurisdiction to permit the underlying wiretaps of cellphones outside of Pennsylvania. In this case intercepted calls were placed and received outside of that state, even though the calls in part concerned cocaine trafficking in Pennsylvania. Accordingly, Jackson contends that the evidence obtained through the federal interceptions was the fruit of illegal conduct and should have been suppressed.¹

Jackson also claims that during the trial there were three unchallenged prejudicial plain errors: (1) the admission of a case agent's testimony interpreting the contents of certain telephone calls; (2) the admission of co-conspirators' testimony about their convictions and guilty pleas for the same crime; and (3) the prosecutor's mention of a co-conspirator's Fifth Amendment right not to testify when she was prompted to identify the evidentiary rule that permitted the admission into evidence of what otherwise would have been inadmissible hearsay. Jackson urges that those errors separately and cumulatively require reversal of his conviction.

We conclude that inasmuch as the District Court did not err in denying Jackson's motions to suppress the wiretap evidence and his other contentions of error, even if correct, would not make claims rising to the level of plain errors entitling him to relief, we will affirm Jackson's conviction.

II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.

"We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court's properly found facts." United States v. Coles , 437 F.3d 361, 365 (3d Cir. 2006). To the extent that Jackson failed to object to any of the issues during the trial that he raises for the first time on appeal, our review is for plain error. See Fed. R. Crim. P. 52(b) ; United States v. Christie , 624 F.3d 558, 567 (3d Cir. 2010). When exercising such a review, an appellate court may evaluate whether there has been "[a] plain error that affects substantial rights." Fed. R. Crim. P. 52(b). To be a "plain" error, the error must be "clear under current law." United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Moreover, the error must involve substantial rights and prejudice the defendant by "affect[ing] the outcome of the district court proceedings." Id. , 113 S.Ct. at 1778. The plain error rule "leaves the decision to correct the forfeited error within the sound discretion of the court of appeals." Id. at 732, 113 S.Ct. at 1776. A court of appeals will decline to grant relief on a plain error basis unless the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted).

III. BACKGROUND

A. Procedural History

A grand jury indicted Jackson and seven co-defendants on one count of "conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine from in and around July 2010 and continuing thereafter to on or about October 7, 2010." Supp. App'x at 487. Jackson was the only one of the eight defendants who went to trial. Before his trial, he submitted multiple motions to suppress wiretap evidence of intercepted cellphone conversations, but the District Court denied of all these motions. The jury found Jackson guilty, and on July 24, 2014, the Court sentenced him to a 135–month custodial term to be followed by five years of supervised release.²

B. The Evidence at Trial

The evidence at trial mainly was comprised of: (1) numerous cellphone calls intercepted in part pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; (2) testimony from case agents who engaged in surveillance and testimony from Jackson's co-conspirators Dietrick Bostick and Christopher Stanley; and (3) documents such as hotel, plane, and bus receipts that corroborated witness testimony.³

This case grew out of a joint federal and state investigation. One of the case agents, Detective Shane Countryman of the Allegheny County Sheriff's Office, who was assigned to the Greater Pittsburgh Safe Streets Task Force with the Federal Bureau of Investigation, testified at length about the results of his investigation. See Supp. App'x at 67. He detailed an initial investigation into a street-level drug dealer and explained how that investigation led to wiretaps of cocaine suppliers Damell Gaines and Dietrick Bostick.⁴ Id. at 79–81. After the FBI determined that a co-conspirator, Arthur Gilbert, supplied Bostick with cocaine, it obtained an order to wiretap Gilbert's phone as well. Id. at 80–81.

Co-conspirator Bostick testified at the trial describing his work as a middleman in the cocaine distribution network during the time period in which Jackson was engaging in cocaine distribution and for which Jackson was indicted and convicted. Bostick also interpreted a number of the calls to which he was a party. See id. at 291. He informed the jury that he used his Monroeville, Pennsylvania, house to hold cocaine for out-of-state distributors. See id. at 240, 282. He testified that about twice a month he received between five and 20 kilograms of cocaine from Gilbert, who was Jackson's cousin. Id. at 252–55, 337. Gilbert told Bostick that he paid between $24,600 and $25,700 per kilogram of cocaine. Id. at 259. Bostick, in turn, paid Gilbert around $30,000 per kilogram and sold each kilogram for around $34,500 to a number of distributors, including Gaines. Id. at 259–60, 264.

Both Gilbert and co-conspirator Christopher Stanley informed Bostick that the cocaine had been obtained from an individual named "Dom" in Texas. Id. at 255. Bostick testified that he understood that his payments went to "Dom," that "Dom" was Jackson, and that he had met Dom once in a strip club in Atlanta. Id. at 254, 263–65, 272. An intercepted call supporting Bostick's testimony showed Gilbert telling Bostick that "I just heard from, uh, Dom, he is just, uh, said everything was alright." Id. at 644. Bostick stated that Jackson in July 2010 travelled to the Pittsburgh area, staying in the Doubletree Hotel in Monroeville. Id. at 261–62. Bostick testified that he took Gilbert to the same hotel. Id. Bostick admitted that he did not deal directly with Jackson even though he participated in the distribution chain involving Jackson. Id. at 283.

Bostick testified that from July to October 2010 co-conspirators Arthur Brown, Melinda Adams, Philip Gilbert, and Shari Williams once or twice a month delivered between one to three kilograms of cocaine to him in Pennsylvania that they had obtained in Texas. Id. at 256, 261–62. Bostick stated that these persons smuggled the cocaine in their pants when travelling by plane or Greyhound bus. Id. at 257. When Bostick received the cocaine he paid the persons who delivered it. Id. at 262–63. On the day he was arrested, Bostick was expecting to receive a shipment from Brown and Williams. Id. at 261.

Co-conspirator Christopher Stanley testified about his experience trafficking cocaine with Jackson. He detailed a number of instances during which he acted at Jackson's direction as the intermediary between Jackson and Bostick. One such instance was on June 27, 2010, when Jackson directed Stanley to fly to Pittsburgh after two associates already had delivered cocaine to Bostick for Jackson. Id. at 325. Jackson told Stanley to call Bostick to obtain approximately $34,800 as payment for the cocaine. Id. at 325–29. Stanley subsequently travelled to Bostick's house in Monroeville and collected the cash. Id. at 327. Stanley and other persons with him stayed at the Doubletree Hotel in Monroeville that night. Id. On June 28, 2010, Stanley and the others hid the cash on their bodies and, at Jackson's direction, transported the cash to Dallas. Id. at 326, 330–31.

Jackson then directed Stanley on July 1, 2010, to fly back to Pittsburgh to transfer cocaine to Bostick. Id. at 332–33. Jackson gave one kilogram of cocaine to Stanley and his associate and directed Stanley to book a room for Jackson in Pittsburgh. Id. Upon arriving in Pittsburgh, Stanley and his associate went to the Doubletree Hotel in Monroeville, where they delivered the...