U.S. v. Jackson

• Decision Date: 12 October 1995
• Docket Number: No. 94-3718,94-3718
• Citation: 64 F.3d 1213
• Parties: UNITED STATES of America, Appellee, v. Allen Scott JACKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1213

64 F.3d 1213

UNITED STATES of America, Appellee, v. Allen Scott JACKSON, Appellant.

No. 94-3718.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1995.

Decided Sept. 5, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 12, 1995.

Alfredo Parrish, Des Moines, IA, argued, for appellant.

Jamie D. Bowers, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Allen Scott Jackson appeals his convictions and sentence for conspiracy to distribute and possession with intent to distribute crack cocaine. He argues that (1) the evidence for conviction was insufficient as a matter of law, (2) the court erred in not severing his trial from that of co-defendant Michael Stokes, (3) Stokes's counsel improperly commented on Jackson's failure to testify, (4) 21 U.S.C. Sec. 841 (1988), which imposes harsher sentences for "cocaine base" than for "cocaine," is ambiguous in its use of those terms, and he should benefit from the rule of lenity, and (5) the District Court ¹ erred in applying the Sentencing Guidelines. We affirm.

I.

On April 1, 1994, a package was sent from Las Vegas, Nevada to Des Moines, Iowa, deliverable to a "Steve White." While the package label indicated that White lived at 2117 Kingman, the shipping order listed 2717 Kingman, No. 3, as the proper address. United Parcel Service (UPS) attempted to deliver to the first address, only to find that it did not exist. Using standard operating procedures, UPS staff opened the package in search of a proper address only to find that it contained a duct-taped ball of what appeared to be contraband drugs, specifically crack cocaine. The police were notified, and after determining that crack cocaine was apparently involved and that 2717 Kingman was the intended destination, a search warrant was obtained for Apartment 3 at that address. The package, with the addition of a beeper, was rewrapped. Law enforcement officials posing as UPS workers then delivered the shipment. At the door of the apartment, Michael Stokes identified himself as Steve White, and signed for the package in that name. The residence was kept under surveillance and about two hours later, when the beeper indicated that the package had been opened, the police approached the house and entered the apartment, pursuant to their warrant. At that time both Stokes and Jackson were found to be present. Officer Tad Cobine, who looked into the apartment through an opening in the window-shades, testified that he saw Jackson standing facing the counter on which the package that had contained the crack cocaine subsequently was found. When the apartment door was forced, Cobine observed Jackson run toward the area of a back door and kitchen closet, in which a duct-taped ball of crack was recovered. In a subsequent statement, paralleled by his testimony at trial, Stokes said that the package had been delivered to his apartment at Jackson's request, that Jackson had told him it would contain money that Jackson did not want his wife to know about, and that Jackson had agreed to pay Stokes $100 to receive the package. According to Stokes, he did not unwrap the package when it arrived, but contacted Jackson, who came by the apartment and opened the parcel.

Jackson and Stokes were charged with one count of conspiring to distribute crack cocaine, a violation of 21 U.S.C. Sec. 846 (1988), and with one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1988). Testimony at trial showed that telephone toll records from Jackson's place of employment and his home involved calls to the same Las Vegas number as that phoned by Stokes on several occasions. Stokes elected to testify; Jackson did not. Analysis of the substance found in the package established that it was 163.17 grams of crack cocaine. The jury returned a verdict acquitting Stokes, but finding Jackson guilty on both counts.

At his sentencing hearing, Jackson offered transcripts of the testimony of three witnesses, Warren James Woodford, Dr. Clinton D. Kilts, and Dr. John Marshall Holbrook, who testified in United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994), appeal pending (No. 95-8057 11th Cir.), to support his argument that cocaine base and cocaine are the same substance. See Brief of Defendant-Appellant at 3. This testimony, however, was at best equivocal. In answer to a question as to whether "the use of crack cocaine as you've described it [was] more dangerous to the individual than the use of cocaine hydrochloride or cocaine base?"; Woodford replied with a simple "Yes." Exhibit E, 1 Motions Tr. at 11. He later stated that cocaine base was distinguishable from cocaine hydrochloride in molecular weight and structure, melting point, solubility, and common method of ingestion. Id. at 43-46. Dr. Kilts discussed the distinct pharmacology of cocaine free base, including a low boiling point and a rapid effect on users, id. 63-64, while Dr. Holbrook noted that cocaine base is the only form of the drug which is truly smokeable. Id. 118. Additionally, Peter Poole, a forensic chemist at the DEA laboratory, stated that cocaine base differs from other forms of the drug, including cocaine hydrochloride, in that it has a different melting point, is soluble in different solvents, absorbs infrared light at a different frequency, and has a separate chemical abstract service registry number and noted that it vaporizes at a lower temperature than cocaine hydrochloride, and thus is more readily smokeable. See Sentencing Hearing Transcript at 32-36. Dr. Michael J. Moskal, Director of Pediatrics at Broadlawns County Hospital in Des Moines, testified as to his research on inhalation of "second hand" crack cocaine smoke by children and infants. The District Court, rejecting Jackson's argument that because of ambiguity in Sec. 841's use of the terms "cocaine base" and "cocaine" he should have the benefit of the rule of lenity (and thus be spared the more severe punishment applicable to crack cocaine offenses), sentenced him to a term of 240 months.

II.

Jackson's first argument on appeal is that the evidence is insufficient as a matter of law to convict him of conspiring to distribute crack cocaine in violation of 21 U.S.C. Sec. 846 (1988). We review the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences that support the jury verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989).

To convict the defendants of conspiracy, the government must prove that they entered into an agreement and that agreement had as its objective a violation of the law. The agreement need not be express or final, however. The government must show no more than a tacit understanding among the participants. Because the nature of a drug conspiracy requires secrecy, the agreement must often be established by way of inference from the surrounding circumstances.

United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir.) (citations omitted), cert. denied sub nom. Velasquez v. United States, --- U.S. ----, 115 S.Ct. 457, 130 L.Ed.2d 365 (1994).

Here, the government charged that Jackson had conspired not only with Stokes but also with an unknown individual in Las Vegas to distribute crack cocaine. Documentary evidence of telephone calls made by Jackson to a Las Vegas number were offered in evidence and Stokes, Jackson's co-defendant, testified that Jackson made phone calls to a Las Vegas telephone number from the apartment at Kingman. Trial Transcript at 318-19. As noted above, Stokes also testified that he had received the package at his residence at Jackson's request, that Jackson had agreed to pay him for this service, and that when he called Jackson to let him know the package had arrived, Jackson came to the Kingman address and opened the package. Id. at 307-18. Testimony from Officer Cobine placed Jackson in close proximity to the package of cocaine and noted his furtive movements when police entered the house, Trial Transcript at 167-71, and a ball of crack cocaine was retrieved from the specific area of the apartment to which Jackson was seen to retreat, see Trial Transcript at 97. The quantity of the seized crack cocaine (163.17 grams) permits an inference that it was intended for further distribution, not for personal use. See United States v. Turpin, 920 F.2d 1377, 1383-84 (8th Cir.1990) (intent to distribute cocaine inferred from possession of over 150 grams of cocaine base), cert. denied, 499 U.S. 953, 111 S.Ct. 1428, 113 L.Ed.2d 480 (1991). We conclude that the evidence is sufficient to support the finding of the jury that beyond a reasonable doubt Jackson was a participant in a conspiracy to distribute crack cocaine.

III.

Jackson next argues that the District Court erred in not severing his trial from that of Michael Stokes to avoid prejudice and insure that Jackson received a fair trial pursuant to the Fifth and Sixth Amendments of the Constitution. In United States v. Wint, 974 F.2d 961 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993), we noted that

"[r]arely, if ever, will it be improper for co-conspirators to be tried together." The decision whether to grant severance is committed to the discretion of the district court and we will not reverse its decision absent a showing of clear prejudice which indicates an abuse of discretion. To show such prejudice, a defendant must establish something more than the mere fact that his chance for acquittal would have been better had he been tried separately. He must affirmatively demonstrate that the joint trial prejudiced his right to a fair trial.

Id. at 965-66 (citations omitted). A defendant "can show real prejudice either by showing that [his] defense is irreconcilable with the defense of [his] codefendant or...