U.S. v. Jackson

• Decision Date: 30 November 2006
• Docket Number: No. 05-6338.,05-6338.
• Citation: 470 F.3d 299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael L. JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

470 F.3d 299

UNITED STATES of America, Plaintiff-Appellee, v. Michael L. JACKSON, Defendant-Appellant.

No. 05-6338.

United States Court of Appeals, Sixth Circuit.

Argued: November 2, 2006.

Decided and Filed: November 30, 2006.

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ARGUED:

Mary C. Jermann-Robinson, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

ON BRIEF:

M. Dianne Smothers, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before GILMAN and GRIFFIN, Circuit Judges; HEYBURN, Chief District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Defendant-appellant Michael L. Jackson appeals his jury conviction of possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Defendant raises three issues on appeal, alleging that: (1) the district court erred in denying his motion to suppress because the affidavit in support of the search warrant failed to contain sufficient indicia of the confidential informant's reliability; (2) the evidence submitted at trial regarding the weight of the cocaine was insufficient to prove that defendant possessed 5.6 grams of cocaine base as alleged in the indictment; and (3) the court erred in calculating defendant's Sentencing Guidelines range, relying upon the government's expert's mere estimation of the quantity of cocaine base possessed by defendant. For the reasons set forth below, we affirm.

I.

On January 9, 2004, officers participating in a regional drug task force executed a search warrant at defendant's residence in Saltillo, Tennessee. The search warrant was obtained based on an affidavit executed by Officer Tim Cunningham, a member of the Savannah, Tennessee, Police Department, assigned to the drug task force. The affidavit stated in pertinent part as follows:

Within the past three days a controlled and monitored buy of crack cocaine has been made from Michael Jackson at this residence [location and description set forth in detail] by a confidential informant. This informant was wearing a transmitting device which could be monitored by affiant. Informant was met by affiant before going to this residence where informant and informant's vehicle was searched. Informant was given money to make this purchase with that [sic] can be identified if found. Affiant listened as Informant and Michael Jackson made this transaction. Affiant heard informant call Michael by his name and then discuss this sale along with some earlier transactions. Affiant observed informant going into this residence before making transaction. After making this purchase informant met back with affiant and turned over what they had purchased from Jackson at this residence. This was consistent with what affiant had heard thru [sic] monitoring device. Affiant field tested what was purchased from Jackson and it checked positive for cocaine. Checking with 911 the telephone at this residence is listed to a Michael Jackson. Informant ask[s] their name not be revealed for fear of their life. During transaction affiant recognized this being the voice of Michael Jackson.

Based on this information, the search warrant was issued on January 9, 2004, and was executed later that same day. The police recovered eighteen bags of crack cocaine, nine guns, $400 in cash, and a small bag of marijuana.

A federal grand jury subsequently returned an indictment charging defendant with possession of 5.6 grams of cocaine base with intent to distribute and possession of a firearm in connection with a drug offense, in violation of 21 U.S.C § 841(a)(1) and 18 U.S.C. § 924(c), respectively.

Defendant filed a motion to suppress the evidence obtained as a result of the search of his residence, alleging that the search warrant was based upon a deficient affidavit and hence issued without probable cause. The district court conducted a suppression hearing on March 1, 2005. At the hearing, Officer Cunningham testified that, prior to seeking the search warrant, he and another officer conducted a controlled buy at defendant's residence. Cunningham testified that he related the specific nature of the controlled buy and the name of the confidential informant to the issuing magistrate. He further testified that the informant had no criminal record and no pending criminal charge. Officer Cunningham stated that the informant was searched before the buy, he watched the informant enter the residence, and, during the course of the transaction, he recognized one of the voices as being that of defendant.

On cross-examination, Officer Cunningham testified that a transmitting device was worn by the informant during the controlled buy so that the officers could listen to the transaction. Officer Cunningham testified that while he and the other officer sat in his unmarked vehicle approximately 150 yards away from defendant's residence, the informant drove separately to defendant's trailer in his own vehicle, which had been searched prior to the controlled buy. Officer Cunningham testified that "the transaction actually took place just outside the door of the residence." Noting that the affidavit in support of the search warrant indicated that "[a]ffiant observed informant going into this residence before making transaction," defense counsel further questioned Officer Cunningham regarding where the controlled buy occurred. Officer Cunningham explained that "the transaction actually occurred outside at the residence itself on the porch, which the yard is part of the residence, to me, part of their residence." Officer Cunningham acknowledged that he did not witness the transaction; instead, the officers listened to the transaction using a monitoring device. However, the transmission was not recorded. After the purchase was made, the officers met with the informant a short distance away from defendant's residence and field-tested the substance sold to the informant, which tested positive for cocaine base. Officer Cunningham testified that the informant, a known drug user, was paid $50 for making the controlled buy.

In an oral ruling from the bench, the district court denied defendant's motion to suppress, concluding that the requisite probable cause to search the residence had been established. The district court further concluded that defendant's staleness argument was without merit, that the reliability of the informant was sufficiently buttressed by the monitored controlled buy and, even assuming arguendo there was a defect in the affidavit and warrant, the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied to justify denial of defendant's motion to suppress. The court thereafter denied defendant's motion to reopen the proofs and to reconsider the order denying defendant's motion to suppress.

The case proceeded to a jury trial, during which Officer Cunningham reiterated the circumstances of the controlled buy. When the search warrant was executed, the officers found a styrofoam cooler in the laundry room area of defendant's residence. Inside the cooler there were two small socks containing eighteen individually packaged bags of crack cocaine. The officers also found a gun in the laundry room and several other firearms in other areas of the residence.

Agent Jessica Webb of the Tennessee Bureau of Investigation ("TBI") was called by the government to testify about the substance found in the bags. Agent Webb, a chemist charged with drug identification for the TBI, testified as to her qualifications as a biochemist. Without objection from defense counsel, the district court qualified her as an expert witness in the field of forensic chemistry. Agent Webb testified that she conducted a chemical analysis and weighed the substance found in the two socks seized from defendant's residence. She determined that the substance in the eighteen bags was cocaine base, with a total weight of 5.6 grams. Agent Webb explained the methodology utilized in weighing the cocaine:

I would take the contents out of the bag; and in this particular instance, when we have a large amount of substance—[i]nside these bags were eighteen smaller bags. There is a scientific—a proven scientific method that we do. It's called random sampling. And I take the square root of the amount that was in there, and I weighed four bags—emptied the contents, and I weighed four empty plastic bags, and then I multiplied that by the eighteen that was in there and got the weight of the bags, the empty bags. And I subtracted that from the total weight of the bags plus the exhibit that was in there. So it came out to be 5.6 grams.

On cross-examination, Agent Webb further explained the extrapolation process: What I did was a—it's called random sampling. And I basically—I emptied the contents of four bags and weighed the empty bags and got a total weight and divided that by 4 and got the weight of an individual bag and multiplied that by 18 because all of the bags were similar in size and had about the same amount of material inside them. And I received the total weight of the eighteen bags, which would be empty bags, and I subtracted that by the total weight of the bags plus what's inside the bags.

Agent Webb clarified that she actually opened and tested six of the eighteen bags to determine the nature of the substance and emptied four of the bags for the purpose of calculating the total weight of the cocaine base. Agent Webb agreed that her calculation using selected samples was based upon the assumption that the bags were of identical weight and substance; other than the six bags actually tested, Agent Webb did not test the remaining twelve bags to verify their weight or whether the...