U.S. v. Jackson

• Decision Date: 05 April 2006
• Docket Number: No. 05-1454.,05-1454.
• Citation: 443 F.3d 293
• Parties: UNITED STATES of America v. Anthony JACKSON Appellant.
• Court: U.S. Court of Appeals — Third Circuit

443 F.3d 293

UNITED STATES of America v. Anthony JACKSON Appellant.

No. 05-1454.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 9, 2006.

April 5, 2006.

Jeanne K. Damirgian, Philadelphia, PA, for Appellant.

Patrick L. Meehan, Robert A. Zaumer, Michelle T. Rotella, Philadelphia, PA, for Appellee.

Before ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,^* District Judge.

OPINION

ALDISERT, Circuit Judge.

In Anthony Jackson's appeal from a conviction and sentence in the United States District Court for the Eastern District of Pennsylvania, we join several sister courts of appeals in holding that 21 U.S.C § 841(a)(1) (possession of a controlled substance with intent to distribute) is a lesser-included offense of 21 U.S.C. § 860(a) (possession of a controlled substance with intent to distribute within 1,000 feet of a school).

His appeal also requires us to decide whether: (1) a supplemental jury instruction issued by the District Court was unduly coercive; (2) sufficient evidence existed in the record for the trier of fact to have found beyond a reasonable doubt that Jackson's presence within 1,000 feet of a school was voluntary; and (3) Jackson received sufficient notice of the results of the school zone measurements that the government intended to introduce at trial. We have jurisdiction to hear the instant appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We will affirm Jackson's conviction for violating § 860(a), vacate his conviction and sentence for the lesser-included offence of violating § 841(a)(1), and remand for resentencing.

I.

On April 3, 2003, two officers of the Philadelphia Police Department were patrolling West Philadelphia when they came upon a car stopped at a red light at the intersection of 64th Street and Elmwood Avenue. When the light turned green, the car did not move. After waiting a few seconds the officers honked the horn of their vehicle and activated their vehicle's siren for a full cycle. The car still did not move. The officers next pulled alongside the stopped car and saw the defendant, Jackson, slumped and unmoving behind the steering wheel. They then approached the driver's door of Jackson's vehicle, whereupon they yelled through the driver's window and banged on it heavily, without receiving a response from Jackson.

Under the impression that Jackson needed medical attention, the officers decided to enter the vehicle. They reached through a crack in the window, lowered the window and opened the driver's door. The officers found that the car was still in drive with Jackson's foot depressing the brake pedal. While reaching in to put the vehicle into park, they noticed something on Jackson's lap — two baggies that they believed to carry marijuana and cocaine. All the while, Jackson remained sound asleep. It was not until one of the officers put handcuffs on Jackson that he awoke. Jackson was then arrested. Upon later analysis, it was found that the baggies contained 48.35 grams of cocaine base and 4.02 grams of marijuana. A handgun was also recovered from Jackson's car.

After a federal grand jury returned an indictment against Jackson on September 25, 2003, two superceding indictments were subsequently entered on March 23, 2004 and August 5, 2004. He was brought to trial on the August indictment, which charged him with four counts: (1) possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1);¹ (2) possession with intent to distribute more than five grams of cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a);² (3) knowing possession of a handgun during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) possession of a handgun by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

A jury trial began on November 1, 2004, and two days later the jury returned a guilty verdict as to Counts One and Two, and acquittals on Counts Three and Four. For violating § 841(a)(1), the Court sentenced Jackson to 300 months in prison, a $1,000 fine and a $100 special assessment. For violating § 860(a), the Court sentenced him to 300 months in prison, to run concurrently to the sentence for Count One, and a $100 special assessment. For each count, he also received an eight-year period of supervised release, to run concurrently. This appeal of his conviction and sentence followed.

II.

Jackson first contends that the supplemental charge issued by the Court unduly coerced the jury into reaching a conviction because it improperly raised the specter of a new trial should they fail to reach a unanimous decision.

After only two hours of deliberations, the jury submitted a note to the Court stating:

Judge Baylson, Your Honor, we are not able to get past count one. There is one juror who cannot agree that the defendant "knowingly" possessed with intent to distribute cocaine base ("crack"). This juror is adamant that they will not change their decision. Where do we go from here? Jury Foreman.

(App. at 55a.) In discussing the contents of the supplemental jury charge with both parties, the Court indicated that it would inform the jury that if they could not agree, the jurors would then be dismissed and a retrial before a new jury would be required. Jackson objected to this instruction, but was overruled after the Court stated that it was unaware of any case from this Court holding that it is error to simply raise the prospect of retrial before another jury. Thereafter, the District Court read the following supplemental charge to the jury:

All right. In this case, ladies and gentlemen, you've been deliberating less than two hours, and that's included some time to have lunch. I want to re-read to you slightly different words, but the same concept that I said before. I'd like you to go back into the jury room and talk some more about the evidence.

And, remember my entire instructions, that your job is to be the finders of facts, that you should consider the evidence, you should consider my instructions on the law, and that you should render a verdict based on the evidence. And, that should be your guide, what the evidence is in this case and what the instructions were on the law.

Now, it's your duty as jurors to talk with one another and deliberate in the jury room. You should try to reach agreement, if you can, without doing violence to our [sic] individual judgment. Each of you must decide the case for yourself, but only after consideration of the evidence with the other members of the jury.

While this is going on, do not hesitate to reexamine your own opinion and change your mind if you are convinced that you are wrong. But, don't give up your honest belief just because the others thing [sic] differently or merely to get the case over with.

Remember that the Government has to prove its case beyond a reasonable doubt. And, if they do not do this, then you must return a verdict of not guilty. If they have done this, then you must return a verdict of guilty.

So, I ask you to remember my instructions on what is reasonable doubt and all the other instructions that I gave you. And, remember that your oath as jurors is to decide the case on the evidence in the courtroom and the instructions of the law, and to render a verdict if you possibly can, on the charge.

Now, if you can't get beyond count one, then you can't go on to counts two and three, because they're all tied together. And, if that's the case, then the case will have to be retried in front of another jury. So, go back in front — go back please and continue to deliberate. Thank you very much.

(App. at 57a-59a.)

Because Jackson objected at trial to the supplemental jury instruction, we will review the Court's decision to read the supplemental charge for an abuse of discretion. United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir.1995) (citations omitted). Under that standard, Jackson must show that the Court's action was "arbitrary, fanciful or clearly unreasonable." Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984). Moreover, we review the supplemental instruction given not "'in artificial isolation, but ... in the context of the overall charge.'" United States v. Brennan, 326 F.3d 176, 192 (3d Cir.2003) (quoting United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975)).

A.

The collective experience gleaned from similar cases in this Court persuades us that whether a supplemental charge passes muster when informing the jury that a new trial will be necessary should the jurors not reach a verdict depends heavily on the context in which the statement was made. We have repeatedly held that supplemental jury charges should not be used to "blast a hung jury into verdict." United States v. Burley, 460 F.2d 998, 999 (3d Cir.1972) (quoting United States v. Fioravanti, 412 F.2d 407, 419 (3d Cir.1969)). "[I]t is a cardinal principle of the law that a trial judge may not coerce a jury to the extent of demanding that they return a verdict." Fioravanti, 412 F.2d at 416. We, however, will only find a charge to be unduly coercive where the supplemental charge caused the jury to be "influenced by concerns irrelevant to their task" and "reached its subsequent verdict for reasons other than the evidence presented to it." United States v. Eastern Medical Billing, Inc., 230 F.3d 600, 613 (3d Cir. 2000) (citing Burley, 460 F.2d at 999).

Jackson analogizes the charge given here to those we found to be unduly coercive in Burley and Eastern Medical Billing, Inc. In Burley, we found a charge to be coercive where it not only mentioned the prospect of a new trial, but also extensively depicted the time and expense that would be required to hold that new trial. 460 F.2d at 999. The charge also stressed the court's own belief that the government's identification evidence was "strong and persuasive." Id. In Eastern Medical Billing, Inc., the...