U.S. v. Jackson

Decision Date08 February 1980
Docket NumberNo. 78-1768,78-1768
Citation201 U.S. App. D.C. 212,627 F.2d 1198
Parties, 5 Fed. R. Evid. Serv. 669 UNITED STATES of America v. Joseph R. JACKSON, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia. (D.C. Criminal No. 77-652).

Stuart Stiller, Washington, D. C. (appointed by this Court), for appellant.

Jerry D. Bernstein, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and C. Madison Brewer, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before MacKINNON and ROBB, Circuit Judges, and RICHEY, * United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

On May 19, 1978, following a separate trial, a jury found Joseph R. Jackson guilty of conspiracy with others to distribute and to possess heroin with intent to distribute, 1 and of one count of distribution of heroin. 2 On July 7, 1978, the district court imposed sentences of five to fifteen years on the conspiracy count and one to five years on the distribution count, with a special parole term of three years on each count. The sentences were to run consecutively.

On this appeal Jackson contends (1) that the district court was biased against him and deprived him of a fair trial; (2) that the district court erred in ruling that his prior manslaughter conviction was admissible as probative of Jackson's credibility if he took the stand; (3) that the district court erred in refusing to suppress a non-verbal admission allegedly obtained in violation of Jackson's fifth amendment rights against self-discrimination and to due process; (4) that whereas the indictment charged one overall conspiracy, the proof adduced at trial demonstrated two separate conspiracies of which Jackson only was party to one, resulting in a variance substantially affecting his right to a fair trial; and (5) that the district court erred in permitting the admission of hearsay declarations without making a preliminary determination solely based on independent evidence that Jackson and others did indeed form an unlawful conspiracy.

We find the support for these allegations of error to be unconvincing and affirm the judgment of the district court.

I FACTS

In an indictment returned on November 1, 1977, the Government charged in the First Count that from on or about June 24, 1977 to on or about August 16, 1977, Jackson, together with Irvin Hall, Norman Fitzgerald, Gregory Crosby, and Cecelia Bethea, conspired to distribute heroin and to possess it with intent to distribute. In the Third Count the Government charged Jackson, Crosby, and Bethea with unlawful distribution of heroin on August 16, 1977.

Fitzgerald and Bethea later entered guilty pleas to subsequently drafted informations charging violations of the Uniform Narcotics Act. 3 Crosby entered a guilty plea to the conspiracy charged in the First Count. On February 9, 1978, the district court granted the Government's motion and severed Jackson's trial from Hall's. 4 Hall's trial commenced the same day as this ruling, and the jury found him not guilty of conspiracy. 5

Jackson's trial began on May 15, 1978.

A. The Trial

The Government's evidence showed that in June 1977, agents of the joint Metropolitan Police-Drug Enforcement Administration (DEA) Task Force, under a promise of immunity, induced Catherine Holmes to aid them in an investigation of narcotics dealing in Washington, D. C. Holmes had once been Hall's paramour, and she agreed to try to purchase heroin from Hall under the Task Force's supervision. Tr. 107-109. Pursuant to this agreement, Holmes contacted Hall on June 24 to ask if he could arrange for her to purchase a "spoon" of heroin. Tr. 108. Hall told her that he could, and they spoke several times during the next two days to confirm arrangements. 6 On June 27, acting on Hall's instructions, Holmes went to Hall's apartment at 101 G Street in Southwest Washington and gave Hall $300 in exchange for a package purporting to be a spoon of heroin. Holmes turned the package over to the Task Force agents. A DEA chemist later determined that the package weighed 2.365 grams and consisted of 1.8% heroin. Tr. 94.

Three days later Holmes called Hall at Happy's Liquor Store. Jackson was the manager of Happy's, and Hall and Fitzgerald worked for him there. 7 Holmes complained to Hall about the quality of the heroin she had purchased. Hall told her that "I gave you the same goods the guy gave me." Tr. 115. Holmes then told Hall that she had a buyer with the money to purchase a half kilo and that he should talk to his supplier about setting up a deal. Tr. 115.

On July 26, Holmes called Hall at Happy's to say that her friend "Jerry Ingram" was in town with $56,000 looking for some good heroin. Tr. 117-118. "Ingram" was the undercover name being used by Metropolitan Police Officer Anthony Patterson. The next day, Hall told Holmes that he could obtain the heroin for Holmes. Tr. 122. They discussed quantity and price. Hall told Holmes to meet him at Happy's later that evening. Holmes went to Happy's as directed and there she met with Hall and Jackson. 8 Hall told Holmes that the drugs belonged to Jackson. Tr. 130. Jackson told Holmes that she would have to put some money "up front" if the deal was to go through. Tr. 126-127.

The next day Holmes brought $6000 to Happy's and gave the money to Hall, who put it in a safe. Tr. 133. After checking with Patterson on her instructions, Holmes rode with Jackson to a house in Northwest Washington, where Jackson spoke with a man who Jackson identified as Bob Wayne, the person who would supply the heroin. Jackson and Holmes then returned to Happy's and were followed in a camper truck by an unidentified third person. Tr. 138. 9 Once back at Happy's, Jackson directed Hall to count out $4,910 of the money Holmes had brought and give it to the unidentified third person. Hall did so and the man left in the camper truck. 10

Jackson promised Holmes that they would pick up the heroin later in the day. As Holmes waited at Happy's, both she and Jackson spoke with Patterson. During one of these conversations Patterson asked Jackson whether he should continue to deal with Hall. Jackson responded that "I am the one he (Hall) gets it from." Tr. 143. No deal occurred that day.

Over the course of the next two weeks Patterson spoke to Jackson and to Fitzgerald, who was acting for Jackson, on numerous occasions about the arrangements for the heroin sale. In early August, Patterson received a call from Gregory Crosby, who said he was calling at Jackson's request to arrange for a deal. Tr. 210. Crosby later testified for the Government that Jackson had given him Patterson's telephone number and had asked him to arrange a deal with Patterson. Tr. 281-285. Several meetings between Patterson, another Task Force undercover agent Morris Davis, and Crosby, ensued. Crosby told Patterson that the price of the heroin he would obtain would be reduced by the $5000 Jackson had already received from Patterson. Tr. 217-218. Patterson spoke to Jackson during this time, and Jackson assured Patterson that Crosby was "his (Jackson's) man." Tr. 218. 11

On August 15, Patterson and Crosby went to Baltimore to consummate the heroin deal. The next day, while returning to Washington, D. C. in Crosby's car with Crosby and his confederate Cecelia Bethea, Patterson was given a small package purporting to be a sample of the half kilo of heroin to come. Tr. 244. A DEA chemist later determined that the package weighed .979 grams of which 6.4% was heroin. Tr. 98. Crosby and Bethea were arrested shortly after they arrived in Washington. A warrant for Jackson's arrest was issued the same day.

Jackson's only witness in defense was Fitzgerald. Fitzgerald testified that Jackson had claimed to him that he (Jackson) had "a mark from out of town that he was going to trim." Tr. 469. Fitzgerald asserted that Jackson was attempting to "flim flam" Patterson out of the $4,910. 12

B. Pre-Trial Proceedings

In response to the arrest warrant Jackson surrendered himself at the office of Assistant United States Attorney Madison Brewer on August 22. The record is unclear, but it appears that Jackson did not have an attorney with him when he arrived at Brewer's office. 13 According to the testimony at the pretrial suppression hearing by Task Force Agent John King, who was present in Brewer's office when Jackson arrived, Jackson was advised of his rights as soon as he entered the office. Tr. 46, 52. Jackson was asked if he understood his rights; he had no questions with regard to them. There is no indication in the record that Jackson expressly waived his rights by any written document.

According to Agent King's testimony, Brewer and Jackson made an arrangement with respect to Jackson's release while Jackson was still in Brewer's office. Sometime after leaving Brewer's office, Jackson was brought before United States Magistrate Jean Dwyer. He had an attorney with him at this point. At the presentment, Brewer reported that Jackson "contacted me this morning and we arranged the following proceedings." Tr. Supp. 2. "Pursuant to this agreement with Mr. Jackson," Brewer explained, "the Government will not oppose putting him on release at this time," subject to "one condition that we've agreed upon." Id. The condition, Brewer said, was that Jackson would "return to the Government certain property. He has 24 hours in which to do that, to wit, it's $4,910.00." Id. Jackson was released.

One week later, on August 29, Jackson appeared at the office adjacent to Brewer's office where he was met by Task Force agents William Vislay and Michael Grimes. Jackson came alone. At the suppression hearing, Vislay testified:

I told Jackson, I said we did not want you to...

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