U.S. v. Jackson

Decision Date17 September 2003
Docket NumberDocket No. 02-1237.,Docket No. 02-1238.
Citation345 F.3d 59
PartiesUNITED STATES of America, Appellee, v. Sharon Jackson; Anthony Mazyck, also known as Tony, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Larry Sheehan, Scarsdale, New York, for Appellant Sharon Jackson.

Theodore S. Green, White Plains, New York, for Appellant Anthony Mazyck.

Christopher P. Conniff, Assistant United States Attorney, New York, New York (James B. Comey, United States Attorney, and Andrew J. Ceresney, Assistant United States Attorney, on the brief), for Appellee.

Before: JACOBS, CALABRESI, and SOTOMAYOR, Circuit Judges.

JACOBS, Circuit Judge.

Sharon Jackson and Anthony Mazyck appeal from judgments of conviction entered against them on April 4, 2002 after a jury trial in the United States District Court for the Southern District of New York (Brieant, J.). Jackson was convicted on three counts — and Mazyck on one count — of possession with intent to distribute, and distribution of, crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B) and 18 U.S.C. § 2. On appeal, they argue that (1) there was insufficient evidence to prove beyond a reasonable doubt that they sold crack cocaine (as opposed to powder cocaine in a rock-like form) or to authenticate the substance introduced at trial as the substance they sold; (2) the government failed to disprove entrapment beyond a reasonable doubt; and (3) the government failed to disclose certain information concerning its confidential informant.

BACKGROUND

In October 2000, the Drug Enforcement Agency ("DEA") commenced an investigation of drug trafficking in Spring Valley, New York. The DEA leased an apartment at 94 Bethune Boulevard for a paid informant, William Redman. The DEA installed a hidden videotaping device in the living room, which agents could monitor from a remote location. Redman moved into the apartment, assumed a false name, and posed as a small businessman who sold clothing and videotapes.

Redman quickly became acquainted with his downstairs neighbor, defendant-appellant Sharon Jackson. He discussed personal and family problems with her and gave her clothing, videos, cigarettes, and beer. Within a few weeks, he told her that he was a user of crack cocaine and that he was having difficulty obtaining it in the area. Redman then asked Jackson to obtain drugs for him. According to Jackson, she refused his requests seven or eight times. She ultimately acquiesced, however, because, as a drug addict herself, she felt sorry for Redman and did not want others taking advantage of him.

Over the next three months, Jackson sold Redman small amounts of powder and crack cocaine on several occasions. Each time, the transaction followed the same pattern: prior to the sale, Redman would meet with DEA agents at a prearranged location; the agents would provide him with the requested amount of money; he would return to his apartment and wait for Jackson; when she arrived, he would purchase the drugs while agents monitored the room's video or audio signal; and then Redman would meet the agents to turn over the drugs and any unused currency.

As the weeks passed, Redman requested larger quantities of drugs from Jackson, ostensibly to take them to Virginia and resell them at a profit. Jackson asked her boyfriend, defendant-appellant Anthony Mazyck, to obtain drugs for Redman. On December 13, 2000, Mazyck and Jackson came to the apartment and sold Redman 21.3 grams of cocaine. Jackson and Mazyck claim that it was powder cocaine in a rock-like form, but the government contended — and persuaded the jury — that it was actually crack cocaine. Redman purchased these drugs with $1,100 of DEA money and returned $60 in change to the agents. Jackson also sold Redman smaller amounts of crack cocaine on January 12, 2001 and February 8, 2001.

On July 6, 2001, the government indicted Jackson on two counts of possession and distribution of crack cocaine. On July 18, 2001, prosecutors filed a superseding indictment. Count One charged both Jackson and Mazyck with distributing and possessing with intent to distribute approximately 21.3 grams of crack cocaine on December 13, 2000, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B) and 18 U.S.C. § 2. Counts Two and Three charged Jackson under the same statutes for distributing and possessing with intent to distribute approximately 9.7 grams of crack cocaine on January 12, 2001 and approximately 10.1 grams of crack cocaine on February 8, 2001.1

The case proceeded to a jury trial on December 17, 2001. The government introduced into evidence videotapes of the December 13 and February 8 transactions, an audiotape of the January 12 transaction, and testimony by four DEA agents who surveilled the transactions and supervised Redman. Redman himself died of natural causes before trial and therefore did not testify.

On December 20, 2001, the jury convicted the defendants on all counts. The jury also made specific findings on drug quantity, finding beyond a reasonable doubt that (a) the December 13 transaction involved 21.3 grams of substances containing cocaine base; (b) the January 12 transaction involved 9.7 grams of substances containing cocaine base; and (c) the February 8 transaction involved 10.1 grams of substances containing cocaine base.

On April 4, 2002, the district court (Brieant, J.) sentenced Jackson to 97 months of imprisonment, four years of supervised release, and a $300 special assessment. On the same day, the district court sentenced Mazyck to 120 months of imprisonment, eight years of supervised release, and a $100 special assessment. Jackson and Mazyck are currently serving their prison terms.

DISCUSSION

Jackson and Mazyck challenge their convictions on the basis of evidentiary issues, an entrapment defense, and the government's nondisclosure of certain materials concerning its confidential informant.

I. Evidentiary Issues

As to the evidentiary claims regarding the substance sold by Jackson and Mazyck on December 13, 2000, it is conceded that the drugs were admitted into evidence without objection. (Appellee's Br. at 17; Jackson Br. at 19.) Appellants therefore waived their authentication challenge. Cf. United States v. Gelzer, 50 F.3d 1133, 1141 (2d Cir.1995) (affirming district court's ruling that "any objection based on the chain of custody was waived when defense counsel failed to challenge the introduction into evidence of the revolver and the ballistics report"); Fed.R.Evid. 103(a)(1) (providing that "[e]rror may not be predicated upon a ruling which admits... evidence unless... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context").

Absent a timely objection to the authentication of the drugs, we review the admission of this evidence only for plain error. Thus, the appellants may obtain relief only if there was (1) error; (2) that is plain; (3) that affects substantial rights; and (4) that affects seriously the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.").

We find no plain error because there was a sufficient basis to find in favor of the drugs' authenticity. Under Rule 901 of the Federal Rules of Evidence, "[t]he requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a); see also United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001), cert. denied, 534 U.S. 897, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001). The government established a chain of custody consisting of (i) a videotape that showed Mazyck giving the substance to Redman; (ii) a DEA agent's testimony regarding the government's surveillance of Redman for most of the time before, during, and after the videotaped transaction; (iii) an agent's testimony regarding the DEA's field-testing and storage of the drugs; and (iv) the testimony of the forensic chemist who subjected the substance to laboratory testing.

Jackson and Mazyck argue that this chain of custody fails to account for Redman's brief absence from the video camera's field of view. They also argue that the authenticity of the substance introduced at trial is undermined by the fact that Redman delivered four rocks to the DEA, whereas the video showed Mazyck counting and giving five rocks to Redman. They argue that the $60 in change Redman returned to the DEA could not have come from the December 13 transaction, since the video did not show Mazyck giving the informant any change at all.

While these factors cast some doubt on the chain of custody, we cannot say that they made the admission of the drugs plain error. The government need not "rule out all possibilities inconsistent with authenticity, or ... prove beyond any doubt that the evidence is what it purports to be." Dhinsa, 243 F.3d at 658 (quoting United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (internal quotation marks omitted)). "Breaks in the chain of custody do not bear upon the admissibility of evidence, only the weight of the evidence ...." United States v. Morrison, 153 F.3d 34, 57 (2d Cir.1998).

For similar reasons, we also reject the defendants' claim that the evidence was insufficient to prove that they sold Redman crack cocaine, as opposed to a rock-like form of powder cocaine. When reviewing a challenge to the sufficiency of evidence, this Court "view[s] the evidence in...

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