United States v. Jackson ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-31091
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GORDON JACKSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CR-141-ALL)
_________________________________________________________________
August 17, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
Convicted for a cocaine trafficking conspiracy, Gordon Jackson
challenges not receiving an evidentiary hearing on his suppression
motion concerning telephone conversations recorded pursuant to an
authorized wiretap, an FBI Agent’s expert testimony about drug
transaction ledgers, and the denial of a mistrial following
testimony that Jackson had previously been incarcerated. We
AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
While investigating drug dealer Richard Peña, the Government
became interested in the activities of Mitcher Hardin, suspected of
being a close associate of Peña and the head of a drug-distribution
group. In February and October 1996, a magistrate judge approved
the use of pen registers on telephones located at Hardin’s business
and home.
In January 1997, after gathering information from the pen
registers and confidential informants, the Government was
authorized to wiretap Hardin’s home and business telephones. And,
that March, the Government was authorized to intercept his cellular
telephone conversations. Surveillance of Hardin’s telephones ended
that April.
As a result of the evidence gathered in the investigation,
including that derived from the wiretaps, Jackson and eight others,
including Hardin, were charged with conspiracy to possess cocaine
with the intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 846. By January 1998, all of the defendants, except
Jackson, had entered into plea agreements. That March, Jackson’s
trial ended in a mistrial because the jury was unable to reach a
verdict.
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At a second trial held that June, the Government claimed that
the defendants were involved in a drug distribution organization
headed by Hardin. Through the testimony of several of Jackson’s
co-defendants, the Government maintained that Jackson distributed
cocaine received from Hardin. The Government played five taped
telephone conversations, linking Jackson to the drug conspiracy.
Jackson presented no evidence.
The jury found Jackson guilty. Because he had two prior
felony drug convictions, he was sentenced to life imprisonment.
II.
A.
Pre-trial, Jackson and Hardin (the latter entered a plea
agreement several months later) moved jointly to suppress all
evidence obtained as a result of the wiretaps. After determining
that an evidentiary hearing was not necessary, the district court
denied the motion. We review de novo the denial of a suppression
motion without an evidentiary hearing. United States v. Dickey,
102 F.3d 157, 162 (5th Cir. 1996).
A wiretap authorization order must be supported by a finding
of probable cause. United States v. Collins, 972 F.2d 1385, 1409
(5th Cir. 1992). “In order to obtain a hearing on allegedly
deliberate falsehoods contained in a wiretap application, the
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defendant is required to make a substantial preliminary showing
that the application contains a false statement made knowingly or
intentionally, or with reckless disregard for the truth, and that
the statement is necessary for a finding of probable cause.” Id.
at 1410 (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).
Jackson contends that an evidentiary hearing should have been
held regarding his claims that the first affidavit supporting the
Government’s wiretap application (10 January 1997) contained false
averments. He maintains that, if given the opportunity to present
evidence, he could prove that a number of the calls listed on the
pen register as being allegedly made to criminals were actually
innocent calls to entirely different people, and that the
Government did not have probable cause to intercept the non-Peña
calls.
The district court applied Franks, and examined whether, when
the material about which Jackson complained was “set to one side,
there remain[ed] sufficient content in the ... affidavit to support
a finding of probable cause”. Franks, 438 U.S. at 171-72; see also
United States v. Guerra-Marez, 928 F.2d 665, 670 (5th Cir. 1991).
It ruled that, even assuming the falsity of the challenged
material, “probable cause for the wiretaps would be provided by the
informants’ information regarding Hardin’s history of drug dealing
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and his relationship with Peña, and the hundreds of calls to Peña
from Hardin’s telephones”.
We agree. Even excluding the challenged material, there is
sufficient evidence to establish probable cause. In addition to
the pen register showing nearly 200 calls to Peña from Hardin’s
telephones, there was other information, regarding both Peña and
Hardin’s involvement in drug trafficking and their use of
telephones to facilitate it, collected as a result of
investigations by federal and local authorities.
Next, Jackson claims that a confidential informant, referred
to in the January 1997 affidavit as “CS 1", who gave information
regarding Roderick Smith (a drug distributor for Hardin), was Smith
himself. Jackson maintains that it was a material
misrepresentation for the affidavit not to state that Smith, who
had been killed in May 1996, was the source of the information
about himself.
In rejecting this claim, the district court concluded that,
even if “CS 1" was Smith, such a representation was not false but
merely misleading, and not meant to misrepresent the facts. The
district court found the situation similar to that in United States
v. Hyde, 574 F.2d 856, 866 (5th Cir. 1978), in which our court
stated:
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[T]he statements were not made with an intent
to deceive the magistrate [judge]. ... The
extreme sanction of invalidating a wiretap
order is applied to intentional
misrepresentations by the government when the
statements are made with an intent to
circumvent regular Constitutional safeguards
and corrupt the administration of justice.
The statements made here were not
misrepresentations ...; they were not intended
to deceive the magistrate [judge] and vitiate
Constitutionally mandated procedures.
We agree. Jackson does not show that the Government made a
misrepresentation with the intent to deceive. Further, as the
Government notes, the affidavit does not state that “CS 1” provided
any information after May 1996, when Smith was killed. Finally,
the affidavit notes that the information provided by “CS 1” was
verified by the investigations of the law enforcement agencies
involved in this case.
B.
Jackson asserts that an FBI Agent should not have been allowed
to testify as an expert on drug transaction ledgers. At trial, the
Government introduced several composition notebooks belonging to
Hardin that contained notations and numbers. The Government
maintained that the references to “Ray” referred to Jackson, whose
middle name is “Ray”. The Agent testified that, in his opinion,
the notebooks contained drug transaction ledgers.
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The Agent testified about his experience in performing drug
investigations and his law enforcement training in that respect,
after which the Government tendered him as an expert witness.
Following cross examination of the Agent’s qualifications, Jackson
objected to the Agent being permitted to so testify, on the ground
that he lacked scientific knowledge. The objection was overruled.
Federal Rule of Evidence 702 permits testimony by those
qualified in “scientific, technical, or other specialized
knowledge” to render opinions if it “will assist the trier of fact
to understand the evidence or determine a fact in issue”.
(Emphasis added.) “The admissibility of expert testimony rests
within the sound discretion of the district court and will be
reversed only upon a clear showing of abuse of discretion.” United
States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996), cert. denied,
519 U.S. 1083 (1997) (quoting United States v. Townsend, 31 F.3d
262, 270 (5th Cir. 1994)).
Maintaining that the Agent was not qualified to testify as an
expert on the grounds that he did not possess any specialized
knowledge and experience or have legitimate special expertise
because his conclusions could not be made with scientific
certainty, Jackson’s primary complaint is that the Agent’s
knowledge was not “scientific”. However, as noted, Rule 702
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permits testimony regarding “specialized knowledge”. Accordingly,
“[t]he rule is well-established that an experienced narcotics agent
may testify about the significance of certain conduct or methods of
operation unique to the drug distribution business, as such
testimony is often helpful in assisting the trier of fact
understand the evidence”. United States v. Buchanan, 70 F.3d 818,
832 (5th Cir. 1996) (quoting United States v. Washington, 44 F.3d
1271, 1283 (5th Cir. 1995)); see also United States v. Griffith,
118 F.3d 318, 321 (5th Cir. 1997); Garcia, 86 F.3d at 400.
The Agent’s testimony was helpful in assisting the jury to
understand the notebooks/drug transaction ledgers. It is unlikely
that, without it, the average juror would have known the meaning of
seemingly innocuous names and numbers. See Griffith, 118 F.3d at
321 (expert testimony properly admitted to explain meaning of
jargon used by drug traffickers); Garcia, 86 F.3d at 400 (expert
testimony that large drug trafficking organization controlled the
cocaine was helpful because average jury may not know
characteristics of such an organization); cf. United States v.
Alfonso, 552 F.2d 605, 618 (5th Cir. 1977) (expert testimony
regarding meaning of jargon used in gambling operations properly
admitted).
And, the Agent’s extensive training and experience in drug
investigations, which enabled him to testify as an expert in 93
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previous cases, establish that he is qualified to testify as an
expert in this specialized area. See Buchanan, 70 F.3d at 832
(narcotics agents qualified to testify as experts in methods of
drug dealers where “officers were experienced in investigating
narcotics trafficking and drug-related crimes” and “were familiar
with certain conduct and methods of operation unique to the drug
distribution business”).
Because the Agent testified regarding an area of specialized
knowledge that was helpful to the jury in determining an issue of
fact, and because he was qualified to do so, the admission of such
testimony was not an abuse of discretion.
C.
Finally, Jackson contends that the district court erred in
denying a mistrial. Pre-trial, the Government gave notice of
intent to introduce evidence of Jackson’s past crimes. The
district court sustained Jackson’s objection to such evidence.
Johnny Odoms, a childhood acquaintance of Jackson who shared
a jail cell with him, testified for the Government at the second
trial. The following exchange occurred during his direct
examination:
[Government]: The best you can recall, I
would like you to tell the jury what Gordon
Ray Jackson told you about his involvement
with the Mitch Hardin organization.
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[Odoms]: Just that he had gotten out of a
state prison or something like that, and he
met up with Mitch and Keith, and he was just
getting back on his feet. And then he was
now, this meaning the new case, [sic] the
federal case.
(Emphasis added.)
After the Government asked two more questions and tendered the
witness, Jackson’s counsel (bench conference) moved for a mistrial,
asserting that the reference to Jackson’s incarceration in state
prison precluded his receiving a fair trial. After the court
denied the motion, Jackson refused the court’s offer to give a
cautionary instruction.
The failure to grant a mistrial based on the admission of
prejudicial evidence is reviewed for an abuse of discretion.
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998), cert.
denied, 119 S. Ct. 271, 2379 (1999). “Furthermore, where a motion
for mistrial involves the presentation of prejudicial testimony
before the jury, a new trial is required only if there is a
‘significant possibility’ that the prejudicial evidence had a
‘substantial impact’ upon the jury verdict, viewed in light of the
entire record.” United States v. Limones, 8 F.3d 1004, 1007-08
(5th Cir. 1993) (quoting United States v. Escamilla, 666 F.2d 126,
128 (5th Cir. 1982)).
It is quite doubtful that Odoms’ statement, viewed in the
light of the other evidence, had an impact on the verdict. First,
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the statement was an unresponsive stray remark and was not
highlighted by further questioning. Also, Jackson declined the
curative instruction offer. See Limones, 8 F.3d at 1008 (affirming
denial of mistrial where prejudicial testimony was unresponsive to
question asked and curative instruction offer refused); see also
United States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994) (“[a]
prejudicial remark may be rendered harmless by curative
instructions”).
Further, in the light of the other evidence, the statement,
even if prejudicial, was harmless. See United States v. Sotelo, 97
F.3d 782, 798 (5th Cir. 1996) (any error in denying mistrial after
witness made hearsay statement was harmless because defendant did
not “establish[] that the comment was prejudicial” and evidence of
defendant’s guilt was “so overwhelming”); see also United States v.
Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995) (“under the harmless
error doctrine, we examine whether the improper comment had a
significant impact on the jury”).
For example, an FBI Agent testified that an automobile linked
to Jackson was observed in the parking lot of a building at which
Hardin’s drug organization was meeting, and that 48 telephone calls
were placed to Jackson from Hardin’s telephones during the wiretap
period. As other examples, four co-defendants testified that
Jackson was present at a meeting held by Hardin to discuss the drug
operation; that Jackson was present when three men, suspected of
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stealing money from his residence, were assaulted at Hardin’s
direction; and that Jackson was involved in the distribution of
cocaine.
Finally, and obviously, we must give “considerable weight to
the trial judge’s assessment of the prejudicial effect of the
remark”. Nguyen, 28 F.3d at 483. The district judge stated:
In the first place, I don’t think [Odom’s
statement] amounted to anything. I didn’t
catch it at the time, and I don’t think the
jury did. But you have your choice. I will
give a cautionary instruction which you can
prepare which you might want to include at the
time when I instruct the jury, or you might
want to include it now. If I give a
cautionary instruction, you have to decide.
It might give more importance to it than
necessary.
Needless to say, the district judge felt that any prejudice was
minimal, at most.
Thus, because there is not a significant possibility that the
statement impacted the jury’s verdict in the light of the other
evidence, and because the district judge did not view the statement
as having created prejudice, the mistrial denial was not an abuse
of discretion.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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