United States v. Antwan Jackson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 11-4858
ANTWAN LAMAR JACKSON, a/k/a
Twan, a/k/a Mey-Mey,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, Senior District Judge.
(3:10-cr-00033-NKM-1)
Argued: December 7, 2012
Decided: January 18, 2013
Before WILKINSON, AGEE, and KEENAN,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Keenan joined.
2 UNITED STATES v. JACKSON
COUNSEL
ARGUED: Krysia Carmel Nelson, LAW OFFICES OF
KRYSIA CARMEL NELSON, PLC, Keswick, Virginia, for
Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appel-
lee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Sarah E. Childress, Third Year Law Intern, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
OPINION
WILKINSON, Circuit Judge:
Appellant Antwan Jackson was convicted of murder and
various drug and firearm offenses in connection with a drug
distribution conspiracy in the Western District of Virginia. At
trial, Jackson unsuccessfully opposed the introduction of an
incriminating statement made by the murder victim, Johnell
Greene. On appeal, Jackson argues that the forfeiture-by-
wrongdoing exception to the Confrontation Clause, upon
which the district court relied in admitting Greene’s state-
ment, does not apply unless a criminal defendant’s sole moti-
vation in making a witness unavailable was to prevent that
witness’s testimony. We hold, however, that so long as a
defendant intends to prevent a witness from testifying, the
forfeiture-by-wrongdoing exception applies even if the defen-
dant also had other motivations for harming the witness. We
therefore affirm the judgment of the district court.
I.
A.
In early 2006, state and federal law enforcement officials
began undercover operations targeting a drug distribution net-
UNITED STATES v. JACKSON 3
work at the Lindsay Drive apartment complex in Orange, Vir-
ginia. On March 24, 2006, undercover agents at Lindsay
Drive purchased controlled substances directly from Antwan
Jackson, the self-styled "King of Orange" and leader of the
drug ring. Less than three months later, Lindsay Drive resi-
dent Johnell Greene stole drugs and money from Garian
"Boo" Washington, one of Jackson’s associates. Greene was
known around Lindsay Drive for distributing fake drugs,
which are reported to "slow the business down" for actual
drug sales by discouraging would-be buyers from frequenting
an area. J.A. 77-78.
After learning of the robbery, Jackson and Washington
confronted Greene. Jackson demanded that Washington "han-
dle" Greene and punish him for the robbery. Washington fired
a single gunshot at Greene but missed, and Greene fled the
scene unharmed. While in custody on unrelated charges,
Greene cooperated with police in investigating the attempted
murder, implicating both Jackson and Washington. Washing-
ton was eventually arrested, and while he was incarcerated, he
advised Jackson that Greene was "telling everything" to the
authorities. J.A. 239.
On August 11, 2006, shortly after his release from jail,
Greene returned to the Lindsay Drive complex. That night, he
was attacked in a parking lot by a masked assailant and died
from multiple gunshot wounds. When asked about Greene’s
death by another member of the Lindsay Drive operation,
Jackson stated that Greene "was an informant trying to bring
down him [Jackson] and his brothers" and that Greene "de-
served" to be killed. J.A. 816.
Around the time of Greene’s murder, other law enforce-
ment officials were investigating a different drug operation in
Staunton, Virginia. In August and September 2006, under-
cover agents in Staunton purchased controlled substances
from three individuals—Tyrone Scott, Kurt Johnson, and
Samuel Venable—after witnessing some of them receive
4 UNITED STATES v. JACKSON
drugs from Jackson. Jackson was not a primary drug supplier
in Staunton, and the street-level dealers there generally con-
tacted him to obtain drugs when their regular suppliers were
unavailable.
B.
In early 2007, four men involved in the Staunton drug
operation—Jackson, Scott, Johnson, and Venable—were
indicted on various charges for crack cocaine sales that took
place in August and September 2006. Jackson pleaded guilty
to a single lesser included charge and was sentenced to 108
months’ imprisonment, later reduced to 87 months’ imprison-
ment.
While in prison, Jackson was indicted for the murder of
Johnell Greene, for various drug and firearm offenses that
took place in 2005 and 2006, and for persuading his asso-
ciates to provide a false alibi to law enforcement during the
investigation into Greene’s death. Jackson pleaded not guilty
and was tried before a jury in the Western District of Virginia.
Before trial, the United States filed a motion in limine to
admit Greene’s written statement to police describing Jack-
son’s involvement in the attempt on his life. The government
argued that "Jackson has waived his right to confront any of
Greene’s out-of-court statements by killing Greene with the
intent, at least in part, of securing his unavailability as a wit-
ness." J.A. 20. In response, Jackson argued that the court
should "reject the suggestions . . . that it is sufficient for the
Government to show that the defendant intended ‘in part’ to
procure the declarant’s unavailability," because Supreme
Court precedent mandates that "the intent required to be
proven must be unqualified" in order to trigger the forfeiture-
by-wrongdoing exception to the Confrontation Clause. J.A.
29B (citing Giles v. California, 554 U.S. 353, 359 (2008)).
The district court found that Jackson’s desire to silence
Greene was a "precipitating" and "substantial reason" for the
UNITED STATES v. JACKSON 5
murder and concluded that any other motives for killing
Greene did not preclude application of the forfeiture-by-
wrongdoing exception. J.A. 845. The court thus granted the
government’s motion to admit Greene’s statement.
The jury found Jackson guilty on all counts charged, and he
was sentenced to life in prison. Jackson now appeals.
II.
The Confrontation Clause guarantees that a criminal defen-
dant will have the opportunity "to be confronted with the wit-
nesses against him." U.S. Const. amend. VI. In Crawford v.
Washington, the Supreme Court held that the Clause bars
admission of testimonial hearsay unless the declarant is
unavailable and the defendant had a prior opportunity for
cross-examination. 541 U.S. 36, 68 (2004). Four years later,
in Giles v. California, the Court made clear that a defendant’s
confrontation rights are subject to the forfeiture-by-
wrongdoing exception, a common law doctrine that allows the
introduction of unconfronted testimonial statements "where
the defendant ha[s] engaged in wrongful conduct designed to
prevent a witness’s testimony." 554 U.S. 353, 366 (2008).
Such "wrongful conduct" includes but is not limited to mur-
dering a witness. See, e.g., United States v. Carlson, 547 F.2d
1346, 1358-59 (8th Cir. 1976) (intimidation); State v. Mech-
ling, 633 S.E.2d 311, 326 (W. Va. 2006) (physical violence);
People v. Geraci, 649 N.E.2d 817, 823-24 (N.Y. 1995) (brib-
ery).
The district judge in this case admitted Greene’s statement
after making an explicit finding that Jackson’s desire to pre-
vent Greene from testifying was a "precipitating" and "sub-
stantial" reason why Jackson murdered Greene. J.A. 845. At
oral argument, Jackson contended that the forfeiture-by-
wrongdoing exception to the Confrontation Clause requires
that a defendant make a witness unavailable with the sole
motivation of preventing the witness from testifying. He
6 UNITED STATES v. JACKSON
argued that while Federal Rule of Evidence 804(b)(6) may
permit forfeiture even if a defendant has secondary motiva-
tions for murdering a witness, the Confrontation Clause sets
a higher bar and permits forfeiture only when a defendant was
motivated exclusively by a desire to silence a witness. Jackson
argued that he had additional reasons for killing Greene, to
wit, preventing Greene from harming the Lindsay Drive drug
operation and exacting revenge on Greene for robbing Garian
"Boo" Washington, and that the forfeiture-by-wrongdoing
exception therefore did not apply.1
We find no support in controlling precedent for Jackson’s
restrictive view of the forfeiture-by-wrongdoing exception,
and, in accord with several other courts that have addressed
the issue, we decline to provide criminal defendants with an
opportunity to avoid the exception by adducing some addi-
tional motive for their misconduct.
A.
Nothing in relevant Supreme Court or Fourth Circuit prece-
dent substantiates Jackson’s position. In Crawford, the
Supreme Court looked to English and early American crimi-
nal cases to conclude that the Confrontation Clause bars
admission of testimonial hearsay unless the declarant is
unavailable and the defendant had a prior opportunity for
cross-examination. 541 U.S. at 68. However, the Court noted
that its holding did not eliminate the common law forfeiture-
by-wrongdoing exception, which "extinguishes confrontation
claims on essentially equitable grounds" and permits testimo-
nial hearsay even without an opportunity for cross-
1
Although Jackson clearly raised his "mixed motives" argument in his
motion in limine, he did not include the argument in his brief to this court,
offering simply a general statement that the forfeiture-by-wrongdoing
exception is "inapplicable and is not an exception to the Confrontation
Clause." Appellant’s Br. at 39. Counsel for Jackson clearly raised the con-
tention once again at oral argument, however, and we shall exercise our
discretion to consider it. See Singleton v. Wulff, 428 U.S. 106, 121 (1976).
UNITED STATES v. JACKSON 7
examination. Id. at 62 (citing Reynolds v. United States, 98
U.S. 145, 158-59 (1879)). Crawford also left intact Federal
Rule of Evidence 804(b)(6), the analogous exception to the
evidentiary hearsay rule that allows admission of a "statement
offered against a party that wrongfully caused—or acquiesced
in wrongfully causing—the declarant’s unavailability as a
witness, and did so intending that result." Fed. R. Evid.
804(b)(6). The Court said nothing, however, about whether a
party must intend only that result in order for the exception to
apply.
The Supreme Court revisited the forfeiture-by-wrongdoing
exception in Giles, concluding that it applies only "when the
defendant engaged in conduct designed to prevent the witness
from testifying." 554 U.S. at 359. The Court noted that the
exception is based on the maxim "that no one should be per-
mitted to take advantage of his wrong" and emphasized that
"‘[t]he Constitution does not guarantee an accused person
against the legitimate consequences of his own wrongful
acts.’" Id. at 366 (quoting Reynolds, 98 U.S. at 158).
In Giles, the defendant murdered the declarant, and the
state court applied the forfeiture-by-wrongdoing exception
without considering the defendant’s motivation for commit-
ting the murder. Id. at 377. The Supreme Court vacated,
directing the state court to consider the defendant’s intent on
remand, id., and to apply the exception only if the defendant’s
conduct was "designed to prevent the witness from testify-
ing," id. at 359. The Court made no mention of any require-
ment that the defendant’s desire to silence the witness be the
sole or primary motivation for his misconduct. As we recently
noted in United States v. Dinkins, the Giles decision "did not
materially alter application of the forfeiture-by-wrongdoing
exception" but merely clarified existing precedent and
affirmed that the intent requirement of Rule 804(b)(6) is suffi-
cient to prevent any violation of the Confrontation Clause.
691 F.3d 358, 383 (4th Cir. 2012).
8 UNITED STATES v. JACKSON
In Dinkins, this court endorsed a broad understanding of the
forfeiture-by-wrongdoing exception, concluding that the
exception applies to a defendant whose co-conspirators mur-
dered a declarant intending to prevent him from testifying. Id.
at 384. Acting in accord with our sister circuits, we held that
the principles of conspiratorial liability articulated in Pinker-
ton v. United States, 328 U.S. 640 (1946), essentially imputed
the co-conspirators’ intent to the defendant for purposes of
both Rule 804(b)(6) and the Confrontation Clause. Dinkins,
691 F.3d at 384, 386. In light of Pinkerton liability, this was
wholly consistent with the Supreme Court’s statement that
"[t]he Constitution does not guarantee an accused person
against the legitimate consequences of his own wrongful
acts." Reynolds, 98 U.S. at 158. Thus, far from supporting
Jackson’s narrow view of the forfeiture-by-wrongdoing
exception, Dinkins suggests a broad understanding of the doc-
trine.
B.
Not only does Jackson’s argument find no support in Craw-
ford, Giles, or this court’s precedents, it finds no support in
the functional needs of our criminal justice system. Accepting
Jackson’s view would play roulette with the safety of cooper-
ating witnesses, who often face immense stress and danger
when testifying against co-conspirators and other criminal
defendants. Armed with multiple motives for their actions,
defendants might be tempted to murder, injure, or intimidate
witnesses before trial and then invoke their constitutional
right to confrontation to ensure that those witnesses’ state-
ments are never heard in court. Such an outcome would be
fundamentally at odds with the axiom that "no one should be
permitted to take advantage of his wrong," Giles, 554 U.S. at
366.
Eroding the forfeiture-by-wrongdoing exception risks not
only giving defendants "an intolerable incentive" to "bribe,
intimidate, or even kill witnesses against them." Id. at 365. It
 UNITED STATES v. JACKSON 9
also provides a disincentive for witnesses themselves to come
forward and testify. While the Confrontation Clause is funda-
mental to our conception of a fair and just system of criminal
adjudication, so also is the vigorous and candid participation
of relevant witnesses. Accepting Jackson’s proposition would
throw the system off kilter by hindering factual development
in criminal prosecutions. That, too, would prevent the adver-
sarial process from playing out as the Framers intended.
Our decision to construe the forfeiture-by-wrongdoing
exception to apply even when a defendant has multiple moti-
vations for harming a witness places us in accord with our sis-
ter circuits and with several state courts. For instance, the
First Circuit has explicitly stated that "it is sufficient in this
regard to show that the evildoer was motivated in part by a
desire to silence the witness; the intent to deprive the prosecu-
tion of testimony need not be the actor’s sole motivation."
United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996)
(emphasis in original). And in a post-Crawford decision, the
D.C. Circuit concluded that imposing an exclusive-intent
requirement would have the "perverse consequence" of "al-
lowing criminals to murder informants and thereby prevent
admission of the informants’ statements—just so long as the
criminal could show that the intent was retaliation (which the
criminal almost always could do)." United States v. Martinez,
476 F.3d 961, 966 (D.C. Cir. 2007); see also, e.g., People v.
Banos, 100 Cal. Rptr. 3d 476, 493 (Cal. Ct. App. 2009) ("It
strikes us as illogical and inconsistent with the equitable
nature of the [forfeiture-by-wrongdoing exception] to hold
that a defendant who otherwise would forfeit confrontation
rights by his wrongdoing (intent to dissuade a witness) sud-
denly regains those confrontation rights if he can demonstrate
another evil motive for his conduct."), cert. denied, 130 S. Ct.
3289 (2010).
10 UNITED STATES v. JACKSON
C.
The district court in this case made an explicit finding that
preventing Greene from testifying was a "precipitating" and
"substantial" reason why Jackson murdered him. J.A. 845.
There is ample support in the record for this finding, as Jack-
son told others that Greene "was an informant trying to bring
down him [Jackson] and his brothers" and that Greene "de-
served" to be killed. J.A. 816. While it may be true that
Greene was in some general sense bad for business or the tar-
get of retribution for robbing Garian "Boo" Washington,
Greene’s murder was set up within a very short time after
Jackson learned that he was out of jail as an apparent reward
for his cooperation with law enforcement. We conclude that,
under Giles, the district court’s finding was sufficient to per-
mit the admission of Greene’s statement pursuant to the
forfeiture-by-wrongdoing exception to the Confrontation
Clause.2
2
Jackson also argues for the first time on appeal that his second convic-
tion violates the Double Jeopardy Clause of the Fifth Amendment because
the Staunton and Lindsay Drive operations were a single conspiracy.
Applying the familiar plain error standard, see United States v. Olano, 507
U.S. 725, 732-36 (1993), we reject Jackson’s double jeopardy argument.
The record reveals that the district court did not commit plain error in
finding two conspiracies rather than one, see United States v. Ragins, 840
F.2d 1184, 1188-89 (4th Cir. 1988). First, the two operations involved dif-
ferent individuals. The Staunton indictment charged Jackson, Scott, Ven-
able, and Johnson, while the Lindsay Drive indictment charged only
Jackson and one other individual, Jeffrey Deane. And only one of the
numerous unindicted members of the Lindsay Drive conspiracy played a
significant role in the Staunton conspiracy. Second, the two operations
were conducted in different locations. The Lindsay Drive conspiracy was
confined to a single apartment complex in Orange, while the Staunton
conspiracy took place sixty-odd miles away. Finally, Jackson had a very
different role in each of the two operations. At Lindsay Drive, he sat atop
a hierarchy and used violence to eliminate any threats to his operation. In
Staunton, he was merely a supplier, and he began selling drugs there only
after the area’s usual suppliers were unavailable. The district court did not
commit plain error by allowing Jackson to be charged on the second
indictment. That the court also issued a limiting instruction to assuage any
potential double jeopardy concerns further supports our conclusion.
UNITED STATES v. JACKSON 11
The judgment of the district court is therefore affirmed.
AFFIRMED