United States v. Dennis D. Jackson

940 F.3d 347

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 8, 2019
• Docket: 18-3534
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 18-3534 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

DENNIS D. JACKSON, ALSO KNOWN AS LITTLE D, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Illinois. No. 4:17-cr-40052 — J. Phil Gilbert, Judge. ____________________

ARGUED SEPTEMBER 25, 2019 — DECIDED OCTOBER 8, 2019 ____________________

Before FLAUM, SYKES, and SCUDDER, Circuit Judges. FLAUM, Circuit Judge. Dennis Jackson was convicted of multiple drug charges and sentenced to mandatory life im- prisonment. He appeals his convictions on the grounds that the district court erred in allowing certain recordings and tes- timony into evidence; he also challenges his sentence, seeking a reduction in light of the First Step Act. For the reasons stated below, we affirm the judgment of the district court. 2 No. 18-3534

I. Background In 2017, the Southern Illinois Drug Task Force and the Illi- nois State Police began investigating Jackson and some of his associates, suspecting their involvement in a gangland shoot- ing. The investigation led to evidence suggesting that Jackson was dealing drugs in Harrisburg, Illinois. The investigating agents supplied a confidential source (“CS”) with funds to make several controlled purchases from Jackson, each of which was recorded via an audiovisual device on the CS’s person. After the CS completed three controlled purchases, agents obtained a warrant and raided Jackson’s residence. The search turned up methamphetamine, other drugs, cash, scales, and multiple loaded firearms. Jackson was arrested and several superseding indictments followed. He proceeded to trial on six counts: (1 & 2) distrib- uting a mixture and substance containing methamphetamine; (3) distributing five grams or more of actual methampheta- mine; (4) possessing with intent to distribute 50 grams or more of actual methamphetamine; and (5 & 6) two weapons charges. Before trial, the government filed an information es- tablishing that Jackson had twice pleaded guilty to felony drug charges. Taking his prior convictions into account, he faced, if convicted, a mandatory minimum sentence of ten years on count 3 and life imprisonment on count 4. As Jackson’s trial approached, the CS escaped from the jail where he was being held on unrelated charges. The CS was returned to custody only two days before Jackson’s trial be- gan, and the government determined not to call him as a wit- ness. Instead, the government filed a motion in limine seeking No. 18-3534 3

a pretrial ruling on the admissibility of the recordings show- ing the CS purchasing drugs from Jackson. The district court granted the motion, reasoning that: [a]ssuming the Government lays a proper foun- dation, does not use the CS’s statements for their truth, and satisfies all other evidentiary re- quirements, the Court will not exclude the re- cordings on Confrontation Clause grounds or any of the other ground discussed above. Fur- ther, it will give appropriate limiting instruc- tions to the jury when the recordings are played and at any other reasonable time requested by a party. In a pretrial hearing, the district judge noted that were Jackson convicted on count 4, a mandatory life sentence would apply, and he would have no discretion to modify it. Jackson stated that he understood and, contrary to his law- yer’s advice, wished to proceed to trial rather than accept a plea bargain. At trial, two investigators provided relevant testimony. Special Agent Jayson Murbarger and Inspector Glenn Roun- tree participated in the stings of Jackson; between them, they searched the CS for contraband, cash, or weapons before each controlled sale, provided him with cash to buy the drugs, and affixed audiovisual recording devices on his person. Mur- barger testified that he watched the CS during each sale and observed him placing the purchased drugs in the agents’ ve- hicle. The agents provided similar testimony discussing the chain of custody of physical evidence and the integrity of the recordings made by the CS. 4 No. 18-3534

The recordings of the drug transactions were played for the jury over Jackson’s objections. The court provided the fol- lowing instructions: Ladies and gentlemen of the jury, the govern- ment will now present recorded conversations and video recordings. This is proper evidence that you should consider together with and in the same way you consider other evidence in this case. … The recordings contain statements and ques- tions by the confidential source in this case. You may consider statements or questions of the confidential source on the recordings only to help you understand what the defendant said in response to—in response or did in reaction to those statements or questions. You may not con- sider the confidential source’s statements or questions for the truth of what the confidential source said. The confidential source’s state- ments and questions standing alone are not ev- idence of the defendant’s guilt. After the recordings played uninterrupted, Inspector Roun- tree testified as to what he saw and heard on the recordings. Following a four-day trial, on July 12, 2018, a federal jury in the Southern District of Illinois found Jackson guilty of counts 1 through 4 but was unable to reach a consensus on counts 5 and 6. The government subsequently moved to dis- miss counts 5 and 6 without prejudice. On November 28, 2018, the district court entered judg- ment and sentenced Jackson as follows: concurrent terms of No. 18-3534 5

360 months for counts 1 and 2, a concurrent term of 480 months on count 3, and a life sentence on count 4. The President signed the First Step Act, Pub. L. 115-391, into law on December 21, 2018. One effect it has (among oth- ers) is to reduce the mandatory minimum sentences for vari- ous crimes. Section 401 of the First Step Act reduces the man- datory minimum sentence for violations of 21 U.S.C. § 841(b)(1)(A)(viii)––Jackson’s count 4––from life to twenty- five years. II. Discussion Jackson argues that the district court should not have ad- mitted the CS’s recordings without the CS present to testify and should not have allowed investigators to testify about the recordings. Jackson also argues that his sentence should be reduced because the First Step Act took effect shortly after his sentencing. A. Admitting the Recordings and Related Testimony We review de novo whether an evidentiary ruling violates the Confrontation Clause of the Sixth Amendment and review other evidentiary rulings for abuse of discretion. See United States v. Wright, 651 F.3d 764, 773 (7th Cir. 2011); United States v. Prude, 489 F.3d 873, 878 (7th Cir. 2007). Jackson presents three arguments against the admission of the recordings during his trial: (1) the government failed to lay the appropriate foundation before the recordings were ad- mitted; (2) the investigators should not have been allowed to “narrate” portions of the recordings to describe their impres- sions; and (3) the admission of the recordings without the CS’s presence and testimony violated the Confrontation Clause. 6 No. 18-3534

1. Foundation Jackson contends that the government failed to lay the ap- propriate foundation for the recordings and the chain of cus- tody of physical evidence because “[the CS] is the only one who could give testimony about the chain of custody of the evidence.” Jackson, however, fails to challenge the extensive eyewitness testimony provided by investigators supporting the chain of custody and laying the foundation for the admis- sion of both the recordings and physical evidence. Under Federal Rule of Evidence 901(a), “[t]o satisfy the re- quirement of authenticating or identifying an item of evi- dence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Jackson has not identified any meaningful lapse or flaw in the testimony authenticating the evidence entered in his trial, and he has not rebutted the investigators’ eyewitness recollections. The district court did not abuse its discretion in admitting the recordings or the other evidence challenged. 2. Investigators’ Testimony Jackson briefly posits that the investigators’ “narrative” testimony about the CS’s recordings was inappropriate: “even if the district court correctly admitted the videos without [the CS’s] presence at trial, it erred when it allowed Officer Jayson Murbarger and Officer Glen Rountree to narrate significant portions of the videos when there was a less prejudicial means to present the same evidence–namely the testimony of [the CS].” Jackson does not identify any specific testimony as “prejudicial,” let alone unfairly prejudicial, see Fed. R. Evid. 403, so the argument fails. No. 18-3534 7

3. Confrontation Clause Jackson further asserts that “[t]he district court erred when it allowed the government to introduce videos made by the [CS] as evidence without requiring him to testify,” argu- ing that this decision violated his Sixth Amendment right of confrontation and is contrary to the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). Generally, “in the context of the admission of testimonial hearsay in criminal trials, the Sixth Amendment’s Confronta- tion Clause bars the admission of such testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” United States v. Fos- ter, 701 F.3d 1142, 1150 (7th Cir. 2012) (citation and internal quotation marks omitted). The Confrontation Clause applies to both in-court and out-of-court statements. Crawford, 541 U.S. at 50–51. According to Jackson, the recordings consti- tuted out-of-court testimonial statements and should not have been admitted, as the CS was in government custody and Jackson never had the opportunity to cross-examine him. Jackson ignores, however, that not all out-of-court testimonial statements implicate the Confrontation Clause. Crawford reiterated the longstanding principle that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n.9. Jackson has not identified any statement made by the CS on the recordings that was be- ing offered for the truth of the matter asserted. Indeed, Jack- son fails to challenge any specific statement of the CS; instead, he objects to the admission of the recordings as a whole. The district court allowed the recordings into evidence on the ground that the CS’s words were not being offered for the 8 No. 18-3534

truth of the matter asserted or any inappropriate purpose and noted that Jackson had not identified any statement where the CS “put words into Jackson’s mouth.” On appeal, Jackson still has not pointed to any statement admitted for any purpose beyond adding context to Jackson’s own statements. “The admission of recorded conversations between informants and defendants is permissible where an informant’s statements provide context for the defendant’s own admissions. [S]tatements providing context for other ad- missible statements are not hearsay because they are not of- fered for their truth.” Foster, 701 F.3d at 1150 (citation and in- ternal quotation marks omitted). The district court’s use of a limiting instruction (telling the jury that the CS’s statements could not be considered for their truth, but only to provide context to Jackson’s own state- ments), further supports the propriety of the recordings’ ad- mission. Id. at 1152 (noting that a district court’s limiting in- struction was relevant to its determination that the Confron- tation Clause was not violated: “[T]he jury was provided with instructions by the court indicating that the CI’s recorded statements were not to be considered for the truth of the mat- ter asserted, but instead only to provide context for the de- fendantʹs admissions.”). United States v. Gaytan is instructive. 649 F.3d 573 (7th Cir. 2011). There, we held that “the district court properly admit- ted [the CS’s] out-of-court statements—not for their truth but to contextualize Gaytan’s own statements without putting words in his mouth. There was no Confrontation Clause vio- lation.” Id. at 580. The Gaytan district court had provided lim- iting instructions to the jury: “The confidential informant’s No. 18-3534 9

statements are offered only to provide context for the defend- ant’s statements, and are not to be considered for the truth of the matters asserted.” At oral argument, counsel for Jackson attempted to distin- guish Gaytan from this case, noting that in Jackson’s case the judge instructed the jury that “[t]he confidential source’s statements and questions standing alone are not evidence of the defendantʹs guilt” (emphasis added). Jackson’s counsel ar- gued that the use of the phrase “standing alone” materially differed from the instructions in Gaytan because it implicitly invited the jury to consider the CS’s statements as evidence when viewed in conjunction with other evidence.1 This consti- tutes mere semantics. The trial court’s instruction stated a log- ical corollary of what we have already determined is an ac- ceptable use of a CS’s out-of-court statements: to provide con- text to the defendant’s own statements. As Jackson has not singled out any statement of the CS of- fered for the truth of the matter asserted, and because the dis- trict court provided an appropriate limiting instruction to the jury, there are no grounds to hold that Jackson’s right to con- frontation was violated. B. First Step Act We review questions of law affecting sentencing de novo, Foster, 701 F.3d at 1156, and review a sentence’s reasonable- ness for abuse of discretion, United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir. 2012). Jackson challenges his mandatory life sentence on count 4, arguing that the passage of the First Step Act a mere twenty-

1 Jackson had not made this argument in briefing. 10 No. 18-3534

five days after his sentencing retroactively made the life sen- tence unjust, pointing out that “the trial judge stated on the record ‘my hands as a judge are tied as to what your sentence should be.’” Jackson’s appeal of this issue is unavailing. We recently held that the First Step Act is not retroactive: it only applies to sentences imposed after its execution. In United States v. Pierson, as in this case, the First Step Act fol- lowed the defendant’s sentencing while the case was still on appeal. 925 F.3d 913, 927 (7th Cir. 2019). Pierson, like Jackson, received a mandatory life sentence for violating 21 U.S.C. § 841(b)(1)(A)(viii). Similarly, Pierson argued that the First Step Act’s reduction of the mandatory minimum sentence from life to twenty-five years should apply to him. We disagreed, noting that the First Step Act only applies to sentences “imposed” after its execution, and holding that the imposition of a sentence occurs on the date of sentencing in the trial court itself (not, as Pierson maintained, after an ap- peal’s resolution): “Any reduction in criminal penalties or in a Sentencing Guideline can pose difficult line-drawing in ap- plying the reduction to pending cases. … In the First Step Act, Congress chose language that points clearly toward [the re- sult that] the date of sentencing in the district court controls application of the new, more lenient terms.” Id. at 927–28. Here, as in Pierson, the sentence was imposed “when the district court sentenced the defendant, regardless of whether he appealed a sentence that was consistent with applicable law at that time it was imposed.” Id. at 928. Therefore, the First Step Act does not apply to Jackson’s sentence, imposed prior to the Act, meaning the Act cannot justify a reduction. No. 18-3534 11

Additionally, the district judge’s pretrial statement that his hands were tied in relation to a mandatory life sentence on count 4 does not support vacating Jackson’s sentence; in fact, the entire colloquy shows Jackson accepting the risk of such a sentence in proceeding to trial. The colloquy occurred immediately before trial, and in it the judge described to Jack- son the effect of the government’s information establishing Jackson’s prior drug convictions: THE COURT: Mr. Sims, have you had a chance to review the second 851 enhancement thatʹs been filed and to talk with your client about the impact it would have on Count 4 in the event the jury finds Mr. Jackson guilty of Count 4? Did you relay to him, as I did, that heʹd be looking at mandatory life imprisonment? DEFENSE COUNSEL: Yes, Your Honor, I did. THE COURT: And no parole in the federal sys- tem. You understand that, Mr. Jackson? THE DEFENDANT: Yes, I do. DEFENSE COUNSEL: Yes, Your Honor, and against my advice, my client has elected to go to trial. THE COURT: Is that correct, Mr. Jackson? THE DEFENDANT: Yes, it is, Your Honor. THE COURT: Now, you understand that if you go to trial and if youʹre found guilty of Count 4, that my hands as a judge are tied as to what your sentence would be? You understand that? THE DEFENDANT: Yes, I do, Your Honor. 12 No. 18-3534

Contrary to Jackson’s claims, the judge’s statement that his “hands as a judge are tied” does not demonstrate that such a sentence was unjust. In context, the judge was warning Jack- son about the potential consequences of proceeding to trial, and explicitly making clear to Jackson that he would have to sentence Jackson to life were he found guilty on count 4. Jack- son has provided no authority to support the proposition that a judge describing mandatory sentences in a pretrial hearing indicates an unreasonable punishment. Finally, Jackson’s mandatory life sentence is not unreason- able as it was within the Guidelines range at the time of sen- tencing. “A sentence within a properly calculated guidelines range is presumed to be reasonable; it is the defendant’s bur- den to overcome the appellate presumption.” Vizcarra, 668 F.3d at 527. Jackson insists that the passage of the First Step Act shows that the government knew the mandatory life sen- tence on count 4 was unfair. While the Act demonstrates that Congress wished to revise certain mandatory minimum sen- tences, it does not follow that Congress intended to brand sen- tences carried out under the prior framework as unreasona- ble. III. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court.