United States v. Jackson

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

- 2 - 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

- 3 - 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

- 4 - 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:

- 5 - [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.

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 - [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,

- 10 - 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

- 11 - 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.

- 12 -