     Case: 11-30719     Document: 00511935875         Page: 1     Date Filed: 07/27/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 27, 2012
                                     No. 11-30719
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERARD A. JACKSON, JR., also known as Gerard Jackson, also known as
Gerald Jackson,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-219-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Gerard A. Jackson, Jr., appeals the denial of his motion to sever the
charges for bank robbery and for conspiracy to distribute and possess with intent
to distribute cocaine and possession with intent to distribute cocaine. This court
reviews the denial of a motion to sever for an abuse of discretion. United States
v. Simmons, 374 F.3d 313, 317 (5th Cir. 2004). Jackson did not renew the
motion as to the fifth superseding indictment. It is unclear whether review is


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30719

limited to plain error. See United States v. Mann, 161 F.3d 840, 861-62 & n.58
(5th Cir. 1998). However, under either standard of review, Jackson’s claim lacks
merit.
      The district court’s denial of the motion to sever pursuant to Federal Rule
of Criminal Procedure 8(a) was not an abuse of discretion or plain error. The
fifth superseding indictment included allegations establishing a logical
relationship between the bank robberies and the drug charges; in particular, it
alleged that after stealing cocaine from his supplier, Jackson needed a new
supplier; he committed the bank robberies to obtain money to purchase more
drugs for resale; his coconspirator in the drug conspiracy helped Jackson clean
the dye-stained money obtained during the bank robbery; and he asked his
coconspirator to find a new supplier using the money obtained from one of the
bank robberies. See United States v. Faulkner, 17 F.3d 745, 758 (5th Cir. 1994)
(“The propriety of joinder under Rule 8 is determined on the basis of the
allegations in the indictment, which are accepted as true barring allegations of
prosecutorial misconduct.”). Evidence concerning both the bank robberies and
the drug offenses was discovered at the apartment of Jackson’s coconspirator,
further establishing a logical relationship between the offenses. See United
States v. Dominguez, 105 F. App’x 594, 595 (5th Cir. 2004). Even assuming
arguendo that the joinder was improper, Jackson has not shown “clear, specific,
and compelling prejudice that resulted in an unfair trial.” See United States v.
Simmons, 374 F.3d 313, 317 (5th Cir. 2004). Jackson is essentially challenging
his coconspirator’s credibility; however, the credibility of witnesses is a question
for the jury. See United States v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009).
Further, any possible prejudice was cured by the jury instructions given by the
district court. See United States v. Butler, 429 F.3d 140, 147 (5th Cir. 2005).
      Jackson argues that the evidence was insufficient to support his
convictions for conspiracy to distribute and possess with intent to distribute 500
grams or more of cocaine and possession with intent to distribute 500 grams or

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                                  No. 11-30719

more of cocaine. Because Jackson did not move for a judgment of acquittal
under Federal Rule of Criminal Procedure 29 at the close of the Government’s
case, review is limited to plain error. See United States v. Delgado, 672 F.3d
320, 328-31 (5th Cir. 2012) (en banc). Jackson’s conviction will be reversed only
to prevent a “manifest miscarriage of justice.” Id. at 331. This standard is not
met unless “the record is devoid of evidence pointing to guilt” or “the evidence is
so tenuous that a conviction is shocking.” Id. (internal quotation marks and
citation omitted).
      The record is not devoid of evidence of Jackson’s guilt. James Joseph, Eric
Foster, and Omar Skiffay testified that beginning in the fall of 2008, Jackson
sold cocaine provided by Joseph in New Orleans. Foster was Jackson’s “main
man” in New Orleans, cooked the cocaine into crack, talked to Jackson’s buyers,
and told them about the quantity and quality of the cocaine. Between August
or September 2008 and January 2009, Joseph provided approximately 15
kilograms of cocaine to Jackson. Jackson stole eight kilograms of cocaine from
Joseph in February 2009; Jackson told Foster and Skiffay that he was coming
to New Orleans with cocaine and asked if they knew anyone interested in some
“weight” or a large amount of cocaine. Joseph traveled to New Orleans, located
Jackson, and stole the cocaine back from Jackson. Jackson told Foster and
Skiffay that cocaine was stolen; Jackson told Skiffay that he needed to “hit a
lick” and that he was going to rob a bank to get back into the drug business.
After one bank robbery, Jackson asked Foster to find a cocaine supplier using
$17,000 of the money obtained in the bank robbery. During a search of Foster’s
apartment, officers discovered $3200 in cash, cocaine, MDMA pills, a firearm
with an obliterated serial number, and the bag used in one of the bank robberies
on the roof of Foster’s building. In the instant case, the jury was free to rely on
the testimony of Joseph, Skiffay, and Foster, as well as the physical evidence
seized from Foster’s apartment, to establish Jackson’s convictions for conspiracy
to distribute and to possess with intent to distribute 500 grams or more of

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                                 No. 11-30719

cocaine and possession with intent to distribute 500 grams or more of cocaine.
See United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997). Jackson is
essentially challenging the witnesses’ credibility; however, this court does not
“weigh evidence or assess the credibility of witnesses.”      United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Jackson has not shown that
“the record is devoid of evidence pointing to guilt” or that “the evidence is so
tenuous that a conviction is shocking.” See Delgado, 672 F.3d at 331 (internal
quotation marks and citation omitted).
      AFFIRMED.




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