                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0376n.06
                                                                                        FILED
                                           No. 09-5821
                                                                                   Jun 06, 2011
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff - Appellee                              )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
               v.                                        )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF TENNESSEE
JEROME W. JACKSON,                                       )
                                                         )
       Defendant - Appellant                             )
                                                         )


BEFORE: COLE, McKEAGUE, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Jerome Jackson appeals his conviction and sentence for distributing at least five

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.

                                                 I.

       Jerome Jackson was the target of a drug investigation in Chattanooga, Tennessee. The events

giving rise to this case began when Hamilton County Deputy Sheriff Robin Langford arranged for

a cooperating source to participate in a controlled drug buy with Jackson in a hotel room. Deputy

Langford searched the cooperating source, the hotel room, and its contents, and gave the source

$1,000 in prerecorded bills to purchase crack cocaine. Deputy Langford and other officers then

monitored the hotel room from an adjacent room using video surveillance equipment. The police

also engaged in physical surveillance outside of the hotel.
No. 09-5821
USA v. Jerome Jackson


       The source called Jackson using a cellular telephone and arranged to meet with him. Jackson

visited the hotel room, spoke with the source for approximately thirty minutes, and then left. He

returned approximately forty-five minutes to one hour later and removed a baggie from his pocket

and placed it on the bed. The cooperating source inspected the baggie, which contained a white

substance, and then paid Jackson. When Jackson began to leave, the police arrested him. They

found $700 of the “buy money” in Jackson’s pocket and later determined that the white substance

in the baggie was 11.05 grams of cocaine base. Jackson was charged with unlawful distribution.

       Approximately three months after these events, one of Jackson’s acquaintances was

murdered, and the cooperating source who purchased the cocaine from Jackson at the hotel was

charged with the crime. Consequently, before Jackson’s trial in this case began, the United States

filed a motion in limine to exclude references to “any crimes, arrests, or bad acts” of the cooperating

source. The government explained that it did not intend to call the source as a witness at trial, and

that the credibility of the source would not be an issue for the jury. Instead, the evidence at trial

would consist of a muted police video of the transaction between the source and Jackson, and the

testimony of Deputy Langford and a laboratory chemist.

       The district court deferred its decision whether to allow Jackson to mention the cooperating

source’s pending murder charge until after the government’s direct examination of Deputy Langford.

When that direct examination was finished, the court heard additional argument and granted the

government’s motion. It concluded that nothing Deputy Langford had said could be interpreted as

“vouching for [the source’s] credibility” and therefore the proposed cross-examination regarding the


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No. 09-5821
USA v. Jerome Jackson


third party’s conduct failed to satisfy Federal Rule of Evidence 608(b)’s requirements. The district

court also determined that Federal Rule of Evidence 403 independently prohibited the cross-

examination because the potential prejudicial effect of “any reference to this subsequent, presumably

unrelated arrest and charges against the cooperating source” would “substantially outweigh[] any

probative value.”

       Thereafter, during cross-examination, Deputy Langford was asked a number of questions

regarding the source’s motivation for cooperating with the police. Deputy Langford responded that

the source had initially cooperated in exchange for help with his “legal issues,” but that he later

received cash for providing information and participating in controlled transactions. Deputy

Langford also testified that the cooperating source received $150 for participating in the controlled

transaction that led to Jackson’s arrest, and that the source had initially identified Jackson as a

supplier of crack cocaine and therefore as a possible target for a narcotics investigation.

       The jury found Jackson guilty of distributing at least five grams of cocaine base in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

       In preparation for Jackson’s sentencing, the probation department prepared a presentence

report (“PSR”). The PSR calculated Jackson’s base offense level as 24. It also advised that Jackson

was a career offender under U.S.S.G. § 4B1.1 because he had four prior felony convictions for

crimes of violence or controlled substances offenses. As a career offender, Jackson’s offense level

was increased to 34 and his criminal history category was VI. His resulting advisory Guideline’s

sentencing range was 262 to 327 months’ imprisonment.


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No. 09-5821
USA v. Jerome Jackson


        Jackson objected to the district court’s use of the Guidelines and consideration of his criminal

history on Sixth Amendment grounds. He also objected to the PSR’s statement that the cocaine base

weighed 12.2 grams. The court overruled the objections to its consideration of the Guidelines, but

it sustained the objection to the PSR.1 The court also agreed with the probation department’s

determination that Jackson was a career offender and that his applicable Guideline’s range was 262

to 327 months. The court then heard argument, discussed the 18 U.S.C. § 3553(a) factors, and

imposed a sentence of 290 months’ imprisonment.

        This appeal followed. After the parties filed their initial briefs, Jackson moved for

appointment of substitute appellate counsel. He alleged that his counsel was constitutionally-

ineffective for failing to raise several issues on appeal and for failing to provide him with a number

of pretrial transcripts. The clerk of court denied Jackson’s motion for appointment of substitute

counsel pursuant to Sixth Circuit Rule 45(a). However, Jackson’s brief in support of his motion for

substitute counsel was subsequently docketed as a supplemental brief for our consideration in this

case.

                                                    II.

        Jackson and his counsel collectively raise four issues on appeal: (1) whether Jackson’s Sixth

Amendment right of confrontation was violated when (a) the district court prevented defense counsel

from cross-examining Deputy Langford regarding the fact that the cooperating source was later

charged with murder, and (b) the cooperating source failed to testify; (2) whether Jackson’s sentence



        1
            This latter determination did not alter the Guideline’s calculation.
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No. 09-5821
USA v. Jerome Jackson


violated his Sixth Amendment right to a trial by jury and was unreasonable; (3) whether the delay

between Jackson’s state court arrest and the filing of the federal case against him violated his rights

under the Speedy Trial Act; and (4) whether the drug evidence was sufficient to support his

conviction.2 We address these claims in turn.

                                                  A.

       Jackson first asserts that his “Sixth Amendment right[] to confront his accusers” was violated

because the trial court “prevented [defense] counsel from cross examining the government’s

witnesses regarding the confidential informant’s murder charges.” In support of this argument, he

claims that the district court’s decision to deny the cross-examination under the Federal Rules of

Evidence was incorrect because “the credibility of [Deputy] Langford is called in to question by the

fact that he was working with an informant who later committed a murder.” He also claims that his

“right to face his accuser” was violated because the cooperating source did not testify at trial. We

find no constitutional violation.

       The Sixth Amendment guarantees the right of a criminal defendant in a state or federal

prosecution “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also

Crawford v. Washington, 541 U.S. 36, 42 (2004). Cross-examination is a “primary interest” secured

by the Confrontation Clause and “the principal means by which the believability of a witness and



       2
         Although Jackson presents all of his pro se arguments in the form of claims for ineffective
assistance of counsel, we address the merits of the arguments he would have had counsel make on
his behalf, because that was the purpose of permitting him to file a supplemental brief. Jackson’s
ineffective assistance of counsel claims are not reviewable in this appeal. See United States v.
Sullivan, 431 F.3d 976, 986 (6th Cir. 2005).
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No. 09-5821
USA v. Jerome Jackson


the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (internal

quotations omitted). A criminal defendant’s confrontation rights are not limitless, however. “Trial

judges [may] . . . impose reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

       Where “it is merely the extent of cross-examination that is limited,” as it was here, the

Confrontation Clause question is “whether the jury had enough information, despite the limits placed

on otherwise permitted cross-examination, to assess the defense theory.” Stewart v. Wolfenbarger,

468 F.3d 338, 347 (6th Cir. 2006) (citation and internal quotation marks omitted). Under this

standard, it is only when “the defense is not allowed to plac[e] before the jury facts from which bias,

prejudice or lack of credibility of a prosecution witness might be inferred,” Dorsey v. Parke, 872

F.2d 163, 167 (6th Cir. 1989) (first alteration in original; citation and internal quotation marks

omitted), that “there is indeed a denial or significant diminution of cross-examination that implicates

the Confrontation Clause.” Boggs v. Collins, 226 F.3d 728, 739 (6th Cir. 2000).

       Jackson was not denied his right of confrontation. The fact that the confidential informant

was charged with murder three months after the events giving rise to this case occurred does not

show any “bias, prejudice, or lack of credibility” by Deputy Langford in his decision to use the

confidential informant. Moreover, any such violation in this case would be harmless beyond a

reasonable doubt. The pending criminal charge against the source was not relevant to Deputy

Langford’s testimony; Jackson was allowed to cross-examine Deputy Langford regarding the


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No. 09-5821
USA v. Jerome Jackson


cooperating source’s motivations for participating in the investigation; and the chief evidence against

Jackson, a video recording of him selling the crack cocaine to the cooperating source,

overwhelmingly established his guilt. Cf. Delaware v. Van Arsdall, 475 U.S. at 684.

        Jackson’s assertion that his constitutional “right to face his accuser” was violated because

the cooperating source did not testify at trial is also off the mark. The cooperating source was not

a witness against Jackson for purposes of the Sixth Amendment because the source did not testify

at trial and did not otherwise “bear testimony” against him. Crawford, 541 U.S. at 51. The source

merely appeared in a muted video that showed Jackson selling him the crack cocaine. Cf. United

States v. Jones, 205 F. App’x 327, 342-43 (6th Cir. 2006) (holding that even the audible statements

of a nontestifying informant in a similar drug-sale video did not violate the Confrontation Clause

because the statements were not offered for their truth but to place the defendant’s statements in

context). Jackson therefore had no constitutional right of confrontation as to the cooperating source.

                                                   B.

        Next, Jackson asserts that his Sixth Amendment right to be tried by a jury was violated

because the district court applied the Sentencing Guidelines and because it considered his criminal

history in determining that he was a career offender. The sum total of his argument, however, is that

“[c]ounsel for the appellant filed objections to the use of the sentencing guideline’s [sic] in general,

to the use of criminal history to enhance the appellant’s sentencing range, and to the use of the career

offender enhancement – all without a jury finding these factors to be true.” Because “[i]t is not

sufficient for a party to mention a possible argument in [a] skeletal way, leaving the court to put flesh


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No. 09-5821
USA v. Jerome Jackson


on its bones,” we conclude that this claim is waived.3 El-Moussa v. Holder, 569 F.3d 250, 257 (6th

Cir. 2009) (second alteration in original; citation and internal quotation marks omitted); see also

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (explaining that arguments “adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation” are

“waived”) (citation and internal quotation marks omitted).

       Jackson also intimates that his sentence was procedurally and substantively unreasonable

inasmuch as “the trial court considered the guidelines as advisory but failed to consider any of the

18 U.S.C. 3553(a) factors presented by the defendant.” See Gall v. United States, 552 U.S. 38, 49

(2007). We presume, however, that a district court reviews all of the information presented to it

before it imposes a sentence. United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006). And the

mere fact that the “district court may not have mentioned all of the statutory factors” does not show

that a sentence is unreasonable because we have “never required the ‘ritual incantation’ of the factors

to affirm a sentence.” United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005). Jackson has not

identified any factor that the district court overlooked, nor has he provided any reason to doubt the

presumption of substantive reasonableness attached to his within-Guidelines sentence. See United

States v. Robinson, 503 F.3d 522, 528 (6th Cir. 2007). Upon review, we conclude that the sentence

is reasonable.

                                                   C.




       3
           It is also clearly meritless. See Booker v. United States, 543 U.S. 220, 244 (2005).
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No. 09-5821
USA v. Jerome Jackson


       Jackson’s remaining claims are even less convincing. His argument that the United States

violated the Speedy Trial Act by waiting to charge him with a federal crime until several months

after he was arrested by state officials fails for at least two reasons. First, the argument is waived,

because a defect in instituting prosecution or in the indictment “must be raised before trial,” Fed. R.

Crim. P. 12(b)(3), (e); see also United States v. Brown, 498 F.3d 523, 527-28 (6th Cir. 2007), and

Jackson never moved to dismiss the indictment based on unreasonable pre-indictment delay. Id.;

see, e.g., United States v. Pinson, 1 F. App’x 426, 429 (6th Cir. 2001). Second, Jackson’s claim fails

on the merits because the time he spent in state custody does not count as a “federal arrest” for

purposes of triggering the Speedy Trial Act clock.4 United States v. Blackmon, 874 F.2d 378, 381

(6th Cir. 1989).

       Jackson’s assertion that there was insufficient drug evidence because the crack cocaine

introduced at trial was in several pieces rather than a single “rock,” and because the district court

refused to allow the jury to independently weigh the crack cocaine, is likewise without merit. “The

relevant question in assessing a challenge to the sufficiency of the evidence is ‘whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” United States v.

Jackson, 470 F.3d 299, 309 (6th Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).



       4
         Relatedly, to the extent Jackson suggests that his prosecution by both state and federal
authorities violated his Fifth Amendment right against double jeopardy, the claim is frivolous. The
“dual sovereignty doctrine holds that the double jeopardy clause does not apply to suits by separate
sovereigns, even if both are criminal suits for the same offense.” United States v. Louisville Edible
Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir. 1991) (citation and internal quotation marks omitted).
                                                  -9-
No. 09-5821
USA v. Jerome Jackson


If a certain drug quantity “increases the penalty for a crime beyond the prescribed statutory

maximum,” it becomes an essential element and must also “be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

       Here, Deputy Langford testified that he sealed the crack cocaine recovered as a result of the

controlled buy in an evidence envelope and submitted it for laboratory testing. Brian Angolia, the

chemist who analyzed the crack cocaine, testified that he was the only person to unseal the envelope

and that the drugs weighed 11.05 grams. Viewing this evidence in the light most favorable to the

prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that

the cocaine base entered into evidence at trial in this case was the crack cocaine that was recovered

by the police at the time of Jackson’s arrest, see generally United States v. Haney, 23 F.3d 1413,

1415 (8th Cir. 1994) (noting one expert’s testimony that crack cocaine is porous and prone to

crumbling when it is moved or handled), and that the cocaine base weighed more than five grams.

                                                 III.

       For these reasons, we affirm.




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