                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2006

USA v. Jackson
Precedential or Non-Precedential: Precedential

Docket No. 05-1454




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                                         PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 05-1454


             UNITED STATES OF AMERICA

                             v.

                  ANTHONY JACKSON

                                  Appellant


      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 03-cr-00642)
       District Judge: Honorable Michael M. Baylson


        Submitted Under Third Circuit LAR 34.1(a)
                     March 9, 2006

    Before: ROTH and ALDISERT, Circuit Judges, and
             RODRIGUEZ,* District Judge


*
 The Honorable Joseph H. Rodriguez, Senior District Judge,
United States District Court for the District of New Jersey,
                    (Filed: April 5, 2006)

Jeanne K. Damirgian, Esq.
Two Penn Center Plaza, Suite 200
1500 Kennedy Blvd.
Philadelphia, PA 19102-1706

       Counsel for Appellant

Patrick L. Meehan, Esq.
Robert A. Zaumer, Esq.
Michelle T. Rotella, Esq.
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee


                           OPINION


ALDISERT, Circuit Judge

         In Anthony Jackson’s appeal from a conviction and
sentence in the United States District Court for the Eastern
District of Pennsylvania, we join several sister courts of appeals
in holding that 21 U.S.C. § 841(a)(1) (possession of a controlled
substance with intent to distribute) is a lesser-included offense
of 21 U.S.C. § 860(a) (possession of a controlled substance with


sitting by designation.

                                2
intent to distribute within 1,000 feet of a school).

        His appeal also requires us to decide whether: (1) a
supplemental jury instruction issued by the District Court was
unduly coercive; (2) sufficient evidence existed in the record for
the trier of fact to have found beyond a reasonable doubt that
Jackson’s presence within 1,000 feet of a school was voluntary;
and (3) Jackson received sufficient notice of the results of the
school zone measurements that the government intended to
introduce at trial. We have jurisdiction to hear the instant appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We
will affirm Jackson’s conviction for violating § 860(a), vacate
his conviction and sentence for the lesser-included offence of
violating § 841(a)(1), and remand for resentencing.

                                 I.

       On April 3, 2003, two officers of the Philadelphia Police
Department were patrolling West Philadelphia when they came
upon a car stopped at a red light at the intersection of 64th Street
and Elmwood Avenue. When the light turned green, the car did
not move. After waiting a few seconds the officers honked the
horn of their vehicle and activated their vehicle’s siren for a full
cycle. The car still did not move. The officers next pulled
alongside the stopped car and saw the defendant, Jackson,
slumped and unmoving behind the steering wheel. They then
approached the driver’s door of Jackson’s vehicle, whereupon
they yelled through the driver’s window and banged on it
heavily, without receiving a response from Jackson.

       Under the impression that Jackson needed medical

                                 3
attention, the officers decided to enter the vehicle. They reached
through a crack in the window, lowered the window and opened
the driver’s door. The officers found that the car was still in
drive with Jackson’s foot depressing the brake pedal. While
reaching in to put the vehicle into park, they noticed something
on Jackson’s lap – two baggies that they believed to carry
marijuana and cocaine. All the while, Jackson remained sound
asleep. It was not until one of the officers put handcuffs on
Jackson that he awoke. Jackson was then arrested. Upon later
analysis, it was found that the baggies contained 48.35 grams of
cocaine base and 4.02 grams of marijuana. A handgun was also
recovered from Jackson’s car.

       After a federal grand jury returned an indictment against
Jackson on September 25, 2003, two superceding indictments
were subsequently entered on March 23, 2004 and August 5,
2004. He was brought to trial on the August indictment, which
charged him with four counts: (1) possession with intent to
distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1);1 (2) possession with intent to distribute

1
    21 U.S.C. § 841(a)(1) provides that:

        Except as authorized by this subchapter, it shall
        be unlawful for any person knowingly or
        intentionally--

               (1)    to manufacture, distribute, or
                      dispense, or possess with intent to
                      manufacture, distribute, or
                      dispense, a controlled substance . .

                                4
more than five grams of cocaine base within 1,000 feet of a
school, in violation of 21 U.S.C. § 860(a);2 (3) knowing
possession of a handgun during the commission of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4)
possession of a handgun by a convicted felon, in violation of 18
U.S.C. § 922(g)(1).

        A jury trial began on November 1, 2004, and two days
later the jury returned a guilty verdict as to Counts One and
Two, and acquittals on Counts Three and Four. For violating §
841(a)(1), the Court sentenced Jackson to 300 months in prison,
a $1,000 fine and a $100 special assessment. For violating §
860(a), the Court sentenced him to 300 months in prison, to run
concurrently to the sentence for Count One, and a $100 special
assessment. For each count, he also received an eight-year
period of supervised release, to run concurrently. This appeal of
his conviction and sentence followed.


                      .
2
    21 U.S.C. § 860(a) punishes:

        Any person who violates section 841(a)(1) of this
        title or section 856 of this title by distributing,
        possessing with intent to distribute, or
        manufacturing a controlled substance in or on, or
        within one thousand feet of, the real property
        comprising a public or private elementary,
        vocational, or secondary school or a public or
        private college, junior college, or university, or a
        playground . . .

                                 5
                               II.

       Jackson first contends that the supplemental charge
issued by the Court unduly coerced the jury into reaching a
conviction because it improperly raised the specter of a new trial
should they fail to reach a unanimous decision.

       After only two hours of deliberations, the jury submitted
a note to the Court stating:

       Judge Baylson, Your Honor, we are not able to
       get past count one. There is one juror who cannot
       agree that the defendant “knowingly” possessed
       with intent to distribute cocaine base (“crack”).
       This juror is adamant that they will not change
       their decision. Where do we go from here? Jury
       Foreman.

(App. at 55a.) In discussing the contents of the supplemental
jury charge with both parties, the Court indicated that it would
inform the jury that if they could not agree, the jurors would
then be dismissed and a retrial before a new jury would be
required. Jackson objected to this instruction, but was overruled
after the Court stated that it was unaware of any case from this
Court holding that it is error to simply raise the prospect of
retrial before another jury. Thereafter, the District Court read
the following supplemental charge to the jury:

              All right. In this case, ladies and
       gentlemen, you’ve been deliberating less than two
       hours, and that’s included some time to have

                                6
lunch. I want to re-read to you slightly different
words, but the same concept that I said before.
I’d like you to go back into the jury room and talk
some more about the evidence.

       And, remember my entire instructions, that
your job is to be the finders of facts, that you
should consider the evidence, you should consider
my instructions on the law, and that you should
render a verdict based on the evidence. And, that
should be your guide, what the evidence is in this
case and what the instructions were on the law.

       Now, it’s your duty as jurors to talk with
one another and deliberate in the jury room. You
should try to reach agreement, if you can, without
doing violence to our [sic] individual judgment.
Each of you must decide the case for yourself, but
only after consideration of the evidence with the
other members of the jury.

       While this is going on, do not hesitate to
reexamine your own opinion and change your
mind if you are convinced that you are wrong.
But, don’t give up your honest belief just because
the others thing [sic] differently or merely to get
the case over with.

       Remember that the Government has to
prove its case beyond a reasonable doubt. And, if
they do not do this, then you must return a verdict

                        7
       of not guilty. If they have done this, then you
       must return a verdict of guilty.

              So, I ask you to remember my instructions
       on what is reasonable doubt and all the other
       instructions that I gave you. And, remember that
       your oath as jurors is to decide the case on the
       evidence in the courtroom and the instructions of
       the law, and to render a verdict if you possibly
       can, on the charge.

              Now, if you can’t get beyond count one,
       then you can’t go on to counts two and three,
       because they’re all tied together. And, if that’s
       the case, then the case will have to be retried in
       front of another jury. So, go back in front – go
       back please and continue to deliberate. Thank
       you very much.

(App. at 57a-59a.)

        Because Jackson objected at trial to the supplemental jury
instruction, we will review the Court’s decision to read the
supplemental charge for an abuse of discretion. United States
v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (citations
omitted). Under that standard, Jackson must show that the
Court’s action was “arbitrary, fanciful or clearly unreasonable.”
Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984).
Moreover, we review the supplemental instruction given not “‘in
artificial isolation, but . . . in the context of the overall charge.’”
United States v. Brennan, 326 F.3d 176, 192 (3d Cir. 2003)

                                  8
(quoting United States v. Park, 421 U.S. 658, 674 (1975)).

                               A.

       The collective experience gleaned from similar cases in
this Court persuades us that whether a supplemental charge
passes muster when informing the jury that a new trial will be
necessary should the jurors not reach a verdict depends heavily
on the context in which the statement was made. We have
repeatedly held that supplemental jury charges should not be
used to “blast a hung jury into verdict.” United States v. Burley,
460 F.2d 998, 999 (3d Cir. 1972) (quoting United States v.
Fioravanti, 412 F.2d 407, 419 (3d Cir. 1969)). “[I]t is a cardinal
principle of the law that a trial judge may not coerce a jury to
the extent of demanding that they return a verdict.” Fioravanti,
412 F.2d at 416. We, however, will only find a charge to be
unduly coercive where the supplemental charge caused the jury
to be “influenced by concerns irrelevant to their task” and
“reached its subsequent verdict for reasons other than the
evidence presented to it.” United States v. Eastern Medical
Billing, Inc., 230 F.3d 600, 613 (3d Cir. 2000) (citing Burley,
460 F.2d at 999).

        Jackson analogizes the charge given here to those we
found to be unduly coercive in Burley and Eastern Medical
Billing, Inc. In Burley, we found a charge to be coercive where
it not only mentioned the prospect of a new trial, but also
extensively depicted the time and expense that would be
required to hold that new trial. 460 F.2d at 999. The charge
also stressed the court’s own belief that the government’s
identification evidence was “strong and persuasive.” Id. In

                                9
Eastern Medical Billing, Inc., the supplemental jury charge not
only expounded upon the prospect of a new trial, but also
extensively stressed the importance of the case and the time and
burden of a retrial. 230 F.3d at 604. In evaluating this charge,
we concluded that the district court’s instruction not only
returned the jury to their deliberations with considerations of
that time and expense, but also made the jurors in the minority
believe that the views of the majority were more reasonable. Id.
at 615. We concluded that the giving of such an instruction,
which browbeat the jury with repeated irrelevancies, was an
abuse of discretion. See id.

                                B.

         By comparison, the supplemental charge given here
merely mentioned that “the case will have to be retried before
another jury,” and nothing more. Unlike in Burley and Eastern
Medical Billing, Inc., the District Court did not stress the time,
expense or burden of a new trial, and it never hinted at its belief
as to Jackson’s guilt or innocence. Indeed, it emphasized, much
to the advantage of the defendant, that the government had to
prove its case beyond a reasonable doubt and that “if they do not
do this, then you must return a verdict of not guilty.” The Court
stressed the government’s burden of proof and the jurors’
responsibility to consider honestly the evidence. The Court told
all the jurors to reexamine their views without hesitation, but not
to surrender those beliefs for the sake of expediency.
Consequently, any undue coercion created in this case by the
brief mention of a new trial was mitigated by these
accompanying strong warnings and reminders. See Brennan,
326 F.3d at 193 (observing how warnings and reminders in a

                                10
supplemental charge removed any possibility of undue
coercion).

        Although our inquiry in these matters is fact-specific, we
have generally concluded that a charge is unduly coercive when
the trial court not only states that a new trial will result, but goes
further and unduly emphasizes the consequences, i.e., time, toil,
or expense, that will accompany a failure to arrive at an
unanimous verdict. See Burley, 460 F.2d at 999-1000; Eastern
Medical Billing, Inc., 230 F.3d at 613-615. That did not occur
here. We are therefore persuaded that the charge did not so
prejudice the jury’s deliberations such that the jury reached it’s
verdict upon considerations of matters other than the evidence
in the record.3 Accordingly, the giving of this charge was not
beyond the permissible bounds of the District Court’s discretion.

                                 III.

       Jackson next contends that his conviction for violating §

3
   We also reject Jackson’s contention that the supplemental
charge both misled and coerced the jury and improperly stated
the law by suggesting that a guilty verdict upon Count One is a
necessary predicate for a guilty verdict upon Count Four. The
charge clearly only predicated Counts Two and Three upon a
guilty verdict for Count One, which is a correct statement of
law. Furthermore, not only was the trial bifurcated so that the
jury only heard evidence upon Count Four after they had
deliberated and returned a verdict upon the first three counts, but
the jury found Jackson not guilty of both Counts Three and
Four.

                                 11
860(a) should be vacated because the government presented
insufficient evidence at trial to prove beyond a reasonable doubt
that he was voluntarily within 1,000 feet of a school. He argues
that the evidence presented at trial merely shows that he was
found unconscious at the red light and that there was no
evidence introduced which would indicate that he had any
intention of remaining in the area where he was found. But for
his “passing out” at the red light, he continues to argue, he
would have proceeded onwards and not been found within 1,000
feet of the school.

                                A.

       “We apply a particularly deferential standard of review
when deciding whether a jury verdict rests on legally sufficient
evidence.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.
1998). We review the evidence in the light most favorable to
the verdict, and will sustain the verdict if “‘any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.’” Id. (quoting United States v. Voigt, 89
F.3d 1050, 1080 (3d Cir. 1996)).

       We and our sister courts have established guidance as to
what must be presented to prove an § 860(a) violation. First, the
government does not have to show that the defendant had
knowledge that he was possessing narcotics within 1,000 feet of
a school. United States v. Dimas, 3 F.3d 1015, 1022 (7th Cir.
1993); United States v. Falu, 776 F.2d 46, 50 (2d Cir. 1985)
(“[Section 860(a)] contains no express mens rea requirement for
the distance element of the offense.”). Second, the mens rea
element for § 860(a) is found in the required underlying

                                12
violation of § 841(a)(1), which calls for a knowing possession of
narcotics with intent to distribute. Falu, 776 F.2d at 50 (“This
construction of [section 860(a)] does not criminalize otherwise
innocent activity, since the statute incorporates section
841(a)(1), which already contains a mens rea requirement . . ..”).
Third, under § 860(a), the government does not need to prove
that the defendant intended to distribute the narcotics within
1,000 feet of a school. United States v. Rodriguez, 961 F.2d
1089, 1092 (3d Cir. 1992) (“Since the actus reus for this offense
is possession, it follows that possession of the drugs, not the
intended location for distribution, must be located within 1000
feet of a school.”).

                               B.

       With this framework in mind, we turn to the facts
supporting Jackson’s conviction for violating § 860(a). First,
Jackson does not dispute his conviction for violating §
841(a)(1). That conviction establishes that Jackson was found
in knowing possession of cocaine base with intent to distribute.
Building from this factual foundation, we then observe that
Jackson was found in possession of those narcotics while
stopped at an intersection traffic light located within 1,000 feet
of four different schools. This clearly supports a jury finding of
a violation of § 860(a). Jackson’s lack of consciousness when
found by the police is immaterial because § 860(a) does not
require a knowing entry into or intent to distribute within the
protected 1,000-foot school zone. The mens rea element of §
860(a) is found in the violation of § 841(a)(1), which is
undisputed, and the actus reus consisted of his possession of
narcotics within 1,000 feet of four different schools. It is

                               13
therefore abundantly clear that sufficient evidence existed for
the jury to have found beyond a reasonable doubt that Jackson
violated § 860(a). Accordingly, we reject Jackson’s contentions
to the contrary.

                                 IV.

        Jackson next argues that the District Court committed
reversible error because, over his objection, the Court admitted
the testimony of ATF Special Agent Francis Neeley who was
called to the witness stand to testify to the proximity of the site
of Jackson’s arrest to various school zones.4 At trial, Jackson
objected to this testimony, stating that “[o]ne of the things [he]
had asked for specifically in [his] discovery requests was the
results of measuring and scientific tests.” (App. at 45a.)
Because Jackson made a contemporaneous objection to the
introduction of this testimony, we will review the Court’s ruling
for an abuse of discretion. Stich, 730 F.2d at 118.

       The District Court did not exceed permissible discretion

4
   Agent Neeley testified that, using a surveyor’s measuring
wheel, he measured the intersection of 64th and Elmwood,
where Jackson was found, to be located within 1,000 feet – 660,
675, 940 and 125 feet, respectively – of four different school
facilities operated by three different schools. He even noted that
the facility located 125 feet from the intersection was situated at
64th and Elmwood. Incidentally, while testifying at trial, one of
the officers who arrested Jackson also noted the close proximity
of this facility to the site of Jackson’s arrest, across the street on
Elmwood Avenue.

                                 14
in overruling Jackson’s objection and admitting Agent Neeley’s
testimony. The government responded that it had already
provided the results of the measurements and scientific tests.
Specifically, the government had provided Jackson with the
grand jury testimony in which Agent Neeley had provided the
exact same measurement results that he later provided at trial.
Jackson’s requests for the results of the scientific measurements
were therefore fulfilled and the objection was correctly
overruled.

         On appeal, Jackson now argues that he was not furnished
with the methodology or reports of the agent’s measurements
(i.e., the agent’s start and stop points for his measurements) and
that this lack of notice prejudiced his ability to effectively cross-
examine Agent Neeley. He argues that by failing to provide this
documentation the government violated the discovery guidelines
of Rule 16(f) of the Federal Rules of Criminal Procedure.
Jackson contends that if we agree that the agent’s testimony
should have been excluded then insufficient evidence supports
his conviction for violating 21 U.S.C. § 860(a).

       Because this request for methodology, rather than
“results,” was raised for the first time on appeal, we review this
issue for plain error. United States v. Irizarry, 341 F.3d 273,
298 (3d Cir. 2003). Jackson has not carried the heavy burden of
showing plain error here, especially as to how he was
prejudiced. Id. (“[T]he defendant bears the burden of
demonstrating prejudice.”). He argues that by not knowing
Agent Neeley’s methodology, he could not mount an effective
cross-examination. Jackson, however, could have easily
introduced his own evidence disputing the government’s

                                 15
measurements or more vigorously cross-examined Agent Neeley
upon his measurements. But he did neither, and his tactical
choice not to mount such a defense does not give rise to
reversible error.5

                                V.

        Finally, Jackson argues that 21 U.S.C. § 841(a)(1) is a
lesser-included offense of 21 U.S.C. § 860(a), and that the
District Court committed error by failing to recognize this
distinction at sentencing. He contends that his conviction and
sentence for violating § 841(a)(1) should be vacated and this

5
   Moreover, for much the same reason, were we to construe
Jackson’s argument to be that the government violated its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), we
would still conclude that no reversible error occurred because
Jackson has not shown that he was prejudiced by the lack of the
documentation on Agent Neeley’s methodology. In order to
show prejudice under Brady, “‘[t]he question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence.’” United States v. Mitchell, 365 F.3d 215, 254 (3d
Cir. 2004) (quoting Kyles v. Whitley, 514 U.S. 419, 434
(1995)). Here, Jackson was found within 1,000 feet of not just
one school facility, but four. The government’s failure to
disclose documentation of Agent Neeley’s methodology,
assuming such documentation exists, does not so prejudice the
proceedings as to suggest that Jackson did not receive a fair
trial.

                                16
cause remanded for resentencing pursuant to his superceding
conviction for violating § 860(a). The government concedes
that Jackson is correct.

        Because Jackson did not preserve this objection at trial,
we review it on appeal only for plain error. United States v.
Couch, 291 F.3d 251, 252-253 (3d Cir. 2002). Under this
standard there must be (1) an “error” that is (2) “plain” and (3)
that “affect[s] substantial rights.” Olano, 507 U.S. at 731-732.
If a plain error is found that affects the appellant’s substantial
rights, “an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 467
(1997) (citations and quotations omitted). An error affects
substantial rights if it is prejudicial, i.e., “affected the outcome
of the district court proceedings.” United States v. Evans, 155
F.3d 245, 251 (3d Cir. 1998) (quoting Olano, 507 U.S. at 734).

         Although this Court has never authoritatively stated that
§ 841(a)(1) is a lesser-included offense of § 860(a), see United
States v. Romeu, 117 Fed. Appx. 827, 829, 2004 WL 2904746
(3d Cir. Dec. 16, 2004) (unpublished) (concluding that §
841(a)(1) is a lesser-included offense of § 860(a)), other courts
of appeal have reached this same conclusion and consequently
vacated convictions and sentences for § 841(a)(1) where a
district court erroneously sentenced a defendant for violating
both § 841(a)(1) and § 860(a). See United States v. Underwood,
364 F.3d 956, 966-967 (8th Cir. 2004), vacated on other grounds
by Carpenter v. United States, 543 U.S. 1108 (2005); United
States v. White, 240 F.3d 127, 133 (2d Cir. 2001); United States

                                17
v. Kakatin, 214 F.3d 1049, 1051 (9th Cir. 2000); United States
v. Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir. 1993); United
States v. Scott, 987 F.2d 261, 266 (5th Cir. 1993). To find
Jackson guilty of § 860(a), the Court must have first found him
guilty of § 841(a)(1). See United States v. Beltz, 385 F.3d 1158,
1162 (8th Cir. 2004) (“In fact one of the statutory elements of §
860 requires that § 841(a)(1) have been violated.”). Because a
conviction under § 860(a) only requires a finding of one
additional element, the 1,000-foot proximity to a school, we
agree that the possession of cocaine base with intent to distribute
under 21 U.S.C. § 841(a)(1) is a lesser-included offense of
possession with intent to distribute within 1,000 feet of a school
under 21 U.S.C. § 860(a).

        We also conclude that, in sentencing Jackson for
violating both § 841(a)(1) and § 860(a) on facts arising from the
same incident, the Court committed plain error. First, it was
clear that the District Court’s failure to consider § 841(a)(1) as
a lesser-included offense affected the outcome of the
proceedings because Jackson received a special assessment of
$200, which would perhaps have only been $100 had the §
841(a)(1) conviction been properly subsumed into the § 860(a)
conviction. Second, the erroneous dual conviction affected the
fairness of the sentencing proceedings. Third, and most
importantly, the error affected Jackson’s “substantial rights.”
The Fifth Amendment right to be free from duplicative
prosecutions and punishment is a hallmark of American
jurisprudence. See United States v. Dixon, 509 U.S. 688, 695-
696 (1993); Blockburger v. United States, 284 U.S. 299 (1932);
White, 240 F.3d at 132 (“If, however, either offense does not
contain an element not contained in the other, the offenses are

                                18
considered the same offense for double jeopardy purposes, and
a defendant cannot be convicted of both.”). Jackson’s
conviction and sentence for violating § 841(a)(1) should
therefore be vacated.

                             ***

       Accordingly, we will affirm Jackson’s conviction for
violating 21 U.S.C. § 860(a), vacate his conviction and sentence
for violating § 841(a)(1), and remand for resentencing.




                              19
