     Case: 12-40508       Document: 00512241362         Page: 1     Date Filed: 05/14/2013




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

                                                                            FILED
                                                                           May 14, 2013
                                     No. 12-40508
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JERRY LESTER JACKSON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:09-CR-136-2


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Jerry Lester Jackson, proceeding pro se, appeals his conviction for
conspiracy to possess with intent to distribute five kilograms or more of cocaine,
arguing that the evidence was insufficient to support his conviction. A review
of the evidence in the light most favorable to the verdict indicates that a rational
trier of fact could have found beyond a reasonable doubt that Jackson was guilty
as charged. See United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012);
United States v. Jara-Favela, 686 F.3d 289, 301 (5th Cir. 2012). The evidence

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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overwhelmingly established that Jackson, Lonnie Johnson, and numerous other
coconspirators pooled their money to purchase kilograms of powder cocaine at
a lower price from sources in Dallas and Fort Worth, Texas, including Benito
Figueroa and Salvador Alvarez. Alvarez delivered the cocaine to Johnson and
others at three stash houses. After Johnson, Jackson, and others obtained the
powder cocaine, they used the houses on Jo Lyn Street to store it, convert it into
crack cocaine, and sell it to their own individual customers. Although the
evidence did not establish that Jackson personally knew the conspirators named
in the indictment, the evidence established that he was aware that there were
other participants in a large scale conspiracy in which numerous persons agreed
to possess large quantities of cocaine with the intent to distribute it as charged
in the indictment. The Government was not required to prove that Jackson
knew all the details of the objectives of the conspiracy or the identity of all
coconspirators, as long as he knowingly participated in some fashion in the
larger objectives of the conspiracy. See United States v. Brown, 553 F.3d 768,
781 (5th Cir. 2008); United States v. Rodriguez, 553 F.3d 380, 391 n.4 (5th Cir.
2008).
      Next, Jackson argues that there was a material variance between the
allegations of a single conspiracy in the indictment and the trial evidence which
allegedly proved multiple conspiracies. He has not shown that there was a
material variance between the indictment and the trial evidence as the evidence
established Jackson’s involvement in a single conspiracy with the common goal
of possession with intent to distribute cocaine. See United States v. Morris, 46
F.3d 410, 414-15 (5th Cir. 1995). The evidence established that there was a
common scheme and continuous operation that required the actions of the
suppliers as well as the purchasers, who then converted the powder cocaine to
crack cocaine and distributed it to their customers. See id. Further, there were
core participants, including Figueroa, Alvarez, and Johnson, who supplied
cocaine to Jackson and others. See id. at 416. Moreover, because Jackson was

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tried alone, there was no danger of transference of guilt from one codefendant
to another, and he cannot show any error under the rules of joinder and
severance. See United States v. Mitchell, 484 F.3d 762, 770-71 (5th Cir. 2007).
Additionally, because the Government provided Jackson’s counsel with the
witnesses’ debriefing statements, Jackson has not shown that any variance
affected his substantial rights because he was not surprised by the witnesses’
testimony concerning persons and dates not alleged in the indictment. See
United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010).
      The remaining claims raised by Jackson are raised for the first time on
appeal and therefore are reviewed for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009). To show plain error, Jackson must demonstrate that
the district court committed an error that was clear or obvious, and that affected
his substantial rights. Id. If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity or public reputation of judicial proceedings. Id.
      According to Jackson, the district court erred in admitting hearsay
statements in the plea agreements. Because the plea agreements were not
introduced to prove the truth of the matter asserted, they were not hearsay. See
United States v. Gonzalez, 967 F.2d 1032, 1035 (5th Cir. 1992). The district
court also instructed the jury that the accomplices’ guilty pleas were not
evidence of the guilt of any other person. Regardless, Jackson has not shown
reversible plain error as he has not shown that the error affected his substantial
rights in light of the overwhelming evidence of his guilt. See Puckett, 556 U.S.
at 135.
      Next, Jackson argues that the district court erred in not giving a jury
instruction on the proper use of his coconspirators’ plea agreements at the time
they were admitted into evidence. The district court’s failure to sua sponte give
a limiting instruction when the plea agreements were admitted into evidence did
not constitute plain error. See United States v. Lucas, 516 F.3d 316, 324 (5th

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                                  No. 12-40508

Cir. 2008). The district court’s actual instruction fairly and adequately covered
the issue presented. See United States v. Simkanin, 420 F.3d 397, 410 (5th Cir.
2005). Jackson’s reliance on United States v. Harrell, 436 F.2d 606, 614 (5th Cir.
1970), is misplaced as it is easily distinguished. Unlike in Harrell, the plea
agreements were introduced to blunt their impact on the credibility of the
witnesses, and the district court gave an instruction limiting the jury’s
consideration of the witnesses’ guilty pleas.
      In his next argument, Jackson contends that the admission of Agent
Martinez’s testimony concerning Lonnie Johnson’s post-arrest statement
violated the Confrontation Clause. Even if the admission of Agent Martinez’s
testimony violated the Confrontation Clause, Jackson has not shown reversible
plain error. In light of the overwhelming evidence of his guilt, he has not shown
a reasonable probability that but for the Confrontation Clause violation, the
result of the proceeding would have been different.        See United States v.
Martinez-Rios, 595 F.3d 581, 587 (5th Cir. 2010).
      Jackson also argues that the district court erred in permitting the
introduction of evidence of other similar crimes that occurred prior to the dates
alleged in the indictment, in violation of Federal Rule of Evidence 404(b). The
Government presented the evidence as direct evidence that the conspiracy and
Jackson’s involvement in it began before the date alleged in the indictment and
continued through the date alleged in the indictment and within the five-year
statute of limitations period.    Because the evidence established that the
conspiracy continued through the time stated in the indictment, the district
court did not err in admitting it. See United States v. Girod, 646 F.3d 304, 316
(5th Cir. 2011); United States v. Lokey, 945 F.2d 825, 832 (5th Cir. 1991).
Further, because the Government provided all of its witnesses’ debriefing
statements to Jackson, any variance between the dates in the indictment and
the evidence did not affect his substantial rights because he was not surprised
by the evidence. See Valencia, 600 F.3d at 432.

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      Additionally, Jackson argues that the prosecutor made the following
misstatements during closing argument: (1) Alvarez testified he dealt directly
with Jackson after Johnson was arrested on murder charges, and (2) Rodgers
testified that he and Jackson sold cocaine to each other. Because the statements
at issue were an isolated, small portion of the overall closing argument, and
because the evidence of Jackson’s guilt was overwhelming, the prosecutor’s
remarks did not “cast serious doubt on the correctness of the jury’s verdict.” See
United States v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008) (internal quotation
marks and citation omitted); see also United States v. Mendoza, 522 F.3d 482,
492 (5th Cir. 2008).
      Finally, Jackson argues that his trial counsel was ineffective in that he did
not object to the introduction of Agent Martinez’s testimony as a violation of the
Confrontation Clause; he failed to discuss the defense with Jackson and failed
to investigate information relevant to Jackson’s defense, such as the credibility
of the Government’s witnesses; and he failed to investigate the facts, interview
witnesses, and seek independent tests of the alleged controlled substances.
Because Jackson’s ineffective assistance claims were not presented to the district
court, we decline to review them at this time. See United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006).
      In one sentence, Jackson states that the district court committed clear
error in misapprehending its authority to grant a downward departure pursuant
to 18 U.S.C. § 3553(a) and U.S.S.G. § 4A1.3. Jackson has abandoned this issue
on appeal by failing to brief it adequately. See United States v. Green, 964 F.2d
365, 371 (5th Cir. 2002).
      AFFIRMED.




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