5 F.4th 676
7th Cir.2021Background
- On August 15, 2019, a DEA confidential source (CS) arranged via Walker to buy 35 grams of crack cocaine from Jackson for $1,800, to be split into a 28g bag and a 7g bag.
- At the first meet, Jackson (through Walker) delivered only 24.92 grams; the CS paid $1,500 and Jackson said he would retrieve the remaining amount.
- Jackson drove ~16 miles to obtain more crack, kept in contact with Walker, then met the CS and Walker about a mile from the original location and delivered 6.28 grams for the remaining $300.
- The two deliveries totaled 31.2 grams; a grand jury charged Jackson in a single count with distributing 28 grams or more of crack under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).
- At trial Jackson argued the events were two separate transactions each below 28g; the district court denied his Rule 29 motion, the jury convicted and found the quantity exceeded 28g; Jackson was sentenced to 120 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government proved distribution of 28g+ as a single transaction (sufficiency) | The events were one continuous transaction: Jackson agreed to sell 35g, remained in contact while obtaining the rest, and the jury could find one offense totaling >28g | The sale occurred in two distinct transactions separated by travel and delay, so each was <28g and government failed to prove the charged element | Affirmed — viewing evidence in government’s favor, any rational juror could find a single distribution totaling >28g; Jackson admitted the total amount |
| Whether Jackson may raise a duplicity challenge on appeal (failure to move pretrial) | Duplicity must be raised pretrial; Jackson’s late strategy-failure forfeited a duplicity challenge | Jackson contends he’s not arguing duplicity but only insufficiency of proof on quantity | Held forfeited — an untimely duplicity challenge would lack good cause; court treats Jackson’s claim as sufficiency, not a preserved duplicity objection |
| Whether the district court erred by not giving a lesser-included-offense instruction on lower drug-quantity (or failing to require government to request one) | The jury form permitted a finding of guilt and a separate quantity finding; no legal rule requires the government to request lesser-included instructions here | Jackson argues absence of lesser-included instruction (or a Rule 31(c) amendment) deprived him of appropriate relief | Held no reversible error — defendant did not object at trial and the procedure allowed the jury to convict on distribution and separately find quantity; court declines to create a rule requiring the government to request a lesser-included instruction |
| Whether Rule 29 acquittal should have been granted | Government: evidence permitted a rational juror to find the elements, including quantity, beyond reasonable doubt | Jackson: evidence shows two separate transactions; government failed to prove a single 28g+ distribution | Held denied — applying de novo sufficiency review, the evidence (and Jackson’s admissions) sufficed to support conviction and quantity finding |
Key Cases Cited
- United States v. O'Brien, 953 F.3d 449 (7th Cir. 2020) (defines duplicity and when a count charges multiple offenses)
- Bell v. United States, 349 U.S. 81 (1955) (unit of prosecution analysis looks to statute text)
- United States v. Boliaux, 915 F.3d 493 (7th Cir. 2019) (untimely pretrial motions and good-cause standard)
- United States v. McMillian, 786 F.3d 630 (7th Cir. 2015) (review of district court’s good-cause determination for abuse of discretion)
- Musacchio v. United States, 577 U.S. 237 (2016) (standard of review for sufficiency: whether any rational trier of fact could find elements beyond a reasonable doubt)
- United States v. Doody, 600 F.3d 752 (7th Cir. 2010) (denial of Rule 29 is reversed only when no rational trier of fact could find guilt)
- United States v. Muhammed, 502 F.3d 646 (7th Cir. 2007) (discusses continuing-offense concept in drug prosecutions)
- United States v. Rowe, 919 F.3d 752 (7th Cir.) (addressing continuing-offense instruction issues)