UNITED STATES of America v. Dominique JACKSON, a/k/a Dominique Green Dominique Jackson, Appellant
No. 14-3712
United States Court of Appeals, Third Circuit.
Argued December 7, 2016 (Filed: February 24, 2017)
849 F.3d 540
Donovan J. Cocas, Esq. (argued), Assistant U.S. Attorney, Pittsburgh, PA, Attorney for Appellee.
F. Clinton Broden, Esq. (argued), Broden & Mickelsen, Dallas, TX, Attorney for Appellant.
BEFORE: FISHER*, KRAUSE, and GREENBERG, Circuit Judges
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on Dominique Jackson‘s appeal from his conviction for conspiracy to possess with intent to distribute cocaine in violation of
Before trial, Jackson moved to suppress evidence of co-conspirators’ cellphone calls intercepted as authorized by district court
Jackson also claims that during the trial there were three unchallenged prejudicial plain errors: (1) the admission of a case agent‘s testimony interpreting the contents of certain telephone calls; (2) the admission of co-conspirators’ testimony about their convictions and guilty pleas for the same crime; and (3) the prosecutor‘s mention of a co-conspirator‘s Fifth Amendment right not to testify when she was prompted to identify the evidentiary rule that permitted the admission into evidence of what otherwise would have been inadmissible hearsay. Jackson urges that those errors separately and cumulatively require reversal of his conviction.
We conclude that inasmuch as the District Court did not err in denying Jackson‘s motions to suppress the wiretap evidence and his other contentions of error, even if correct, would not make claims rising to the level of plain errors entitling him to relief, we will affirm Jackson‘s conviction.
II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to
“We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court‘s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). To the extent that Jackson failed to object to any of the issues during the trial that he raises for the first time on appeal, our review is for plain error. See
III. BACKGROUND
A. Procedural History
A grand jury indicted Jackson and seven co-defendants on one count of “conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine from in and around July 2010 and continuing thereafter to on or about October 7, 2010.” Supp. App‘x at 487. Jackson was the only one of the eight defendants who went to trial. Before his trial, he submitted multiple motions to suppress wiretap evidence of intercepted cellphone conversations, but the District Court denied of all these motions. The jury found Jackson guilty, and on July 24, 2014, the Court sentenced him to a 135-month custodial term to be followed by five years of supervised release.2
B. The Evidence at Trial
The evidence at trial mainly was comprised of: (1) numerous cellphone calls intercepted in part pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; (2) testimony from case agents who engaged in surveillance and testimony from Jackson‘s co-conspirators Dietrick Bostick and Christopher Stanley; and (3) documents such as hotel, plane, and bus receipts that corroborated witness testimony.3
This case grew out of a joint federal and state investigation. One of the case agents, Detective Shane Countryman of the Allegheny County Sheriff‘s Office, who was assigned to the Greater Pittsburgh Safe Streets Task Force with the Federal Bureau of Investigation, testified at length about the results of his investigation. See Supp. App‘x at 67. He detailed an initial investigation into a street-level drug dealer and explained how that investigation led to wiretaps of cocaine suppliers Damell Gaines and Dietrick Bostick.4 Id. at 79-81. After the FBI determined that a co-conspirator, Arthur Gilbert, supplied Bostick with cocaine, it obtained an order to wiretap Gilbert‘s phone as well. Id. at 80-81.
Co-conspirator Bostick testified at the trial describing his work as a middleman in the cocaine distribution network during the time period in which Jackson was engaging in cocaine distribution and for which Jackson was indicted and convicted. Bostick also interpreted a number of the calls to which he was a party. See id. at 291. He informed the jury that he used his Monroeville, Pennsylvania, house to hold cocaine for out-of-state distributors. See id. at 240, 282. He testified that about twice a month he received between five and 20 kilograms of cocaine from Gilbert, who was Jackson‘s cousin. Id. at 252-55, 337. Gilbert told Bostick that he paid between $24,600 and $25,700 per kilogram of cocaine. Id. at 259. Bostick, in turn, paid Gilbert around $30,000 per kilogram and sold each kilogram for around $34,500 to a number of distributors, including Gaines. Id. at 259-60, 264.
Both Gilbert and co-conspirator Christopher Stanley informed Bostick that the cocaine had been obtained from an individual named “Dom” in Texas. Id. at 255. Bostick testified that he understood that
Bostick testified that from July to October 2010 co-conspirators Arthur Brown, Melinda Adams, Philip Gilbert, and Shari Williams once or twice a month delivered between one to three kilograms of cocaine to him in Pennsylvania that they had obtained in Texas. Id. at 256, 261-62. Bostick stated that these persons smuggled the cocaine in their pants when travelling by plane or Greyhound bus. Id. at 257. When Bostick received the cocaine he paid the persons who delivered it. Id. at 262-63. On the day he was arrested, Bostick was expecting to receive a shipment from Brown and Williams. Id. at 261.
Co-conspirator Christopher Stanley testified about his experience trafficking cocaine with Jackson. He detailed a number of instances during which he acted at Jackson‘s direction as the intermediary between Jackson and Bostick. One such instance was on June 27, 2010, when Jackson directed Stanley to fly to Pittsburgh after two associates already had delivered cocaine to Bostick for Jackson. Id. at 325. Jackson told Stanley to call Bostick to obtain approximately $34,800 as payment for the cocaine. Id. at 325-29. Stanley subsequently travelled to Bostick‘s house in Monroeville and collected the cash. Id. at 327. Stanley and other persons with him stayed at the Doubletree Hotel in Monroeville that night. Id. On June 28, 2010, Stanley and the others hid the cash on their bodies and, at Jackson‘s direction, transported the cash to Dallas. Id. at 326, 330-31.
Jackson then directed Stanley on July 1, 2010, to fly back to Pittsburgh to transfer cocaine to Bostick. Id. at 332-33. Jackson gave one kilogram of cocaine to Stanley and his associate and directed Stanley to book a room for Jackson in Pittsburgh. Id. Upon arriving in Pittsburgh, Stanley and his associate went to the Doubletree Hotel in Monroeville, where they delivered the kilogram of cocaine to Bostick. Id. at 334. Stanley testified that Jackson took a flight to Pittsburgh the day after the delivery and met him at the Doubletree Hotel. Id. at 335-36. Jackson obtained payment for the cocaine the following day and flew with Stanley back to Dallas on July 4, 2010. Id. at 338. The transfers at that time included three kilograms of cocaine and $64,000 in cash. Id. at 338-39. Detailed cellphone records showing that Jackson‘s cellphone on June 30, 2010, accessed a cell tower in Monroeville corroborated this testimony as did Bostick‘s testimony that Jackson in July 2010 stayed at the Doubletree Hotel in Monroeville to obtain payment, and Stanley‘s receipt for the Doubletree Hotel in Monroeville for the dates June 29, 2010, through July 4, 2010. Id. at 261-62, 300-01, 387.
Stanley also testified about other trips to Pittsburgh in which he acted as an intermediary between Bostick and Jackson. On one occasion, Jackson directed Stanley to travel to Pittsburgh to assist in delivering two kilograms of cocaine to Bostick and to transport the payment for the cocaine to Jackson in Dallas. Id. at 341-43. Stanley testified that Jackson supplied the cocaine for the transaction. Id. Stanley
Stanley detailed two times when he stayed in Dallas while working for Jackson. Both times Jackson in Dallas gave him cocaine that Stanley, in turn, delivered to co-conspirator Brown. On August 11 or 12, 2010, Brown came to Dallas from Pittsburgh. Id. at 347-48. Intercepted phone calls showed that Brown told Gilbert that he was going to a Denny‘s restaurant on the afternoon of August 12, 2010. Id. at 666. Stanley arranged with Brown to meet him there. Id. at 668. Detective Countryman observed Stanley pick up Brown and Brown‘s luggage at the restaurant. Id. at 174-76. In an intercepted call later that night, Gilbert asked Bostick for “Dom‘s” number. Id. at 670. After Brown made a number of intercepted calls to Gilbert and Stanley, Stanley in an intercepted call gave Jackson‘s phone number to Brown. Id. at 671-79. Even though there was no subsequent call to Jackson that night at least that was admitted into evidence, Stanley testified that Jackson told Brown to ask Stanley to check to see “how he got it tucked,” meaning “how he had the cocaine placed on his body.” Id. at 348. The intercepted phone call in which Brown asked Stanley to do so was evidence in the trial. Id. at 685. Stanley dropped Brown off at the Greyhound bus station in Dallas, and Brown transported the cocaine back to Pittsburgh. Id. at 347-48.
In mid-September 2010, Jackson again gave Stanley two kilograms of cocaine to deliver to Brown, who was staying at a hotel in Dallas. Id. at 350-51. At the Greyhound bus station on September 17, 2010, Officer Ryan Miller watched Brown arrive on a bus and observed Stanley with him. Id. at 156. There was a text message on Jackson‘s phone sent to Gilbert on September 17, 2010, at 5:17 p.m., which read: “Western Union 800 to Christopher Stanley, Dallas, Texas. Need for the rest of the deal. I‘m going to be on the plane.” Id. at 133. In an intercepted phone call at 5:33 p.m., Gilbert told Jackson that “when they ask for [the] sender where its [sic] from just say Pittsburgh” and Jackson responded that “my partner gonna call you so because, he gonna get everything together.... So when I land it‘ll be straight.” Id. at 613. After Stanley delivered the two kilograms of cocaine, Stanley called Gilbert, who gave him the details about the Western Union payment. Id. at 351-53, 618. In an intercepted call, Stanley told Gilbert to send the Western Union number via text message. Id. at 618. A corresponding text message with a number and a Western Union receipt with that same number as its confirmation number listing Bostick as the sender and Stanley as the payee were admitted into evidence at trial. Id. at 133, 138-39.
Later that evening, Jackson in a call to Gilbert stated that “I‘m tryin [sic] to um coordinate it.” Id. at 629. In that call, Gilbert told Jackson that he gave $800 to “Chris” but was $400 short. Id. at 630-31. In an intercepted call made at 1:48 a.m. on September 18, 2010, Stanley told Gilbert, “[E]verything one hundred.” Id. at 633. Stanley testified that the statement was code that the deal had been completed. Id. at 352. The next morning, September 18, 2010, Officer Miller observed Brown leave the Greyhound bus station from Dallas. Id. at 156-57.
Stanley testified about Jackson‘s unsuccessful attempt to deliver cocaine to Brown. Brown came to Texas in October 2010 to obtain three kilograms of cocaine from Jackson. Id. at 355. Brown paid Jackson around $90,000 in cash for the three kilograms of cocaine before Jackson had
Countryman provided testimony about his surveillance that aligned with Stanley‘s description of the failed cocaine deal. He testified that on October 4, 2010, he observed Brown and another co-conspirator, Shari Williams, travel from the Dallas Greyhound bus station to the Crowne Plaza Hotel in that city. Id. at 104. In a phone conversation between Gilbert and Brown on October 4, 2010,5 Brown told Gilbert to meet him at the “Crowne Plaza.” Id. at 603. There were two receipts for two different rooms in the Crowne Plaza Hotel for October 4 through October 5, 2010, in Shari Williams‘s name. Id. at 106-07.
Countryman observed Jackson in the lobby of the Crowne Plaza Hotel at around 4:00 p.m. on October 4, 2010. Id. at 108, 110. He testified that Jackson was wearing a backpack. Id. at 111. About ten minutes later, Jackson left the hotel with a “much fuller” backpack. Id. at 112. A pen register trap and trace of one of Jackson‘s cellphone numbers indicated that Jackson was in the vicinity of the Crowne Plaza at that time. Id. at 113-15. On October 5, 2010, Countryman once again observed Jackson entering the Crowne Plaza Hotel with the same backpack. Id. at 115-16. Jackson entered the same room that Countryman had watched Gilbert leave “[m]ultiple times.” Id. at 116. Countryman testified that based on Stanley‘s interview with him, he determined that Jackson‘s actions at the Crowne Plaza Hotel involved Jackson receiving and then returning the money for the failed cocaine purchase about which Stanley testified. Id. at 118.
An Allegheny County Sheriff‘s Department officer testified that on October 7, 2010, he participated with the FBI in the arrest of Brown and Williams at the Greyhound bus station in Pittsburgh. Id. at 63. He and other officers had been waiting for them to arrive on the bus from Texas. Id. at 63-64. When they arrested Brown, a kilogram of cocaine fell out of his waistband. Id. at 64. Further, they found a kilogram of cocaine in Brown‘s suitcase. Id. at 98. Williams also had a kilogram of cocaine in her luggage. Id. at 99. In a phone call placed on October 2, 2010, from Gilbert to Brown, Brown told Gilbert “[t]wo on and two in.” Id. at 600. Countryman interpreted that code to mean that Brown had kilograms of cocaine on his person and in his suitcase, and contended that these facts corroborated what they found on Brown at the time of the arrest. Id. at 102.
According to Stanley, Jackson used an apartment in Dallas to store cocaine which he directed a friend, Allen Russell, to rent in Russell‘s name. Id. at 357-58. Stanley testified that Stanley and others “stayed there 95 percent of the time.” Id. at 358.
The FBI searched an apartment in Stanley‘s name on October 7, 2010, and seized a credit card in Jackson‘s name, court and other documents in Jackson‘s birth name, a utility bill in Jackson‘s birth name, a magazine with ammunition, a food sealer with sealing bags, cling wrap, rubber gloves, cellphone receipts in Stanley‘s name, various credit and identification
The FBI also searched Bostick‘s house on October 7, 2010. In the search they recovered a money counter, $4,700 in cash, numerous cellphones, marijuana, cocaine, a shotgun, an ammunition magazine, and a razor blade near a food scale. An FBI agent testified that these items were indicative of drug trafficking. Supp. App‘x at 196-203. Before he was arrested Bostick attempted to flush cocaine down the toilet. Id. at 201.
Jackson testified and claimed that a voice in cellphone recordings in evidence attributed to him was not actually his voice. Id. at 463. He contended that evidence admitted at the trial was fabricated. Id. at 460. The jury convicted Jackson of one count of conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine. In the face of the overwhelming evidence against him Jackson does not contend that the evidence at trial, if admissible, did not support his conviction.
IV. DISCUSSION
A. The Federal Wiretap Orders
Jackson contends evidence derived from the execution of two federal orders authorizing wiretaps of cellphones pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 should have been suppressed because the court that entered the orders based its finding of probable cause for their authorization on affidavits including information received from what he contends were illegal state wiretaps. He claims that the state court lacked authority to authorize those wiretaps because it did not have jurisdiction over the cellphones being tapped when they were outside of Pennsylvania. He maintains that a “state‘s jurisdiction is limited to the confines of its own borders.” Appellant‘s br. at 27. Thus, he argues in his brief that the Pennsylvania wiretap statute authorizing “the interception of wire, electronic or oral communications anywhere within the Commonwealth” permits courts to authorize interception of communications only if all the phones are located within the borders of Pennsylvania at the time of the communication.
The government responds that Jackson lacks standing in part to complain of the use of the interceptions because, except for six cellphone calls to which he was a party and therefore the use of which he has standing to challenge, he was not a party to the intercepted calls. Appellee‘s br. at 13. It contends that Title III, rather than state law, applies to the determination of the evidence‘s admissibility, and that Title III permits the interception of out-of-state calls if the interception, or “listening post,” itself is located within the jurisdiction of the court authorizing the interception. Appellee‘s br. at 14-15. It also asserts that the Pennsylvania statute is “‘generally modeled’ after Title III” and follows its listening post requirement. Id. at 16 (quoting Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002)). It further argues that any error with respect to the state interception was harmless, or, if harmful, the “good faith” exception to the exclusionary rule should apply so evidence derived from the state interceptions was admissible. Id. at 18-20.
First, we address the government‘s standing argument with respect to cellphone calls to which Jackson was not a party. “Standing” in the context in which the government uses the term on this appeal is shorthand for whether Jackson is an “aggrieved party” under Title III, not a jurisdictional requirement as it may be in other contexts. See
Inasmuch as Jackson has standing to challenge use of all the interceptions, we consider the statutory requirements for suppression on the merits. Title III governs suppression of evidence of interceptions offered in a district court trial. See United States v. Williams, 124 F.3d 411, 426 (3d Cir. 1997). It reads in relevant part:
Any aggrieved person in any trial ... before any court ... of the United States ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
We must determine whether the Title III wiretap orders were derived from unlawfully intercepted communications. Inasmuch as Jackson contends that Title III does not “authorize a state court to allow its law enforcement officials to eavesdrop on citizens of other states simply by locating the ‘listening post’ in the state where the state court is located[,]” we must consider whether Title III permits Pennsylvania courts to authorize within-jurisdiction interceptions of conversations that took place wholly outside of Pennsylvania. Appellant‘s br. at 28. Title III in relevant part permits a “State court judge of competent jurisdiction,”
We join the other courts of appeals that have addressed this issue in adopting the “listening post” theory that under Title III either the interception of or the communications themselves must have been within the judge‘s territorial jurisdiction. See United States v. Cano-Flores, 796 F.3d 83, 87 (D.C. Cir. 2015), cert. denied, U.S., 136 S.Ct. 1688, 194 L.Ed.2d 790 (2016) (adopting the “listening post” theory and reasoning that requiring a new “wiretap order in every district where [the government] thought a target could make calls ... seems unworkable“); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014), cert. denied, U.S., 135 S.Ct. 2065, 191 L.Ed.2d 968 (2015); United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006) (“The most reasonable interpretation of the statutory definition of interception is that an interception occurs where the tapped phone is located and where law enforcement officers first overhear the call.“); United States v. Jackson, 207 F.3d 910, 914 (7th Cir. 2000), vacated on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (holding that the Oklahoma wiretap statute, like the federal statute, authorizes wiretaps within the territorial jurisdiction where the contents were first heard); United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (holding that “[i]t seems clear that when the contents of a ... communication are captured or redirected in any way, an interception occurs at that time” but also “since the definition of interception includes the ‘aural’ acquisition of the contents of the communication, the interception must also be considered to occur where the redirected contents are first heard“).
We need not determine whether a conversation recovered from a federally authorized wiretap has been “unlawfully intercepted” when the authority for the interception was based on information obtained from an unlawful state wiretap because the state wiretaps that were the sources of information in this case were lawful.8 The Pennsylvania statute is “generally modeled” after the federal statute. Spangler, 809 A.2d at 237. Pennsylvania‘s wiretap statute, in a provision similar to a provision in Title III permits a state court to authorize the interception of calls outside of Pennsylvania if the “interception” is “anywhere within the Commonwealth.”
B. The Alleged Trial Errors
1. The Admission of the Case Agent‘s Testimony
Jackson asserts that the District Court plainly erred in not sua sponte precluding the government‘s case agent, Countryman, from interpreting the meaning of certain intercepted telephone calls. Appellant‘s br. at 29. Though he does not dispute the propriety of Countryman‘s testimony about “arguable code terms” like “one in and one out,” he claims that Countryman‘s testimony exceeded the limited scope of proper use. Id. at 32. He lists a number of questions that the prosecutor asked Countryman that he claims were impermissible. Id. at 32-33. Jackson also details a number of times when Countryman “interpret[ed]” a call to include situational and contextual information that is lacking in the call. Id. at 33-36. The government contends that the phone conversations were unclear and needed interpretation. Appellee‘s br. at 23. It also maintains that Countryman‘s testimony properly involved only his personal observations. Id. It further asserts that any error in the testimony regarding interpretations was not plain and that if there was such an error it did not prejudice Jackson. Id. at 25-30.
Inasmuch as Countryman‘s testimony was not admitted as expert testimony, Federal Rule of Evidence 701 governed the admission of his interpretation testimony as it deals with lay witness opinion testimony. Under Rule 701, lay witnesses may testify as to their opinions so long as the testimony is “rationally based on the witness‘s perception,” is “helpful to clearly understanding the witness‘s testimony or to determining a fact in issue,” and is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” “In layman‘s terms, Rule 701 means that a witness is only permitted to give her opinion or interpretation of an event when she has some personal knowledge of that incident.” United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016).10 The goal of Rule 701 is to give the trier of fact an “accurate reproduction of the event.” Id. (internal quotation marks omitted). The evidence is permitted because it “has the effect of describing something that the jurors could not otherwise experience for themselves by drawing upon the witness‘s sensory and experiential observations that were made as a first-hand witness to a particular event.” Id. (internal quotation marks omitted).
Rule 701(b)‘s helpfulness requirement with respect to Countryman‘s testimony is at issue in this case. Under this requirement, lay witnesses may provide opinions about their understandings of recorded conversations when “[t]o the uninitiated listener, [the speaker] speaks as if he were using code” and the witness‘s “opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination” of a fact in the case if the “trial court vigorously police[s] the government‘s examination of [the witness] to ensure that he [is] not
Rule 701(b)‘s helpfulness requirement mandates the exclusion of “testimony where the witness is no better suited than the jury to make the judgment at issue.”11 Fulton, 837 F.3d at 293 (quoting United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011) (internal quotation marks omitted)). A case agent‘s testimony may not “simply dress[] up argument as evidence.” Id. (quoting Meises, 645 F.3d at 17). Testimony may be so characterized when a witness “infer[s] [the defendant‘s] roles not from any direct knowledge, but from the same circumstantial evidence that was before the jury—effectively usurping the jury‘s role as fact-finder.” Id. (quoting Meises, 645 F.3d at 16). “[W]here a case agent‘s testimony leaves the jury ‘to trust that [the case agent] had some information—information unknown to them—that made him better situated to interpret the words used in the calls than they were,’ when, in fact, he does not, such testimony is inadmissible under Rule 701(b).” Id. (quoting United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013)) (citing United States v. Hampton, 718 F.3d 978, 982-83 (D.C. Cir. 2013); Meises, 645 F.3d at 16-17; United States v. Johnson, 617 F.3d 286, 292-93 (4th Cir. 2010); United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007); United States v. Garcia, 413 F.3d 201, 213-14 (2d Cir. 2005); United States v. Grinage, 390 F.3d 746, 750-51 (2d Cir. 2004)). After all, the role of the “prosecutor [is] to argue in summation” what inferences to draw from the evidence. Id. (quoting Meises, 645 F.3d at 17).
We are satisfied that the District Court erroneously permitted Countryman on several occasions to express his understanding of the meaning of clear conversations. One of the most egregious examples is when Countryman interpreted Jackson‘s statement “you can go ahead and send him” to mean “it is okay now to send [a co-conspirator] to purchase cocaine in Dallas.” Supp. App‘x at 129, 605. Further, Countryman provided unhelpful argument in the guise of evidence. In interpreting one unclear call, he testified: “So, [Jackson] lays out the conspiracy for you in this telephone call that Gilbert is sending Brown with the money. Brown gives the money to either the defendant or Stanley at the direction of the defendant and the defendant takes the money and goes and purchases the cocaine, gives the money back to Brown, Brown takes the cocaine back to Monroeville where it is sold and distributed.” Id. at 144. While the call‘s meaning is unclear, there is seemingly no mention of code words for cocaine, money, or Monroeville in the call that Countryman interpreted, and nothing seems to indicate that any part of that conversation can be interpreted as broadly as Countryman did. Id. at 628-31. Countryman seems to infer the knowledge for his testimony on other evidence, rather than on his direct knowledge of the events.12 In these circumstances his testimony was improper.
2. The Admission of the Co-Conspirators’ Testimony about their Convictions and Pleas of Guilty
Jackson contends that the government wrongfully attempted to use two of his co-conspirators’ guilty pleas as substantive evidence of his guilt, although he “recognizes that it is not always error to inform a jury as to a co-defendant‘s guilty plea[,] especially when the jury is given a cautionary instruction” such as the District Court gave here. Appellant‘s br. at 40. In arguing that the admission of evidence of the guilty pleas was a plain error, Jackson in his brief cites our statement in United States v. Gullo that
[t]he guilty plea to a conspiracy charge carries with it more potential harm to the defendant on trial because the crime by definition requires the participation of another. The jury could not fail to appreciate the significance of this and would realize ... that ‘it takes two to tango.’
Id. at 41 (quoting United States v. Gullo, 502 F.2d 759, 761 (3d Cir. 1974) (citation omitted)).
We have “repeatedly held that the government may introduce neither a witness‘s guilty plea nor his or her concomitant plea agreement as substantive evidence of a defendant‘s guilt.” United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir. 2000). Yet, a witness‘s guilty plea is admissible under Federal Rule of Evidence 403 for at least three purposes: “(1) to allow the jury accurately to assess the credibility of the witness; (2) to eliminate any concern that the jury may harbor concerning whether the government has selectively prosecuted the defendant; and (3) to explain how the witness has first-hand knowledge concerning the events about which he/she is testifying.”
[w]hen a co-conspirator testifies he took part in the crime with which the defendant is charged, his credibility will automatically be implicated. Questions will arise in the minds of the jurors whether the co-conspirator is being prosecuted, why he is testifying, and what he may be getting in return. If jurors know the terms of the plea agreement, these questions will be set to rest and they will be able to evaluate the declarant‘s motives and credibility.
United States v. Gaev, 24 F.3d 473, 477 (3d Cir. 1994). We held that “[a]s such, we are satisfied that the government may seek to introduce a witness‘s guilty plea and/or plea agreement even in the absence of a challenge to the witness‘s credibility.” Universal Rehabilitation Servs. (PA), Inc., 205 F.3d at 666.
Here, the government‘s use of the co-conspirators’ guilty pleas was permissible. Co-conspirator Bostick testified while wearing prison attire. Supp. App‘x at 240. The prosecutor asked him why he was wearing that clothing and questioned him about the charges against him. Id. at 240-41. The prosecutor then discussed the terms of his guilty plea with him, making the jury aware that Bostick was testifying because of his plea agreement with the hope that he might receive a reduced sentence in return for his testimony. Id. at 241-45. The prosecutor also elicited testimony from Bostick that he had not been guaranteed that he would be given a reduction in sentence for testifying and that he would not perjure himself at the trial. Id. Then, the prosecutor asked Bostick about his prior felonies and drug use. Id. at 246-51. After completing that line of questioning, the prosecutor addressed the current case, asking, “Now, you already indicated you pled guilty for your role in a drug trafficking conspiracy, correct?” Id. at 251. She then asked a number of questions about the conspiracy before she finally asked about Jackson. Id. at 251-54.
The prosecutor engaged in the same type of examination of co-conspirator Christopher Stanley. The prosecutor started her examination of Stanley by asking him about his current incarceration and the charges to which he pleaded guilty. Id. at 310-11. She then elicited that he was testifying in the hope that, per his plea agreement, his sentence would be reduced. Id. at 312-13. As was the case with Bostick, the prosecutor drew testimony from Stanley recognizing his understanding that the judge, not the prosecution, would determine his sentence, and he could be prosecuted if he lied in giving his testimony. Id. After that testimony, he testified about his prior crimes and whether he was in the same jail as other co-conspirators. Id. at 313-16. Only then did the prosecutor ask him about his drug trafficking history, at which time he mentioned Jackson. Id. at 316.
Neither of these uses of the co-conspirators’ guilty pleas was impermissible. The evidence regarding the guilty pleas all went to the heart of whether the co-conspirator witnesses were credible, whether the government selectively was prosecuting Jackson, and whether the co-conspirators had firsthand knowledge of the crime for which Jackson was being tried. The evidence clearly was not offered as substantive evidence of Jackson‘s guilt. Furthermore, the District Court provided an appropriate limiting instruction with respect to the guilty plea evidence at the end of the case. Id. at 495-96. Therefore, the
3. The Government‘s Mention of a Co-Conspirator‘s Fifth Amendment Right Not to Testify
Jackson argues that the District Court made a plain error when, in response to its question about which exception to the hearsay rule applied to the admission of Gilbert‘s otherwise-hearsay testimony, the prosecutor stated that “[t]he exception is Arthur Gilbert cannot take the stand. He has a Fifth Amendment privilege where the government cannot force him to come in to testify. He is unavailable to this Court and thereby it would be an exception to hearsay.” Id. at 253.
We have recognized that it may be improper for a prosecutor to refer to the invocation of a Fifth Amendment privilege to encourage a jury to infer a witness‘s guilt. See, e.g., Nezowy v. United States, 723 F.2d 1120, 1124 (3d Cir. 1983); United States ex rel. Fournier v. Pinto, 408 F.2d 539, 541 (3d Cir. 1969). “[W]e may reverse” on plain error review, however, “only if we find an error in the prosecutor‘s comments so serious as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990) (internal quotation marks and citation omitted). “[O]ur objective is not to penalize the prosecutor for an inopportune remark, but to ensure that the appellant[] received a fair trial.” Id.
Here, the prosecutor‘s response to the District Court‘s question about the applicable hearsay exceptions was a failed and incomplete attempt to claim a
4. The Cumulative Effect of the Aforementioned Actions
Inasmuch as we hold that none of the issues that Jackson raises demonstrates that there was a plain error at his trial, we need not analyze whether the cumulative effect of plain error on the trial requires that we reverse Jackson‘s conviction.
V. CONCLUSION
For the foregoing reasons, we will affirm Jackson‘s judgment of conviction and sentence entered on July 24, 2014.