UNITED STATES OF AMERICA, Aрpellee, v. LAVENEUR JACKSON, Defendant, Appellant.
No. 22-1100
United States Court of Appeals For the First Circuit
January 23, 2023
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before Barron, Chief Judge, Lynch, Circuit Judge, and Kelley,* District Judge.
Simon R. Brown, with whom Preti Flaherty PLLP was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.
January 23, 2023
* Of the District of Massachusetts, sitting by designation.
BARRON,
I.
A.
At some point before December 23, 2016, Jackson asked Angelina Keenan to buy guns for him in exchange for money or drugs, and Keenan agreed to do so. And then, on that date, Jackson and Keenan traveled together to a gun store in Pelham, New Hampshire.
Jackson provided cash to Keenan for the purpose of purchasing a Ruger SR1911 pistol, which she did. To complete the purchase, she -- like all people who purchase a firearm from a federally licensed dealer -- was required to execute a form prescribed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF 4473 form“). Keenan left the store with the gun and then gave it to Jacksоn in the parking lot.
Four days after this first gun purchase, on December 27, Keenan made another purchase for Jackson following a similar pattern -- this time for two SCCY pistols at a gun store in Hooksett, New Hampshire. And, in January 2017, Jackson and Keenan again went to the Hooksett gun store together.
While the two were at that store, however, a store employee who had become suspicious of their behavior placed a call to law enforcement. A local police officer who had been deputized as a task-force officer for the ATF, Matthew Barter, as well as an ATF special agent, John Cook, responded to the call.
At some point after Barter and Cook arrived at the store, Cook began to question Jackson. Cook askеd Jackson if he had a felony conviction, and Jackson responded in the affirmative. Cook then told Jackson that he was “in trouble” for handling guns in the store, and Jackson responded that he was not aware that it was illegal for a person who had been convicted of a felony to merely handle guns in a gun store.
Cook continued questioning Jackson, inquiring whether Jackson would be willing to help him recover any guns that he had previously acquired with Keenan‘s assistance. Jackson responded that the guns were in Massachusetts, that it would take some time, and that he would have to return some money to some people. After
Jackson then asked Cook if he could get $1,000 that he said that Keenan was “holding . . . for [him].” Cook at that point went over to Keenan to ask if she had Jackson‘s money. Keenan told Cook that she did have the money but indicated that $100 of it belonged to her as a “payment” for buying the guns that Jackson had asked her to purchase for him. Cook and Barter then seized the money.
Following this encounter, Jackson left the gun store. Keenan was taken to the local police department, where she was further questioned about the purchases.
B.
Nearly twenty months later, in August 2018, the government commenced grand jury proceedings to obtain an indictment against Jackson for violating the federal prohibition on gun possession by persons who have been convicted of а crime punishable by more than one year. See
Government: And just to clarify, [the January 2017] purchase was never consummated; right?
Cook: Right. That‘s the day we show up and we stop it. . . . So at this point, I move on to interviewing Jackson. . . . And he said that he could get the guns back. He would just have to return some money to some people and it would take some time. I was like, “Hey, sounds great. But we have to do that as a team, like we‘re going to work together so we can get those guns off the street.” And he‘s like, “Yeah, I‘m not going to do that.” And he invoked -- asked to talk to a lawyer at that point.
Government: And at that point you stopped questioning; right?
Cook: I stopped talking to him.
Government: One thing. Before he asked to speak to a lawyer, before he stopped cooperating and talking to you, you had asked him where the firearms had gone; right?
Cook: Right.
Government: And he said they were in Massachusetts.
Cook: He did. That‘s right.
Section 924(a)(2), at the time Jackson was charged, in turn provided that “[w]hoever knowingly violates subsection [(g)] of Section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” The statute has since been revised to provide for a penalty of up to 15 years of imprisonment for a violation of subsection (g). See
Government: Okay. All right. At this point he invokes -- he says, “I want to talk to an attorney.” And you stop questioning him; right?
Cook: Correct. Yes.
Government: But then he says something without you asking him any questions; right?
Cook: Right. So I basically told him, okay, you can go. And he said, “Well,
you know, can I get my monеy from her?” And I was like, “What money?” And he was like, “She has $1,000 of mine.” I was like, “Why does she have your money?” He said, “Well, she‘s just holding it for me.” So I was like, okay. So I go over and I talk to Keenan. I‘m like, “Do you have $1,000?” She goes, “Yeah, he gave me $1,000 to buy the guns.” And then at that point she said, “$100 was for me, for payment for me for doing it, and the rest of the money was to buy the guns.” So, you know, we just seized the whole $1,000 as evidence. We don‘t give it to anybody. ATF takes it into custody. We still have it in the evidence room. Government: All right. And after this room -- after you seized the money, Jackson left the area; right?
Cook: Correct.
Government: He walked away.
Cook: That‘s right.
Government: And he was free to walk away because he wasn‘t under arrest.
Cook: Correct.
The government also sought during the grand jury proceedings to show through Cook‘s testimony that Jackson had previously been convicted of a crime punishablе by more than one year. Cook‘s testimony in this regard was as follows:
Government: Is it fair to say that after [your] review of [Jackson‘s] criminal history, the last conviction you see on it is in December of 2013 for assault with a dangerous weapon?
Cook: That is one of the convictions I‘ve seen on his criminal history.
Government: I‘m sorry, I‘m thinking of sentencing. Actually, the last sentence that we see here is on July 30th of 2014; correct?
Cook: That‘s right.
Government: And that‘s for assault and battery on a police officer?
Cook: I have his last felony conviction --
Government: Resisting arrest?
Cook: -- possession to distribute.
Government: And possession --
Cook: Possession to distribute, two counts, on July 30th, 2014. That was in the Lawrence District Court.
Government: All right. Let‘s go with that. That‘s going to be Docket 118-CR-495?
Cook: 58613 is what I have for the Lawrence District Court conviction.
Government: Okay. You have the -- okay. He was sentenced for several things on that date. But that is fair to say. So, possession to distribute drugs?
Cook: Correct.
Government: And July 30th of 2014 was the last sentence?
Cook: Correct.
Government: And it doesn‘t look like he had any probation. Just said one year; correct?
Cook: I believe that‘s correct, yes.
Government: So it‘s fair to say you don‘t know for sure.
Cook: I don‘t know that for sure, no. I know that he has multiple felony convictions. I know that.
The grand jury returned an indictment alleging in two separate counts that Jackson, “who on or about September 3, 2013, was convicted in the Dorchester District Court in Massachusetts of Assault with a Dangerous Weapon, a crime punishable by imprisonment for a term exceeding one year, did knowingly possess” the Ruger SR1911 pistol and the SCCY pistols “on or about” the two dates in December 2016 that Keenan had purchased them. The indictment
At a detention hearing after Jackson had been arrested on these charges, Jackson pointed out thаt the Dorchester, Massachusetts conviction for assault with a dangerous weapon that was identified in the indictment did not belong to him. The
government admitted after some further investigation that Jackson was correct on that score and thereafter commenced grand jury proceedings for the purpose of securing a superseding indictment.
During these grand jury proceedings, which took place in February 2020, the government again called Cook to testify. The following exchange occurred during Cook‘s testimony:
Government: And Special Agent Cook[,] [w]ould you agree with me that [the colloquy from the 2018 grand jury proceedings] about [Jackson‘s prior felony] conviction was not particularly clear?
Cook: Yes.
Government: All right. So what the indictment originally said was a September 2013 Mass. cоnviction for assault with dangerous weapons; right?
Cook: Correct.
Government: What did further investigation reveal about that particular conviction?
Cook: I don‘t know if that actually was a guilty conviction, that charge.
Government: For Mr. Jackson?
Cook: For Mr. Jackson, yes.
Government: Have you since that time done additional research on Mr. Jackson‘s criminal history?
Cook: Yes.
Government: Can you explain to the Grand Jury what that investigation has determined?
Cook: So when you get a criminal history report, a lot of times they don‘t actually have the disposition, you know, if they‘re actually found guilty or not guilty. So if you have a very lengthy criminal history, you actually have to reach out to the courts and request the court documents, go through the court documents to see if they were actually found guilty or not. So it‘s just not as clear-cut, so it took a little bit more digging. But what I found out is Mr. Jacksоn has been convicted of several felony offenses.
Cook then identified a July 2002 conviction for breaking and entering with intent to commit a felony in Springfield, Massachusetts, which he testified that he determined was Jackson‘s conviction through a fingerprint analysis. He also identified a drug-distribution conviction in Methuen, Massachusetts, which he similarly testified that he determined was Jackson‘s conviction through a fingerprint analysis.
The grand jury handed up a superseding indictment that alleges that Jackson, “knowing he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess” the Ruger SR1911 and SCCY pistols “on or about” the dates in December 2016 that Keenan had purchased them. Jackson moved to dismiss the superseding indictment on the ground that the govеrnment prosecutor and agent Cook committed misconduct during the grand jury proceedings because they both knew that Cook‘s statement that “I don‘t know if [the September 2013 assault with a dangerous weapon] actually was a guilty conviction
[for] Jackson” was false because they both knew at that time that the conviction was not Jackson‘s and failed to correct the false statement. Jackson also moved to dismiss the superseding indictment on the ground that in the course of the government‘s questioning of Cook about his interrogation of Jackson at the gun store, the government improperly characterized Jackson‘s invocation of his constitutional rights to counsel and to remain silent to the grand jury by describing the invocation as a cessation of Jackson‘s “coоperation.”
The District Court held a hearing on both motions on August 17, 2021. Following the hearing, the District Court denied the motions.
C.
A two-day jury trial was held in the District of New Hampshire on September 26 and September 27, 2021. Cook provided similar testimony at the trial to the testimony that he gave during the grand jury proceedings that resulted in the superseding indictment. The government also called employees of the gun stores that Jackson and Keenan had visited. In addition, the government introduced photographs of the firearms in question and certified copies of Jackson‘s Massachusetts Registry of Motor Vehicles documents, including his license photographs and other identifying information.
To establish that the guns in question had traveled in interstate commerce (i.e., the “interstate nexus element“) the government called another ATF employee, special agent John Forte, who offered expert testimony about where the guns were likely manufactured. Forte testified that he reviewed the ATF 4473 forms that Keenan had executed at the gun stores to determine the manufacturers and serial numbers of the guns in question. He then testified that he reviewed certain reference materials -- including periodicals, books, online research, and notes gathered by other nexus examiners -- in connection with his research, although he did not name or testify to further details about those materials. Forte also testified that he reviewed a database that ATF maintains to determine whether the manufacturers had potentially worked with a subcontractor to produce the guns in question (the “variancе database“) and concluded that they had not.
Forte then testified that, based on these reviews, he determined that the Ruger pistol was manufactured in Prescott, Arizona, and the two SCCY pistols were manufactured in Daytona Beach, Florida. Forte further testified that he spoke to somebody at Ruger and was able to confirm that the Ruger pistol was in fact not manufactured elsewhere, and that he had “contacted SCCY” but could not remember “the details” about that outreach. He testified as well that “all of these things” are sources of
information that are reasonably relied upon by experts in his field.
Jackson moved to strike Forte‘s testimony on the grounds that Forte‘s opinions were not based on “scientific, technical, or other specialized knowledge” and that his testimony in this case was not the product of “reliable principles and methods.” See
At the close of the government‘s case-in-chief, Jackson moved for acquittal under
Jackson did not call witnesses of his own before he rested his defense. The jury returned a guilty verdict on both counts on September 28, 2021.
The District Court denied Jackson‘s motion for acquittal under
issued a published order explaining its reasoning on January 4, 2022. See United States v. Jackson, 578 F. Supp. 3d 240 (D.N.H. 2022). A few weeks later, on January 26, 2022, the District Court sentenced Jackson to 66 months of imprisonment, followed by 3 years of supervised release. Judgment of conviction entered on the same day. Jackson thereafter filed a timely notice of appeal.
II.
We begin with Jackson‘s contention that his convictions must be reversed because the government failed to present sufficient competent evidence to prove the material elements of the charges that were brought against him.4 We review a preserved challenge to a District Court‘s denial of a
A.
Jackson rests his contention that the District Court erred in denying his request to enter judgment of acquittal under
But, we agree with the District Court that there was in fact an “in-court identification of Jackson as the person on trial.” Jackson, 578 F. Supp. 3d at 250. Indeed, in the course of defense counsel‘s questioning of Cook, Cook was asked whether he could “tell by looking at [Jackson] today” whether Jackson was “heavier, the same, or thinner than he was” at the time of Cook‘s encounter with Jackson at the Hooksett gun store, and Cook responded: “[t]oday he‘s thinner,” and then went on to further testify that he believed Jackson was the person who was depicted in surveillance footage from the Pelham store. See id.
We therefore see nothing that would have required the jury to rely on the type of “unreasonable, insupportable, or overly speculative” inference that would warrant acquittal in order to conclude that Jackson was in fact the perpetrator of the charged offenses. See Rodríguez-Martinez, 778 F.3d at 371. Accordingly, we reject this challenge to the denial of his
B.
Jackson separately challenges the District Court‘s denial of his
to find that the guns at issue traveled in interstate commerce. So, the key issue is whether Jackson is right that the District Court erred in not striking Forte‘s testimony under Federal Rules of Evidence 702 and 703.
Our review of the District Court‘s decision not to strike Forte‘s testimony is for abuse of disсretion. Martínez v. United States, 33 F.4th 20, 27 (1st Cir. 2022). Under this rubric:
embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review. We will reverse a trial court‘s decision if we determine the judge committed a material error of law or a meaningful error in judgment. This occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.
Id. (citations omitted).
1.
We begin with Jackson‘s contention that the District Court‘s decision to admit Forte‘s testimony violated
(a) the expert‘s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The Supreme Court of the United States explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), that
33 F.4th at 24 (quoting Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22 (1st Cir. 2011)).
Jackson does not argue to us that Forte -- as an ATF “interstate nexus examiner” -- lacked the type of specialized or technical knowledge or training necessary for someone to be “qualified as an expert.” He also does not argue to us that Forte‘s testimony, if admissible, would not be “help[ful to] the trier of fact” -- i.e., that it is not “relevant.”
In pressing this contention, Jackson asserts that Forte‘s testimony about the sources and reference materials that he consulted to form his opinions was “extremely vague,” “conclusory,” and “non-specific.” Jackson points in this regard
to the fact that Forte did not specify in his testimony which periodicals, online materials, books, or other materials he consulted in reaching an opinion about the origin of the guns at issue here and also could not providе any details from his communications with Ruger and SCCY.
Jackson is right that Forte did not detail in his testimony which reference materials he reviewed as to each gun (with the exception of ATF‘s internal variance database). Jackson is also right that Forte could not recall details that he learned from his contact with Ruger and attempted contact with SCCY. And, Jackson is right as well that a review of prior cases rejecting challenges to the admissibility of expert testimony by an interstate nexus examiner reveals that the expert testimony offered in those cases more specifically detailed the precise reference materials relied upon by the interstate nexus examiner. See, e.g., United States v. Corey, 207 F.3d 84, 89-91 (1st Cir. 2000); United States v. Cormier, 468 F.3d 63, 72-73 (1st Cir. 2006).
But, we have accepted interstate nexus testimony predicated on аn examiner‘s reference to the types of materials that Forte testified that he used -- including books, periodicals, online research, ATF databases, and notes compiled by other examiners. See Cormier, 468 F.3d at 72-73; see also, e.g., United States v. Cortez-Oropeza, 40 F.4th 50, 53 (1st Cir.), cert. denied,
143 S. Ct. 271 (2022). And, Forte did testify that he
Jackson does invoke out-of-circuit authority that he argues supports his contention that Forte‘s testimony should have been stricken under
Although Jackson is right that the Ninth Circuit in United States v. Valencia-Lopez, 971 F.3d 891, 900-03 (9th Cir. 2020), relied on
Moreover, Jackson is right that in Coleman v. United States, No. 4:17-CV-2228, 2018 WL 1165726, at *4 (N.D. Ohio Mar. 6, 2018), the district court did express concern about the vagueness of the interstate nexus examiner‘s testimony concerning the “ATF database [and] ATF reports” that he had relied upon in reaching an opinion about the origin of the gun at issue. But, the district court ultimately relied in granting habeas relief on its separate finding that the expert failed to testify that other experts in the field “reasonably rely” on the type of materials that he used, see id. at *4, which implicates
2.
We turn, then, to Jackson‘s contention that the District Court erred by not striking Forte‘s testimony pursuant to
The District Court rejected this argument on the ground that its factual premise -- that Forte never testified that experts in his field regularly use the variance database -- is wrong. Jackson, 578 F. Supp. 3d at 254-55. We agree with the District Court.
Forte testified that he always checks the variance database when he is conducting an interstate nexus analysis. See id. He went on to explain that he looked at his usual referеnce materials for this case,
The District Court interpreted Forte‘s affirmative response to this question as including the variance database, id., and that factual finding is not clearly erroneous. As the District Court explained, the “prosecutor‘s question could quite reasonabl[y] have been understood as a catch-all that included the variance database that Agent Forte had discussed just minutes prior.” Id. It is also not otherwise clear from the record that Forte intended to exсlude the variance database from the set of materials that he testified that other interstate nexus examiners rely upon. See id. As a result, the District Court supportably concluded that Forte‘s testimony “was based entirely on facts or data reasonably relied on by experts in his field.” Jackson, 578 F. Supp. 3d at 256. Thus, like the District Court, we must reject Jackson‘s contention that the jury should not have been allowed to consider Forte‘s testimony related to the variance database.
III.
We now turn to Jackson‘s fallback contention that his convictions must be vacated because the District Court abused its discretion in denying his motion to dismiss the superseding indictment on the ground that the government committed misconduct during the grand jury proceedings to obtain it. Jackson alleges two types of misconduct: first, that the governmеnt knowingly presented false information about Jackson‘s prior convictions and failed to correct it, and second, that the government improperly invited the grand jury to draw negative inferences from Jackson‘s invocation of his constitutional rights to remain silent and to counsel during his encounter with Cook. We conclude that the District Court did not abuse its discretion in declining to dismiss the indictments based on either ground.
A.
The Due Process Clause of the Fifth Amendment to the U.S. Constitution provides in relevant part that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.”
This Court has recognized that while a “grand jury mаy consider incompetent evidence” presented by the government in the course of obtaining an indictment, a grand jury “cannot itself violate a constitutional privilege.” United States v. Flaherty, 668 F.2d 566, 583 (1st Cir. 1981) (emphasis added) (citing United States v. Calandra, 414 U.S. 338, 346 (1974)). Among these privileges is a criminal defendant‘s right to fundamentally fair proceedings under the Due Process Clause. See United States v. Reyes-Echevarria, 345 F.3d 1, 4 (1st Cir. 2003); United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir. 1988).
Thus, we have recognized that where the government elicited false or misleading testimony in order to obtain an indictment, knew that the relevant testimony was false, and failed to correct the falsity, such that the government “distort[ed] the integrity” of the grand jury
The parties are in agreement that our review of the District Court‘s denial of Jackson‘s motion dismiss on grounds of government misconduct in the grand jury proceedings is for abuse of discretion. See, e.g., United States v. Ramos-Gonzalez, 775 F.3d 483, 492 (1st Cir. 2015). The parties also appear to agree that if Jackson were right that the government committed misconduct during the grand jury proceeding, then he must still show that the violation prejudiced him. See Reyes-Echevarria, 345 F.3d at 4; United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995) (“[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988))). And, under that standard, Jackson must show that “the violation substantially influenced the grand jury‘s decision to indict, or [that] there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at 256 (internal quotations omitted).6
Jackson argues that the District Court abused its discretion in declining to find that a violation of his constitutional rights occurred during the second grand jury proceedings because the government knew that Cook‘s testimony that “I don‘t know if [the September 2013 assault with a dangerous weapon] actually was a guilty conviction . . . [for] Jackson” was false and failed to correct the falsity, even though the false statement was made in front of the grand jury. Jackson then argues that he was prejudiced because the grand jury must have been influenced by testimony about a non-existent conviction for assault with a deadly weapon -- “an especially inflammatory representation where the grand jury was being asked to indict Jackson for illegal, felonious possession of firearms.”
We bypass Jackson‘s claim that the government еlicited improper testimony and hold that he cannot show that he was prejudiced. See Reyes-Echevarria, 345 F.3d at 4.
To prove that Jackson was guilty of the underlying counts, the government needed to establish before the grand jury that Jackson had at least one prior conviction that was punishable by more than one year in prison. See
B.
Jackson next contends that the government committed misconduct during the grand jury proceedings by prompting testimony from Cook that referenced Jackson‘s invocation of his constitutional rights and by characterizing the invocation as a cessation of Jackson‘s “cooperation” with law enforcement (rather than explaining to the jury that Jackson had every right to say what he did). The parties appear to agree that the same abuse of discretion and prejudice standards described above apply to this second misconduct-based claim.
To recap, the government called Cook to testify before the grand jury about his questioning of Jackson at the gun store in Hooksett, New Hampshire. Cook testified that after he had asked Jackson to “work together” with him to “get those guns off the strеet,” Jackson invoked his right to speak to an attorney, and that he thereafter “stopped talking to [Jackson].” The government then asked, “One thing. Before [Jackson] asked to speak to a lawyer, before he stopped cooperating and talking to you, you had asked him where the firearms had gone; right?” (emphasis added). Cook clarified that Jackson had told him that the guns were now in Massachusetts, and that it was then that Jackson had asked to speak to a lawyer. Cook then testified that Jackson asked -- without any prompting -- whether he could “get [his] money” from Keenan.
Jackson contends that the grand jury would have understood the government‘s statement that Jackson “stopped cooperating” as “obstinan[ce] instead of a lawful exercise of [his] cоnstitutional right” (quoting United States v. Reeves, No. 11-520, 2012 WL 1909350, at *18 (D.N.J. May 25, 2012)). Even assuming that is true, though, Jackson by his own account still must show that the government intentionally and improperly sought to invite the grand jury to draw a negative inference from the invocation of his rights. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1245 (10th Cir. 1996); see also United States v. Barbour, 393 F.3d 82, 90 (1st Cir. 2004). And, considering the full context of the colloquy during Cook‘s grand jury testimony, we cannot conclude that the government‘s questioning and Cook‘s reference to Jackson‘s invocation of his rights rose to the level of such intentional misconduct.
The District Court did conclude that the government‘s questioning could be seen to criticize Jackson‘s refusal to speak to Cook and that it would not allow such a reference at trial, but the sequence of questioning reveals that the government was more likely trying to show that Jackson freely offered additional incriminating information about the money thаt he had given to Keenan -- notwithstanding his own prior invocation of his rights. In other words, on this record, the manner in which the government referenced Jackson‘s invocation of his constitutional rights cannot be said to have constituted an impermissible attempt to infringe on the ability of the grand jury to exercise its own independent judgment under our precedents. We thus affirm the District Court‘s conclusion that “the colloquy on that issue was [not] serious enough to warrant the extreme remedy of the dismissal of the indictment.”
C.
Jackson‘s final contention is that the two alleged instances of government misconduct described above warrant dismissal when considered together even if neither does when considered on its own. That is so, Jackson contends, because “[i]n a felony firearms prosecution, introduсtion of a non-existent violent felony with a dangerous weapon conviction and characterization of Jackson as a non-cooperator who sought a lawyer in the face of law enforcement questioning, in totality, biased the grand jury against Jackson in performing its fact-finding function.” But, Jackson‘s bare and speculative assertion that “the grand jury procedure was compromised” by the asserted cumulative misconduct does not amount to the required showing that the grand jury was substantially influenced by the alleged misconduct in its decision to indict. See also Reyes-Echevarria, 345 F.3d at 4 (“All but the most serious errors before the grand jury are rendered harmless by a conviction at trial.“).
IV.
For the foregoing reasons, Jackson‘s two convictions are AFFIRMED.