PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4858

ANTWAN LAMAR JACKSON, a/k/a

Twan, a/k/a Mey-Mey,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge.

(3:10-cr-00033-NKM-1)

Argued: December 7, 2012

Decided: January 18, 2013

Before WILKINSON, AGEE, and KEENAN,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Agee and Judge Keenan joined.
COUNSEL

ARGUED: Krysia Carmel Nelson, LAW OFFICES OF

KRYSIA CARMEL NELSON, PLC, Keswick, Virginia, for

Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED

STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,

Sarah E. Childress, Third Year Law Intern, OFFICE OF THE

UNITED STATES ATTORNEY, Charlottesville, Virginia,

for Appellee.

OPINION

WILKINSON, Circuit Judge:

Appellant Antwan Jackson was convicted of murder and

various drug and firearm offenses in connection with a drug

distribution conspiracy in the Western District of Virginia. At

trial, Jackson unsuccessfully opposed the introduction of an

incriminating statement made by the murder victim, Johnell

Greene. On appeal, Jackson argues that the forfeiture-bywrongdoing exception to the Confrontation Clause, upon

which the district court relied in admitting Greene’s statement, does not apply unless a criminal defendant’s sole motivation in making a witness unavailable was to prevent that

witness’s testimony. We hold, however, that so long as a

defendant intends to prevent a witness from testifying, the

forfeiture-by-wrongdoing exception applies even if the defendant also had other motivations for harming the witness. We

therefore affirm the judgment of the district court.

I.

A.

In early 2006, state and federal law enforcement officials

began undercover operations targeting a drug distribution net2 UNITED STATES v. JACKSON
work at the Lindsay Drive apartment complex in Orange, Virginia. On March 24, 2006, undercover agents at Lindsay

Drive purchased controlled substances directly from Antwan

Jackson, the self-styled "King of Orange" and leader of the

drug ring. Less than three months later, Lindsay Drive resident Johnell Greene stole drugs and money from Garian

"Boo" Washington, one of Jackson’s associates. Greene was

known around Lindsay Drive for distributing fake drugs,

which are reported to "slow the business down" for actual

drug sales by discouraging would-be buyers from frequenting

an area. J.A. 77-78. 

After learning of the robbery, Jackson and Washington

confronted Greene. Jackson demanded that Washington "handle" Greene and punish him for the robbery. Washington fired

a single gunshot at Greene but missed, and Greene fled the

scene unharmed. While in custody on unrelated charges,

Greene cooperated with police in investigating the attempted

murder, implicating both Jackson and Washington. Washington was eventually arrested, and while he was incarcerated, he

advised Jackson that Greene was "telling everything" to the

authorities. J.A. 239. 

On August 11, 2006, shortly after his release from jail,

Greene returned to the Lindsay Drive complex. That night, he

was attacked in a parking lot by a masked assailant and died

from multiple gunshot wounds. When asked about Greene’s

death by another member of the Lindsay Drive operation,

Jackson stated that Greene "was an informant trying to bring

down him [Jackson] and his brothers" and that Greene "deserved" to be killed. J.A. 816.

Around the time of Greene’s murder, other law enforcement officials were investigating a different drug operation in

Staunton, Virginia. In August and September 2006, undercover agents in Staunton purchased controlled substances

from three individuals—Tyrone Scott, Kurt Johnson, and

Samuel Venable—after witnessing some of them receive

UNITED STATES v. JACKSON 3
drugs from Jackson. Jackson was not a primary drug supplier

in Staunton, and the street-level dealers there generally contacted him to obtain drugs when their regular suppliers were

unavailable.

B.

In early 2007, four men involved in the Staunton drug

operation—Jackson, Scott, Johnson, and Venable—were

indicted on various charges for crack cocaine sales that took

place in August and September 2006. Jackson pleaded guilty

to a single lesser included charge and was sentenced to 108

months’ imprisonment, later reduced to 87 months’ imprisonment.

While in prison, Jackson was indicted for the murder of

Johnell Greene, for various drug and firearm offenses that

took place in 2005 and 2006, and for persuading his associates to provide a false alibi to law enforcement during the

investigation into Greene’s death. Jackson pleaded not guilty

and was tried before a jury in the Western District of Virginia.

Before trial, the United States filed a motion in limine to

admit Greene’s written statement to police describing Jackson’s involvement in the attempt on his life. The government

argued that "Jackson has waived his right to confront any of

Greene’s out-of-court statements by killing Greene with the

intent, at least in part, of securing his unavailability as a witness." J.A. 20. In response, Jackson argued that the court

should "reject the suggestions . . . that it is sufficient for the

Government to show that the defendant intended ‘in part’ to

procure the declarant’s unavailability," because Supreme

Court precedent mandates that "the intent required to be

proven must be unqualified" in order to trigger the forfeitureby-wrongdoing exception to the Confrontation Clause. J.A.

29B (citing Giles v. California, 554 U.S. 353, 359 (2008)).

The district court found that Jackson’s desire to silence

Greene was a "precipitating" and "substantial reason" for the

4 UNITED STATES v. JACKSON
murder and concluded that any other motives for killing

Greene did not preclude application of the forfeiture-bywrongdoing exception. J.A. 845. The court thus granted the

government’s motion to admit Greene’s statement.

The jury found Jackson guilty on all counts charged, and he

was sentenced to life in prison. Jackson now appeals.

II.

The Confrontation Clause guarantees that a criminal defendant will have the opportunity "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v.

Washington, the Supreme Court held that the Clause bars

admission of testimonial hearsay unless the declarant is

unavailable and the defendant had a prior opportunity for

cross-examination. 541 U.S. 36, 68 (2004). Four years later,

in Giles v. California, the Court made clear that a defendant’s

confrontation rights are subject to the forfeiture-bywrongdoing exception, a common law doctrine that allows the

introduction of unconfronted testimonial statements "where

the defendant ha[s] engaged in wrongful conduct designed to

prevent a witness’s testimony." 554 U.S. 353, 366 (2008).

Such "wrongful conduct" includes but is not limited to murdering a witness. See, e.g., United States v. Carlson, 547 F.2d

1346, 1358-59 (8th Cir. 1976) (intimidation); State v. Mechling, 633 S.E.2d 311, 326 (W. Va. 2006) (physical violence);

People v. Geraci, 649 N.E.2d 817, 823-24 (N.Y. 1995) (bribery).

The district judge in this case admitted Greene’s statement

after making an explicit finding that Jackson’s desire to prevent Greene from testifying was a "precipitating" and "substantial" reason why Jackson murdered Greene. J.A. 845. At

oral argument, Jackson contended that the forfeiture-bywrongdoing exception to the Confrontation Clause requires

that a defendant make a witness unavailable with the sole

motivation of preventing the witness from testifying. He

UNITED STATES v. JACKSON 5
argued that while Federal Rule of Evidence 804(b)(6) may

permit forfeiture even if a defendant has secondary motivations for murdering a witness, the Confrontation Clause sets

a higher bar and permits forfeiture only when a defendant was

motivated exclusively by a desire to silence a witness. Jackson

argued that he had additional reasons for killing Greene, to

wit, preventing Greene from harming the Lindsay Drive drug

operation and exacting revenge on Greene for robbing Garian

"Boo" Washington, and that the forfeiture-by-wrongdoing

exception therefore did not apply.1

We find no support in controlling precedent for Jackson’s

restrictive view of the forfeiture-by-wrongdoing exception,

and, in accord with several other courts that have addressed

the issue, we decline to provide criminal defendants with an

opportunity to avoid the exception by adducing some additional motive for their misconduct.

A.

Nothing in relevant Supreme Court or Fourth Circuit precedent substantiates Jackson’s position. In Crawford, the

Supreme Court looked to English and early American criminal cases to conclude that the Confrontation Clause bars

admission of testimonial hearsay unless the declarant is

unavailable and the defendant had a prior opportunity for

cross-examination. 541 U.S. at 68. However, the Court noted

that its holding did not eliminate the common law forfeitureby-wrongdoing exception, which "extinguishes confrontation

claims on essentially equitable grounds" and permits testimonial hearsay even without an opportunity for cross1Although Jackson clearly raised his "mixed motives" argument in his

motion in limine, he did not include the argument in his brief to this court,

offering simply a general statement that the forfeiture-by-wrongdoing

exception is "inapplicable and is not an exception to the Confrontation

Clause." Appellant’s Br. at 39. Counsel for Jackson clearly raised the contention once again at oral argument, however, and we shall exercise our

discretion to consider it. See Singleton v. Wulff, 428 U.S. 106, 121 (1976).

6 UNITED STATES v. JACKSON
examination. Id. at 62 (citing Reynolds v. United States, 98

U.S. 145, 158-59 (1879)). Crawford also left intact Federal

Rule of Evidence 804(b)(6), the analogous exception to the

evidentiary hearsay rule that allows admission of a "statement

offered against a party that wrongfully caused—or acquiesced

in wrongfully causing—the declarant’s unavailability as a

witness, and did so intending that result." Fed. R. Evid.

804(b)(6). The Court said nothing, however, about whether a

party must intend only that result in order for the exception to

apply.

The Supreme Court revisited the forfeiture-by-wrongdoing

exception in Giles, concluding that it applies only "when the

defendant engaged in conduct designed to prevent the witness

from testifying." 554 U.S. at 359. The Court noted that the

exception is based on the maxim "that no one should be permitted to take advantage of his wrong" and emphasized that

"‘[t]he Constitution does not guarantee an accused person

against the legitimate consequences of his own wrongful

acts.’" Id. at 366 (quoting Reynolds, 98 U.S. at 158).

In Giles, the defendant murdered the declarant, and the

state court applied the forfeiture-by-wrongdoing exception

without considering the defendant’s motivation for committing the murder. Id. at 377. The Supreme Court vacated,

directing the state court to consider the defendant’s intent on

remand, id., and to apply the exception only if the defendant’s

conduct was "designed to prevent the witness from testifying," id. at 359. The Court made no mention of any requirement that the defendant’s desire to silence the witness be the

sole or primary motivation for his misconduct. As we recently

noted in United States v. Dinkins, the Giles decision "did not

materially alter application of the forfeiture-by-wrongdoing

exception" but merely clarified existing precedent and

affirmed that the intent requirement of Rule 804(b)(6) is sufficient to prevent any violation of the Confrontation Clause.

691 F.3d 358, 383 (4th Cir. 2012).

UNITED STATES v. JACKSON 7
In Dinkins, this court endorsed a broad understanding of the

forfeiture-by-wrongdoing exception, concluding that the

exception applies to a defendant whose co-conspirators murdered a declarant intending to prevent him from testifying. Id.

at 384. Acting in accord with our sister circuits, we held that

the principles of conspiratorial liability articulated in Pinkerton v. United States, 328 U.S. 640 (1946), essentially imputed

the co-conspirators’ intent to the defendant for purposes of

both Rule 804(b)(6) and the Confrontation Clause. Dinkins,

691 F.3d at 384, 386. In light of Pinkerton liability, this was

wholly consistent with the Supreme Court’s statement that

"[t]he Constitution does not guarantee an accused person

against the legitimate consequences of his own wrongful

acts." Reynolds, 98 U.S. at 158. Thus, far from supporting

Jackson’s narrow view of the forfeiture-by-wrongdoing

exception, Dinkins suggests a broad understanding of the doctrine.

B.

Not only does Jackson’s argument find no support in Crawford, Giles, or this court’s precedents, it finds no support in

the functional needs of our criminal justice system. Accepting

Jackson’s view would play roulette with the safety of cooperating witnesses, who often face immense stress and danger

when testifying against co-conspirators and other criminal

defendants. Armed with multiple motives for their actions,

defendants might be tempted to murder, injure, or intimidate

witnesses before trial and then invoke their constitutional

right to confrontation to ensure that those witnesses’ statements are never heard in court. Such an outcome would be

fundamentally at odds with the axiom that "no one should be

permitted to take advantage of his wrong," Giles, 554 U.S. at

366.

Eroding the forfeiture-by-wrongdoing exception risks not

only giving defendants "an intolerable incentive" to "bribe,

intimidate, or even kill witnesses against them." Id. at 365. It

8 UNITED STATES v. JACKSON
also provides a disincentive for witnesses themselves to come

forward and testify. While the Confrontation Clause is fundamental to our conception of a fair and just system of criminal

adjudication, so also is the vigorous and candid participation

of relevant witnesses. Accepting Jackson’s proposition would

throw the system off kilter by hindering factual development

in criminal prosecutions. That, too, would prevent the adversarial process from playing out as the Framers intended. 

Our decision to construe the forfeiture-by-wrongdoing

exception to apply even when a defendant has multiple motivations for harming a witness places us in accord with our sister circuits and with several state courts. For instance, the

First Circuit has explicitly stated that "it is sufficient in this

regard to show that the evildoer was motivated in part by a

desire to silence the witness; the intent to deprive the prosecution of testimony need not be the actor’s sole motivation."

United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996)

(emphasis in original). And in a post-Crawford decision, the

D.C. Circuit concluded that imposing an exclusive-intent

requirement would have the "perverse consequence" of "allowing criminals to murder informants and thereby prevent

admission of the informants’ statements—just so long as the

criminal could show that the intent was retaliation (which the

criminal almost always could do)." United States v. Martinez,

476 F.3d 961, 966 (D.C. Cir. 2007); see also, e.g., People v.

Banos, 100 Cal. Rptr. 3d 476, 493 (Cal. Ct. App. 2009) ("It

strikes us as illogical and inconsistent with the equitable

nature of the [forfeiture-by-wrongdoing exception] to hold

that a defendant who otherwise would forfeit confrontation

rights by his wrongdoing (intent to dissuade a witness) suddenly regains those confrontation rights if he can demonstrate

another evil motive for his conduct."), cert. denied, 130 S. Ct.

3289 (2010).

UNITED STATES v. JACKSON 9
C.

The district court in this case made an explicit finding that

preventing Greene from testifying was a "precipitating" and

"substantial" reason why Jackson murdered him. J.A. 845.

There is ample support in the record for this finding, as Jackson told others that Greene "was an informant trying to bring

down him [Jackson] and his brothers" and that Greene "deserved" to be killed. J.A. 816. While it may be true that

Greene was in some general sense bad for business or the target of retribution for robbing Garian "Boo" Washington,

Greene’s murder was set up within a very short time after

Jackson learned that he was out of jail as an apparent reward

for his cooperation with law enforcement. We conclude that,

under Giles, the district court’s finding was sufficient to permit the admission of Greene’s statement pursuant to the

forfeiture-by-wrongdoing exception to the Confrontation

Clause.2

2

Jackson also argues for the first time on appeal that his second conviction violates the Double Jeopardy Clause of the Fifth Amendment because

the Staunton and Lindsay Drive operations were a single conspiracy.

Applying the familiar plain error standard, see United States v. Olano, 507

U.S. 725, 732-36 (1993), we reject Jackson’s double jeopardy argument.

The record reveals that the district court did not commit plain error in

finding two conspiracies rather than one, see United States v. Ragins, 840

F.2d 1184, 1188-89 (4th Cir. 1988). First, the two operations involved different individuals. The Staunton indictment charged Jackson, Scott, Venable, and Johnson, while the Lindsay Drive indictment charged only

Jackson and one other individual, Jeffrey Deane. And only one of the

numerous unindicted members of the Lindsay Drive conspiracy played a

significant role in the Staunton conspiracy. Second, the two operations

were conducted in different locations. The Lindsay Drive conspiracy was

confined to a single apartment complex in Orange, while the Staunton

conspiracy took place sixty-odd miles away. Finally, Jackson had a very

different role in each of the two operations. At Lindsay Drive, he sat atop

a hierarchy and used violence to eliminate any threats to his operation. In

Staunton, he was merely a supplier, and he began selling drugs there only

after the area’s usual suppliers were unavailable. The district court did not

commit plain error by allowing Jackson to be charged on the second

indictment. That the court also issued a limiting instruction to assuage any

potential double jeopardy concerns further supports our conclusion. 

10 UNITED STATES v. JACKSON
The judgment of the district court is therefore affirmed.

AFFIRMED

UNITED STATES v. JACKSON 11