### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2117

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

H URLEY C. J ACKSON

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:15

‐ cr

‐ 00122

‐ wmc

‐ 4

— William M. Conley

, Judge

.

____________________

A RGUED A PRIL 6, 2018

— D ECIDED A UGUST 3, 2018

____________________

Before E ASTERBROOK

, R IPPLE

, and H AMILTON

, Circuit

Judges

.

R IPPLE

, Circuit Judge

. A jury found Hurley C. Jackson

guilty of conspiracy to distribute over 1,000 grams of heroin,

in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession with

intent to distribute a substance containing heroin, in violation

of 21 U.S.C. § 841(a)(1); and distribution of a substance con

‐ taining heroin, also in violation of 21 U.S.C. § 841(a)(1). He2 No. 17

‐ 2117

claims that the district court abused its discretion when it al

‐

lowed a witness to testify that Mr. Jackson had threatened to

kill her. He also maintains that the prosecutor’s closing argu

‐

ment included improper vouching and invited the jury to

consider matters other than his guilt in reaching its verdict.

According to Mr. Jackson, these remarks so infected the jury’s

deliberations as to require a new trial.

Mr. Jackson’s arguments are unpersuasive. The threat tes

‐ timony was both relevant to, and probative of, the central is

‐

sue in this case: whether Mr. Jackson conspired to distribute

heroin. Additionally, even if the prosecutor’s comments were

improper, the evidence against Mr. Jackson was substantial.

Consequently, the prosecutor’s comments did not affect the

jury’s verdict. We therefore affirm Mr. Jackson’s conviction.

I

BACKGROUND

A.

The conspiracy charged in the indictment began on De

‐

cember 11, 2013, when Mr. Jackson, an admitted heroin dis

‐

tributor, was arrested in Plover, Wisconsin. Immediately after

his admission at the Portage County Jail, Mr. Jackson called

his brother, Charles D. Hall, and told Hall to retrieve heroin

that Mr. Jackson had hidden at the hotel where he had been

staying. 1 Hall did so and, at Mr. Jackson’s instructions, took

1 The possession of this heroin was the basis for Count 2 of the supersed

‐ ing indictment.No. 17

‐ 2117 3

the heroin to Cody Thompson. Thompson showed Hall how

to break down the heroin and to sell it.

While Mr. Jackson was incarcerated, Hall continued to

procure heroin through Mr. Jackson’s contact, Dewight Wil

‐

liams, and to dispense the heroin to Mr. Jackson’s sub

‐ distrib

‐

utors. When Hall was incarcerated in February 2014 for driv

‐ ing while intoxicated, he recruited Marguerite Tompkins to

continue the operation. Like Hall, Tompkins obtained heroin

from Williams, broke it down, and provided it to sub

‐ distrib

‐

utors.

Hall was released from custody in May 2014. Later in the

summer of 2014, Mr. Jackson instructed Hall to pay a visit to

Tiffany Bell, Mr. Jackson’s former girlfriend and distributor,

who recently had been released from prison. Hall and Wil

‐

liams went to see Bell. During the visit, Mr. Jackson placed a

call to Hall’s cell phone so that he could speak to Bell and try

to persuade her to sell heroin on their behalf. Bell was non

‐

committal, but, when Mr. Jackson was released from custody

in September 2014, she began selling heroin for him.

In December 2014, Bell was involved in the sale of heroin

to a user and police informant, Casey Edlebeck. Edlebeck had

come to know Mr. Jackson when he called Hall to purchase

heroin, and Mr. Jackson had made the delivery. At the request

of the police, Edlebeck texted Mr. Jackson to arrange to pur

‐

chase heroin. Mr. Jackson told Edlebeck to go to a local

McDonald’s, where the sale would take place. When Edlebeck

arrived at the McDonald’s, he again texted Mr. Jackson, who

instructed him to look for a gold Cadillac. Bell arrived at the

McDonald’s in a gold Cadillac, and the exchange was made.

Photographs of the text messages and of the transaction con

‐

firm these events.4 No. 17

‐ 2117

During the latter part of 2014 and into 2015, Mr. Jackson,

his brother Terrance Jackson, 2 Hall, and Williams pooled their

funds to make bulk heroin purchases. They employed several

individuals who were addicted to heroin—Hannah Hovick,

Thompson, Megan Pray

‐ Genett, and Tanya Kluck—to help

transport, test, and distribute the heroin. For instance,

Hovick, who was both a user and in a romantic relationship

with Terrance, traveled with Terrance numerous times to

Mr. Jackson’s home to pick up Terrance’s heroin. Terrance

would give her approximately ten to twenty grams of heroin

per day for delivery to customers, in exchange for which she

would obtain heroin for her own use.

In May 2015, Hovick also made the first of three trips to

Chicago for Terrance, Williams, and Mr. Jackson. Her role on

these trips was to test the quality of the heroin before it was

brought back to Wisconsin for distribution. The night before

the first trip, Hovick was in a car with Terrance and Mr. Jack

‐

son. Mr. Jackson put his arm around Hovick’s neck, held a

gun to her head, and stated, “If you ever talk to the police, I

will kill you.” 3

The coordinated distribution efforts among Williams,

Hall, Terrance, and Mr. Jackson continued throughout 2015.

B.

In January 2016, a grand jury charged Mr. Jackson, Ter

‐

rance, Hall, and Williams in a fourteen

‐ count indictment with

conspiracy to distribute, possession with intent to distribute,

2 To prevent confusion, we refer to Terrance Jackson as Terrance.

3 R.398 at 56.No. 17

‐ 2117 5

and distribution of a substance containing heroin. Terrance,

Hall, and Williams all reached plea agreements with the Gov

‐

ernment. Mr. Jackson proceeded to trial on the three counts of

the indictment in which he was named: conspiracy to possess

with intent to distribute 1,000 grams or more of heroin

(Count 1); possession with intent to distribute a substance

containing heroin on December 11, 2013 (Count 2); and distri

‐

bution of a substance containing heroin on December 9, 2014

(Count 3).

Prior to trial, Mr. Jackson moved to exclude the testimony

of Hovick regarding the threat. He asserted that this testi

‐

mony was impermissible character evidence under Federal

Rule of Evidence 404(b). 4 When the motion was argued before

the court, however, Mr. Jackson submitted that the testimony

should be excluded under Federal Rule of Evidence 403 be

‐

cause the danger of prejudice substantially outweighed its

probative value. 5 The court concluded that the testimony

should not be excluded under Rule 403:

I understand the potential prejudice any time a

gun is introduced into any transaction. But I

have to confess, given Ms. Hovick’s role and the

reasons why your client, if she is believed, may

4 See R.269. Federal Rule of Evidence 404(b)(1) states: “Evidence of a crime,

wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with

the character.”

5 Federal Rule of Evidence 403 states: “The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues, mis

‐ leading the jury, undue delay, wasting time, or needlessly presenting cu

‐

mulative evidence.”6 No. 17

‐ 2117

have wanted to intimidate her and her conduct

during the course of her involvement in the al

‐ leged conspiracy I think outweighs that. 6

The court therefore allowed Hovick to testify as to Mr. Jack

‐

son’s threat.

At trial, the Government offered the testimony of fifteen

witnesses: six law enforcement officers, one records custo

‐

dian, and eight cooperating witnesses. The exhibits included

photographs, cell phone records, text messages, recordings of

jail calls, wire transfers, and a letter written by Mr. Jackson to

Bell shortly before his trial promising that, should he be ac

‐ quitted, he would visit Bell in prison and “send [her] money

all the time.” 7

Mr. Jackson also testified. He admitted that he was a her

‐

oin dealer, but denied the existence of a conspiracy to distrib

‐

ute heroin. He testified that Hall, Terrance, and Williams were

all his “competition” and that “[e]verything was completely

separate.” 8

During closing argument, counsel for the Government

made the following statements, none of which elicited a con

‐

temporaneous objection:

Last point. Remember that Bell and Tomp

‐

kins and Hall are hoping to get a lower sentence

from the Court, right? As you probably figured

6 R.400 at 6

– 7.

7 R.356 at 61 (discussing Gov’t Ex. 8A).

8 R.401 at 8.No. 17

‐ 2117 7

out by now, Judge Conley sentenced the partic

‐ ipants of the conspiracy and he knows the facts.

Do you really think that Bell, Thompson and

Hall are going to lie in front of the person that

they are hoping for a break from?

Deals are also worth reviewing in the con

‐

text of this case. Why is it unambiguously good

for the criminal justice system to provide incen

‐

tives to people who cooperate against those

higher up in the drug distribution chain? It’s un

‐ ambiguously good. The only way to hold peo

‐ ple accountable at the top of the distribution

chain is to provide incentive to the lower

‐ eche

‐

lon distributors. 9

Later in the argument, counsel for the Government elaborated

on the benefits of plea deals:

The argument that these deals are unsavory

is really drained of its persuasive force when

you consider that but for the cooperation of

lower

‐ echelon people, then the people at the top

are going to go free and we’re never going to

stop people like the defendant, and the defend

‐

ant here particularly here today, from dumping

the poison of heroin into central Wisconsin. 10

The jury convicted Mr. Jackson on all three counts.

Mr. Jackson timely appealed.

9 Id

. at 109–10.

10 Id

. at 111.8 No. 17

‐ 2117

II

DISCUSSION

A.

Mr. Jackson first maintains that the district court should

have prevented Hovick from testifying regarding the threat.

We review a district court’s ruling on the admissibility of ev

‐

idence under Rule 403 for an abuse of discretion. United States

v. Strong

, 485 F.3d 985, 991 (7th Cir. 2007). “[W]e have held

that ‘[t]he court’s admission of evidence under Rule 403

... is

entitled to special deference. Only in an extreme case are ap

‐ pellate judges competent to second

‐ guess the judgment of the

person on the spot, the trial judge.’” Id. (second alteration in

original) (quoting United States v. Gardner

, 211 F.3d 1049, 1055

(7th Cir. 2000)).

Here, Mr. Jackson admits that the threat testimony is rele

‐

vant. 11 Nevertheless, he contends that it was highly prejudi

‐

cial because “the insidious image of Mr. Jackson threatening

cold

‐ blooded murder infected the whole trial.” 12 He also

maintains that it had little probative value because it was cu

‐

mulative of other evidence that Mr. Jackson was an active

member of the conspiracy. 13

Although the threat evidence no doubt had an impact on

the jury, it constituted fewer than two pages of the over five

hundred pages of testimony that the jury heard. We therefore

11 See Appellant’s Br. 27.

12 Id

. at 30–31.

13 See id. at 27–28.No. 17

‐ 2117 9

disagree that this image infected the entire trial. Moreover,

this testimony was not merely cumulative of other evidence

establishing Mr. Jackson’s participation in the conspiracy. It

explained how Mr. Jackson was able to keep control of the

heroin distribution when some individuals may have been in

‐

terested in selling for themselves. 14 The testimony also

demonstrated how Mr. Jackson was able to recruit individu

‐

als who initially were reluctant to join him, such as Bell. Fi

‐ nally, it countered an anticipated attack on Hovick’s truthful

‐

ness. When Hovick first was detained, she failed to mention

that Mr. Jackson was involved in the conspiracy—a point that

defense counsel made on cross

‐ examination. 15 The fact that

Mr. Jackson had threatened her life explains her reluctance to

provide his name to the authorities.

Given the testimony’s relevance and probative value, the

district court acted within its wide discretion in overruling the

Rule 403 objection and allowing the jury to hear the testi

‐

mony.

B

.

Mr. Jackson also submits that comments made during the

Government’s closing argument deprived him of a fair trial.

Generally speaking, we employ a two

‐ step analysis to deter

‐

14 See R.401 at 121 (defense counsel arguing on closing that Hall, Williams,

and Bell “all had their own individual operations” and “their own cus

‐ tomers”).

15 See R.398 at 59 (Hovick admitting that she had not been forthright with

the police when she had been detained).10 No. 17

‐ 2117

mine whether remarks made during closing argument re

‐ quire reversal of a conviction. “First, we consider whether the

challenged remark was improper, and second, whether the

remark deprived the defendant of a fair trial.” United States v.

Wolfe

, 701 F.3d 1206, 1211 (7th Cir. 2012).

A prosecutor’s comments may cross this line in several

ways. Most pertinent to Mr. Jackson’s appeal, a prosecutor

may not vouch personally for the credibility of a witness be

‐

cause it “threatens to undermine the jury’s role as independ

‐

ent factfinder[]

... by placing the prestige of the government

behind the witness.” United States v. Renteria

, 106 F.3d 765, 767

(7th Cir. 1997). The same threat arises if the Government

places the prestige of the court behind the witness. See United

States v. Carroll

, 26 F.3d 1380, 1382, 1389 (6th Cir. 1994) (“Fur

‐

ther, the prosecutor placed the prestige of the government,

and even of the court, behind the credibility of the [witnesses],

by stating that, if the government or the judge did not believe

that the witnesses were being truthful, the witnesses would

be in jeopardy.”). Additionally, a “prosecutorial comment

during closing arguments is improper if it is ‘aimed at inflam

‐ ing the passions of the jury,’” United States v. Dvorkin

, 799 F.3d

867, 884 (7th Cir. 2015) (quoting United States v. Caliendo

, 910

F.2d 429, 436 (7th Cir. 1990)), or if it “invites the jury to convict

the defendant in order to punish or deter other persons not on

trial,” United States v. DeSilva

, 505 F.3d 711, 718 (7th Cir. 2007).

If the remark is improper, we ask “whether the remark de

‐ prived the defendant of a fair trial.” Wolfe

, 701 F.3d at 1211.

The prejudice inquiry is informed by five factors: “(1) the na

‐

ture and seriousness of the misconduct; (2) the extent to which

the comments were invited by the defense; (3) the extent toNo. 17

‐ 2117 11

which any prejudice was ameliorated by the court’s instruc

‐

tion to the jury; (4) the defense’s opportunity to counter any

prejudice; and (5) the weight of the evidence supporting the

conviction.” Id

. (quoting United States v. Adams

, 628 F.3d 407,

418–19 (7th Cir. 2010)). 16

We need not linger over the question whether the remarks

were improper because, even if they were, they did not affect

the outcome of the trial. Looking first to “the nature and seri

‐

ousness of the misconduct,” Wolfe

, 701 F.3d at 1211 (internal

quotation marks omitted), we concluded that this factor

weighed in the defendant’s favor when a prosecutor dis

‐

cussed “the nine circles of hell depicted in Dante’s Inferno ”

and assigned the defendant “to the innermost circle reserved

for the worst of the damned,” United States v. Klemis

, 859 F.3d

436, 442 (7th Cir. 2017). By comparison, the prosecutor’s re

‐

marks here were not as inflammatory, nor were they the focus

of the closing argument.

Additionally, the comments directly responded to the de

‐

fense’s efforts to undermine the credibility of witnesses based

on their cooperation with the Government. See Wolfe

, 701 F.3d

16 However, when the defendant fails to object to the remarks during trial,

as defense counsel failed to do here, our review is even more deferential.

In such cases, we will reverse only if the defendant meets the plain error

standard by showing a clear or obvious error that both “affected the de

‐

fendant’s substantial rights” and “seriously affected the fairness, integrity,

or public reputation of the judicial proceedings.” United States v. Tucker

,

714 F.3d 1006, 1011 (7th Cir. 2013). Here, we conclude that there is no error

under the five

‐ factor test set forth in United States v. Wolfe

, 701 F.3d 1206

(7th Cir. 2012). See infra pp. 11

– 14. Therefore, we need not consider the

other requirements of the plain

‐ error standard.12 No. 17

‐ 2117

at 1211 (considering “the extent to which the comments were

invited by the defense” (internal quotation marks omitted)).

During cross

‐ examination, defense counsel explored the na

‐

ture of the witnesses’ cooperation and how their plea arrange

‐

ments might have influenced their testimony. 17

The other Wolfe factors also weigh against a finding that

the comments impacted the jury. Because the remarks came

during the Government’s closing, as opposed to rebuttal, de

‐

fense counsel had the opportunity to counter these state

‐

ments. Furthermore, any prejudice resulting from the prose

‐

cutor’s comments was ameliorated to some degree by the

court’s instructions that counsels’ arguments were not evi

‐

dence 18 and that the jury must consider the testimony of co

‐ operating witnesses “with caution and great care.” 19

17 See, e.g.

, R.364 at 40 (defense counsel asking Thompson about the reason

that he spoke to police, the reason he was testifying, and the sentence he

received); id

. at 213 (defense counsel asking Edlebeck about leniency he

had received in sentencing); R.399 at 11 (defense counsel asking Bell if she

was “trying to get time knocked off [her] sentence” by testifying).

18 See R.398 at 8 (“Any statements or any arguments that the lawyers make

are not evidence. If what a lawyer says is different from the evidence as

you hear it or see it, then the evidence is what counts.”).

19 R.401 at 69. Mr. Jackson argues that “the jurors could have interpreted

the instruction as telling them to make sure to take caution and great care

in rejecting testimony that could prevent law enforcement from being able

to effectively prosecute drug dealers in the future.” Appellant’s Br. 21–22.

This argument is without merit. We previously have observed that the in

‐

struction is “designed to inform the jury of a witness’ potential bias” and

“serve[s] that purpose.” United States v. Reed

, 227 F.3d 763, 770–71 (7th Cir.

2000). We do not believe that rational jurors would interpret the instruc

‐

tion as requiring them to give additional weight to the testimony of Gov

‐

ernment witnesses who are testifying pursuant to plea agreements.No. 17

‐ 2117 13

Finally, Mr. Jackson’s conviction was supported by over

‐ whelming evidence. Here there were pooled funds and a

shared supplier, both of which evidence a conspiracy. See, e.g

., United States v. Lomax

, 816 F.3d 468, 474–75 (7th Cir. 2016)

(“The government established that a conspiracy existed

through its evidence

... that [the defendants] shared custom

‐

ers, a supplier, and heroin, and pooled funds.”). Specifically,

Hall testified that he, Mr. Jackson, and Williams pooled their

money so they could purchase large quantities of heroin. 20

Hovick described how she made three trips to the same loca

‐

tion in Chicago where the conspirators purchased heroin. On

each trip, she traveled with a different group of conspirators.

The first trip involved Mr. Jackson, Terrance, and Williams;

the second involved Mr. Jackson and Hall; the third involved

Mr. Jackson and Williams. When they returned to Milwaukee,

Mr. Jackson would divide the heroin. 21

Testimony regarding shared customers provided further

evidence of a conspiracy. See id

. at 474; United States v. Thomp

‐

son

, 944 F.2d 1331, 1343 (7th Cir. 1991) (noting that “shar[ing]

customers and cooperat[ing] together when making sales”

were evidence of a conspiracy). Thompson testified how

Mr. Jackson would sometimes refer him (Thompson) to either

Hall or Terrance to purchase heroin and how he (Thompson)

would pay Williams for heroin he had received from Mr. Jack

‐

son. 22

20 See R.399 at 35.

21 See R.398 at 36–48.

22 See R.364 at 15–16.14 No. 17

‐ 2117

Contrary to Mr. Jackson’s suggestion, 23 the case against

him was not wholly dependent on the testimony of cooperat

‐ ing witnesses. Photographs, telephone recordings and rec

‐

ords, and text messages confirm individual transactions as

well as collaboration by the conspirators. For instance, with

respect to the beginning of the conspiracy, telephone records

at the Portage County Jail show multiple calls from Mr. Jack

‐

son to Hall immediately following Mr. Jackson’s arrest. As to

Bell’s sale of heroin to Edlebeck in December 2014, cell phone

records corroborate that Mr. Jackson received an inquiry from

Edlebeck and directed both Edlebeck and Bell to a specific lo

‐

cation. Photographs of this location show an exchange be

‐

tween Bell and Edlebeck. 24 Finally, recordings of phone calls

between Hall and Mr. Jackson establish that they maintained

a shared inventory of heroin and that Mr. Jackson provided

heroin to Hall’s sub

‐ distributors while Hall was incarcer

‐

ated. 25

In sum, there was substantial testimonial, documentary,

and recorded evidence establishing Mr. Jackson’s participa

‐

tion in the conspiracy to distribute heroin. We therefore can

‐

not conclude that the remarks by the prosecutor had any ef

‐

fect on the jury’s verdict. 26

23 See Appellant’s Br. 23.

24 See R.356 at 21–23.

25 See R.399 at 43–49.

26 Mr. Jackson also maintains that the cumulative errors at trial deprived

him of a fair trial. See Appellant’s Br. 31–32. Given that there was no error

in the admission of Hovick’s testimony or in the prosecutor’s remarks,

there is no resulting cumulative error.No. 17

‐ 2117 15

Conclusion

For the foregoing reasons, the district court did not abuse

its discretion in allowing Hovick to testify as to Mr. Jackson’s

threat against her. Nor did the prosecutor’s remarks during

closing argument affect the outcome of the trial. We therefore

affirm the judgment of the district court.

AFFIRMED