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Media Alerts - United States of America v. Dominique Jackson - Third Circuit
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February 27, 2017
  United States of America v. Dominique Jackson - Third Circuit
Headline: Third Circuit Affirms Conviction Based on "Listening Post" Theory in Wiretap Statute

Area of Law: Pennsylvania Wiretap Statute, Evidence

Issues Presented: Did the District Court erroneously deny pretrial motions to suppress evidence derived from intercepted calls?

Brief Summary:

Defendant Dominique Jackson appealed his conviction for conspiracy to possess with the intent to distribute cocaine. He claimed that the district court erred by denying his pretrial motions to suppress evidence from calls because he claimed the calls were unlawfully intercepted. Defendant argued that the evidence from the wiretaps should have been suppressed because the state court did not have jurisdiction to wiretap cells phones when they were outside of Pennsylvania. The Third Circuit adopted the "listening post" theory, which permits interception of out-of-state calls if the interception itself is located within the jurisdiction of the court authorizing the interception. The Third Circuit reviewed Pennsylvania's wiretap statute and Title III, the federal wiretap statute, and confirmed that Pennsylvania's statute was modeled to be substantially similar to Title III in terms of jurisdiction. Therefore, the state court had authority to grant the wiretap on the evidence from the calls outside of Pennsylvania and the evidence was admissible.

Extended Summary:

Defendant appealed his conviction for conspiracy to possess with the intent to distribute cocaine. Defendant claimed the district court erroneously denied his pretrial motions to suppress evidence from cell phone calls. A Pennsylvania state court had authorized the wiretaps and information from those wiretaps was used in affidavits of probable cause. Intercepted calls were placed and received outside of the state and Defendant contended that the state court lacked subject matter jurisdiction to permit wiretaps outside of Pennsylvania. The jury convicted Defendant of one count of conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine.

Defendant contended that the evidence from the wiretaps should have been suppressed because the state court did not have jurisdiction over the cellphones when they were outside of Pennsylvania. Defendant maintained that a state's jurisdiction is limited to its borders, and several conversations involving Defendant occurred while the cellphones were located outside of Pennsylvania. The government responded that Defendant lacked standing because, except for six calls which he was a party and had standing to challenge, he was not a party to the intercepted calls. The government also claimed the evidence was admissible under the "listening post" theory, which permits interception of out-of-state calls if the interception itself is located within the jurisdiction of the court authorizing the interception.

The Third Circuit joined other courts of appeals in adopting the "listening post" theory under Title III. The Court reasoned that the Pennsylvania wiretap statute was amended to clarify the definition of "intercept" based on the "listening post" theory. For interception to be lawful, therefore, only the interception had to have been in Pennsylvania. There was no dispute that the interceptions were made in Pennsylvania. The Court, thus, upheld the district court's denial of the motion to suppress.

Defendant also claimed on appeal that the district court erred in not precluding the government's agent, "Countryman," from interpreting the meaning of certain intercepted calls. The government claimed that the phone conversations were unclear and needed interpretation. It also claimed that the testimony involved Countryman's personal observations as a lay witness. The Third Circuit found that Countryman's testimony was not based on his direct knowledge of events. Therefore, he was in no better position than the jury to interpret the calls, and his testimony was overly broad and improper. Although the district court erred in not precluding that evidence, the Third Circuit found that the error was not plain for purposes of granting appellate relief.

Defendant also claimed that the government wrongfully attempted to use two of his co-conspirators' guilty pleas as evidence of Defendant's guilt. The Third Circuit held the government's use of the co-conspirators' guilty pleas was permissible because they went to the heart of whether the co-conspirators were credible, whether the government had selectively prosecuted Defendant, and whether the co-conspirators had firsthand knowledge of the crime for which Defendant was charged. The evidence of the pleas was not offered as substantive evidence of Defendant's guilt. The district court also provided appropriate limiting instructions. Therefore, the district court did not err in allowing the testimony.

Finally, Defendant argued that the district court erred by allowing admission of a co-conspirator's Fifth Amendment privilege not to testify. The Third Circuit held that the prosecutor's mention of the witness's invocation of the Fifth Amendment in front of the jury was inopportune, but was not so serious as to constitute plain error for purposes of appeal.

The Third Circuit, thus, found that Defendant failed to show plain error on appeal and his conviction and sentence were affirmed.

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/143712p.pdf

Panel: Fisher, Krause, and Greenberg, Circuit Judges

Argument Date: Argued December 7, 2016

Date of Issued Opinion: February 24, 2017

Docket Number: No. 14-3712

Decided: Affirmed

Case Alert Author: Jessica Wood

Counsel:

David S. Hickton, United States Attorney, Donovan J. Cocas (argued), Assistant U.S. Attorney, Rebecca R. Haywood, Assistant U.S. Attorney, Michael Ivory, Assistant U.S. Attorney, Counsel for Appellee

F. Clinton Broden (argued), Counsel for Appellant

Author of Opinion: Greenberg, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/27/2017 06:54 PM     3rd Circuit  

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