United States v. Jackson

58 F.4th 541

UNITED STATES of America, Appellee,

v.Laveneur JACKSON, Defendant, Appellant.

No. 22-1100

United States Court of Appeals, First Circuit.

January 23, 2023

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.

Before Barron, Chief Judge, Lynch, Circuit Judge, and Kelley,^* District Judge.

BARRON, Chief Judge.

Laveneur Jackson appeals from his two September 2021 convictions in the United States District Court for the District of New Hampshire. Each conviction was for possessing a firearm as a prohibited person -- i.e., someone who has previously been convicted of a crime punishable by more than one year of imprisonment -- in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Jackson contends that the convictions must be reversed due to a lack of sufficient evidence. But, as a fallback, he contends that they must be vacated and the underlying charges dismissed due to governmental misconduct during the grand jury proceedings. We affirm.

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 Jackson 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 asked 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 Cook suggested that they would need to "work together," Jackson responded, "Yeah, I'm not going to do that," and indicated that he would like to speak to a lawyer.

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 a crime punishable by more than one year. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).² The government called Cook to testify before the grand jury about the January 2017 encounter between Jackson and Cook at the gun store. The following exchange occurred during Cook's testimony:

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.

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 money 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 punishable 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 did not allege that Jackson had any other felony convictions.³

At a detention hearing after Jackson had been arrested on these charges, Jackson pointed out that 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. conviction 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

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