United States of America v. Gerald O. Jackson, a/k/a Jerry Lnu GERALD O. JACKSON

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1164
UNITED STATES OF AMERICA
v.
GERALD O. JACKSON, a/k/a Jerry Lnu
GERALD O. JACKSON,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Crim. No. 00-00138-1
Honorable Garrett E. Brown, District Judge
Argued May 21, 2002
BEFORE: BECKER, Chief Judge, GREENBERG, Circuit Judge,
and BARZILAY, Judge, U.S. Court of International Trade*
(Filed: June 14, 2002)
*Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
Michael A. Armstrong (argued)
79 Mainbridge Lane
Willingboro, New Jersey 08046
Attorney for Appellant
Robert J. Cleary
United States Attorney
George S. Leone
Chief, Appeals Division
Maureen A. Ruane
Assistant United States Attorney
Gail Zweig (argued)
Assistant United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102-2535
Attorneys for Appellee

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OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Gerald Ojobi Jackson was indicted for and convicted at a jury trial of
knowingly and intentionally conspiring to distribute and to possess with intent to
distribute more than 100 grams of heroin contrary to 21 U.S.C. 841(a)(1) in violation of
21 U.S.C. 846. The district court determined that his total offense level was 36 and his
criminal history category was IV, calculations that yielded a sentencing range of 262 to
327 months. The court sentenced Jackson to a custodial term of 262 months to be
followed by a four-year term of supervised release.
Jackson appeals, raising issues both with respect to his conviction and to the
court’s calculations in establishing his sentencing range. Specifically, Jackson advances
three contentions regarding his conviction: (1) the court erred in refusing to provide him
with a bill of particulars; (2) the court should not have permitted evidence pointing to his
country of national origin, Nigeria, during the trial; and (3) the court erred in denying his
motion to strike his alias, "Jerry," from the indictment. Jackson challenges the
calculation of his total offense level and thus his sentencing range, contending that the
court erred in determining the quantity of heroin attributable to him, 824.7 grams,
resulting in a base offense level of 30 pursuant to U.S.S.G. 2D1.1(c)(5) and erred in
finding that he was an organizer or leader of the offense which involved five or more
participants resulting in a 4-level enhancement under U.S.S.G. 3B1.1(a). After a
careful review of this matter, we find that Jackson’s contentions are clearly without merit
and thus we will affirm. We, however, make the following observations.
Jackson’s contentions with respect to his conviction are all subject to deferential
review on an abuse of discretion or plain error basis. See United States v. Olano, 507
U.S. 725, 113 S.Ct. 1770 (1993); United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.
2001); United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999); cert. denied, 528 U.S.
1131, 120 S.Ct. 969 (2000); United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975).
First, we are satisfied that Jackson received sufficient information so that the
denial of his motion for a bill of particulars did not impair his ability to defend against th
charge. Before trial, Jackson filed a motion requesting a bill of particulars pursuant to
Fed. R. Crim. P. 7(f), which provides in relevant part that "the court may direct the filing
of a bill of particulars." We have noted that:
The purpose of the bill of particulars is to inform the defendant of the
nature of the charges brought against him to adequately prepare his
defense, to avoid surprise during the trial and to protect him against a
second prosecution for an inadequately described offense. A bill of
particulars should fulfill this function when the indictment itself is too
vague and indefinite for such purposes.
United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971) (internal quotation marks
and citations omitted).
We review a district court’s denial of a motion for a bill of particulars for abuse
of discretion. United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989). A district court
abuses its discretion in this context only when "the deprivation of information sought
leads to the defendant’s inability to adequately prepare his case, to avoid surprise at trial,
or to avoid the later risk of double jeopardy." Addonizio, 451 F.2d at 64. In addition to
showing that the district court abused its discretion, a defendant must demonstrate that he
was prejudiced by the denial of the bill in order to obtain relief. See Rosa, 891 F.2d at
1066. We have noted that when the denial of a motion for a bill of particulars is upheld it
invariably has been "either because the information otherwise available to the defendant
at the pretrial stage was found to give adequate notice . . . or because no prejudice or
surprise was shown to have resulted from the denial of the information sought." Id.
Jackson objects primarily to the fact that during the hearing on his motion for a
bill of particulars, the prosecutor specifically told the court (mistakenly) that there would
not be evidence presented with respect to unindicted co-conspirators. He also challenges

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the government’s failure to provide the name of the co-conspirator "Ben," from whom the
government alleged he received the heroin that he sold to the government’s undercover
agent. The government asserts that it was proper for the district court to deny Jackson’s
request for a bill of particulars because Jackson had sufficient notice of "Ben’s" identity
and alleged role in the conspiracy.
The government points to three different documents that Jackson obtained during
pretrial discovery that, it submits, would have alerted him to the identity of "Ben." First,
the government points to the indictment itself, which states that Jackson conspired not
only with the Calises, but also with "others." The government also cites two reports
describing the drug transaction that took place between Jackson and an undercover officer
in New York on July 22, 1998. Although neither one names Mbonu-Ike or "Ben," they
both provide detailed physical descriptions of the parties involved in the transaction. The
first report, prepared on July 22, 1998, the day of the transaction, by undercover narcotics
officer Orlando Caprio, describes the transaction as follows. Caprio drove both "Jerry"
and another black male (who, according to the prosecutors, was Mbonu-Ike), into New
York from Calise’s apartment. The report describes Mbonu-Ike as "UBM #1" for
"unidentified black male." The report also describes a second unidentified black male
with whom UBM #1 was seen speaking before he brought the heroin over to Jackson and
Caprio. A second report, prepared by an officer Anthony Martino, who also was
observing the transaction, provides a similar description of the second unidentified black
male, whom the government contends was "Ben."
Although we acknowledge that the prosecutor erred by representing that the
government would not be calling any witnesses who were unindicted co-conspirators, we
think that Jackson had sufficient notice of the identity and alleged role of "Ben" and that
the district court did not abuse its discretion by denying Jackson’s motion for a bill of
particulars. Thus, we reject Jackson’s contention on this point.
Jackson’s second contention relates to the evidence at trial mentioning his
country of national origin. The few references at trial, however, to his country of origin
were relevant and not prejudicial. Finally, the reference to Jackson, whose first name is
"Gerald," as "Jerry" in the indictment was both appropriate and not prejudicial as he is, in
fact, known as "Jerry". Moreover, this is not a case in which the defendant had an
inherently prejudicial informal second name such as "killer."
In considering Jackson’s sentencing contentions we point out the following.
Jackson contends that only 24.7 grams of cocaine should be attributable to him because
that was the quantity involved in the delivery on July 22, 1998. But the agreement was
for a sale of 800 to 2000 grams and thus in this conspiracy case the calculation of the
quantity of heroin attributable to him was not limited to the amount delivered.
Furthermore, Jackson’s contention, if accepted, would require the court to sentence him
on the basis of a drug quantity less than that attributed to him by the jury as it convicted
him of a conspiracy involving more than 100 grams of heroin. In view of Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), this would be an extraordinary result as
the Court in that case tied the sentence to the jury’s findings so as to preclude statutorily
authorized enhancements predicated on findings by the court rather than the jury. Thus, it
would be illogical to require a district court to disregard a jury’s findings with respect to
the quantity of drugs involved merely because it is in the defendant’s advantage that it do
so. Yet Jackson would have us do exactly that. Finally, we are satisfied that the record
fully supports the 4-level enhancement under U.S.S.G. 3B1.1(a).
We close this opinion by noting that Jackson addressed a letter dated May 12,
2002, to Chief Judge Becker contending that he requested that his attorney raise certain
issues on this appeal and that he has not done so. Jackson asked for leave to file a pro se
supplemental brief in which he apparently intended to raise these issues but on May 14,
2002, we denied that application in accordance with our practice when a party is
represented by an attorney. In the circumstances the parties should not infer that we
passed on these issues on the merits.
The judgment of conviction and sentence entered January 10, 2001, will be
affirmed.
TO THE CLERK:
Please file the foregoing opinion.

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/s/ Morton I. Greenberg
Circuit Judge
DATED: June 14, 2002

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