United States v Jackson, No. 07-0263-cr (2d Cir. August 4, 2011)
Leval, Lynch, CJJ, Korman, DJ)
Appellant Derrick Rowe, charged with a drug-related murder, had three trials. At the first, he was convicted of only drug trafficking and possession of ammunition, but the jury hung on three other counts – murder, § 924(c) and § 924(j). The court sentenced him to 32 years. At the second, the jury hung on all of the remaining counts. At the third, Rowe was convicted of the three open counts and received a 45-year concurrent sentence.
On appeal, his primary claim was that, at the third trial, the district court erred in allowing the government to play portions of his some of his prison phone calls without allowing him to play other portions under the Fed. R. Evid. 106 “rule of completeness.” The circuit found no abuse of discretion. In he first conversation, Rowe instructed a third party to tell a potential witness, named Battle, to keep quiet. But the portion he wanted to play, in which he said he was “not mad at” Battle would not have affected the jury’s “complete and proper understanding of the portion played by the government.”
In the other conversation, the government played a portion of a conversation with Battle’s mother that reflected Rowe’s anxiety that the Battle had been arrested. Rowe wanted the court to play portions of the conversation that showed other reasons why Rowe might have been agitated but, again, the court found no abuse of discretion in precluding them.
Rowe also pursued a double jeopardy claim, arguing that the drug trafficking offense of which he was convicted at the first trial was a lesser included offense of the murder charge that the first jury hung on, and of which he was not convicted until the third trial. The court punted on whether this claim was legally correct, instead holding that it did not matter. Given the hung juries, for double jeopardy purposes, the second and third trials “are properly seen as continuations of the initial trial, and did not expose Rowe to double jeopardy.” Nor was there an Ashe v. Swenson-type collateral estoppel problem, since Rowe was not acquitted of the drug trafficking charge.