1. Introduction
The Third Circuit affirmed Darnell Jackson’s convictions and sentence arising from a murder-for-hire scheme. The appeal concerned three recurring features of criminal litigation: preserving evidentiary objections, distinguishing prosecutorial misconduct from reversible error, and enforcing the sentencing court’s obligation to verify that a defendant has discussed the presentence report with counsel.
Jackson, also known as Major Change, asked a longtime acquaintance to kill Ernest Moss, with whom he was feuding. The acquaintance was a confidential FBI informant. After receiving Moss’s photograph from Jackson, the informant contacted him, and Jackson offered $5,000 for the killing. Acting at the FBI’s direction, the informant pretended to cooperate and later falsely reported that Moss had been killed. Jackson responded that he would bring the money. Officers arrested him shortly afterward with a loaded semiautomatic firearm and multiple phones.
A jury convicted Jackson of possession of ammunition by a felon under 18 U.S.C. §§ 922(g)(1) and 924(e), and use of a facility of interstate commerce in the commission of murder-for-hire under 18 U.S.C. § 1958(a). The district court imposed 240 months’ imprisonment, described in the opinion as the statutory maximum, followed by three years of supervised release.
Jackson challenged the admission of evidence about earlier gun and drug transactions with the informant, the prosecutor’s conduct during trial, and the sentencing court’s failure to ensure that he had discussed his presentence report with his lawyer. The appellate court rejected each ground for reversal, although it identified errors in the prosecutor’s personal attestation and the sentencing procedure.
3. Analysis: Legal Reasoning and Precedents Cited
A. Preservation Depends on the Particular Ground Raised
Before trial, Jackson opposed the Government’s motion to admit evidence of his earlier dealings with the informant. On appeal, however, he advanced a more specific objection: the informant’s actual testimony differed from the Government’s pretrial description and proved unreliable. Those grounds emerged during testimony and were not encompassed by the district court’s earlier ruling.
Under Federal Rule of Evidence 103(a), an evidentiary objection must be timely and specific. A pretrial objection does not automatically preserve every later objection involving the same witness or subject matter. Because Jackson did not object when the new grounds arose, the court applied plain-error review.
Precedents and their influence
-
Gov't of V.I. v. Joseph, 964 F.2d 1380, 1384–85 (3d Cir. 1992), supplied the distinction between an issue already resolved before trial and one requiring a contemporaneous objection. In that case, repeating an objection would not have assisted the district court because it had thoroughly considered the issue. Jackson’s situation was different: the discrepancy between the Government’s proffer and the witness’s testimony arose only at trial. A fresh objection would have alerted the judge to a new problem.
-
United States v. Olano, 507 U.S. 725, 731, 734 (1993), supplied the governing framework for unpreserved claims. It also supported the court’s conclusion that a sentencing error does not justify relief without the required effect on substantial rights.
-
Johnson v. United States, 520 U.S. 461, 466–67 (1997), provided the four-part formulation: an error must exist, be plain, affect substantial rights, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. The evidentiary challenge failed at the first requirement; the sentencing challenge failed because Jackson did not show an effect on the outcome.
-
United States v. Adair, 38 F.4th 341, 355–56 (3d Cir. 2022), explained how the first plain-error inquiry operates: the appellate court asks whether an error occurred under the standard that would govern a preserved claim. Accordingly, plain-error review did not displace the ordinary framework for evaluating evidentiary discretion.
-
United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014), identified abuse of discretion as the ordinary standard for reviewing the evidentiary ruling. Jackson therefore first had to establish that the district court’s handling of the testimony exceeded its permissible discretion.
The preservation lesson is narrow but important: counsel need not mechanically repeat an objection already resolved, but must raise a materially different objection when its factual basis first appears.
B. Prior Misconduct Was Admissible to Explain the Relationship
The informant testified about gun and drug dealings with Jackson shortly before the murder-for-hire scheme. His account was inconsistent about whether law enforcement supervised those transactions. Jackson argued that the testimony was irrelevant, unreliable, and unfairly prejudicial.
The court distinguished an impermissible character inference—Jackson committed earlier crimes, so he likely committed these crimes—from a permissible relational inference: recent criminal dealings helped explain why Jackson trusted this particular person with a murder commission. The timing and nature of the dealings made that relationship especially probative.
Precedents and their influence
-
United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010), supplied the four requirements for admitting other-acts evidence under Rule 404(b): a proper evidentiary purpose, relevance, compliance with Rule 403, and an appropriate limiting instruction when requested. The panel evaluated the testimony under each requirement and found all satisfied.
-
United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982), supported admitting evidence of a prior relationship with a criminal associate. It provided the specific nonpropensity purpose here: explaining the background and trust underlying Jackson’s choice of the informant.
-
Huddleston v. United States, 485 U.S. 681 (1988), addressed conditional relevance. When other-acts evidence matters only if some additional fact is true, sufficient evidence must permit the jury to find that fact. Jackson identified neither a necessary conditional fact nor an evidentiary deficiency concerning it. The panel also rejected his broader reading that Huddleston requires judges, without an objection, to strike other-acts evidence whenever it becomes flawed or inconsistent.
-
United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en banc), required substantial deference to the district court’s Rule 403 balancing. That deference reinforced the conclusion that the relationship evidence’s substantial explanatory value was not substantially outweighed by unfair prejudice.
-
United States v. Michener, 152 F.2d 880, 885 (3d Cir. 1945), supported leaving questions of evidentiary weight and witness credibility to the jury. The inconsistencies identified here did not make otherwise admissible relationship evidence inadmissible.
The Rule 403 analysis was fact-specific. The transactions occurred only weeks before the charged offenses and suggested familiarity with the informant’s criminal activity. Whether the FBI directed those earlier transactions did not change the undisputed fact that the informant cooperated with law enforcement in the murder-for-hire investigation. Cross-examination clarified the account of supervision, and the district court properly instructed the jury about the evidence’s use.
This reasoning does not make all evidence of prior criminal associations admissible. Its force depends on a genuine nonpropensity connection to a disputed issue, appropriate balancing, and suitable instructions.
C. The Prosecutor’s Personal Attestation Was Improper but Harmless
Jackson testified that the Government’s pretrial motion acknowledged threats against his family. The prosecutor disputed that characterization and eventually stated, “I, Justin Ashenfelter, did not say anything about knowing your family was in danger.” The panel treated this as more than ordinary questioning: invoking his own name and affirming his interpretation personally attacked Jackson’s trustworthiness.
The underlying motion was not in evidence. The prosecutor therefore used a personal, extra-record assertion to challenge the defendant’s credibility. The opinion connected this conduct to the prohibition on a lawyer expressing personal views about witness credibility, quoting Pennsylvania Rule of Professional Conduct 3.4(c).
Precedents and their influence
-
United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003), supported abuse-of-discretion review because defense counsel objected at trial. It also established that a finding of prosecutorial misconduct remains subject to harmless-error analysis.
-
United States v. Wood, 486 F.3d 781, 788–89 (3d Cir. 2007), explained the invited-response doctrine. A prosecutor may sometimes respond reasonably to an improper defense attack, but the response must neutralize the prejudice rather than introduce a new impropriety. The case also supported assessing isolated misconduct in the context of the entire trial.
-
United States v. Pungitore, 910 F.2d 1084, 1126–27 (3d Cir. 1990), illustrated a protected response: the prosecutor invoked an oath of office after defense counsel compared the prosecution to historical persecutions. The panel used this example to distinguish a defensive response from an affirmative personal attack.
-
United States v. Young, 470 U.S. 1, 13–14 (1985), supplied the limiting principle. A response loses protection when it exceeds what is necessary to restore balance after defense misconduct. Jackson’s challenge did not authorize the prosecutor to substitute personal credibility for record evidence.
-
United States v. Dispoz- O-Plastics, Inc., 172 F.3d 275, 284–86 (3d Cir. 1999), provided another limit: contesting a witness’s credibility does not itself authorize prosecutorial vouching. The panel relied on that distinction in rejecting an expansive justification for the prosecutor’s remarks.
-
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995), supplied the nonconstitutional harmless-error standard and its contextual factors. The court asked whether it was highly probable that the error did not contribute to the judgment, considering the comments’ scope, curative instructions, and the strength of the prosecution’s evidence.
-
United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010), supplied the separate due-process threshold: misconduct must be sufficiently significant to deny a fair trial. The panel found that threshold unmet.
The court expressly left unresolved whether the invited-response doctrine applies to exchanges between a prosecutor and a testifying defendant, rather than between opposing counsel. Even assuming its availability, the prosecutor’s affirmative personal attestation was not a neutral, defensive response.
Nevertheless, the exchange was brief within a five-day trial, concerned the characterization of a pretrial filing rather than crucial trial evidence, and occurred against strong evidence of guilt. Although the judge gave no instruction specifically addressing the exchange, the jury repeatedly heard that lawyers’ statements were not evidence. The panel therefore found the error harmless and insufficient to establish a due-process violation.
A drafting tension deserves notice: the opinion initially says that overruling the objection was error, but later states that the district court did not abuse its discretion in overruling it and proceeding. Read as a whole, the analysis identifies improper conduct but rejects reversal because the error was harmless. It should not be understood as approving the prosecutor’s statement.
D. Inconsistent Testimony Did Not Establish Knowing Use of Perjury
Jackson separately argued that the prosecutor allowed the informant to testify falsely about law-enforcement supervision of earlier transactions. Because he made no contemporaneous objection, this claim received plain-error review.
Precedents and their influence
-
United States v. Stadtmauer, 620 F.3d 238, 267–69 (3d Cir. 2010), supplied the required showing: perjury, actual or constructive government knowledge coupled with failure to correct it, and a reasonable likelihood that the false testimony affected the verdict. It also supported rejecting a claim based merely on allegedly contradictory testimony.
-
United States v. Dunnigan, 507 U.S. 87, 94 (1993), defined perjury as willfully false testimony about a material matter. Confusion, mistake, and faulty memory do not satisfy that definition. This distinction was decisive because the informant repeatedly expressed uncertainty about the timeline of his FBI involvement.
-
Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991), explained that contradictions and changes alone neither establish perjury nor show that prosecutors knowingly presented it. The Third Circuit used that reasoning consistently with its own decision in United States v. Stadtmauer.
Jackson failed at the first requirement: he did not demonstrate deliberate falsehood. The court therefore did not need to decide what the Government knew or whether it should have acted differently. The holding distinguishes grounds for impeachment from proof of a constitutional violation; it does not excuse knowing use of genuinely perjured testimony.
E. Rule 32 Required Discussion with Counsel, but Relief Required Prejudice
Federal Rule of Criminal Procedure 32(i)(1)(A) requires the sentencing court to verify that the defendant and defense counsel have read and discussed the presentence report. Jackson confirmed that he had read it but expressly said he had not done so with counsel. The judge nevertheless continued sentencing without objection.
The panel found an actual violation. Independent review by both defendant and counsel was not a substitute for the required discussion. The question on appeal, however, was whether that unpreserved violation affected Jackson’s substantial rights.
Precedents and their influence
-
United States v. Adams, 252 F.3d 276, 278–79, 285–86 (3d Cir. 2001), supported plain-error review of an unpreserved sentencing-procedure claim and the need to examine its effect on the proceeding’s outcome.
-
United States v. Stevens, 223 F.3d 239, 246 (3d Cir. 2000), directly supported requiring prejudice for a violation of the predecessor to Rule 32(i)(1)(A). Failure to complete the required verification does not automatically compel resentencing.
-
United States v. Dotson, 570 F.3d 1067, 1069–70 (8th Cir. 2009), supported applying the murder-for-hire guideline’s cross-reference from U.S.S.G. § 2E1.4 to § 2A1.5. This authority helped the panel reject the suggestion that discussion of the report would have exposed an erroneous guideline calculation.
-
United States v. Lisyansky, 806 F.3d 706, 709–10 (2d Cir. 2015), likewise affirmed use of that cross-reference, reinforcing the correctness of the sentencing methodology used here.
-
United States v. Temkin, 797 F.3d 682, 694–95 (9th Cir. 2015), reinforced the same point from the opposite direction: failure to apply the cross-reference required reversal in that case.
-
Kimbrough v. United States, 552 U.S. 85, 109–10 (2007), recognized sentencing discretion to vary from the advisory Guidelines based on the court’s assessment of sentencing objectives. But discretion to vary did not establish prejudice here. Jackson did not explain why these guidelines produced a disproportionate sentence or how consultation would have generated a persuasive variance argument.
The district court properly used a base offense level of 33 under §§ 2E1.4 and 2A1.5, then added four levels under § 2A1.5(b)(1), producing a total offense level of 37. Both Jackson and counsel independently raised objections, which the court rejected. Those circumstances reduced the likelihood that a joint discussion would have changed the result.
The panel did not hold that consultation was unnecessary. It held that Jackson had not demonstrated a prejudicial consequence from its absence. Likewise, rejecting his Kimbrough argument did not eliminate the sentencing court’s discretion to vary; it reflected the lack of a developed explanation connecting that discretion to a different outcome.