United States of America v. Gwendolyn E. Jackson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 08-2768 & 08-4506
UNITED STATES OF AMERICA,
v.
GWENDOLYN E. JACKSON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2-08-cr-00070-001)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
January 14, 2010
Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges
(Opinion filed: February 3, 2010)
OPINION
PER CURIAM.
Appellant Gwendolyn Jackson appeals her conviction and sentence for harassment.

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The Magistrate Judge had jurisdiction under 18 U.S.C. § 3401 and 28 U.S.C. § 636.1
The District Court had appellate jurisdiction under 18 U.S.C. §§ 3402 and 3742(h). We
have jurisdiction to review the District Court’s order affirming the Magistrate Court’s
judgment pursuant to 28 U.S.C. § 1291.
An “OER” is an “Officer Efficiency Report,” a form used to evaluate personnel.2
2
For the reasons stated below, we affirm.1
I.
In 2004, Jackson, at the time serving as a judge advocate in the New Jersey Army
National Guard, received a negative evaluation from a superior officer, Lieutenant
Colonel Mark Winkler. In November 2006, she asked Winkler to retract the evaluation,
but he denied the request.
In the morning of December 2, 2006, Winkler received a call in his office area at
Fort Dix from Jackson’s cellular telephone number. The caller refused to give a name,
but stated, “You know who this is. You gave me . . . a shitty OER.” Throughout the2
day, until late afternoon, 47 more calls were made to Winkler’s office from Jackson’s
number. Two other judge advocates on duty at the time became involved: Winkler
enlisted Robert Stevens to answer most of the calls using speakerphone, and Mark
Tarantino overheard many of them. Most of the calls consisted of loud recorded music or
sirens, silence, and hang-ups. On some calls the caller (using a muffled voice) made
statements such as “where’s the snake,” “put Winkler on the phone,” and “put his ass on
the phone.” During a late morning call, the caller stated, “Tell him to come out for lunch.
We’ll see him at lunch.”

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Under N.J. Stat. Ann. § 2C:33-4a, it is a petty disorderly persons offense if any3
person, “with purpose to harass another, . . . [m]akes, or causes to be made, a
communication or communications anonymously or at extremely inconvenient hours, or
in offensively coarse language, or any other manner likely to cause annoyance or alarm.”
Id.
3
Jackson was charged with the petty disorderly persons offense of harassment, in
violation of N.J. Stat. Ann. § 2C:33-4a, as assimilated into federal law by 18 U.S.C. § 13.3
Before trial, her motion for a change of venue and to disqualify the Special Assistant U.S.
Attorney were denied. During a two-day bench trial conducted before a Magistrate
Judge, Winkler and Tarantino testified that they could recognize Jackson’s voice as the
voice on the calls. Stevens, however, could not identify her voice based on, he testified,
his few prior encounters with her. Winkler had recorded some of the calls with a
handheld tape recorder; this tape was played at trial.
Winkler testified that, when the calls began, he was not overly concerned.
However, as they continued, he became worried for his family’s safety, especially
because he believed Jackson lived near his home. He called his wife around noon,
warning her to look out for Jackson and asking her to inform their son of the situation.
Around the same time, he called the police.
Jackson was found guilty and sentenced to two years’ probation and a $500 fine.
She appealed her conviction and sentence to the District Court, who affirmed on all
grounds relevant to this appeal. Jackson timely appealed to our Court.

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4
II.
Jackson first challenges the sufficiency of the evidence, and the Magistrate Judge’s
denial of a new trial on that ground. We review the sufficiency of the Government’s
evidence to determine if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d
Cir. 1998) (internal quotation marks and citations omitted). “It is not for us to weigh the
evidence or to determine the credibility of the witnesses.” Id. (internal quotation marks
and citation omitted). We review the denial of a motion for a new trial pursuant to Rule
33 for abuse of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002).
Such motions should be “granted sparingly and only in exceptional cases.” Gov’t of
Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987).
Jackson argues that the identification of her voice by Tarantino and Winkler was
suspect because they had not been in communication with her recently, the audio quality
was poor, and the speaker was muffling his or her voice. She also argues that a statement
by James Sattley, a judge advocate in her unit, creates reasonable doubt as to whether she
made the calls. Sattley placed Jackson at Fort Dix the afternoon of the calls, while the
telephone records show that calls from her cell phone number that afternoon were routed
through servers in the New York metropolitan area. She further argues that the
Magistrate Judge accorded too little weight to the testimony of Investigator Matthew
Bloomberg, who at trial relayed Jackson’s statement to him that Jackson’s family often

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switched the Subscriber Identity Module (“SIM”) cards (which store the subscriber’s
identification data, including the phone number) in their cell phones. Jackson argues that
Bloomberg’s testimony creates a reasonable doubt as to whether it was Jackson (or
instead, we presume, one of her family members) who placed the calls.
Despite Jackson’s objections, the evidence appears more than sufficient to support
her conviction. There is no dispute that the phone calls were placed from Jackson’s cell
phone number, and two witnesses testified that they recognized Jackson’s voice on the
calls, despite her attempts to disguise it. A month before the calls, Jackson had requested
that Winkler retract his negative evaluation of her, and the caller stated to Winkler that he
had given her “a shitty OER.” As to the phone calls routed through the New York
metropolitan area, this evidence does not show that these calls were actually placed from
that area, but only that they were routed through those servers. There was no evidence at
trial that, on the day of the calls, Jackson in fact had swapped SIM cards with any family
member. Based on this record, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Accordingly, the Magistrate Judge did
not abuse his discretion in denying Jackson’s motion for a new trial.
III.
Jackson challenges the sufficiency of the evidence on another ground. Under N.J.
Stat. Ann. § 2C:33-4a, the following elements must be shown:
(1) defendant made or caused to be made a communication; (2) defendant’s
purpose in making or causing the communication to be made was to harass

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another person; and (3) the communication was in one of the specified
manners or any other manner similarly likely to cause annoyance or alarm to
its intended recipient.
State v. Hoffman, 695 A.2d 236, 242 (N.J. 1997). Jackson argues that her conduct did not
satisfy the requirement that the communication was made in a manner “likely to cause
annoyance or alarm.” She emphasizes that 1) only one or two of the calls were answered
by Winkler himself, and 2) he was not alarmed by the first calls but only became
concerned as the calls continued.
However, Winkler was alarmed enough to call his wife and the police. See State v.
Reyes, 796 A.2d 879, 885 (N.J. 2002) (concluding that communications were “likely to
cause annoyance or alarm” when they led to the “summoning of the police” and a
temporary restraining order). Moreover, as the District Court recognized, the nature,
content, and sheer number of the calls, all directed at Winkler, constituted sufficient
evidence to support the conviction.
IV.
Jackson next challenges the Magistrate Judge’s denial of her motion for a change
of venue and for disqualification of the prosecutor. Neither argument is persuasive.
Motions for change of venue in federal court are governed by Federal Rule of
Criminal Procedure 21(a), which provides:
The court upon motion of the defendant shall transfer the proceeding as to that
defendant to another district whether or not such district is specified in the
defendant’s motion if the court is satisfied that there exists in the district where
the prosecution is pending so great a prejudice against the defendant that the

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To the extent Jackson sought, through her motion to transfer venue, to allege on the4
part of the Magistrate Judge any personal bias, prejudice, or knowledge of those involved
in the case, we see nothing in the record to support those allegations.
Jackson surmises that the Government did not consider her for a diversionary5
program or a continuance in anticipation of dismissal because Winkler improperly
influenced the prosecutor. Not only is there no evidence this occurred, these decisions are
entrusted to the discretion of the United States Attorney, and a defendant has no right to
be placed in pretrial diversion.
7
defendant cannot obtain a fair and impartial trial at any place fixed by law for
holding court in that district.
Fed. R. Crim. P. 21(a). Jackson did not allege, let alone show, that there existed in the
District of New Jersey “so great a prejudice” against her that she could not “obtain a fair
and impartial trial.” Id. Therefore, a transfer of venue would have been inappropriate.4
Jackson’s motion to disqualify the prosecutor similarly fails. She bases her
argument on the “risk of undue influence by the victim, the quasi-military/quasi-civilian
nature of the prosecution, and the appearance of impropriety and bias.” But the evidence
shows that the prosecutor was not connected to Jackson, the witnesses, or Winkler, was
not part of the same military organization as Winkler, and was not subject to Winkler’s
command. We agree with the Magistrate Judge that there was “no evidence of any
influence through the chain of command,” and we know of no evidence supporting the
allegation that the prosecutor was biased or influenced by Winkler.5
IV.
Finally, Jackson challenges her sentence of two years’ probation, including the
requirement that she participate in a mental health treatment program, as substantively

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The merits of the parole revocation are not before us in this appeal.6
We note that even if we reached the merits of Jackson’s appeal of her sentence, we7
would affirm. Jackson contends her sentence of two years’ probation was substantively
unreasonable in light of her military record, her lack of criminal history or history of
similar behavior, the sufficiency of a no-contact order to protect Winkler, and the nature
of the offense. However, under the totality of the circumstances, Jackson’s sentence
“falls within the broad range of possible sentences that can be considered reasonable in
light of the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).
As to the mental health treatment requirement, the Magistrate Judge stated that he was
concerned “as to what, if anything is pr[e]ying on the mind of this Defendant which led to
this behavior, real or imagined,” and that he wished to ensure Jackson received the
appropriate medical care. The requirement appears to result from a genuine concern for
Jackson’s welfare and long-term health.
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unreasonable. The Government has moved for dismissal of this issue because Jackson’s
period of probation was revoked and terminated after the filing of this appeal when
Jackson violated the terms of her probation. See United States v. Jackson, 523 F.3d 234,6
241 (3d Cir. 2008) (“A defendant who is no longer serving a term of imprisonment,
parole, probation, or supervised release and challenges only his sentence will have his
appeal dismissed for lack of jurisdiction unless he can somehow show sufficient collateral
consequences . . . .”). Jackson filed no response, and thus has not alleged any collateral
consequences. As the mental health condition was a requirement of the terminated
sentence of probation, her appeal as to that condition is also moot. Therefore, we grant
the Government’s motion.7
* * * * *
For the reasons stated above, we affirm Jackson’s conviction, and dismiss the
appeal of her sentence.

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