14-239-cr

United States v. James Dickerson

In the

United States Court of Appeals

For the Second Circuit

________

August Term, 2014

No. 14-239-cr 

UNITED STATES OF AMERICA,

Appellee,

v.

JAYQUIS BROCK, MARK BASKERVILLE, RUSSELL BATTLES, STEPHANIE

D’AGOSTINO, SHERROD DANIELS, LARRY LEVORE, HARRY DIAZ, STEVEN

DICKS, DERRON DOCKERY, DEVANTE FORTUNE, MAURICE HILL,

SHAMAINE HOBBY, EDMUND JACKSON, SR., JAMES JENKINS, MILTON

JOHNSON, TORRENCE JONES, DEMETRIUS LITTLE, KRISTIN LONGOBARDI,

ERIC LUMPKIN, WENDEL MCDUFFIE, RYAN MOORE, JAVON MORNING,

GEMINI NAPOLEON, CHARLES NICHOLS, RAYMOND RICE, CHANEL

SINCLAIR, ROGER SULLIVAN, ELEAZAR THOMPSON, TYLAN THOMPSON,

ALVIN TOWNSEND, RONNIE WASHINGTON, TYRONE WILLIAMS, DARREN

WINFRY, AARON MOORE, MANOKUS FIELDS, BRANDON TOLSON, JOSEPH

JACKSON,

Defendants,

JAMES DICKERSON

Defendant-Appellant.

________

Appeal from the United States District Court

for the District of Connecticut.

No. 3:10-cr-227 (EBB)  ̄ Ellen Bree Burns, Judge.
No. 14-239-cr

________

Argued: December 17, 2014

Decided: June 3, 2015

________

Before: WINTER, JACOBS, and PARKER, Circuit Judges.

________

Defendant-Appellant James Dickerson appeals from a

judgment of conviction in the United States District Court for the

District of Connecticut (Ellen Bree Burns, Judge) for conspiracy to

distribute and to possess with intent to distribute crack cocaine, in

violation of 21 U.S.C. §§ 841 and 846, and distribution of crack

cocaine, in violation of 21 U.S.C. § 841. Because we find that there

was insufficient evidence on which a jury could convict Dickerson

on the conspiracy count, we REVERSE the conviction for conspiracy

and REMAND for resentencing on the distribution count alone. 

________

JEREMIAH DONOVAN, Old Saybrook, CT, for

Defendant-Appellant James Dickerson.

ROBERT M. SPECTOR (Marc H. Silverman, on the

brief), Assistant United States Attorneys for

Deirdre M. Daly, United States Attorney for the

District of Connecticut, for Appellee.

________

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No. 14-239-cr

BARRINGTON D. PARKER, Circuit Judge:

In April 2012, James Dickerson was indicted along with thirtyseven other defendants and charged in two counts – conspiracy to

distribute and to possess with intent to distribute 28 grams or more

of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),

and 846, and distribution of cocaine base, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(c). Following a four day trial, Dickerson was

convicted on both counts and sentenced to 168 months, to run

concurrently. On appeal, Dickerson challenges his conviction on the

conspiracy, but not the substantive distribution count. As to the

conspiracy conviction, we agree with Dickerson that the evidence

establishes no more than his role as a mere purchaser from the

conspiracy and cannot support an inference that he joined it.

Consequently, we do not address his alternative argument for a new

trial as to that count on the basis that a juror committed misconduct

during deliberations by accessing a dictionary definition of the word

“conspiracy”.

The indictment targeted a drug distribution conspiracy based

in the Newhallville neighborhood on the border of New Haven and

Hamden, Connecticut. Joseph Jackson, the leader of the

organization, employed several lieutenants, including his nephew

Jayquis Brock, to distribute crack cocaine to purchasers. Brock

ultimately pled guilty and testified for the prosecution pursuant to a

cooperation agreement. Brock testified that he typically sold 18

“eight-balls” (each weighing approximately 3.5 grams) of crack

cocaine per day at $140-150 each. Jackson allowed Brock to keep the

money he earned for every ninth eight-ball he sold. 

According to Brock, Dickerson was one of his regular buyers,

and had been an existing customer at the time Brock joined Jackson’s

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No. 14-239-cr

organization in July 2010. Dickerson typically purchased two eightballs at a time, on several days each week, and occasionally more

than once per day. Dickerson contacted Brock by calling his

“dispatch” phone, which was a cell phone issued by Jackson to

Brock on which purchasers could contact Brock to set up

transactions. The government obtained warrants to intercept calls on

the dispatch telephone and captured numerous calls between

Dickerson and Brock, as well as several calls between Dickerson and

Jackson. Telephone records introduced at trial showed that

Dickerson contacted Brock or Jackson 129 times between June and

September 2010. Of these contacts, the government introduced 31

recorded calls, all but two of which were between Dickerson and

Brock. On cross-examination, Brock testified that he did not have

resale agreements with his customers and, consequently, did not

know or care what they did with the drugs after he sold them. 

Brock further testified that he did not consider Dickerson to be a

member of Jackson’s drug trafficking organization, although he did

consider Dickerson to be a “reliable customer.”

In October 2010, Dickerson was captured on video selling an

eight-ball and eight $20 baggies of crack cocaine to an undercover

officer, which formed the basis for the substantive distribution count

in the indictment. In November 2010, Dickerson was arrested. 

Shortly thereafter, he met with a law enforcement agent and his

attorney, and admitted that he purchased crack cocaine from Brock

and others, broke down each eight-ball, and resold it in $20 baggies. 

Dickerson’s defense at trial to the conspiracy count was that

he was a mere buyer of drugs and not a participant in the 

conspiracy. At the close of the prosecution’s case in chief, Dickerson

moved on this ground for a judgment of acquittal as to the

conspiracy count. Dickerson contended that he never joined the

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No. 14-239-cr

conspiracy and was only one of its numerous customers,

highlighting the fact that Brock himself testified that he viewed

Dickerson as a customer and not a member of the organization. 

The district court denied the motion, concluding that the

government had adduced sufficient evidence that Dickerson was a

member of the conspiracy. The district court held that, although the

“transactions between Dickerson and Brock are by themselves

insufficient to constitute the charged conspiracy . . . . other evidence

presented at trial was sufficient to permit the jury to conclude

beyond a reasonable doubt that Dickerson knew of the Jackson

group’s drug distribution scheme and agreed to join and participate

in it.” JA 111. 

Specifically, the district court noted that the government had

proved that Dickerson purchased and resold drugs in wholesale

quantities on a regular basis over a period of at least a month from

Brock and that Dickerson’s post-arrest statements indicated that he

knew Brock worked for Jackson and that the two were moving large

quantities of drugs on a daily basis. These facts, according to the 

district court, permitted the jury to conclude that “Dickerson had not

merely engaged in spot transactions with Brock” but that the two

had developed an expectation of future sales such that “each side

had an interest in the other’s future drug-related endeavors – i.e.,

Dickerson’s interest in the continued supply of [crack] by Brock, and

Brock’s interest in Dickerson’s continued demand for them.” JA 113. 

 This appeal followed.

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No. 14-239-cr

DISCUSSION

“As a general matter, a defendant challenging the sufficiency

of the evidence bears a heavy burden, as the standard of review is

exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d

Cir. 2012) (internal citations and quotation marks omitted). 

Specifically, we “must view the evidence in the light most favorable

to the Government, crediting every inference that could have been

drawn in the Government’s favor, and deferring to the jury’s

assessment of witness credibility and its assessment of the weight of

the evidence.” Id. (citing United States v. Chavez, 549 F.3d 119, 124

(2d Cir. 2008)). “Although sufficiency review is de novo, we will

uphold the judgments of conviction if ‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.’” Id. (citing United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.

2008); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

Our precedent is clear that the mere purchase and sale of

drugs does not, without more, amount to a conspiracy to distribute

narcotics. See United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009). 

“[T]he buyer’s agreement to buy from the seller and the seller’s

agreement to sell to the buyer cannot ‘be the conspiracy to

distribute, for it has no separate criminal object.’” Id. at 235 (quoting

United States v. Wexler, 522 F.3d 194, 208 (2d Cir. 2008) (internal

alterations omitted)). We have explained that, although the mere

buyer defense “does not protect either the seller or buyer from a

charge they conspired together to transfer drugs if the evidence

supports a finding that they shared a conspiratorial purpose to

advance other transfers, whether by the seller or by the buyer,” id. at

234, “[e]vidence that a buyer intends to resell the product instead of

personally consuming it does not necessarily establish that the buyer

has joined the seller’s distribution conspiracy,” United States v.

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No. 14-239-cr

Hawkins, 547 F.3d 66, 74 (2d Cir. 2008). Nor is “contact with drug

traffickers,” standing alone, sufficient “to prove participation in a

conspiracy.” United States v. Gaviria, 740 F.2d 174, 184 (1984). 

Although we have “avoided listing factors to guide what is a highlyspecific fact inquiry into whether the circumstances surrounding a

buyer-seller relationship establish an agreement to participate in a

distribution conspiracy,” we have identified certain factors relevant

to the analysis, including “whether there was a prolonged

cooperation between the parties, a level of mutual trust,

standardized dealings, sales on credit [], and the quantity of drugs

involved.” Hawkins, 547 F.3d at 74 (internal citations and quotation

marks omitted).

Here, there is insufficient evidence of a shared conspiratorial

purpose among Jackson, Brock and Dickerson. While Dickerson

frequently bought crack from Brock, he also purchased crack from

others not involved in the Jackson organization. Brock and Jackson

never sold crack to Dickerson on credit, and placed no limitations on

Dickerson’s ability to use or resell the product he purchased. Brock

testified that he did not consider Dickerson to be a member of the

organization and did not know or care what Dickerson did with the

drugs after he purchased them. There was no evidence that

Dickerson shared profits with Brock or any other members of the

organization, that Dickerson had interactions with Jackson or Brock

other than the transactions that made him a customer, or that, apart

from being a customer, he assisted their operation in any capacity. 

This evidence is far weaker than the evidence in previous

cases where we affirmed convictions despite a mere buyer defense. 

See, e.g., United States v. Rojas, 617 F.3d 669, 672, 675-76 (2d Cir. 2010)

(the seller testified that he had a “longstanding” relationship with

the buyer, provided the buyer with bail money because the buyer

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No. 14-239-cr

“was moving product” for him, and sold drugs to the buyer on

credit because he knew that the buyer would resell a portion of the

drugs); Parker, 554 F.3d at 239 (unrebutted evidence that a buyer

recruited his roommate to help the selling organization “handle one

of the drug-order phone lines” while himself making deliveries for

the selling group, and that another buyer purchased crack on credit

and facilitated resales of crack in smaller quantities than the selling

organization usually transacted in); Hawkins, 547 F.3d at 75

(testimony that the buyer “repeatedly brought potential customers’

needs” to the seller’s attention, and that he purchased drugs on

credit with the understanding that he would resell the drugs and use

the profits to repay the seller). In each of these cases, significant

indicia of a conspiratorial purpose existed: the defendants purchased

drugs in significant quantities on credit from the selling organization

and took substantial other steps to assist it such as facilitating

resales, supplying bail money and recruiting other customers and

sellers. 

The government, however, contends that our precedent

permits juries to infer a conspiratorial agreement between the seller

and the buyer on the basis of the volume and frequency of drug

transactions. See Gov’t Br. 41-46; see also Parker, 554 F.3d at 239 (“All

three appellants purchased with such frequency and such quantity

from the selling group to support a finding that each of them

depended on it as a source of supply and thus had a stake in the

group’s success. . . . ”); Hawkins, 547 F.3d at 77 (“In some cases, a

large drug quantity may, in addition to establishing an intent to

redistribute, support inferences about the relationship between the

participants”). 

It is certainly true that the volume and frequency of

transactions between Dickerson and the Jackson organization is

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No. 14-239-cr

significant, and could have, under certain circumstances permitted

an inference of conspiratorial intent. For example, in a footnote in

Parker, we upheld a conspiracy conviction of a defendant without

evidence that he “furnished . . . additional support to the selling

group” because “his repeated purchases in wholesale quantities

gave him a stake in the success” of the drug selling organization. 

554 F.3d at 239 n.6. However, that individual is differently situated

than Dickerson. The trial evidence in Parker established that this

buyer never used crack cocaine and resold all of the drugs that he

purchased from multiple members of the selling organization,

which, in combination with the volume of sales, permitted the

inference that he was closely aligned with the success of the

enterprise. See United States v. Parker, et. al., No. 05-cr-529, Transcript

of Oral Argument on Rule 29 Motion, at 17 (N.D.N.Y. Dec. 8, 2006). 

In contrast, Dickerson had no connection to the Jackson enterprise,

other than using Brock as one of the “various” suppliers of crack

cocaine for both Dickerson’s personal use and resale. Further there

was evidence that the Jackson organization as a whole, and Brock

specifically, sold to many different buyers. Brock’s trial testimony

established that Dickerson was one of his forty regular customers,

that Brock had no interest in what Dickerson did with the drugs, and

that he saw Dickerson only as a customer.

Viewing the evidence as a whole, we find the volume and

frequency of these transactions to be insufficient to move the BrockDickerson relationship beyond that of buyer-seller because these

circumstances do not create the inference of mutual dependency we

identified in Parker. If, for example, Dickerson operated a food truck

and purchased fifty loaves of bread at five different supermarkets,

each of which sold bread to fifty different food truck operators on a

daily basis, those purchases and his subsequent resales of the bread

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No. 14-239-cr

would simply make him a good customer, not a member of any

single supermarket enterprise. Although the volume of purchases is

high, neither the food truck operator nor the supermarket is

dependent on each other. By the same token, a good customer –

even a very good customer – of a drug organization may still be just

a customer, not a co-conspirator, if the evidence cannot support an

inference of mutual dependency or a common stake. 

“To sustain a conspiracy conviction, the government must

present some evidence from which it can reasonably be inferred that

the person charged with conspiracy knew of the existence of the

scheme alleged in the indictment and knowingly joined and

participated in it.” United States v. Rodriguez, 392 F.3d 539, 544 (2d

Cir. 2004). We conclude that the evidence was insufficient to permit

any rational juror to infer that Dickerson knowingly joined or

participated in the charged conspiracy.

CONCLUSION

For these reasons, we REVERSE Dickerson’s conviction for

conspiracy to distribute and to possess with intent to distribute. 

Because Dickerson’s 168 month sentence was driven largely by the

drug weight charged in the conspiracy, we also VACATE

Dickerson’s sentence and REMAND for resentencing on the

substantive distribution count alone.

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