14 -2 39 -cr United States v . James Dick ers on



## I n t he 

# Uni te d Stat es Cour t of A ppeal s For the Second Cir cuit

________ August Term, 2014

No. 14-239-cr

U N I T E D S T A T E S O F A M E R I C A ,

Appellee,

v.

J A Y Q U I S B R O C K, M A R K B A S K E R V I L L E , RU S S E L L B A T T L E S , S T E P H A N I E D’A G O S T I N O , S H E R R O D D A N I E L S , L A R R Y L E V O R E , H A R RY D I A Z , S T E V E N D I C K S , D E R R O N D O C K E R Y , D E V A N T E F O R T U N E , M A U R I C E H I L L , S H A M A I N E H O B B Y, E D M U N D J A C K S O N , S R ., J A M E S J E N K I N S , M I L T O N J O H N S O N , T O R R E N C E J O N E S , D E M E T R I U S L I T T L E , K R I S T I N L O N G O B A R D I , E R I C L U M P K I N , W E N D E L M C D U F F I E , RY A N M O O R E , J A V O N M O R N I N G , G E M I N I N A P O L E O N , C H A R L E S N I C H O L S , RA Y M O N D R I C E , C H A N E L S I N C L A I R, R O G E R S U L L I V A N , E L E A Z A R T H O M P S O N , T Y L A N T H O M P S O N , A L V I N T O W N S E N D , R O N N I E W A S H I N G T O N , TY R O N E W I L L I A M S , D A R R E N W I N F R Y , A A R O N M O O R E , M A N O K U S F I E L D S , B R A N D O N T O L S O N , J O S E P H J A C K S O N , Defendants , J A M E S D I C K E R S O N Defendant-Appellant.

________ Appeal from the United States District Court for the D istrict of Connecticut. No. 3:10-cr-227 (EBB)

 ̄ Ell en Bre e Burns , Judge

.No. 14-239-cr

________ Argued: De cember 17, 2014 Decided: June 3, 2015

________ Before : W I N T E R, J A C O B S , and P A R K E R, Circuit Judges

.

________ Defe ndant-Ap pellant James Dickerson appeals from a judgmen t of conviction in the United States District Court for the District of Conne cticut (Ellen Bree Bu r ns, Judge ) for conspiracy to distribute and to p o s s ess with intent to distribute crack cocaine, in viol ation of 21 U.S.C. §§ 8 4 1 a n d 846, and distributi on of crack cocaine, in viol ation of 21 U.S.C. § 8 4 1

. Because we find that there

was in s u fficient evidence on which a jury could convict Dickerson

on the conspiracy count, we REVE RSE the conviction for conspiracy and REMAND for re sentenc ing on the distributi on count alone.

________ J E R E M I A H D O N O V A N , Old Saybr ook, CT, for Defendant-Appellant James Dickerson

. R O B E R T M. S P E C T O R (Marc H. Silverman, on the brief) , Assistant Un ited States Attorneys for Deirdr e M. Daly, United States Attorney for the District of Connec ticut

, for Appellee.

________

2No. 14-239-cr

B A R R I N G T O N D. P A R K E R, Circuit Judge :

In April 2012, James Dickerson was indicted along with thirtyseven other defendan ts and charg e d in two counts – conspiracy to distribute and to posses s with intent to distribute 28 grams or more of cocaine base, in viol a ti o n of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and d istributi on of cocaine base, in viol ation of 21 U.S.C. §§ 841(a)(1 ) a n d 8 41(b)(1)(c). Foll owing a four day trial, Dickerson was convicted on both counts and sentenc ed to 168 months , to run

concurre ntly. On appeal, Dickerson challenges his conviction on the conspiracy, bu t n o t the substantive distributi on count. As to the conspiracy conviction, we ag r e e with Dickerson that the evidence

e s ta b li shes no more than his role as a mere purchase r fro m th e conspiracy and cannot support an inferen c e that he joined it. Conse quently, we do not a d d r e s s his alternative argument for a new trial as to that count on the basis that a juror commi tted misconduct during deliberations by accessing a dic ti o n ary definiti on of the word “conspiracy”. The indictment targeted a drug distributi o n conspiracy based in the Newhallvil le neighborh ood on th e b o rder of New Haven and H a m d e n , C o n n e c ti c u t. J o s e p h J a c k s o n , t h e l e a d e r o f t h e organization, employed sever al li eutena n ts , including his nephe w Jayqui s Brock, to d is tribute crack cocaine to purchase rs. Brock ulti mately pled guil ty and testified for the prose cution pursuant to a coope r a ti o n agreemen t. Brock testified that he typical ly sold 18 “ei g h t-b all s” (each weighing approximately 3.5 grams) of crack cocaine per day at $140-150 each. Jackson all owed Brock to keep the money he ear ned for e very ninth eight-ball he sold. According to Brock, Dickerson was one of his regular buyers , and had been an existing cus tomer at the tim e Brock joined Jac kson’s

3No. 14-239-cr

organization in July 2010. D ickerson typical ly purchase d two eightballs at a ti me , o n s ever al days each week, and occasionally more than once per day. Dickerson c o n tac ted Brock by calling his “dispatch” phone, which was a cell phone is s u ed by Jackson to Brock on which purchase rs could contact Broc k to set up transactions. The government obtained warrants to intercept calls on the dispatch te le p hone and captured numerous calls between Dickerson and Brock, as well as sever al calls between Dickerson and Ja ckson. Telephone recor ds introduced at trial showed that Dickerson contacted Brock o r J a c k son 129 tim es between June and Septembe r 201 0

. O f these contacts, the government introduced 31

recor ded calls, all but two of which were betw e e n Dickerson and Brock. On cross -examination, Brock testifi e d th a t he did not have

res a le a g ree ments with his customers and, consequently, did not know or care what they did with the drugs after he s o ld th e m. Brock further tes ti f ie d th at he did not consider Dickerson to be a member of Jackson’s drug trafficking organization, a lt h o u gh he did consider D ickerson to be a “reliable customer.” In October 2010, Dickerson was capt u r e d o n video selling an eight-ball and eight $20 ba g gies of crack cocaine to an undercove r officer, which formed the basis fo r the substantive distributi on count in th e indictment. In November 2010, Dickerson was arre sted. Shortly thereaf ter, he met with a law enforc ement agent and his attorney, and admitted that he purchase d crack cocaine fr om Brock and o th ers, broke down each eight-ball, and reso ld it in $20 baggies. D ickerson’s defens e at trial to the conspiracy count was tha t he was a mere buyer of drugs and not a participant in th e conspiracy. At th e c lo s e of the prose cution’s case in chief, Dickerson moved on this ground for a judgment of acqui tta l a s to the conspiracy count. Dickerson contended that he never joined the

4No. 14-239-cr

conspiracy a n d was only one of its numerous customers, highli ghting the fact that Brock himself testified that he viewed Dickersonas a customer and not a member of the organization. The district court denied the mot ion, concluding that the governm e n t 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 insuffici ent to c o n s ti tu te the charged conspiracy

. . . . other evidence p r e s ented at trial was sufficient to permit the jury to conclud e be y o n d a reaso nable doubt that Dickerson knew of the Jackson group’s drug distributi on scheme and agreed to join a nd participate in it .” JA 111. Specificall y , th e district court noted that the government had proved th a t D ickerson purchase d and reso ld drugs in wholesale quantities on a regular basis over a period of at least a mo n th f r o m Brock and that Dick e r s o n’s post-arr est statements indicat ed that he knew Brock worked for Jackson and that the two were moving la r ge quanti ties of drugs on a dail y basis. These facts, according to the district court, permitted the jury to c onclude that “Dickerson had not merely engaged in spot transactions with Brock” b u t that the two had devel oped an expe ctation of future sales such that “each side had an in te r e s t in the other’s future drug-related endeavor s – i.e. , Dickerson ’s interest in the c o n ti n ued supply of [crack] by Brock, and Bro c k ’ s interest in D ickerson’s continued demand for them.” JA 113. This appeal foll owed.

5No. 14-239-cr

DISCUSSION “As a g e n e r al matter, a defendan t challenging the sufficiency of the evidence b e a r s a h eavy burden, as the standard of review is

exce edingly defer ential.” United States v. Coplan , 703 F.3d 46, 62 (2d Cir. 2 012) (internal citati ons and quotation marks omit ted). Specificall y, we “must view the evidence in the li g ht most favorable
to th e Gove rnment, crediting ever y inference that could have been drawn in the Government’s f a v o r , and defer ring to the jury’s

asses sment of witness credibi li ty a n d its asses sment of the weight of the evidence

. ” Id

. (citing United States v. Chavez , 549 F.3d 119, 124 (2d Cir. 2008)). “Although sufficienc y r e v iew is de novo , we wil l uphold the judgme n ts o f conviction if ‘any rational trier of fact could have found the esse ntial elements of the c r ime beyond a reaso nable 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 prece dent 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 agreemen t to buy from the seller and the seller’s agreemen t to sell to the buyer cannot ‘be the conspiracy to distribute, for it has no separ ate c r iminal object.’” Id. at 235 (quoting United States v. We x ler , 522 F.3d 194, 208 (2d Cir. 2008) (internal alterations omit ted ) )

. We have explained that, although the mere buyer defens e “does not protect either the seller or buye r f rom a charge they conspired together to transfer drugs if th e e v ide nce

s u p ports a finding that they share d a conspiratorial purpose to advance other transfer s, whether by the sel ler or by the buyer,” id. at 234, “[e]vidence th a t a b uyer intends to rese ll the product instead of p e r s o nally consuming it does not neces sarily e stablish that the buy e r has joined the seller’s distributi on conspiracy,” Un i ted States v.

6No. 14-239-cr

Hawkins , 547 F.3d 66, 74 (2d Cir. 2008). Nor is “co n ta c t with drug traffickers,” standing alone, s u f ficient “to prove participati on in a conspiracy.” United States v. Gaviria , 740 F.2d 1 74 , 1 8 4 (1984). Although we have “avoided li sting factors to guide wh a t is a highlyspecific fact inqu iry in to whether the circumstances surrounding a buyer-s eller relationship establish an agreemen t to participate in a distributi on conspiracy,” we have identi f ie d certain factors relevant
to th e analysis, including “whether there was a prolonged

c o o p eration between the parties, a level of mutual trust, standardized dealings, sales on credit [ ] , and the quanti ty of drugs involved.” Hawkins , 5 4 7 F .3d at 74 (internal citati ons and quotation marks omitt ed). Here , the r e is insuffici ent evidence of a share d conspiratorial purpose among J a c kson, Brock and Dickerson

. While Dickerson frequently bought crack from Brock, he also purchase d crack from others not involved in the Jackson organization. Brock and Jackson

never sold c rack to D ickerson on credit, and placed no li mi ta ti o n s on Dickerson ’s abili ty to u s e or rese ll the product he purchase d. Brock testified that he did not consider Dickerson to be a membe r o f the organization and did not know or care w h a t D ickerson did with the drugs after he purchase d them. There wa s no evidence that Dickerson share d pro fits with Brock or any other members of the organization, that Dickerson had interactions with Jackson or Brock oth e r th a n the transactions that made him a customer, or that, apart from being a customer, he assisted their oper ation in any capacity. This evidenc e is f ar weaker than the evidence in previous

cases where w e a f firmed convictions despite a mere buyer defens e. See, e.g. , United S t a tes 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 ba il mo n e y because the buyer

7No. 14-239-cr

“was moving product” for him, and sold drugs to the bu y e r on credit because he k n e w th a t th e buyer would rese ll a portion of the drugs); Parker, 554 F.3d at 239 (unreb utted evide n c e that a buyer

recr uited his roomma te to help the selling organization “handle one of the drug-orde r phon e li nes” while himself making deliveries for the selling group, a n d th at another buyer purchase d crack on credit and facili tated resales of cra c k in small er quanti ties than the selling organization usuall y transa c ted in); Hawkins , 547 F.3d at 75 (testimony that the buyer “repe a te d ly brought potential customers’ needs ” to the seller’s attention, and th a t h e purchase d drugs on credit with the understanding that h e would re sell the drugs and use th e profits to repay the seller). In each of these cases, signifi c a n t indici a of a conspiratorial p urpose existed: the defendan ts purchase d drugs in s ignifi cant quanti ties on credit from the selling organiza ti o n and took substantial other steps to assist it s u c h a s f acili tati ng resales , supplying b a il money and recr uiting other customers and sellers. Th e government, however, contends that our prece dent permits juries to infer a conspiratorial agreeme n t b e tween the seller and the buyer on th e basis of the volum e and frequency of drug transactions. See Gov’t Br. 41-46; se e also Parker, 554 F.3d at 239 (“All three appellants purchase d with such frequency and such quanti ty from the selling group to support a finding that e a c h o f th em depende d on it as a source of supply and thus had a stake in the grou p ’ s success

. . . . ”); Hawkins , 547 F.3d at 77 (“In some cases, a lar ge drug quanti ty may, in additi on to establishing an intent to redistribute, support inference s about the relations h ip b etween the participants”). It is certainly true that the volum e and frequency of transactions betwe e n Dickerson and the Jackson organization is

8No. 14-239-cr

signifi cant, and could have, under certain circumstances permitted

an inference of conspiratorial in te nt. For example, in a footnote in Parker, we upheld a conspiracy conviction of a defendan t without evidence that he “fu r n is h e d

. . . additi onal support to the selling group” because “his repe ated purchase s in whole s a le quanti ties gave him a stake in the success ” of the drug selling organ ization. 5 5 4 F

. 3 d at 239 n.6. However, that indivi dual is differently situated than Dickerson

. Th e trial evidence in Parker established that this buyer never used crack cocaine and reso ld all of th e drugs that he purchase d from mul tipl e members of the selling organization, which, in combinati on with the volum e of sales, permi tt ed the inference that he was closely ali gned w it h th e success of the
ente r p r is e. See United States v. Parker, et. al. , No. 05-cr-529, Transcr ipt of Oral Argu ment on Rule 29 Motion, at 17 (N.D.N .Y. Dec. 8, 2006). In contrast, Dickerson had no connection to the Jackson enterp rise, other than using B r o c k a s one of the “various” suppliers of crack cocaine for both Dickerson ’s pers onal use and resale. F u r th e r there

was evidence that the Jackson orga nizati on as a whole, and Brock specificall y, sold to many different buyers

. Br o c k ’ s trial testimony established that Dickerson w a s o n e of his forty regular customers, that Br ock had no interes t in what Dickerson did with the drugs, and that he saw Dicker son only as a customer. Viewing the evidence as a whole, we find the volum e and frequency of these transactions to be insuffici ent to move th e B rockDickerson relationship beyond that of buyer-s eller bec a u s e these cir c u mstances do not create the inference of mutual depende ncy we identifi ed in Parker

. If, for example, Dic k e rson operated a food truck and purchase d fifty loaves of bre ad at five different supermarke ts,

e a c h o f w hich sold bre ad to fifty different food truck operator s on a dail y basis, those purchase s and his subse quent resales o f th e bre ad

9No. 14-239-cr

would simpl y make him a good customer, not a member of any single supermarke t enterp rise. Although the volum e of purchase s is high, neither the food truck operator nor the supermarke t is dep e ndent on each other. By the same token, a good customer

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

a customer, not a co-conspirator, if the evidence cannot support an inference of mutualdepende ncy or a common stake. “To sustain a consp ir a c y conviction, the government must pres ent some evidence from which it can reaso nably b e inferre d that the pers on charged with conspiracy knew of the existence of the scheme all eged in the indictment and knowingly joined and participated in it

. ” United States v. Rodriguez , 392 F.3d 539, 544 (2d Cir. 2004). We conclude th a t th e evidence was insuffici ent to p ermit any r a ti o n a l juror to infer that Dickerson knowingly joined or participated i n the char ged conspiracy. CONCLUSION For these reas o n s , we REVE RSE Dickerson ’s conviction for conspiracy to distribute and to posses s with intent to distribute. Because Dickerson ’s 168 month sentenc e was driven largely by the drug weight charged in the conspiracy, we also V A CATE Dickerson ’s sentenc e and REMAN D for rese ntencing on the substantive distributi on count alone.

10