                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 10, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-1178
                                                  (D.C. No. 05-cr-404-REB)
    GREGORY DARIUS DIXON,                                 (D. Colo.)
    a/k/a Greedy,

                Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Gregory Darius Dixon, a/k/a “Greedy,” appeals his conviction for

conspiracy to possess with intent to distribute and to distribute cocaine and

methamphetamine. We have jurisdiction under 28 U.S.C. § 1291 and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 BACKGROUND

      In May 2004, the Boulder County Drug Task Force began investigating

Donald Jason Skinner, an individual identified as the head of a drug distribution

organization referred to as the Skinner Drug Organization or SDO. On

September 7, 2005, law enforcement officials executed an arrest warrant for

Mr. Skinner and search warrants for multiple locations used by the SDO for drug

distribution activities.

      Further investigation and other arrests followed, including the arrest of

Mr. Dixon. He and two other individuals were thereafter charged with conspiracy

to possess with intent to distribute and to distribute controlled substances in

violation of 21 U.S.C. §§ 841 and 846. During a four-day trial in January 2007, a

handful of SDO members testified about their drug distribution activities and the

activities of Mr. Dixon. The testimony demonstrated that between late 2004 and

February 22, 2005, Mr. Dixon and SDO members cut, weighed, packaged, and

distributed various quantities of methamphetamine and cocaine.

      At the end of the government’s case in chief, Mr. Dixon moved for a

judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The district court

denied the motion and Mr. Dixon rested his case. The jury found him guilty of

the crime charged, and he was sentenced to 144 months’ imprisonment. This

timely appeal, in which Mr. Dixon raises three issues challenging his conviction,

followed.

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                                  DISCUSSION

I.    Sufficiency of the Evidence

      Mr. Dixon first contends that the evidence presented at trial was

insufficient to support the jury’s verdict. “Whether the government presented

sufficient evidence to support a conviction is a legal question we review de

novo.” United States v. Dunmire, 403 F.3d 722, 724 (10th Cir. 2005). In so

doing, we consider “the evidence in the light most favorable to the government,

determining whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Almaraz,

306 F.3d 1031, 1040 (10th Cir. 2002) (internal quotation marks omitted).

              To establish a conspiracy, the government was required to
      show: (1) that two or more persons agreed to violate the law, (2) that
      the defendant knew at least the essential objectives of the conspiracy,
      . . . (3) that the defendant knowingly and voluntarily became a part
      of it, and (4) that the alleged coconspirators were interdependent.
      This burden may be met by either direct or circumstantial evidence.

United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (alteration in

original) (internal citations and quotation marks omitted). Mr. Dixon does not

specifically challenge the evidentiary support for any of the four essential

elements of the crime of conviction. Instead, he argues that the government’s

evidence was insufficient because it consisted of the testimony of cooperating

coconspirators who, in exchange for their testimony, were “paid handsomely . . .

in the form of . . . reduced prison sentence[s] or probation,” Aplt. Opening Br. at


                                         -3-
7-8. This should “give us pause,” contends Mr. Dixon, because he was not

observed by law enforcement at any time during an extensive investigation and

reliable evidence in the form of telephone records was apparently available but

not offered into evidence. Id. at 13-14.

      It is true that most of the government’s witnesses were coconspirators who

hoped to receive some benefit from testifying against Mr. Dixon. But this fact

simply goes to the witnesses’ credibility, a matter that we will not consider in

evaluating the sufficiency of the evidence. United States v. Magallanez, 408 F.3d

672, 682 (10th Cir. 2005). Additionally, Mr. Dixon is mistaken to think that

physical evidence, such as photographs depicting his involvement with the SDO

or phone records documenting the same, is necessary to sustain a verdict. Id. at

681. Likewise, he is mistaken to think that a conspiracy conviction cannot rest

upon the testimony of coconspirators. Id. at 682.

      Mr. Dixon’s counsel vigorously cross-examined the government’s

witnesses, particularly concerning their plea agreements and drug abuse, and the

jury was repeatedly warned of the need to carefully assess the witnesses’

credibility. “The jury apparently believed the witnesses, and that is the end of the

matter.” Id. Mr. Dixon’s conviction was based on sufficient evidence.

II.   Due Process

      Mr. Dixon next asserts that his “due process right to a fair trial was

violated as a result of a witness’s unsolicited and highly prejudicial comment

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during trial.” Aplt. Opening Br. at 11. The “comment” with which Mr. Dixon

takes issue was apparently made during defense counsel’s cross-examination of

SDO member Kyla Weisberg, a self-described friend and former housemate of

Mr. Dixon, but was brought to the jury’s attention in the government’s redirect

examination of Ms. Weisberg:

      Q [The Government] Ma’am, at one point during your cross-examination by [defense cou
something that you didn’t really vocalize, but I thought that I saw your lips move.
Did you say something --

      A [Ms. Weisberg] I --

      Q -- to Mr. Dixon at that time? Did you say, I am sorry?

      MR. POLAND: Your Honor, I object. I didn’t witness this. I have
      no idea what counsel is coming up with here. I object. I think this is
      improper.

      THE COURT: Well, your objection is duly noted but it certainly is
      relevant. It’s not trumped by Rule 403. The objection is not
      grounded in any cogn[iza]ble rule. It is overruled. . . . If you recall
      the question and can answer it, please answer it. . . .

      ....

      A I did. I just -- this is not how I wanted it to turn out.

      Q This is not how you wanted it to turn out?

      A It just hurts. It hurts. It just -- can we just go on?

      Q So you did say to Mr. Dixon, I am sorry?

      A Yes. Yes.

      Q Do you regret having to do this?


                                          -5-
      A I wish I didn’t have to.

R., Vol. VII at 199-201.

      We review de novo whether a defendant’s Fifth Amendment right to due

process was violated. See United States v. Nichols, 169 F.3d 1255, 1267

(10th Cir. 1999); United States v. Thody, 978 F.2d 625, 628 (10th Cir. 1992).

Here, Mr. Dixon asserts that the “prejudicial nature” of Ms. Weisberg’s apology

“is apparent,” and that it “so infected the trial with unfairness as to make [his]

resulting conviction a denial of due process.” Aplt. Opening Br. at 16, 18. We

disagree.

      In the one case cited by Mr. Dixon concerning a witness outburst, the

Eighth Circuit concluded that the defendant’s due process rights were not violated

despite the state trial court’s refusal to grant a mistrial and its failure to sua

sponte give a curative instruction after a rape victim during direct examination

“‘screamed’” from the witness stand, “‘Don’t make me say this, I can’t, I can’t.’”

Phea v. Benson, 95 F.3d 660, 661 (8th Cir. 1996). The court reasoned that the

victim’s comment neither mentioned the defendant nor pertained to any of the

evidence or claims before the court. Id. at 662. Further, the statement “in no way

enhanced the victims’s credibility” but was rather a natural response to having to

relate the details of the rape. Id.

      As in Phea, Mr. Dixon’s due process rights were not violated by the

admission of Ms. Weisberg’s comment. That is, her comment did not “so infect[]

                                            -6-
the trial with unfairness as to make the resulting conviction a denial of due

process.” Id. at 661 (internal quotation marks omitted). Even if the jury may

have viewed her apology as enhancing her credibility to some degree, it certainly

did not bolster it so much as to warrant a new trial. Moreover, to the extent that

Mr. Dixon is making a prosecutorial misconduct argument, it too is unavailing.

There is nothing in the record to support his contention that the government’s

inquiry on redirect was made in bad faith; to the contrary, Ms. Weisberg testified

that she did, in fact, inaudibly communicate “I’m sorry” to Mr. Dixon. In the

context of the entire trial and having thoroughly examined the transcript, we do

not think the government’s inquiry “so infected the trial with unfairness as to

make the resulting conviction a denial of due process,” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). Thus, we turn to the last issue raised

by Mr. Dixon on appeal.

III.   Coconspirator Hearsay Statements

       At trial, alleged coconspirator Travis DeGiovanni testified that Kaleigh

Reynolds told him that Mr. Dixon had introduced her to the SDO. R., Vol. VII at

118-19. Mr. Dixon argues that this inadmissible hearsay testimony was

erroneously admitted over his objection that it was not “a statement by a

coconspirator of a party during the course and in furtherance of the conspiracy,”

under Fed. R. Evid. 801(d)(2)(E). R., Vol. VII at 119. He also contends that the

district court committed reversible error by admitting the challenged testimony

                                         -7-
without determining that the testimony fell within Rule 801(d)(2)(E)’s definition.

Bourjaily v. United States, 483 U.S. 171, 175 (1987).



      We review evidentiary rulings for an abuse of discretion, ever mindful that

“[o]ur review is even more deferential where,” as here, “the ruling concerns the

admissibility of what is claimed to be hearsay evidence.” United States v.

Cestnik, 36 F.3d 904, 906-07 (10th Cir. 1994). The government concedes that the

district court’s failure to make the requisite findings was an abuse of discretion.

United States v. Rascon, 8 F.3d 1537, 1539 (10th Cir. 1993). Notwithstanding, it

contends that the admission was harmless. We agree.

      “A nonconstitutional error, such as the erroneous admission of evidence

under a well-established exception to the hearsay rule, is harmless unless it had a

substantial influence on the outcome or leaves one in grave doubt as to whether it

had such effect.” Cestnik, 36 F.3d at 910 (internal quotation marks omitted).

Considering the “record as a whole,” id. at 907, the challenged testimony was

comparatively small (there was extensive testimony concerning Mr. Dixon’s

participation in the SDO), and it was cumulative and corroborative of the

testimony of two other witnesses, United States v. Clifton, 406 F.3d 1173, 1179

(10th Cir. 2005). As such, we conclude that the error was harmless because it did

not have “a substantial influence on the outcome” or leave us “in grave doubt as

to whether it had such effect.” Cestnik, 36 F.3d at 910 (internal quotation marks

                                         -8-
omitted). Cf. United States v. Encinias, 123 F. App’x 924, 938 (10th Cir. 2005)

(unpublished) (observing that “only a minuscule number of the multitude of

reported conspiracy cases have been remanded or reversed due to a trial judge’s

failure to make formal 801(d)(2)(E) findings”).

                                 CONCLUSION

The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Deanell Reece Tacha
                                                  Circuit Judge




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