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 thirty-
seven 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 eight-
balls 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 highly-
specific 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 Brock-
Dickerson 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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