U.S. v. Dickerson

• Decision Date: 16 April 2001
• Docket Number: No. 98-5829,98-5829
• Citation: 248 F.3d 1036
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Frank DICKERSON, a.k.a. Lane, a.k.a. Frank Dixon, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1036

248 F.3d 1036 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Frank DICKERSON, a.k.a. Lane, a.k.a. Frank Dixon, Defendant-Appellant.

No. 98-5829.

United States Court of Appeals, Eleventh Circuit.

April 16, 2001.

April 26, 2001.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida. (No. 96-3760-CR-DMM), Donald M. Middlebrooks, Judge.

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI,^* Judge.

RESTANI, Judge:

Frank Dickerson ("Dickerson") appeals his conviction of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2 (1994). In his appeal pursuant to 28 U.S.C. 1291, Dickerson alleges prosecutorial misconduct, improper refusal by the District Court to strike a juror for cause, erroneous evidentiary rulings, an unlawfully coercive Allen charge given to the jury, and insufficient evidence to support conviction under the present charge. We affirm.

I.Facts

From early 1988 Albert Nelson ("Nelson") operated a cocaine distribution conspiracy in the southeastern United States. See United States v. Nelson, No. 97- 4741 (4th Cir.1998) ("Nelson II"), cert. denied, 528 U.S. 1197, 120 S.Ct. 1261, 146 L.Ed.2d 117 (2000); United States v. Nelson, No. 95-5706 (4th Cir.1996) ("Nelson I"). The Government obtained an indictment in October 1989 in Georgia against Nelson for conspiracy to distribute cocaine with intent to distribute. The charged conspiracy lasted from 1984 to 1989 and took place in Georgia, Florida, "and elsewhere." Nelson pled guilty to this conspiracy charge in 1992 and was incarcerated for 58 months. See Nelson I.

In 1995 the Government indicted Nelson in South Carolina upon learning that Nelson had been involved in cocaine distribution in states not covered by the 1989 indictment. Throughout his trial and even after his conviction, Nelson claimed that the new indictment violated the Double Jeopardy Clause of the Fifth Amendment. See Nelson II. The trial court, upheld by the United States Court of Appeals for the Fourth Circuit, concluded that another prosecution was appropriate because of the multiple, independent conspiracies operated by Nelson in the different jurisdictions. See Nelson I.

In 1996, the Government charged another conspiracy against Nelson, Dickerson, Richard Williams ("Williams"), and two other defendants. The conspiracy charged covered late April 1988 to at least November 1991, but identified only one overarching conspiracy to distribute cocaine along the eastern seaboard. Testimony at trial, including that of the Government's key witness Williams, who had entered into a plea agreement, revealed the following additional information:

(1) Nelson was assisted in his criminal enterprise by Williams, who served as a courier in the cocaine distribution network. To facilitate Williams' deliveries, Nelson provided certain vehicles to Williams, in particular, a 1983 Cadillac Eldorado equipped with a secret compartment on the floorboard of the car. Beginning in late 1988, Williams delivered cocaine to Dickerson in Philadelphia. During one trip to Philadelphia in 1988, Dickerson accepted delivery of the cocaine at Williams' hotel. The arranged transaction took place after Dickerson arrived at the hotel, and the two men retrieved the cocaine from Williams' car in the hotel parking lot. Williams continued making cocaine deliveries to Dickerson regularly through the spring of 1990.

(2) After Nelson's March 1990 arrest following the October 1989 indictment, James Hanks assumed Nelson's responsibilities to manage the operations of the cocaine distribution conspiracy. Notwithstanding Nelson's arrest, Dickerson, Williams and Nelson financed the purchase of a house in Miami under the name "Frank Dixon." Hanks then assisted Dickerson and Williams in paying the mortgage on the house, which served as Dickerson's residence during his visits to Miami.

(3) Williams was stopped by the police during one of his deliveries in Georgia in September 1991. Inside Williams' car they discovered a small amount of marijuana, just under $20,000 cash, and a telephone/address book belonging to Hanks. Responding to a call from a Georgia trooper about the Williams stop, DEA Special Agent Kenneth McLeod reviewed the items removed from Williams' car and photocopied Hanks' telephone book before returning it to Williams.

(4) Hanks died in October 1991, and his funeral was attended by Williams, Kirkland, and Dickerson. At some point during the funeral, the three men met to discuss the deliveries that remained to be made after Hanks' death.

(5) Although Mark Sears ("Sears") had also worked as a courier for Nelson from 1987 to 1990, the Government introduced Sears to testify as to his relationship with Dickerson during the time period after the charged conspiracy had ended. After Hanks had taken over Nelson's operation, Sears operated his own cocaine distribution network. Sears supplied Dickerson with cocaine from mid-1993 to early 1994. In addition, Dickerson told Sears that the 1983 Cadillac Eldorado that had belonged to Nelson was now in Dickerson's possession.

II. Prosecutorial Misconduct as Violations of Due Process

A. Giglio Claims

Dickerson first claims the Government knowingly presented perjured testimony, thereby violating his Fifth Amendment Due Process rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and their progeny.

Dickerson cites two instances of false testimony presented by the Government's key witness, Williams, and notes the Government's failure to correct the perjury before the court.¹ First, when defense counsel questioned Williams as to the preparation he had received from the prosecution before testifying in the Dickerson trial, Williams denied being prepared.² Subsequently, during cross-examination of Agent Skrak, defense counsel questioned whether the Agent and prosecutors had met with Williams prior to trial "to prepare him for his day in court." R12-123. Agent Skrak responded that such preparation had taken place, but on re-direct examination, he clarified that Williams' preparation did not include "tell[ing] Mr. Williams what to say." R12-125.

Dickerson also points to Williams' testimony about his drug use as further evidence of perjured testimony uncorrected by the prosecution. When asked about his drug use, Williams testified as follows: that he stopped using cocaine in 1988, then "started back using [it] in 1995 to 1996," R9-12 to 13, 47; that he had only used cocaine "to stay awake," R9-165, 168 to 169; that he had never been treated for drug abuse, R9-182; and that he had tested positive only once for marijuana and cocaine since his arrest in this case, R9-47,50. At Williams' sentencing hearing, his counsel acknowledged that Williams had also tested positive for drug use only eight days before the opening of Dickerson's trial and that Williams had indeed entered a drug treatment program for thirty days. R17-6, 27 to 28

A successful Giglio challenge requires that the defendant establish that the prosecutor " 'knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony,' and that the falsehood was material." Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir.1999) (quoting United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995)), cert. denied, U.S. , 121 S.Ct. 149, 148 L.Ed.2d 99 (2000). The materiality element is satisfied if the false testimony " 'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' " Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).³

Even were we to accept Dickerson's contention that Williams testified falsely as to his pre-trial preparation by the prosecution⁴ and his prior drug use, neither violation, when viewed independently or in conjunction with each other, can be said to "undermine confidence in the verdict." Any prejudice from Williams' arguably misleading affirmative response when asked if he had come into court "cold" to testify was dispelled during the cross-examination of Agent Skrak, who clearly stated that he and other Government agents had met with Williams prior to Williams' testimony. Cf. Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir.1996) (finding insufficient materiality where, inter alia, cross-examination elicited statements acknowledging inconsistency with testimony on direct examination), cert. denied, 520 U.S. 1123, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997).

At trial the Government did not correct Williams' testimony regarding his prior drug use; the falsehood became apparent only at Williams' sentencing hearing three months later. Thus, defense counsel was unable to highlight the falsity in impeaching Williams during cross-examination. Nevertheless, Williams did testify that he had tested positive once for drug use after his arrest. See R9-46-, 72-76, 105-108. Because Williams effectively admitted to ongoing drug use, an admission of an additional positive drug test subsequent to his arrest would not have tarnished his character or credibility further to any significant degree. Furthermore, the defense emphasized numerous possible inconsistencies in Williams' testimony during cross-examination. See R9-46 to 50, 72-76, 105-108. Thus, an additional instance of alleged perjury would have been of minimal significance in the jury's assessment of Williams' credibility, and certainly not enough to raise the reasonable possibility of a different verdict. See Hays, 85 F.3d at 1498. Therefore, because we find that the uncorrected, allegedly perjurious statements do not "undermine confidence in the verdict," Strickler, 527 U.S. at...