United States v. Dickerson

• Citation: 705 F.3d 683
• Decision Date: 23 January 2013
• Docket Number: No. 11–3285.,11–3285.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jeffery L. DICKERSON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

705 F.3d 683

UNITED STATES of America, Plaintiff–Appellee,

v.Jeffery L. DICKERSON, Defendant–Appellant.

No. 11–3285.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 2012.

Decided Jan. 23, 2013.

Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Russell D. Mangas (argued), Attorney, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and MANION and TINDER, Circuit Judges.

TINDER, Circuit Judge.

In August 2010, Jeffery Dickerson sold several bags of crack cocaine to Debra Vankuiken in exchange for five guns. Based on that trade, a jury convicted Dickersonof knowingly possessing firearms in furtherance of drug distribution under 18 U.S.C. § 924(c). Dickerson appeals, contending that 18 U.S.C. § 924(c) does not cover such guns-for-drugs exchanges; that the district court's jury instructions stating otherwise were given in error; and that a discrepancy between the offense date charged in the indictment and the date for which the government offered evidence at trial warrants reversal. For the reasons set forth below, we affirm.

I. Background

A. The Drugs–for–Guns Exchange

From 2008 until his arrest in September 2010, Dickerson regularly sold crack cocaine to Vankuiken in Kankakee, Illinois. In August 2010, Vankuiken approached Dickerson to make a purchase, but was short on cash. Dickerson proposed a trade: if Vankuiken could obtain guns, Dickerson would be willing to give her crack cocaine in exchange.

Later that month, Vankuiken took five stolen guns, which were unloaded, to Dickerson's Kankakee apartment. Dickerson agreed to accept the guns as payment for crack cocaine. Dickerson and Vankuiken then drove to a storage facility, where Dickerson left the guns in a rental unit. Finally, the two returned to Dickerson's apartment, where Dickerson gave Vankuiken several bags of crack cocaine to complete the trade.

On September 24, 2010, law enforcement officers with the Kankakee County Major Crimes Task Force arrested Vankuiken on suspicion of stealing the five guns. She agreed to cooperate with the officers, and directed them to Dickerson's storage unit, where they found a cache of weapons and accessories, including three machineguns and two handguns. The officers then arranged for Vankuiken to make a controlled purchase of crack cocaine from Dickerson. Under the officers' supervision, Vankuiken purchased $50 worth of crack.

On September 25, Task Force officers lawfully searched Dickerson's Kankakee apartment, where they recovered 25.6 grams of crack cocaine. That same day, officers executed a search warrant on a second Dickerson apartment, in the nearby town of Bourbonnais, Illinois. The officers recovered 100 grams of crack cocaine and a loaded Smith & Wesson revolver, located approximately three feet away from the drugs, at this second apartment.

B. The Indictment & Trial

A federal grand jury indicted Dickerson for three drug- and firearm-related offenses. In February 2011, the grand jury filed a Superseding Indictment containing a revised version of these three charges. Count 2 of the Superseding Indictment contains the charge at issue in this appeal:

On or about September 24, 2010, [Dickerson] ... did knowingly possess a machinegun [and a] ... revolver ... in furtherance of the crime of possession of cocaine base (“crack”) with intent to distribute it as charged in Count 1 and the crime of distribution of cocaine base (“crack”) in Kankakee County, Illinois in August of 2010. (emphasis added).

Count 2 also states that these charges, if proven, violate 18 U.S.C. § 924(c)(1)(A)(i), which provides for a 50–month minimum sentence for persons who “possess[ ] a firearm” “in furtherance of” a drug trafficking crime, and 18 U.S.C. § 924(c)(1)(B)(ii), which provides for a 360–month minimum sentence if the firearm possessed is a machinegun.

The conjunction “and” in Count 2 in effect divides this count into two separate charges, regarding possession and distribution. Only the second of these two charges, which we have labeled “Count 2, Charge 2,” is relevant to this appeal. The separate charges can be broken out as follows:

Count 2, Charge 1: On or about September 24, 2010, [Dickerson] ... did knowingly possess a machinegun [and a] ... revolver ... in furtherance of the crime of possession of cocaine base (“crack”) with intent to distribute it as charged in Count 1.

Count 2, Charge 2: On or about September 24, 2010, [Dickerson] did knowingly possess a machinegun [and a] ... revolver ... in furtherance of ... the crime of distribution of cocaine base (“crack”) in Kankakee County, Illinois in August of 2010.

Before the start of Dickerson's trial in June 2011, the government and Dickerson submitted proposed jury instructions. The parties agreed on the following instructions, which we have labeled ¶¶ 1–2:

¶ 1: A person possesses a firearm “in furtherance of” a drug crime if the firearm furthers, advances, moves forward, promotes, or facilitates a drug trafficking crime. The mere presence of a firearm at the scene of a crime is insufficient to establish that the firearm was possessed “in furtherance of” a drug trafficking crime. There must be some connection between the firearm and the drug trafficking crime.

¶ 2: Some factors that you may consider in determining whether a firearm possession was in furtherance of a drug crime include, but are not limited to: (1) the type of firearm; (2) whether the firearm was stolen; (3) whether the firearm possession was legitimate or illegal; (4) whether the firearm was loaded; (5) the accessibility of the firearm; (6) the proximity of the firearm to drugs, drug profits, or materials used for drug trafficking; (7) the type of drug activity that is being conducted; and (8) the time and circumstances under which the firearm was found.

Jury instruction ¶ 1 appears to have been adapted from what was, at the time, a proposed set of pattern jury instructions for use in the trial courts of this circuit, and ¶ 2 appears to have been derived from the commentary to these proposed pattern instructions. See Pattern Criminal Jury Instructions for the Seventh Circuit for 18 U.S.C. § 924(c)(1)(A) (2012). The court added a third instruction, offered by the government over Dickerson's objection, regarding how the possession of a gun could be “in furtherance of” the drug crime. This third instruction, which we have labeled ¶ 3, reads:

¶ 3: When a defendant receives a gun in exchange for drugs, he takes possession of a firearm in a way that furthers, advances, and helps forward the distribution of drugs.

In its closing argument, the government offered two theories regarding how Dickerson “possessed” the guns “in furtherance” of a drug crime. First, the government argued that the revolver recovered at Dickerson's Bourbonnais apartment on September 25 furthered the controlled buy between Dickerson and Vankuiken on that date. This theory corresponds to Count 2, Charge 1, of the indictment. Second, the government asserted that the three machineguns and two other guns recovered from Dickerson's storage shed on September 24 furthered the August guns-for-drugs exchange with Vankuiken. This theory corresponds to Count 2, Charge 2, of the indictment.

Dickerson did not raise a claim of variance regarding Count 2, Charge 2, during his trial. In other words, he did not mention that his charged possession of a machinegun on or about September 24, used in furtherance of drug distribution in August, differed from the government's evidence on this charge, all of which concerned events in August. We also note that Dickerson has not challenged Count 2 as duplicitous, either in the district court or on appeal.

The jury found Dickerson guilty on all three counts. Concerning Count 2, the jury found that one of the firearms that Dickerson possessed in furtherance of a drug crime was a machinegun. The court sentenced Dickerson to 360 months' imprisonment on Count 2, the mandatory minimum. With additional convictions and sentences on Counts 1 and 3, Dickerson faces a total sentence of 511 months' imprisonment.

II. Discussion

Dickerson challenges his conviction under 18 U.S.C. § 924(c) on three grounds. First, he contends that the district court's jury instructions, specifically ¶ 3, presented an inaccurate statement of the law, which prejudiced Dickerson. Second, he contends that his dual convictions for selling drugs and, in his words, receiving guns as payment for the sale of drugs violate the doctrine of merger. Third, he claims that Count 2 of the indictment failed to allege an essential element of a charge under 18 U.S.C. § 924(c), specifically, that he possessed the firearms in August 2010, the month for which this count charges him with distribution of crack cocaine. We consider Dickerson's arguments in turn.

A. Jury Instructions

We review de novo whether jury instructions accurately summarize the law, “but give the district court substantial discretion to formulate the instructions ... [provided that the instructions] represent[ ] a complete and correct statement of the law.” United States v. Noel, 581 F.3d 490, 499 (7th Cir.2009) (quoting United States v. Matthews, 505 F.3d 698, 704 (7th Cir.2007)). Our review can be thought of as involving two steps. First, we review the legal accuracy of a jury instruction de novo. United States v. McKnight, 665 F.3d 786, 790 (7th Cir.2011), reh'g and suggestion for reh'g en banc denied,671 F.3d 664 (7th Cir.2012) and cert. denied,––– U.S. ––––, 132 S.Ct. 2756, 183 L.Ed.2d 626 (2012), reh'g denied,––– U.S. ––––, 133 S.Ct. 87, 183 L.Ed.2d 727 (2012). Second, if we determine that that the instruction is legally accurate at the first step, we then examine the district court's particular phrasing of the instruction for abuse of discretion. Id. at 790–91. We will reverse at this second step “only if it appears both that the jury was misled and that the...