944 F.2d 178 (4th Cir. 1991), 90-5668, United States v. Dunnigan

• Citation: 944 F.2d 178
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Sharon DUNNIGAN, Defendant-Appellant.
• Case Date: August 30, 1991
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

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944 F.2d 178 (4th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sharon DUNNIGAN, Defendant-Appellant.

No. 90-5668.

United States Court of Appeals, Fourth Circuit

August 30, 1991

Argued April 12, 1991.

As Amended Sept. 12, 1991.

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Brent E. Beveridge, Morgantown, W.Va., argued for defendant-appellant.

Michael M. Fisher, Asst. U.S. Atty., argued (Michael W. Carey, U.S. Atty., Hunter P. Smith, Asst. U.S. Atty., on brief), Charleston, W.Va., for plaintiff-appellee.

Before HALL and PHILLIPS, Circuit Judges, and WILLIAMS, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

K.K. HALL, Circuit Judge:

Sharon Dunnigan appeals her conviction and sentence for conspiracy to distribute cocaine. We affirm her conviction; however, we vacate her sentence and remand for resentencing.

I.

The cocaine distribution conspiracy in this case is not complex. Freddie Harris was a notorious cocaine dealer in the Charleston, West Virginia, area. His ring was broken up in the late summer of 1988. Harris pled guilty to cocaine distribution charges, as did his coconspirators John Dean, Doris Casto, Wynema Brown, and Tammy Moore. Several others went to trial, including Andre Charlton and, later, appellant Sharon Dunnigan.

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Dunnigan was charged March 7, 1989, in a one-count indictment, with conspiracy to distribute cocaine with Harris and unnamed others during the summer of 1988. She filed pretrial motions to dismiss the indictment, for a bill of particulars, and for disclosure of exculpatory and Jencks Act material.

At a hearing on the motions, the government agreed to provide Jencks Act material, notice of "similar acts" evidence, and information regarding any confidential informants. The defendant withdrew her motion for a bill of particulars. The district court denied the motion to dismiss the indictment.

Between the hearing on motions and trial, the government furnished grand jury transcripts, plea agreements and rap sheets for proposed government witnesses, and notice of one "similar act"--a controlled sale of crack cocaine by Dunnigan to a cooperating witness, Edward Dickerson, on July 12, 1988.

Trial was held January 3-4, 1990. The government presented five witnesses in its case-in-chief. Harris, the ringleader, was first. He testified that Dunnigan was his source of supply in Cleveland, and that she had travelled to Cleveland alone and with him to obtain cocaine during the summer of 1988. Harris also stated that Dunnigan had accompanied Dean to Cleveland for the same purpose at least once. Harris admitted distributing the cocaine in the Charleston area.

Dean took the stand next. Dean met the appellant when, on Harris' instructions, he picked her up at the Charleston bus terminal and took her home. Harris had described Dunnigan to Dean as his "connect." Later that evening, Dean accompanied Harris to Dunnigan's apartment; Harris went inside and obtained cocaine, which Dean then helped package for resale. Dean also testified that he went to Cleveland with Dunnigan on several occasions to purchase cocaine and dilaudid. At the close of Dean's direct examination, the government elicited from him that he was a paranoid schizophrenic and heroin addict.

Dunnigan's counsel was surprised by this revelation. He protested to the court that his cross-examination would be hampered by the government's failure to provide this information before trial notwithstanding a specific discovery request. The government argued that the grand jury transcripts revealed that Dean was a heroin addict, and that it had no documentary evidence to substantiate Dean's mental illness. The district court advised the defendant that Dean's schizophrenia could be inquired into on cross-examination. Dunnigan's trial counsel nonetheless asked no cross-examination questions about Dean's addiction or mental disorders.

Charlton testified next. He said that he had gone with Harris to Dunnigan's apartment to test and package cocaine Dunnigan had brought from Cleveland. He also recounted one occasion on which he had received cocaine from Dean. This cocaine had been picked up in Cleveland on one of Dean and Dunnigan's trips together.

Moore was the fourth coconspirator witness. She told of conversations with Dunnigan during which Dunnigan extolled the superior quality of Cleveland cocaine and attempted to solicit Moore to drive her to Cleveland.

Finally, the government called Brown. She stated that Dunnigan had told her of the Cleveland cocaine-purchasing trips, and that she had seen cocaine in Dunnigan's apartment. On four or five occasions, Brown observed Dunnigan's daughter "rocking up" powder cocaine (i.e. making it into crack) for Dunnigan. Dunnigan would later return the crack cocaine to her daughter to sell. Brown also stated that Dunnigan kept cocaine in a little tin case. The defendant made no objections to any of Brown's testimony and pursued no cross-examination. Notwithstanding this lack of protest, the district court gave a "similar acts" instruction--if the jury believed the cocaine that Dunnigan's daughter "rocked up" was part of the conspiracy, it could consider it for that purpose; however, the court stated, Dunnigan was not charged with distributing crack, and if the cocaine from which it was made was outside the

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conspiracy, the jury could only consider the evidence for the limited purposes of Fed.R.Evid. 404(b): motive, intent, preparation, lack of mistake, and knowledge.

The government rested, and Dunnigan presented a simple defense. She took the stand and denied everything. She testified that she did not buy, sell, or use cocaine during the time she knew Harris. She said that she did not know anyone in Cleveland who used cocaine.

She admitted going to Cleveland, but only to visit relatives. She said that she went to Cleveland with Harris once, because she knew her way around, but she did not know whether Harris bought or tried to buy any cocaine on that trip. She flatly denied the trips and transactions described by Dean and Charlton, and she had no knowledge of anyone making cocaine into crack at her apartment.

On cross-examination, the government asked her about a specific transaction: whether she had sold crack to Edward Dickerson on July 12, 1988, at her apartment. She denied it.

The defense rested, and the government began a devastating rebuttal. Dickerson was the first witness. He testified that he had been arrested in early 1988 and had become an informant. On July 12, 1988, in a monitored transaction, he bought crack from Dunnigan at her apartment. Dunnigan did not object to this testimony.

Moore then retook the stand to describe her purchases of crack cocaine from the defendant. She had also seen Dunnigan give crack and powder cocaine to her daughter. Finally, Moore said that she and Dunnigan's daughter sold crack together and returned part of the money to Dunnigan. Again, the defendant did not object to any of Moore's story. Again, the district court gave the jury a "similar acts" limiting instruction.

The jury found Dunnigan guilty. Her base offense level for sentencing was 22. She did not receive the two-level acceptance of responsibility reduction, because she continued to maintain her innocence. Moreover, the district court increased the offense level by 2 to 24 for "obstruction of justice," based on its finding that Dunnigan testified untruthfully at her trial. She was sentenced to 51 months, the lowest end of the guideline range.

II.

Dunnigan first argues that the district court erred by denying her motions to dismiss the indictment and for a bill of particulars. These arguments are related, because a bill of particulars is a defendant's means of obtaining specific information about charges brought in a vague or broadly-worded indictment. United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953).

An indictment may simply be a short, plain statement of the charge, sufficiently precise to notify the defendant of the accusation he must meet and to protect him from double jeopardy. United States v. American Waste Fiber Co., 809 F.2d 1044, 1046 (4th Cir.1987). The indictment of Dunnigan was sufficient. It identified the time frame of the activity (early to late summer of 1988), the place (at or near Charleston), a coconspirator (Harris), the controlled substance involved, and the statutes violated. The indictment tracked the statutory language defining the offense and apprised Dunnigan that other unnamed coconspirators, whose identities were known and unknown to the grand jury, were involved.

Among her pretrial motions, Dunnigan moved for a bill of particulars. She wanted the names of those to whom she had allegedly sold cocaine, notice of any "similar acts" the government planned to use, and the like. At a pretrial hearing on the motions, Dunnigan's counsel was satisfied with the government's proposed disclosures and specifically dropped the request for a bill of particulars. Waivers are rarely more explicit. In any event, Dunnigan was given the names of the government's witnesses and received grand jury transcripts. The denial of a bill of particulars did not leave her facing a trial unaware of the nature of the charges against her.

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III.

Ordinarily, proof of crimes or bad acts other than those charged is inadmissible to show that the defendant acted in conformity with a character trait. However, evidence of such acts is admissible for limited collateral purposes such as knowledge, intent, motive, absence of mistake, and common scheme or plan. Fed.R.Evid. 404.

Dunnigan now argues that she was hopelessly prejudiced by admission of the testimony that she helped her daughter use and sell crack cocaine. We do not doubt that this testimony was very damaging; however, Dunnigan made no objections to this evidence at trial, and the court may reverse only if...