U.S. v. Dixon
| Decision Date | 29 November 1993 |
| Citation | 945 F.2d 411 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before McKAY, Chief Judge, and BARRETT and HOLLOWAY, Circuit Judges.
Mr. Lewis Nathaniel Dixon was found guilty by a jury of one count of conspiracy to possess cocaine with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846, and six counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Mr. Dixon now appeals that conviction. He asserts that the evidence was insufficient to support his conviction on any of the counts and that the court committed reversible error by admitting certain evidence in violation of Federal Rules of Evidence 403 and 404(b).
The Drug Enforcement Administration received information through a confidential informant that one Whittier Buchanan was distributing cocaine. The informant took an undercover agent to Mr. Buchanan and introduced her as a friend. The undercover agent made four separate purchases of cocaine from Mr. Buchanan. Mr. Buchanan spoke freely to the agent about his source of supply, whom he identified as his brother. Mr. Dixon was the only sibling of Mr. Buchanan who lived in the area. Mr. Buchanan also spoke to the agent about previous drug transactions involving his brother and the fact that his brother had forced Mr. Buchanan to absorb losses for cocaine sales that Mr. Buchanan had made on credit.
Each time that the agent wished to make a purchase from Mr. Buchanan, Mr. Buchanan made a telephone call. Mr. Buchanan said he made the call to a pager. A few minutes later, Mr. Buchanan got a return call. Mr. Buchanan and the agent then drove to another location. Each time, Mr. Dixon appeared at the location. Each time, Mr. Buchanan left the agent to talk with Mr. Dixon before delivering the cocaine to the agent.
Neither the agent nor other surveillance teams ever saw Mr. Dixon actually hand the cocaine to Mr. Buchanan. However, on one occasion, when Mr. Buchanan handed the agent less cocaine than she paid for, Mr. Buchanan walked back to Mr. Dixon's car, reached in, returned to the agent and handed her the rest of the cocaine.
On another occasion, the agent actually spoke to Mr. Dixon, but he refused to give his name. He observed the exchange of cocaine and money between Mr. Buchanan and the agent. Holding the cocaine in her hand, the agent told Mr. Dixon that she wished to do more business. Mr. Dixon handed her a business card for a legitimate vending machine business which he owned and told the agent to call him if Mr. Buchanan was unavailable.
The agent arranged a meeting with Mr. Dixon. At that meeting, he denied any involvement in the drug business, claiming only to be interested in the vending machine business. However, just prior to meeting with the agent, Mr. Dixon noticed a surveillance car containing two more agents and stared at it. Shortly after that meeting, Mr. Buchanan told the informant that Mr. Dixon had identified the undercover agent as law enforcement. He arrived at this conclusion because of the cars that were following her.
After hearing that she had been identified, the agent made no further purchases through Mr. Buchanan. However, the informant next approached a Mr. Louis Fennell, whom she had identified to the DEA as another cocaine dealer, and asked to make a cocaine purchase. The informant met Mr. Fennell at his apartment. According to the informant, Mr. Fennell placed a telephone call to a pager. In a few minutes, Mr. Fennell received a telephone call. Mr. Dixon's cellular phone record shows a call to Fennell's apartment. Mr. Fennell then left the apartment, and returned after a period of time with the cocaine. The agents who had Mr. Fennell under surveillance testified that he met with a man driving a white Corvette. Mr. Dixon was seen leaving the area in a white Corvette, one of several cars in his possession.
The informant attempted to make another purchase from Mr. Fennell, but he refused. When the informant asked why, Mr. Fennell told her it was "because my man says you hang out with too many police." Record, vol. 7 at 592. Mr. Fennell then described the undercover agent, whom he had never met. Mr. Fennell said that he knew she was police. The undercover agent had previously dealt only with Mr. Buchanan and Mr. Dixon.
After Mr. Dixon was arrested, his wife provided keys to a Blazer in Mr. Dixon's possession. Mr. Dixon drove the Blazer at two of the meetings with Mr. Buchanan which occurred when the undercover agent was making cocaine purchases. While a Motorola technician was removing the cellular phone from the Blazer, he found a package of cocaine weighing over a pound. Of the six counts of possession on which Mr. Dixon was convicted, four have to do with the four purchases made by the undercover agent from Mr. Buchanan, one is for the purchase made by the informant from Mr. Fennell and the last count is for the cocaine found in the Blazer.
"Evidence is considered sufficient to support...
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