Argued: December 17, 2014
Appeal from the United States District Court for the District of Connecticut. No. 3:10-cr-227 (EBB) Ellen Bree Burns, Judge.
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.
Before: Winter, Jacobs, and Parker, Circuit Judges.
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 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 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 ...