United States v. Dickerson , 39 F. App'x 850 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4416
FRANK DEMETRIC DICKERSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-97-410-L)
Argued: May 9, 2002
Decided: June 28, 2002
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener and Judge Gregory joined.
COUNSEL
ARGUED: Kenneth Wendell Ravenell, SCHULMAN, TREEM,
KAMINKOW, GILDEN & RAVENELL, P.A., Baltimore, Maryland,
for Appellant. Christine Manuelian, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. DICKERSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
NIEMEYER, Circuit Judge:
Frank Dickerson was convicted of conspiracy to traffic in at least
5 kilograms of cocaine and 50 grams of cocaine base during the
period 1992 through November 21, 1997, and possession with intent
to distribute at least 500 grams of cocaine on November 21, 1997, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sen-
tenced Dickerson to 360 months imprisonment.
On appeal, Dickerson contends that the conspiracy charged in this
case was the same conspiracy for which he was earlier charged and
convicted in Florida and for which he is currently serving a sentence
of 240 months imprisonment. Accordingly, he contends that his con-
viction violates the Double Jeopardy Clause. Alternatively, he argues
that he was involved in multiple conspiracies for which he could not
be tried on the indictment which charges one conspiracy for the
period 1992 through 1997. Dickerson also contends that the prosecu-
tor engaged in misconduct, that the district court improperly admitted
hearsay evidence, and that his sentence violates Apprendi v. New Jer-
sey, 530 U.S. 466 (2000).
For the reasons that follow, we affirm.
I
Throughout the period from 1988 through 1997, Dickerson was a
cocaine distributor, working mainly on the Eastern Shore of Mary-
land. From 1988 until 1990, he was supplied with cocaine by Albert
Nelson in Florida, and Nelson was, in turn, supplied by Vincente
Rodriguez. After Nelson was arrested in 1990, James Hanks, who
also lived in Florida, took over this arrangement as supplier to Dicker-
son. This arrangement continued until October 1991, when Hanks
died. On one occasion during the period that Hanks supplied Dicker-
UNITED STATES v. DICKERSON 3
son, in late 1990 or early 1991, Guillermo Alfonso supplied Hanks
with 15 kilograms of cocaine.
Richard Williams acted as a courier between Nelson and Dicker-
son, but he also delivered drugs to John Bonds in Chicago and to
Robert Randall in Atlanta. Mark Sears operated a "stash house" in
Miami, Florida for the conspiracy. For his part, Dickerson resold the
drugs on the Eastern Shore to low-level dealers, such as Troy Perkins.
Richard Blanks worked as a courier for Dickerson beginning in 1988.
In 1996, Dickerson, together with Nelson, Randall, Bonds, and
Williams, was indicted in Florida of conspiracy to distribute cocaine
for the period from 1988 to 1991. Dickerson was convicted as
charged and sentenced to 20 years imprisonment, and this conviction
was affirmed on appeal. United States v. Dickerson, 248 F.3d 1036(11th Cir. 2001). The government refers to this conspiracy as the
"Florida conspiracy."
After Hanks died in late 1991, Dickerson continued his cocaine
distribution business in Maryland by using different suppliers. This
part of Dickerson’s drug distribution activities, which the government
refers to as the "Maryland conspiracy," began with Sears’ supplying
Dickerson with cocaine. Sears, who lived in Florida, used Henry
Nathan Johnson as a courier to deliver cocaine to Dickerson, until
Johnson was arrested in November 1993, when he was stopped by
law enforcement officers on his way to Baltimore to deliver cocaine
to Dickerson. Three kilograms of cocaine were seized from him. In
January 1994, Dickerson himself traveled to Florida to pick up three
kilograms of cocaine from Sears for distribution in Maryland. Like
Nelson in the "Florida conspiracy," Sears in the "Maryland conspir-
acy" was supplied by Rodriguez.
After Sears stopped supplying Dickerson in early 1994, Dickerson
turned to Guillermo Alfonso whom Dickerson had met in 1993
through Randall. In early 1994, Alfonso was a fugitive in Mexico.
Dickerson and Randall sent Alfonso false identification in Mexico so
that Alfonso could return to the United States and supply both Dicker-
son and Randall with cocaine for their respective operations. Between
the end of 1995 and the end of 1997, Alfonso testified that he sup-
plied Dickerson with 30 to 50 kilograms of cocaine every one-and-a-
4 UNITED STATES v. DICKERSON
half to two months, and he supplied him with a final shipment in
November 1997 of 75 kilograms. During this period one of Dicker-
son’s couriers, Robert Jackson, was caught by law enforcement offi-
cers with nine kilograms of cocaine stashed in Dickerson’s Cadillac
El Dorado.
Alfonso used several couriers, including Gary Fox, who corrobo-
rated Alfonso’s testimony about his cocaine supply arrangement with
Dickerson. Fox made 12 to 15 trips to Baltimore, Maryland, to deliver
cocaine to Dickerson. He was paid $500 per kilogram of cocaine
transported and $10,000 each time he transported cash from Dicker-
son to Alfonso. This arrangement continued until November 1997,
when Dickerson was arrested.
Alfonso also used Jennifer Kumpf and her husband William
Kumpf as couriers. The Kumpfs would pick up money from Dicker-
son in Baltimore to take to Alfonso in California, transporting any-
where from $30,000 to $80,000 at a time. Jennifer Kumpf made five
to ten trips in total, and William Kumpf made six trips in total.
Alfonso paid the Kumpfs between $500 and $3,000 per trip.
In addition to Sears and Alfonso, Dickerson obtained cocaine for
his Maryland conspiracy from an unnamed individual in New York.
Dickerson sold his cocaine to Troy Perkins and Richard Blanks.
Perkins bought cocaine from Dickerson during the period from 1990
or 1991 until 1994 to resell it to drug users. He estimated that he pur-
chased approximately 100 kilograms of cocaine from Dickerson dur-
ing this period. With Dickerson’s knowledge, Perkins generally
converted the cocaine to crack. Perkins also bought cocaine from
Jimmy Jones, whom Dickerson also supplied. Perkins eventually
became a government informant.
Blanks bought cocaine from Dickerson during the period between
1992 and 1997 in amounts ranging from a few ounces to a kilogram
each time. Blanks also acted as a courier between Dickerson and Per-
kins. He would resell the cocaine to drug users and converted some
of the cocaine to crack, again with Dickerson’s knowledge. Blanks
was arrested in 1997 for possession of 500 grams of cocaine, and after
his arrest, he began working undercover for the police, making tape
UNITED STATES v. DICKERSON 5
recordings of conversations. While working undercover, Blanks pur-
chased a kilogram of cocaine from Dickerson in August 1997 and
again in October 1997. Finally, on November 21, 1997, Blanks made
a controlled buy from Dickerson, which led to Dickerson’s arrest.
In response to the superseding indictment filed against Dickerson
in this case, Dickerson moved to dismiss the indictment based on dou-
ble jeopardy. He contended that the conspiracy charged in the indict-
ment was the same as the "Florida conspiracy" for which he had
already been tried and convicted. Following a hearing in April 1999,
the district court denied Dickerson’s motion, and, on interlocutory
appeal, we affirmed. United States v. Dickerson, No. 99-4259, 2000
WL 135112 (4th Cir. Feb. 7, 2000).
The government’s third superseding indictment, which was filed
after we last reviewed this case and on which Dickerson was con-
victed, charged Dickerson in three counts with (1) conspiracy to pos-
sess 5 kilograms or more of cocaine and 50 grams of crack cocaine
between 1992 and November 21, 1997; (2) distribution of 500 grams
or more of cocaine on December 28, 1996; and (3) possession with
intent to distribute 500 grams or more of cocaine on November 21,
1997. After a five-week trial, the jury convicted Dickerson on Counts
1 and 3. The district court sentenced Dickerson to 360 months impris-
onment on Count 1 and 120 months imprisonment on Count 3, to be
served concurrently. This appeal followed.
II
Dickerson contends first that his conviction in this case of the
"Maryland conspiracy" violates the Double Jeopardy Clause of the
Fifth Amendment.* He asserts that the evidence presented at trial
makes it "evident that the Maryland conspiracy charged is an attempt
to reprosecute [him] for an offense for which he has already been con-
victed in Florida," namely the "Florida conspiracy."
*The clause provides that no person shall be "subject for the same
offence to be twice put in jeopardy of life or limb." U.S. Const. amend.
V.
6 UNITED STATES v. DICKERSON
Dickerson raised this double jeopardy defense in the earlier inter-
locutory appeal. In rejecting it, we pointed out that although there
were "common players" between the Florida and Maryland conspira-
cies, Dickerson, 2000 WL 135112, at *2, this overlap did not make
the two conspiracies actually one. Rather, the "more accurate method
for determining whether one or two conspiracies exist is to consider
the principal players . . . [which] generally include the suppliers, con-
tacts and buyers." Id. at *7. Thus, because the "shared comrades of
the conspiracies," referring to Sears, Blanks, and Johnson, "were not
the principal participants," and because of other differences pointing
to two conspiracies, there was no double jeopardy violation. Id.But our previous opinion, due to its interlocutory nature, was based
on the government’s pretrial proffer of what evidence would appear
at trial about the Maryland conspiracy. Dickerson argues now that
"[d]uring trial, evidence was introduced that severely undercut the
Government’s proffer." He relies most heavily on the testimony of
Alfonso, who supplied Hanks on one occasion during the time period
of the Florida conspiracy and who was also a large scale supplier of
Dickerson during most of the Maryland conspiracy. Alfonso’s testi-
mony, posits Dickerson, "demonstrated that the Florida and Maryland
conspiracies were one and the same."
The Double Jeopardy Clause protects a criminal defendant from
having to "run the gantlet" of two trials for the same offense. Green
v. United States, 355 U.S. 184, 190 (1957). Because conspiracy cases
present a special difficulty when determining whether the second
prosecution is for the "same offense," we have adopted a "flexible
test" that takes into account the "totality of the circumstances" and
applies five factors. United States v. Ragins, 840 F.2d 1184, 1188 (4th
Cir. 1988). The five factors are:
(1) the time periods covered by the alleged conspiracies; (2)
the places where the conspiracies are alleged to have
occurred; (3) the persons charged as co-conspirators; (4) the
overt acts alleged to have been committed in furtherance of
the conspiracies, or any other descriptions of the offenses
charged which indicate the nature and scope of the activities
being prosecuted; and (5) the substantive statutes alleged to
have been violated.
UNITED STATES v. DICKERSON 7
Id. at 1189.
In this case, the time period alleged in the indictment, which is the
first factor to consider, does not overlap with that alleged in Florida.
The Florida indictment covered Dickerson’s activities in a conspiracy
from 1988 to 1991. The Maryland indictment, in contrast, alleged
Dickerson’s participation in a conspiracy "in or about 1992, up to and
including on or about November 21, 1997." Therefore, the time peri-
ods are distinct and, this factor suggests two conspiracies.
The second factor involves the geographic locations of the conduct
alleged to constitute the two conspiracies. As charged and prosecuted,
the Florida conspiracy was centered around Nelson and Hanks in
Florida. The Nelson/Hanks organization distributed cocaine from
Miami, Florida to other states. In particular, Williams delivered
cocaine to Bonds in Chicago and Randall in Atlanta, as well as to
Dickerson in Philadelphia and in Greenbelt, Maryland. During the
Florida conspiracy, Dickerson resold cocaine on the Eastern Shore of
Maryland.
The Maryland conspiracy, in contrast, centered around Dickerson’s
distribution efforts in Maryland. His two main sources for these
efforts were Sears, who supplied Dickerson from Florida, and
Alfonso, who supplied Dickerson from California. There was also
vague evidence that Dickerson had a third source of supply in New
York.
Even though, as we concluded in our earlier opinion, there are
"some similarities" between the geographic locations of the two con-
spiracies, the existence of "several differences" between them pro-
vides support for the conclusion that there were distinct Florida and
Maryland conspiracies. Dickerson, 2000 WL 135112, at *5. The Flor-
ida conspiracy was centered in Florida and involved distribution to
Georgia, Pennsylvania, Maryland, and Illinois. The Maryland con-
spiracy was centered in Maryland and was supplied with cocaine from
Florida, California, and New York. There was an overlap of supply
from Sears but Sears’ supply to Dickerson lasted for only six months
of the five-year Maryland conspiracy. Most of Dickerson’s supply
was from Alfonso in California. This factor thus permits a finding of
separate conspiracies. Cf. United States v. MacDougall, 790 F.2d
8 UNITED STATES v. DICKERSON
1135, 1148 (4th Cir. 1986) (although both conspiracies were "heavily
involved" in South Carolina, the fact that one conspiracy operated in
different states along the east coast permitted conclusion that conspir-
acies were separate).
The third factor involves consideration of whether the two conspir-
acies were operated by the same co-conspirators. This analysis does
not focus solely on the co-conspirators charged in the indictment but
also on those actually "acting as co-conspirators." MacDougall, 790
F.2d at 1144. Moreover, we have concluded that it is more meaning-
ful to focus on "principal players" such as "the suppliers, contacts and
buyers" than on every possible co-conspirator. Dickerson, 2000 WL
135112, at *7.
In the Florida conspiracy, the suppliers were Nelson and Hanks.
The buyers and distributors were Dickerson, Randall and Bonds. In
the Maryland conspiracy, the suppliers were Sears, Alfonso, and an
unnamed New York source. The buyers and distributors were Dicker-
son and Randall, although we do not know any details about Ran-
dall’s distribution network or how he operated. Thus, the principal
players are substantially different. Only Dickerson and Randall over-
lapped.
Dickerson takes issue with this conclusion because, first, he notes
that Sears operated a stash house in the Florida conspiracy and was
a supplier in the Maryland conspiracy. But this overlooks the fact that
those roles are materially different. Moreover, Sears’ involvement in
the Maryland conspiracy was only for six months. Second, Dickerson
notes that Alfonso supplied Hanks with 15 kilograms of cocaine dur-
ing the Florida conspiracy and he was Dickerson’s main source of
supply during the Maryland conspiracy. This was, however, a mini-
mal overlap based on the vastly different magnitude of Alfonso’s
roles in the two alleged conspiracies. Alfonso supplied Hanks on only
one occasion, whereas he was Dickerson’s regular supplier of hun-
dreds of kilograms. Had Alfonso repeatedly supplied the Florida con-
spiracy, the conclusion might have to be different. But a one-time
drug sale to the prior conspiracy and no evidence of further involve-
ment in that conspiracy is not sufficient to make Alfonso a "principal
player" in it. Third, Dickerson points to some overlap in the smaller
players in the conspiracy. Perkins, for example, bought drugs from
UNITED STATES v. DICKERSON 9
Dickerson during both conspiracies, while Blanks was both a courier
and a buyer during both conspiracies. While this also shows some
overlap, our most relevant inquiry must extend to principal players,
and neither Perkins nor Blanks could be considered principal players
in either conspiracy.
The fourth factor focuses on the extent to which the two conspira-
cies involve the same overt acts. Strictly speaking, because the time
frames of the two indictments do not overlap, the overt acts in further-
ance of each conspiracy do not overlap. Indeed, the Maryland indict-
ment alleges only two overt acts — one in 1996 and the other in 1997
— both of which occurred in Maryland long after the end of the Flor-
ida conspiracy in 1991 when Hanks died. Also, as the district court
concluded, the overt acts in the Florida conspiracy were "concentrated
. . . in Florida includ[ing] the multi-kilogram deliveries from Nelson
and Hanks through Williams to Mr. Dickerson, Mr. Randall, and Mr.
Bonds." Furthermore, looking at all of the overt acts, the two conspir-
acies’ "nature and scope" differed. The Florida conspiracy, as prose-
cuted, focused on Nelson’s and Hanks’ supply of drugs to mid-level
distributors such as Bonds, Randall and Dickerson. The Maryland
conspiracy, in contrast, focused on Dickerson’s efforts to obtain a
steady supply of cocaine to distribute to lower-level distributors and
users on the Eastern Shore. Thus, application of this factor suggests
two conspiracies.
The final factor of the Ragins test is whether the substantive stat-
utes charged are the same. Indeed, both indictments charged Dicker-
son with conspiracy to violate the same statute, 21 U.S.C. § 841. But
as we pointed out earlier, this is a "minor similarity compared to the
other factors." Dickerson, 2000 WL 135112, at *7.
The line between the Florida conspiracy and the Maryland conspir-
acy cannot be perfectly drawn. But it is certain that the Florida jury
convicted Dickerson only for activities conducted between 1988 and
1991 involving the Nelson/Hanks organization. Likewise, the jury in
this case considered none of those activities but limited itself to con-
duct between 1992 and 1997 involving Dickerson’s own distribution
system supported by other suppliers. While there were, indeed, over-
lapping personnel and some overlap in the geographical scope of each
conspiracy, it is apparent that the Florida jury and the Maryland jury
10 UNITED STATES v. DICKERSON
found different conspiracies involving different conduct. We can thus
conclude confidently that Dickerson was not tried or punished twice
for the same offense. Whether a jury could have found all of the con-
duct amounting to a single conspiracy does not fully address the prob-
lem. In this case, two juries were presented with conduct purportedly
constituting separate conspiracies, and each jury, acting on substantial
evidence, found different conspiracies. Accordingly, we reject Dick-
erson’s double jeopardy defense.
III
Dickerson contends second that the district court erred in denying
his motion for judgment of acquittal because "the Government was
allowed to introduce evidence of multiple conspiracies" during the
trial. He argues that there were at least three conspiracies at work in
the "Maryland conspiracy," based on his sources of supply — one
involving Sears, one involving Alfonso, and one involving the
unnamed New York source. He also argues there were separate con-
spiracies based on his distribution network — for example, one
involving Perkins and one involving Blanks. He points out that the
suppliers did not have any idea how the distribution of the cocaine
was effected and therefore could not have entered into any agreement
with the persons to whom he distributed cocaine. Dickerson summa-
rizes that "[t]here was no evidence that Mr. Sears, Mr. Alfonso or the
alleged New York source shared the same objective or the same goal
as the Dickerson distribution network."
The jury found one "Maryland conspiracy" as charged, and we will
affirm the jury’s finding "unless the evidence, taken in the light most
favorable to the government, would not allow a reasonable jury so to
find." United States v. Harris, 39 F.3d 1262, 1267 (4th Cir. 1994)
(internal quotation marks omitted).
The district court’s instruction to the jury properly placed the issue
before it. It instructed:
You are further instructed with regard to the alleged con-
spiracy offense, that proof of several separate conspiracies
is not proof of the single, overall conspiracy charged in the
indictment unless one of the several conspiracies which is
UNITED STATES v. DICKERSON 11
proved is the single conspiracy which the indictment
charges. What you must do is determine whether the single
conspiracy charged in the indictment existed between two or
more conspirators. If you find that no such conspiracy
existed, then you must acquit the defendants of that charge.
However, if you decide that such a conspiracy did exist, you
must then determine who the members were; and, if you
should find that a particular defendant was a member of
some other conspiracy, not the one charged in the indict-
ment, then you must acquit that defendant. In other words,
to find a defendant guilty, you must unanimously find that
such defendant was a member of the conspiracy charged in
the indictment and not a member of some other separate
conspiracy.
Thus, were "the evidence at trial [to] establish[ ] facts materially dif-
ferent from those alleged in the indictment" — in this case, the allega-
tions of a single conspiracy — there would be a possibility of
impermissible "variance," which could be grounds for acquittal.
United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). The ques-
tion thus becomes whether substantial evidence of a single conspiracy
was presented to support the jury’s finding of a single conspiracy. We
conclude that such evidence was presented.
The government showed that there was substantial overlap of "key
actors, methods and goals" within the Maryland conspiracy because
Dickerson directed the drug distribution network in Maryland. He for-
mulated agreements with three suppliers (Sears, Alfonso, and the
New York source) to provide him with cocaine for distribution on the
Eastern Shore. In distributing the cocaine, he provided smaller quanti-
ties to mid-level distributors such as Perkins, Jones, and Blanks, who
in turn distributed it to street-level drug users.
Although Dickerson may be correct in observing that Sears,
Alfonso, and the New York source did not have an agreement directly
with each other, each had an agreement with Dickerson, who was the
hub of the single conspiracy organized by Dickerson to serve the
Eastern Shore market. We have observed that a conspiracy may be a
"loosely-knit association of members linked only by their mutual
interest in sustaining the overall enterprise of catering to the ultimate
12 UNITED STATES v. DICKERSON
demands of a particular drug consumption market." United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). The important consider-
ation is whether the participants knew, from the "‘vastness and regu-
larity of their own dealings’," that the illegal efforts of others made
their dealings possible, and whether the actor showed a "‘substantial
level of commitment to the conspiracy . . . by engaging in a consistent
series of smaller transactions’ that furthered its ultimate object of sup-
plying the consumer demand of the market." Id. (quoting United
States v. Burman, 584 F.2d 1354, 1356 (4th Cir. 1978), and United
States v. Edwards, 945 F.2d 1387, 1393 (7th Cir. 1991)).
Based on Banks, the parallel suppliers in this case had a "mutual
interest in sustaining the overall enterprise" through their agreements
with Dickerson to supply him with cocaine to sell on the Eastern
Shore, the same mid-level distributors had an agreement with Dicker-
son to sell the cocaine to drug users, and the same methods of trans-
porting cocaine and cash were used throughout the conspiracy. 10
F.3d at 1054. Also, each co-conspirator was aware of Dickerson’s
purpose in supplying cocaine to the Eastern Shore, and each engaged
in "vast" and "regular" dealings with him.
Viewing the evidence in the light most favorable to the govern-
ment, we conclude that it was not irrational for a jury to have decided
that there was only one conspiracy at work in Maryland.
IV
Dickerson next contends that because the prosecutor improperly
told the jury during closing argument that as part of the conspiracy
Alfonso was also supplying marijuana, a fact not charged in the
indictment, he is entitled to a new trial.
During the trial, the government used a chart to show how Dicker-
son’s suppliers sent him repeated shipments of cocaine, through cou-
riers such as Fox and the Kumpfs, between January 1995 and
November 1997. Undermining the chart to some extent, Alfonso and
the couriers testified that they had made several trips to Baltimore
during the stated period that were not on the chart. To explain these
trips, the government proffered, at a bench conference, that it would
show that these trips involved shipments of marijuana, even though
UNITED STATES v. DICKERSON 13
the indictment did not cover marijuana. The court ruled that the gov-
ernment could not introduce this evidence. Arguing with the ruling,
the government prosecutor said, "But then the government is pre-
cluded from explaining that the reason [Alfonso] was here was
because it was marijuana trips." The court stuck with its ruling, say-
ing, "it’s not in evidence. So that you are precluded."
Because of this ruling, the government was unable to explain why
Alfonso and the Kumpfs had made several trips to meet Dickerson
during 1995 to 1997, and Dickerson’s counsel, as the government pre-
dicted to the court, took advantage of the absence of this evidence,
arguing in closing argument that Alfonso and the Kumpfs were meet-
ing someone else because the government had not shown that there
were any cocaine deliveries made during some of the relevant time
frame:
Now what does [this inconsistency] tell you? It tells you one
of two things. Mr. Alfonso is lying to you about something
because it means that there is a different relationship
between Mr. Dickerson and Mr. Alfonso . . . . That there is
a different relationship between Mr. Dickerson and Mr.
Alfonso than you have heard about other than this cocaine
deliveries or that Mr. Alfonso has been delivering drugs to
someone else in Baltimore that you ain’t heard about and
that Ms. Kumpf is meeting with someone else in Baltimore
in March and January of 1995 that you have not heard
about. You have to weigh that when you consider the testi-
mony of Mr. Alfonso and Ms. Kumpf when they tell you
that they’re coming here to meet Frank Dickerson to pick up
money for these cocaine deals.
Believing that this argument was an unfair inference to be drawn, par-
ticularly in light of the known facts, the government sought to explain
the situation in its rebuttal argument as follows:
This stuff about the early trips in early 1995 that were taken
by Mr. Alfonso, Ms. Kumpf and whatnot and I don’t know
if there was a, I think that was just Ms. Kumpf and Mr.
Alfonso that’s referred to there. Well, frankly, ladies and
gentlemen, the Kumpfs both testified as you may recall that
14 UNITED STATES v. DICKERSON
they were part of a marijuana and cocaine conspiracy with
Mr. Alfonso. This trial is only about a cocaine conspiracy
starting in 1992. There was other evidence stricken from the
record that you are not to consider. . . .
When defense counsel objected and moved for a mistrial, the court
lectured the prosecutor, "You can’t tell them about evidence that was
stricken from the record." The prosecutor sought to explain that the
government was caught in a "Catch-22," and when she continued to
argue, the court berated her and said, "Stop. Stop. You are absolutely
wrong to tell the jury about evidence that was stricken." The court
then instructed the jury not to consider the prosecutor’s comment or
to consider any stricken evidence. The court, however, refused to
order a new trial.
To obtain a new trial, Dickerson must show first that the prosecu-
tor’s remarks were in fact "improper." United States v. Mitchell, 1
F.3d 235, 240 (4th Cir. 1993). Second, he must show that "such
remarks or conduct . . . prejudicially affected the defendant’s substan-
tial rights so as to deprive the defendant of a fair trial." Id. (internal
quotation marks omitted). We review the district court’s denial of a
motion for a new trial for abuse of discretion. United States v. Dor-
louis, 107 F.3d 248, 254 (4th Cir. 1997).
Dickerson has probably established that the prosecutor’s remark
was, in view of the district court’s earlier ruling, improper. The gov-
ernment argues that because the prosecutor did not describe the
excluded evidence and only referred to the fact that some evidence
was excluded, its argument was not improper. But when that argu-
ment is juxtapositioned with the prosecutor’s statement about a mari-
juana conspiracy, a reasonable juror could have drawn the conclusion
that the other trips to Baltimore were to deal in marijuana.
Even if Dickerson has met the first element of Mitchell, we con-
clude that he is unable to demonstrate any prejudice. In reaching this
conclusion, we apply six factors to our analysis: (1) the degree to
which the prosecutor’s remarks may mislead the jury or prejudice the
defendant; (2) whether the remarks were "isolated or extensive"; (3)
whether, absent the improper remarks, the strength of the other evi-
dence would be enough to convict the defendant; (4) whether the
UNITED STATES v. DICKERSON 15
comments were "deliberately placed before the jury to divert attention
to extraneous matters"; (5) whether defense counsel’s improper con-
duct "invited" the remarks; and (6) whether the jury received curative
instructions. Mitchell, 1 F.3d at 241; see also United States v. Wilson,
135 F.3d 291, 299 (4th Cir. 1998).
First, given all of the other evidence about large amounts of
cocaine distributed by Dickerson, it is difficult to see how this one
statement that implicitly referenced a few marijuana dealings some-
how misled the jury or prejudiced the accused. Compare Wilson, 135
F.3d at 302 (finding prejudice where prosecutor referred to uncharged
and unproven murder by defendant). Second, the remark was isolated
and not repeated. Third, there was substantial competent evidence of
Dickerson’s guilt — including the testimony of numerous co-
conspirators and physical evidence such as the seized cocaine. Fourth,
there is no evidence that the prosecutor sought to distract the jury with
extraneous matters; rather, she wanted to ensure that Alfonso’s testi-
mony was not entirely discredited by the defense counsel on an inac-
curate or misleading inference. Fifth, while the comment was not
justified by any clearly improper conduct by defense counsel, it was
nevertheless motivated by the prosecutor’s perception that defense
counsel was misrepresenting the true facts, even though they were not
in the record. Finally, the judge did give an adequate curative instruc-
tion.
Based on our application of these factors, we readily conclude that
Dickerson has not shown that he was prejudiced and therefore a new
trial is required.
V
Dickerson contends that the district court erred by admitting the
transcripts of five taped conversations — four conversations between
Troy Perkins and James Cephas and one conversation between Per-
kins and Jimmy Jones. He argues that the four Perkins/Cephas con-
versations do not fit the co-conspirator exception to hearsay under
Federal Rule of Evidence 801(d)(2)(E) because (1) Perkins was work-
ing for the government at the time; (2) Perkins had said that he no
longer dealt drugs with Dickerson; and (3) Cephas had never directly
dealt drugs with Dickerson but only with Jones.
16 UNITED STATES v. DICKERSON
Similarly, he argues that the Perkins/Jones conversation should be
excluded because (1) Perkins was a government informer; (2) Jones
indicated during the conversation that he had not spoken to Dickerson
in several months; and (3) this discussion was merely "idle conversa-
tion" and not in furtherance of a conspiracy. United States v. Urbanik,
801 F.2d 692, 698 (4th Cir. 1986) ("idle conversation" that references
criminal activity does not constitute statement "in furtherance of" the
conspiracy).
We review the admission of evidence for abuse of discretion.
United States v. Squillacote, 221 F.3d 542, 563 (4th Cir. 2000).
First, we have permitted co-conspirator statements to be introduced
when the conversation is between a government informer and a co-
conspirator as long as there is independent proof that the co-
conspirator declarant was actually in a conspiracy with the defendant
challenging the introduction of the statement. See, e.g., United States
v. Neal, 78 F.3d 901, 904-06 (4th Cir. 1996); United States v. Capers,
61 F.3d 1100, 1105-06 (4th Cir. 1995). Although Cephas did not deal
directly with Dickerson, there is independent evidence that Dickerson
supplied Jones, who then supplied Cephas, supporting the conspirato-
rial relationship between the three individuals. Therefore, the four
Perkins/Cephas conversations were properly admitted.
On the Perkins/Jones conversation, we conclude that it was more
than "idle conversation," as Dickerson contends. In Urbanik, for
example, the conversation happened after a drug deal, constituted
only a fraction of the entire conversation, and occurred while the co-
conspirators engaged in an unrelated activity (weight-lifting). 801
F.2d at 698-99. In contrast, the Perkins/Jones conversation, which
was set up at Perkins’ direction, was entirely about drug dealing.
Jones discussed his past drug relationship with Dickerson and noted
that he still owed Dickerson money for drugs, indicating that their
relationship — though somewhat stagnant — was ongoing.
Accordingly, we conclude that the district court did not abuse its
discretion in admitting this evidence.
VI
Finally, Dickerson claims several errors in his sentence, based on
Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes, however,
UNITED STATES v. DICKERSON 17
that he is raising these sentencing issues to preserve them for further
appeal.
First, Dickerson challenges the fact that his prior conviction was
not submitted to the jury to be determined beyond a reasonable doubt.
However, Apprendi forecloses this argument entirely because evi-
dence of prior convictions need not be submitted to the jury. 530 U.S.
at 490.
Second, Dickerson argues that Alamendarez-Torres v. United
States, 523 U.S. 224 (1998), is incorrectly decided. This case, how-
ever, remains binding precedent.
Finally, Dickerson argues that his base offense level was wrongly
determined. He notes that the United States Supreme Court has
granted certiorari in United States v. Harris, which may decide this
issue. 243 F.3d 806 (4th Cir. 2001), cert. granted, 122 S. Ct. 663(U.S. Dec. 10, 2001) (No. 00-10666). For now, however, the issue is
foreclosed by Harris, as Dickerson concedes.
VII
For the reasons given, the judgment of the district court is
AFFIRMED.