United States v. Jeffery L. Dickerson , 705 F.3d 683 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3285
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEFFERY L. D ICKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:10-cr-20091—Michael P. McCuskey, Judge.
A RGUED S EPTEMBER 20, 2012—D ECIDED JANUARY 23, 2013
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
T INDER, 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 Dickerson of 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;
2 No. 11-3285
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 war-
rants 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 Dicker-
son to make a purchase, but was short on cash. Dickerson
proposed a trade: if Vankuiken could obtain guns, Dicker-
son 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 apart-
ment. 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 machine-
guns and two handguns. The officers then arranged for
No. 11-3285 3
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 apart-
ment, in the nearby town of Bourbonnais, Illinois.
The officers recovered 100 grams of crack cocaine and
a loaded Smith & Wesson revolver, located approxi-
mately 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 posses-
sion of cocaine base (“crack”) with intent to dis-
tribute 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-
4 No. 11-3285
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] . . . re-
volver . . . 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 know-
ingly 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
No. 11-3285 5
instructions. The parties agreed on the following instruc-
tions, 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 deter-
mining whether a firearm possession was in
furtherance of a drug crime include, but
are not limited to: (1) the type of fire-
arm; (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 fire-
arm; (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
6 No. 11-3285
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 instruc-
tion, which we have labeled ¶ 3, reads:
¶ 3: When a defendant receives a gun in ex-
change 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 machine-
gun on or about September 24, used in furtherance of
drug distribution in August, differed from the govern-
ment’s evidence on this charge, all of which concerned
No. 11-3285 7
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, pre-
sented an inaccurate statement of the law, which preju-
diced Dickerson. Second, he contends that his dual con-
victions 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.
8 No. 11-3285
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, 132 S. Ct. 2756
(2012) reh’g denied, 133 S. Ct. 87 (2012). Second, if we
determine that that the instruction is legally accurate at
the first step, we then examine the district court’s particu-
lar 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
instructions prejudiced the defendant.” Id. at 791 (quoting
United States v. Curry, 538 F.3d 718, 731 (7th Cir. 2008)).
We begin our review by noting that the challenged
jury instruction accurately reflects this circuit’s caselaw.
Dickerson objects to the district court instructing the
jury that “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.” This instruction mirrors our holding in United
States v. Doody, 600 F.3d 753, 755 (7th Cir. 2010). In
that case, Alduff Doody sold powder cocaine to a con-
No. 11-3285 9
fidential informant who claimed not to have any cash,
and instead gave Doody a pistol as collateral. We
sustained Doody’s conviction under 18 U.S.C. § 924(c),
holding that, “when a defendant receives a gun for
drugs, he takes possession of the firearm in a way that
furthers, advances, or helps forward the distribution of
drugs.” Doody, 600 F.3d at 755. This holding is reflected
almost verbatim in the district court’s jury instruction
to which Dickerson objects.
The Supreme Court has expressly declined to settle the
issue of whether a guns-for-drugs exchange lies within
the purview of 18 U.S.C. § 924(c). See Watson v. United
States, 552 U.S. 74, 83 (2007) (stating that the view that “a
drug dealer who takes a firearm in exchange for his
drugs generally will be subject to . . . [this provision] may
or may not prevail, and we do not speak to it today”
(internal quotation marks omitted)). In light of the Su-
preme Court’s deliberate silence on this issue, our
holding in Doody is controlling precedent. In the court-
rooms of this circuit, Doody is the law.
Dickerson recognizes this fact and urges us to revisit
that holding. This court “will not reexamine a recent
decision . . . unless given a compelling reason to do so.”
Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d
853, 858 (7th Cir. 2001). Compelling reasons include
legislative or regulatory changes, judicial decisions ad-
dressing related or analogous issues, changes in the
social or economic context surrounding the decision, or
other significant, new information. Id.
Dickerson does not offer any of these reasons to
support his position. Instead, he offers semantics. He
10 No. 11-3285
contends that it is a drug dealer’s agreement to accept
a firearm—not that drug dealer’s later possession of
it—that facilitates a drug transaction. According to
Dickerson, the transaction should be considered to
have been completed by the time he physically pos-
sessed the firearm.
The problem with this argument is that it cannot get
around the fact that, even when a drug dealer does not
come into possession of the firearm until after the
drugs were distributed, it is that later possession that
makes the drug transaction possible. See Doody, 600
F.3d at 756. In distinguishing this court’s definition of
“possession” from Dickerson’s favored interpretation,
we are not merely parsing words. If Dickerson had
agreed to accept the firearms, but later reneged on his
agreement, refusing to take possession, it is hard to
imagine that he would have allowed Vankuiken
to keep the drugs. Hence, which item in the exchange
happened to change hands first is not dispositive in
determining whether the possession was in furtherance
of the drug crime. See United States v. Sterling, 555 F.3d
452, 458 (5th Cir. 2009) (“[D]rug traffickers cannot
escape liability [under 18 U.S.C. § 924(c)] simply by
structuring their transactions to arrange for later
delivery of the firearms.”).
There are sound policy reasons why Congress would
want to apply enhanced penalties whenever guns and
drugs mix, regardless of the temporal order of the ex-
change. The presence of guns—even, as here, unloaded
guns which were only present for part of the ex-
No. 11-3285 11
change—during a drug transaction may increase the
likelihood of violence erupting in what are often
already volatile situations. Congress may have been
concerned that the combined presence of firearms and
drugs increases the likelihood of violence occurring,
above the sum of the likelihood of violence in a drugs-
only situation plus the likelihood of violence occurring
in a guns-only situation. See Smith v. United States, 508
U.S. 223, 240 (1993) (“When Congress enacted the [then]
current version of § 924(c)(1), it was no doubt aware
that drugs and guns are a dangerous combination.”) This
potential multiplicative effect could be present even in
the exchange between Dickerson and Vankuiken, where
the drugs and firearms components of the exchange
occurred sequentially.
The logic undergirding 18 U.S.C. § 924(c) applies even
where, as here, firearms are employed simply as a
method of payment. Even when guns serve only an
instrumental function, that situation could easily
change, should the drug deal go south. See id. (“The
fact that a gun is treated momentarily as an item of com-
merce does not render it inert or deprive it of destructive
capacity. Rather, as experience demonstrates, it can be
converted instantaneously from currency to cannon.”).
Indeed, Congress amended 18 U.S.C. § 924(c) in 1998
for the specific purpose of expanding the statute to
cover passive possession of a firearm in furtherance of
a covered felony. See United States v. O’Brien, 130 S. Ct.
2169, 2179 (2010) (noting that the 1998 addition of
the “possession” prong to the statute was “a direct re-
sponse to this Court’s decision in Bailey v. United States,
12 No. 11-3285
516 U.S. 137 (1995) . . . that the word ‘use’ in the pre-
amendment version of § 924 ‘must connote more than
mere possession’ ” (citation omitted)).
In interpreting the “possession in furtherance” prong
of 18 U.S.C. § 924(c), six of our sister circuits have
reached the same conclusion as we did in Doody. See
United States v. Gardner, 602 F.3d 97, 103 (2d Cir. 2010), cert.
denied, 130 S. Ct. 3372 (2010); United States v. Mahan,
586 F.3d 1185, 1188 (9th Cir. 2009); United States v. Dolliver,
228 F. App’x 2, 3 (1st Cir. 2007) (per curiam); United States
v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007);
United States v. Boyd, 209 F. App’x 285, 290 (4th Cir.
2006); United States v. Frederick, 406 F.3d 754, 764 (6th
Cir. 2005); see also Sterling, 555 F.3d at 458 (assuming
without deciding that a guns-for-drugs exchange
involves possession of a gun to further the sale of drugs).
Along with our sister circuits, we consider bartering
firearms for drugs, or vice versa, to be a sufficiently
specific nexus between these two objects to constitute
possession in furtherance of the drug sale. For the afore-
mentioned reasons, we decline to break with our prece-
dent. The interpretation of “possession in furtherance”
articulated in Doody remains logically and legally
sound. Given that the district court’s jury instruction
accurately reflects our holding in Doody, we conclude
that it was legally accurate.
We now move to the second stage of our analysis, in
which we inquire into whether the district court abused
its discretion in its particular phrasing of this instruc-
tion. McKnight, 665 F.3d at 79-91. Reversal is warranted
No. 11-3285 13
only if it appears that (i) the jury was misled and (ii) the
instructions prejudiced the defendant. Id. In making
these determinations, our review is limited to deter-
mining whether the instructions as a whole, i.e., ¶¶ 1-3,
were sufficient to inform the jury of the applicable
law. Curry, 538 F.3d at 731.
Dickerson accepts ¶¶ 1-2 of the jury instructions,
but objects to ¶ 3. The district court phrased this third
instruction using nearly identical language as that used
in Doody. Rather than misleading the jury or prejudicing
the defendant, this instruction accurately conveyed
this circuit’s caselaw to the jury. With the validity of ¶¶ 1-2
not at issue, we conclude that the district court did
not abuse its discretion in offering these instructions.
***
The conclusory-seeming nature of ¶ 3 suggests that
the possibility of Sandstrom error may merit some dis-
cussion. Sandstrom error occurs where the particular
phrasing of a jury instruction creates either a conclusive
or a mandatory presumption in the minds of jurors.
See Sandstrom v. Montana, 442 U.S. 510 (1979). Such errors
violate the Fifth Amendment’s requirement that the
government prove every element of a criminal offense
beyond a reasonable doubt. Id. at 524. It is important to
note that Dickerson does not make a Sandstrom claim.
Moreover, even if he had raised such a claim, we think
that any Sandstrom error contained in ¶ 3 would be harm-
less. Despite the fact that Dickerson waived this argu-
14 No. 11-3285
ment,1 and notwithstanding the harmlessness of any
possible Sandstrom error, we believe that some discus-
sion of this topic would be helpful, to provide guidance
to lower courts in crafting instructions in similar cases.
A conclusive presumption exists where a trial court
delivers a jury instruction that a reasonable jury could
interpret as an irrebuttable directive to find a given
element of a charged offense once convinced of a
predicate fact or facts triggering the presumption.
Sandstrom, 442 U.S. at 517. Such a directive forecloses
1
While Dickerson does not expressly argue that ¶ 3 constitutes
Sandstrom error, two of his statements at least hint at a constitu-
tional challenge—albeit an undeveloped one—to ¶ 3 as estab-
lishing a conclusive presumption. In his opening brief,
Dickerson asserts that “the judge’s instruction ‘When a defen-
dant receives a gun in exchange for drugs, he takes possession
of the firearm in a way that furthers . . . the distribution of
drugs’ compelled the jury to convict [him] if they found
those facts to be true.” He also objected to ¶ 3 during the jury
instruction conference in the district court, claiming that this
language “tak[es] that Doody case . . . and turn[s] it into a rule.”
Dickerson makes these brief statements without any further
elaboration, e.g., without referencing concepts such as
Sandstrom error, conclusive presumptions, or relevant caselaw.
Assuming that these statements even imply a claim of
Sandstrom error, such a claim would be waived. See United
States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (“perfunctory
and undeveloped arguments, and arguments that are unsup-
ported by pertinent authority, are waived (even where those
arguments raise constitutional issues).” (citation omitted)).
No. 11-3285 15
independent jury consideration of whether the facts
proved are sufficient to establish the relevant element of
the charged offense. Carella v. California, 491 U.S. 263,
266 (1989) (per curiam). Where “the jury might have
understood the presumption to be conclusive, . . . the
instruction was constitutional error.” Id.
We need not resolve the question of whether ¶ 3
contains a conclusive presumption, because, even if this
instruction were deemed unconstitutional, the use of
this potentially erroneous instruction would constitute
harmless error under Chapman v. California, 386 U.S. 18
(1967). In assessing a claim of constitutional error, we
are mindful that “an otherwise valid conviction should
not be set aside if the reviewing court may confidently
say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.” Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986). Constitutionally
erroneous jury instructions are harmless where “the
predicate facts are so closely related to the ultimate fact
to be presumed that no rational jury could find those
facts without also finding that ultimate fact.” United States
v. Parmelee, 42 F.3d 387, 393 (7th Cir. 1994) (quoting
Carella, 491 U.S. at 271 (per curiam) (Scalia, J., concur-
ring)). “In many cases, the predicate facts conclusively
establish [the element of the charge], so that no rational
jury could find that the defendant committed [the
former] . . . but did not [commit the latter].” Rose v. Clark,
478 U.S. 570, 580-81 (1986). In these cases, “the erroneous
instruction is simply superfluous.” Id. at 581.
Dickerson’s case fits this mold precisely. We held in
Doody that a guns-for-drugs exchange constitutes posses-
16 No. 11-3285
sion in furtherance for purposes of 18 U.S.C. § 924(c).
600 F.3d at 755. Importantly, we did not state that a
district court was within its discretion in making such
a finding, or that such a finding does not rise to the
level of reversible error. Instead, we stated plainly that
a guns-for-drugs exchange is possession in furtherance.
Id. In other words, the predicate fact that a defendant
traded drugs for guns conclusively establishes that the
possession in furtherance prong of 18 U.S.C. § 924(c)
is met. Thus, even if ¶ 3 could be characterized as in-
volving a conclusive presumption, this possibly flawed
wording merely would render the instruction super-
fluous. See Rose, 478 U.S. at 581.
Courts’ concerns regarding Sandstrom error are moti-
vated by the requirement that the government prove
every element of the charged crime beyond a reasonable
doubt. Id. at 580. That requirement, in turn, helps ensure
that only the guilty are punished. Id. It follows that
when a guilty verdict “reached in a case in which
Sandstrom error was committed is correct beyond a rea-
sonable doubt, reversal of the conviction does nothing
to promote the interest that the rule serves.” Id. Since
the challenged instruction reflects our controlling
Doody precedent, one cannot say that a guilty verdict
potentially based in part on this instruction failed to
meet this standard. Therefore, “[i]t would further
neither justice nor the purposes of the Sandstrom rule to
reverse a conviction in such a case.” Id. at 581-82. If any
Sandstrom error in ¶ 3 may be found, such error is harm-
less.
No. 11-3285 17
While we find that the district court accurately sum-
marized the law in this circuit, acted within its discretion
in promulgating this instruction, and did not commit
any non-harmless Sandstrom error, we also are mindful
not to endorse the district court’s particular phrasing of
¶ 3. Trial courts should craft jury instructions so as
avoid wordings that could be interpreted as creating
conclusive or mandatory presumptions. In this particular
case, Dickerson waived any claim regarding Sandstrom
error and, even if he had not done so, the district
court’s use of ¶ 3 amounts, at most, to harmless error.
Still, in the future it would behoove the courts of this
circuit to avoid phrasings that even raise the specter of
Sandstrom error. In some circumstances, instructing a
jury that it may consider whether a firearm was used
as an object of barter in a drug exchange as a factor in
determining whether the firearm was possessed in fur-
therance of the drug crime may be more appropriate
than the language used here. See Committee Comment
to Pattern Criminal Jury Instructions for the Seventh
Circuit for 18 U.S.C. § 924(c)(1) (2012) (second paragraph
of comment to the “definition of ‘in furtherance’ ” instruc-
tion). For purposes of this case, however, it suffices to
say that Doody’s direct holding that such an exchange
constitutes possession in furtherance makes this infer-
ence overpowering. Cf. Rose, 478 U.S. at 581.
B. Dickerson’s Merger Defense
Dickerson argues that his conviction under 18 U.S.C.
§ 924(c) following these jury instructions, when coupled
18 No. 11-3285
with his conviction for the baseline offense of drug traf-
ficking, violates the doctrine of merger. See United States
v. Gaddis, 424 U.S. 544, 547 (1976) (holding that a
defendant cannot be convicted of both robbing a bank
and receiving the proceeds of that robbery). Dickerson
is mistaken, however, in viewing his convictions for
drug trafficking and possession of a firearm in fur-
therance of drug trafficking as two sides of the same
coin, akin to being punished for committing a criminal
act and receiving the proceeds of that act. Instead, 18
U.S.C. § 924(c) punishes a harm not covered by the stan-
dard drug trafficking statute. Dickerson’s decision to
receive his payment in the form of guns increases
the potential for violence by introducing a deadly
weapon into a situation in which violence is not infre-
quent. Moreover, while the doctrine of merger typically
applies where “Congress . . . did not intend for pyra-
miding of penalties,” United States v. Fleming, 504 F.2d
1045, 1052 (7th Cir. 1974), a simple reading of 18 U.S.C.
§ 924(c) shows that the statute’s very purpose was to en-
hance the combined penalty for certain drugs-plus-
guns offenses, above the sum of the penalties for the
separately committed drug and gun crimes. See Harris
v. United States, 536 U.S. 545, 576 (2002) (noting that the
statute’s “penalty range becomes harsher” for proscribed
conduct involving both drugs and guns). The heightened
potential for violence when guns and drugs mix, as
discussed above, provides a convincing rejoinder to
Dickerson’s claim that his conviction violates the doc-
trine of merger.
No. 11-3285 19
C. Variance between the Indictment and the
Evidence Offered at Trial
Dickerson also challenges his conviction under Count 2
for knowing possession of a machinegun “on or about
September 24, 2010,” in furtherance of drug trafficking
in August 2010. This subsection of this count is labeled
Count 2, Charge 2, supra. Evidence adduced at trial indi-
cates that Dickerson’s machineguns remained in his
storage unit from the time he received them from
Vankuiken in August until the police discovered them
on September 24. Thus, a more precisely worded indict-
ment would have inserted August 2010 as the relevant
date in both elements of this charge.
Dickerson argues that this discrepancy in the two
dates calls into question the legal sufficiency of his indict-
ment, and directs us to caselaw concerning the omission
of an essential element in an indictment. We think that
his argument is better characterized as a variance claim.
A variance occurs “when the facts proved at trial differ
from those alleged in the indictment.” United States v.
Longstreet, 567 F.3d 911, 918 (7th Cir. 2009). A difference
between the date charged in an indictment and the
date proven at trial is “a classic variance, which does not
change the nature of the crime alleged.” United States v.
Krilich, 159 F.3d 1020, 1027 (7th Cir. 1998). We also
classify as a variance a situation in which the scope of
the indictment is broader than that of the elements
proven at trial. See United States v. Willoughby, 27 F.3d
263, 265 (7th Cir. 1994). The circumstances here bear a
resemblance to both of these forms of variance. Whether
20 No. 11-3285
one views the discrepancy between Count 2 and the
evidence offered at trial as the substitution of one date
for another, as in Krilich, or as involving the proof of a
narrower element—i.e., the specific date of Dickerson’s
firearm possession—in place of the broader “on or
about” language in the indictment, similar to Willoughby,
this discrepancy is properly categorized as variance.
Variance claims are subject to harmless error review.
United States v. Thompson, 23 F.3d 1225, 1230 (7th Cir.
1994). To prevail, Dickerson must show both (i) that the
evidence presented at trial did not support the jury’s
verdict on Count 2, and (ii) that the variance prejudiced
him. United States v. Dean, 574 F.3d 836, 842 (7th Cir.
2009). Thus, we treat a claim of variance as a challenge
to the sufficiency of the evidence. United States v.
Hewlett, 453 F.3d 876, 879 (7th Cir. 2006). In evaluating
such a claim, we view the evidence in the light most
favorable to the government. Id. We will “overturn a
conviction only if the record contains no evidence
from which a reasonable juror could have found the
defendant guilty.” Longstreet, 567 F.3d at 918.
An imprecise date alleged in an indictment generally
constitutes harmless variance, unless a specific date is
an essential or material element of the alleged offense.
United States v. Auerbach, 913 F.2d 407, 411 (7th Cir. 1990).
The date of the alleged crime is considered essential or
material where the precise date is “necessary to establish
the very illegality of the behavior and thus the court’s
jurisdiction.” United States v. Cina, 699 F.2d 853, 859
(7th Cir. 1983). This level of precision is not needed
No. 11-3285 21
here; Dickerson’s actions were just as unlawful in
August 2010 as they were in September. Because the
precise date was not a crucial component of the charge,
we think Dickerson’s action in August 2010 could fairly
be considered part and parcel of this charge. See United
States v. Synowiec, 333 F.3d 786, 790 (7th Cir. 2003).
Where, as here, the date is not an essential or material
element of the charged offense, “it is generally sufficient
to prove that the offense was committed on any day
before the indictment and within the statute of limita-
tions.” United States v. Leibowitz, 857 F.2d 373, 378 (7th
Cir. 1988). We have applied this general rule in cases
where the interval between the date in the indictment
and the date for which the prosecution offered evidence
at trial was longer than in the instant case. See Krilich,
159 F.3d at 1027 (finding a difference of over one year
between the two dates to be harmless variance);
Auerbach, 913 F.2d at 411-13 (variance of no less
than two months is not sufficient to reverse). Con-
sistent with this caselaw, we find the evidence presented
at Dickerson’s trial sufficient to support the jury’s
verdict, the discrepancy between these two dates not-
withstanding.
Neither did this variance prejudice Dickerson. The use
of the phrase “on or about September 24, 2010” (emphasis
added), in Charge 2 placed Dickerson on notice that
the government could introduce evidence regarding
alleged activities on dates other than September 24.
Leibowitz, 857 F.2d at 379 (“Where the indictment alleges
that an offense occurred ‘on or about’ a certain date, the
defendant is deemed to be on notice that the charge is
22 No. 11-3285
not limited to a specific date. He therefore cannot make
the requisite showing of prejudice simply on the fact
that the government has failed to prove a specific date.”).
The inclusion of this “on or about” designation in
the indictment should have signaled to Dickerson
that the indictment date was approximate and subject
to reasonable variation. United States v. McKinney, 954
F.2d 471, 480 (7th Cir. 1992). Dickerson has not argued
that this variation impeded his ability to present his
defense or otherwise prejudiced him, and we fail to see
how it could have done so.
Since the variance between the date listed in Count 2
of the indictment and the date for which the govern-
ment offered evidence at trial was harmless, dismissal
on this charge is not warranted.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment.
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