United States v. Frank D. Dickerson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4259
FRANK DEMETRIC DICKERSON, JR.,
a/k/a Frankie D, a/k/a Frank Dixon,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-97-410)
Argued: September 22, 1999
Decided: February 7, 2000
Before WIDENER and NIEMEYER, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Kenneth Wendell Ravenell, SCHULMAN, TREEM,
KAMINKOW, GILDEN & RAVENELL, L.L.C., Baltimore, Mary-
land, for Appellant. Christine Manuelian, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Harry
Levy, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVE-
NELL, L.L.C., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A federal grand jury in the District of Maryland initially indicted
Frank Dickerson on November 5, 1997 on one count of conspiracy to
distribute and to possess with intent to distribute cocaine and cocaine
base, and one count of distribution of cocaine, in violation of 21
U.S.C. §§ 846 and 841(a)(1). The government subsequently moved to
supersede the Maryland indictment on February 11, 1998 to include
a substantive count relating to the appellant's possession of a kilo-
gram of cocaine on the date of his arrest. On January 15, 1999, the
appellant filed a motion to dismiss count one of the superseding
Maryland indictment on double jeopardy grounds. On February 17,
1999, a second superseding indictment was returned, narrowing the
time frame of the charged conspiracy, but leaving unaltered the sub-
stantive counts. The district court denied the appellant's double jeop-
ardy challenge, finding that the Florida and Maryland conspiracies
were "sufficiently separate in objectives, personnel and other circum-
stances," and thus, could be separately indicted and prosecuted. Juris-
diction is invoked pursuant to 18 U.S.C. § 3231. After carefully
considering the record in this case, the briefs, and the parties' argu-
ment, this court affirms the district court's ruling.
I.
A. The Conspiracies
Previously, a federal grand jury in the Southern District of Florida
indicted the appellant on a charge of conspiracy to possess with intent
2
to distribute cocaine in violation of 21 U.S.C.§ 841. The Florida
indictment was subsequently superseded on November 4, 1996 to
include a charge of money laundering and a criminal forfeiture count
against the five defendants. Initially, Albert Nelson, Jr.,1 was the
source of cocaine supply for the organization. James Hanks, who
passed away in October 1991, replaced Nelson after Nelson was
arrested in another state. Richard Williams was the main courier for
the Nelson organization; and Frank Dickerson, Robert Randall, and
John Bonds were the primary customers. The Florida indictment
charged that from April 1988 through November 1991, Nelson's
organization distributed hundreds of kilograms of cocaine out of
Miami, Florida, to customers in Georgia, Illinois, Maryland, and
Pennsylvania.2 In prosecuting the Florida indictment, the government
did not concentrate on how the customers distributed the cocaine fol-
lowing its interstate transport.
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1 On March 23, 1990, Nelson was arrested on a federal indictment in
Savannah, Georgia, charging him with conspiring to distribute drugs in
Georgia between 1984 and 1989. Following his arrest, Nelson cooper-
ated with federal authorities and subsequently plead guilty to the Georgia
drug charge in May 1992. However, Nelson continued to engage in drug
trafficking from his jail cell in Georgia. Consequently, in May 1995,
while on supervised release, Nelson was indicted in the District of South
Carolina. The indictment encompassed the distribution by Nelsons
Miami-based organization of multi-kilogram quantities of cocaine to
individuals in South Carolina between 1988 and 1995 via the same cou-
rier, Richard Williams. Nelson subsequently moved to dismiss the South
Carolina indictment as a violation of double jeopardy on the grounds that
the Georgia conspiracy and the South Carolina conspiracy were one and
the same. On interlocutory appeal, this court upheld the district court's
denial of the motion in United States v. Nelson , No. 95-5706, 1996 WL
460280 (4th Cir. August 14, 1996) (per curiam). The District Court of
South Carolina convicted Nelson on the money laundering and conspir-
acy charges and sentenced him to a term of life imprisonment. As a result
of Nelson's sentence in South Carolina, the U.S. Attorney's Office for
the Southern District of Florida dismissed its indictment against him and
proceeded to trial with the remaining defendants: Dickerson, Randall,
and Bonds.
2 On June 9, 1998, a jury convicted Dickerson on the Florida conspir-
acy charge; Randall and Bonds were acquitted. Dickerson was sentenced
in Miami on November 20, 1998 to a term of 240 months imprisonment
for the Florida conspiracy.
3
Prior to and during the time period that the appellant was being
investigated for his participation in the Nelson organization, the Balti-
more District Office of the Drug Enforcement Administration
("DEA"), was conducting a separate investigation of Frank Dickerson
and his narcotics trafficking activities on the Eastern Shore of Mary-
land. Through interviews with a number of confidential informants
and cooperating witnesses, the DEA learned that beginning in the late
1980s, the appellant set up his own multi-kilogram distribution orga-
nization serving customers in Maryland and Virginia. The Maryland
indictment centers on the appellant's distribution network on the East-
ern Shore.
While the appellant was on pretrial release from the Florida
charges, the DEA amassed evidence that he continued to engage in
drug trafficking in Maryland. A federal grand jury initially returned
a two count sealed indictment issued by the United States District
Court for the District of Maryland on November 5, 1997 charging the
appellant with a drug conspiracy spanning the time frame between
1990 and 1996, and with distribution of a half-kilogram of cocaine to
confidential informant Richard Blanks on or about December 28,
1996. On February 11, 1998, prior to the resolution of the Florida
indictment, the Maryland indictment was superseded to extend the
time period of the charged conspiracy to November 21, 1997 and to
include one count of possession with intent to distribute the kilogram
of cocaine found in the appellant's briefcase on the day of his arrest.
Unlike the Florida indictment, Dickerson is the only defendant named
in the Maryland indictment.
B. Time
The Florida indictment charges that the Nelson organization began
in 1988 and continued until November 1991. The evidence presented
at the appellant's trial in Florida established that he began receiving
multi-kilogram shipments of cocaine from Nelson and his Miami-
based organization in late September 1988. The organizations courier,
Richard Williams, transported the cocaine to the appellant in Philadel-
phia, Pennsylvania. Williams continued to deliver cocaine to the
appellant in this manner until May 1990. At this time, James Hanks
replaced Nelson as the source of cocaine supply because Nelson was
arrested on the Georgia indictment. From that point on, Williams
4
made his cocaine deliveries to the appellant in Greenbelt, Maryland.
The last delivery of the organization's cocaine to Dickerson and
Bonds occurred in August 1991. Randall received his last shipment
consisting of five kilograms of cocaine from the organization on
November 21, 1991. These five kilograms constituted the residual
amount of cocaine left in the organization following Hankss death in
October 1991.
The original and superseding Maryland indictments charged that
the Maryland conspiracy began in 1990. This was based, in part, upon
information received from confidential informant Blanks that he had
made cocaine deliveries for the appellant to the appellant's customers
in Virginia beginning sometime in 1990 and continuing up through
May 1992, at which time he stopped working for the appellant. Their
drug relationship resumed a few months later and continued until the
appellant's arrest in November 1997. On February 17, 1999, after the
appellant filed his double jeopardy challenge, the Maryland indict-
ment was superseded for a second time to narrow the scope of the
charged conspiracy to the period beginning in 1992 after the end of
the Florida conspiracy, and concluding on the day of the appellant's
arrest on November 21, 1997.
C. Commonality between the Conspiracies
In examining the fact patterns shown in relation to the Florida
indictment, and the purported fact pattern underlying the Maryland
indictment, there are shown to be common players who participated
in both the Maryland and Florida organizations. However, there are
just as many individuals who were only involved in only one of the
operations. For instance, co-defendant Robert Randall began receiv-
ing multi-kilogram deliveries in Georgia from the Nelson organiza-
tion in 1990. Additionally, in April or May 1991, Nathaniel Kirkland
accompanied Williams when delivering cocaine to Randall and Dick-
erson in Georgia and Maryland, respectively. Around this same time,
the organization took on multi-kilogram customer John Bonds, who
accepted delivery of his cocaine in Chicago from Williams and Kirk-
land. However, there is no evidence that any of these individuals con-
tinued associating with the appellant beyond the demise of the Nelson
organization in 1991.
5
Similarly, Troy Perkins and Jimmy Jones were among the appel-
lant's sizable customers after 1990. Perkins obtained multiple-
kilogram quantities of cocaine from the appellant beginning in 1990
and extending through 1994. Jones's drug relationship with the appel-
lant began around the same time as Perkins's; however, Jones's rela-
tionship continued until 1996 when the government made a controlled
purchase of cocaine from Jones believed to have been supplied by the
appellant. Both Perkins and Jones distributed the appellant's cocaine
to their own customers in Maryland and Jones further distributed to
Delaware. There is no evidence that either customer was affiliated
with the Nelson conspiracy or was affected negatively by its fall.
Further, Robert Jackson, the appellant's courier, was also involved
solely in the Maryland conspiracy. The only evidence linking him to
the Nelson organization is that at the time of his arrest, Jackson was
driving a Cadillac El Dorado with a secret compartment to hide the
drugs. This vehicle initially belonged to Nelson, but subsequently the
appellant obtained it for use in his own organization.
There is some overlap of personnel between the two conspiracies.
For example, Mark Sears ran the stash house in Miami where the Nel-
son organization's money and cocaine were stored. On occasion, he
also accompanied Richard Williams on cocaine deliveries to the orga-
nization's customers. His active participation in the Florida conspir-
acy effectively ended sometime around June 1990, shortly after
Hanks took over, at which point he branched out on his own and
eventually began distributing multi-kilograms of cocaine to a cus-
tomer in North Carolina.
After the end of the Florida conspiracy, Sears employed members
of the operation to help him with his new business. He hired Richard
Williams, the main courier for the Nelson organization, to make two
cocaine deliveries to North Carolina. Sears also hired Henry Nathan
Johnson to work for him as a drug courier to transport cocaine to
North Carolina. Johnson, who was Albert Nelson's cousin, previously
transported drug proceeds between Atlanta and Miami for Nelson.
Sears maintained his relationship with the appellant on a social
basis after Hanks took over Nelson's organization around May 1990.
In or about 1992, the appellant advised Sears that he was obtaining
6
kilogram quantities of cocaine from sources in New York. However,
in 1993, for a period of approximately six months extending into
1994, the appellant began utilizing Sears, who was still living in
Miami, as a source for multiple kilograms of cocaine. Sears obtained
this cocaine from an individual named Vincente Rodriguez. Sears
knew Rodriguez to have been one of the sources of supply for Albert
Nelson.
II.
The Double Jeopardy Clause of the Fifth Amendment provides that
no one shall "be subject for the same offense to be twice put in jeop-
ardy of life or limb." U.S. CONST. amend. V. This clause precludes
successive prosecutions for the same offense, and thus, forbids "the
division of a single conspiracy into multiple violations of a conspiracy
statute." United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.
1986). The Fourth Circuit has adopted a "totality of the circum-
stances" test for determining whether successive conspiracy charges
violate the Double Jeopardy Clause. See id. Under this test, the factors
for a court to consider include:
(1) time periods in which the alleged activities of the con-
spiracy occurred; (2) the statutory offenses charged in the
indictments; (3) the places where the alleged activities
occurred; (4) the persons acting as co-conspirators; and (5)
the overt acts or any other descriptions of the offenses
charged which indicate the nature and scope of the activities
to be prosecuted.
Id. Courts should refrain from applying these factors rigidly in deter-
mining whether different conspiracy counts charge the same offense.
See United States v. McHan, 966 F.2d 134, 137 (4th Cir. 1992).
Rather, courts should apply these factors flexibly as the import of
each factor may vary from case to case. See id. Additionally, other
characteristics of the conspiracy may be relevant in determining how
many conspiracies exist. See id. Thus, no precise mathematical equa-
tion exists to determine whether an appellant is in danger of being
tried twice for the same conspiracy.
Initially, the burden of raising a double jeopardy claim lies with the
defendant. See United States v. Ragins, 840 F.2d 1184, 1191 (4th Cir.
7
1988). Once the defendant makes a non-frivolous showing that he is
in jeopardy of twice being prosecuted for the same offense, the bur-
den then shifts to the government to prove by a preponderance of the
evidence that two separate and distinct conspiracies actually existed.
See id. at 1192. Upon reviewing a district court's finding regarding
a double jeopardy claim, the court's factual determinations are
reviewed under a clearly erroneous standard and its legal conclusions
are reviewed de novo. See McHan, 966 F.2d at 138.
A. Time
The Florida indictment involves behavior beginning on or about
late April 1988 and continuing to November 1991. The initial Mary-
land indictment involves behavior beginning in or about 1990 and
continuing until December 1996. However, the United States changed
the time frame in the second superseding Maryland indictment to
involve behavior beginning in or about 1992 and continuing to
November 1997.
The appellant alleges that the time periods of the Florida and Mary-
land conspiracies overlap; thus the argument goes, the two indict-
ments charge unlawful acts within the same conspiracy. Further, the
appellant contends that the United States attempted to conceal the
duration of this overlap by indicating that the start date of the Mary-
land conspiracy was in 1992 in the second superceding indictment.
Whereas a partial overlap may indicate that only one conspiracy
existed, it does not necessarily require a court to find that a defen-
dant's unlawful acts arose from only one conspiracy. See United
States v. Hoyte, 51 F.3d 1239, 1246 (4th Cir. 1994); MacDougall, 790
F.2d at 1147. The partial overlap here is particularly applicable in this
case because the Maryland conspiracy continued for a period of six
years beyond the expiration of the Florida conspiracy and encom-
passed substantive acts occurring after the appellant's indictment,
arrest, and release in the Florida conspiracy. See United States v.
Nelson, No. 95-5706, 1996 WL 460280, at *3 (4th Cir. Aug. 14,
1996) (per curiam); see also United States v. Ledon, 49 F.3d 457, 460
(8th Cir. 1995) (finding two conspiracies existed when the second
conspiracy continued three and a half years after the end of the first
conspiracy); United States v. Okolie, 3 F3d 287, 290 (8th Cir. 1993)
(holding the continuation of the second conspiracy eight months after
8
the end of the first is "indicative of a separate and ongoing agree-
ment").
The Florida indictment charges that the conspiracy expired in
November 1991. There is no evidence indicating that the appellant
continued his relations with the Florida conspiracy after the demise
of James Hanks in 1991. Additionally, it appears from Nelson's pros-
ecution in South Carolina that Nelson shifted his operation to that
state around the same time. See Nelson, 1996 WL 460280. The fact
that the cardinal suppliers exited the organization in some manner in
1991 suggests that the Florida conspiracy dissolved at this time. The
appellant was arrested based on the Florida indictment on May 8,
1996. He was released on an unsecured personal surety bond. While
on pretrial release, the appellant continued to engage in drug traffick-
ing in Maryland until his arrest under the Maryland indictment on
November 21, 1997. Because the Maryland conspiracy included acts
that extended beyond the appellant's indictment, arrest and release in
the Florida conspiracy, this factor supports a conclusion that two sep-
arate conspiracies existed.
B. Geographical Location
The appellant's involvement in the Florida indictment charges that
the conspirators obtained cocaine from South Florida suppliers, which
would then be distributed to Pennsylvania, Maryland, Georgia, Illi-
nois, and elsewhere. The Maryland indictment charges the appellant
with illegal activities occurring in Maryland and elsewhere. Because
both indictments charge the appellant with conspiring to distribute
drugs in Maryland, the appellant maintains that the United States is
prosecuting him for unlawful acts within the same conspiracy.
In MacDougall, this court recognized that two different conspira-
cies may have similar geographic regions. In that case, both conspira-
cies were heavily involved in the same state and utilized a few of the
same locations for off-loading imported drugs. See MacDougall, 790
F.2d at 1148. However, the conspiracies generally maintained differ-
ent off-load locations and one conspiracy operated more extensively
along the east coast than the other conspiracy. See id. As a result of
these differences, the court found that two conspiracies existed.
9
Similar to MacDougall, while there are some similarities between
the Florida and Maryland conspiracies regarding geography, there are
also several differences. During the Florida conspiracy, the appellant
received drugs at either Philadelphia, Pennsylvania or Greenbelt,
Maryland. Shipments made to either Philadelphia or Greenbelt
derived from Miami, Florida. In contrast, during the Maryland con-
spiracy the appellant largely was receiving kilogram quantities of
cocaine from New York. Indeed, some shipments did arrive from
Florida via Sears during the Maryland conspiracy. However, this
arrangement was maintained for only six months and the conspiracy
existed for five years. For the most part, the origin of the cocaine sub-
stantially differed. Further, while Dickerson set up his own multi-
kilogram distribution organization in Maryland and Virginia during
the late 1980's, in the early 1990's he began selling crack cocaine for
distribution on the Eastern Shore of Maryland and Delaware. Thus,
there are enough differences in the geographic areas to strengthen the
conclusion that two separate conspiracies existed.
C. Similar Co-conspirators
In comparing the two indictments, the only individual named in
both is the appellant, Frank Dickerson. The appellant alleges that the
same people who engaged in the Florida conspiracy also had roles in
the Maryland conspiracy, and thus, the court should look beyond the
mere names on the indictments. Indeed, there appears to be several
individuals who participated in some fashion in both conspiracies.
However, even if the same individuals were participants in both con-
spiracies, when their roles differ such that the organizational structure
is altered, the court is not required to find only one conspiracy
existed. See McHan, 966 F.2d at 138. In McHan, essentially the same
individuals participated in two distinct conspiracies. During the first
conspiracy, McHan and his co-conspirator, Posey, would alternate
buying marijuana in Texas. See id. Posey would then transport the
contraband to North Carolina where the two would divide it in half.
Posey sold to one specified buyer while McHan sold to another. See
id. In the second conspiracy, Posey's only role involved introducing
McHan to his source of drug supply. See id. Further, the buyers in the
original conspiracy did not participate in the second conspiracy. See
id. at 139. Although both McHan and Posey participated in both con-
10
spiracies, because of the change in their roles, this court upheld the
district court's finding that two separate conspiracies existed. See id.
As in McHan, several participants in the Florida conspiracy were
also involved in the Maryland conspiracy. Mark Sears was involved
in both conspiracies, but in different capacities. In the Florida conspir-
acy he ran Nelson's stash house in Miami and occasionally accompa-
nied a courier to deliver cocaine to the organization's customers. He
terminated his involvement with this conspiracy some time around
June 1990. At that time, he endeavored to start his own multi-
kilogram distribution network to North Carolina. Sears maintained a
social relationship with the appellant for several years, but then in
1993, he began supplying the appellant with shipments of cocaine for
approximately six months. Richard Blanks was also involved in both
conspiracies. However, his role evolved from a courier in the Florida
conspiracy to a purchaser in the Maryland conspiracy.3 Henry Nathan
Johnson, Albert Nelson's cousin, also participated to a certain extent
in both conspiracies. In the Florida conspiracy, Johnson primarily
transported proceeds between Miami and Atlanta for Nelson. After
Nelson's arrest, Sears hired Johnson to transport cocaine to North
Carolina and elsewhere. Thus, during the short time that Sears sup-
plied the appellant, Johnson was the courier. Similar to McHan, the
Florida and Maryland conspiracies may have shared the same partici-
pants. However, because most of the co-conspirators's roles evolved
during the course of the Maryland conspiracy, this factor again
strengthens the conclusion that two separate conspiracies existed.
Further, except for the appellant, the shared comrades of the con-
spiracies were not the principal participants. Rather than consider all
of the participants involved between the conspiracies, a more accurate
method for determining whether one or two conspiracies exist is to
consider the principal players. See Nelson, 1996 WL 460280, at *4.
The substantive players generally include the suppliers, contacts, and
buyers. See id. The suppliers in the Florida case were Nelson and
Hanks. In Maryland, Sears and an unknown source from New York
_________________________________________________________________
3 There appears to be one isolated event in which Mr. Blanks per-
formed a favor to the appellant by delivering drugs to another purchaser.
However, his general role in the Maryland conspiracy was that of a
buyer.
11
supplied the appellant with cocaine. The buyers in the Florida con-
spiracy were the appellant, Randall, and Bonds. The prosecutors for
the Florida conspiracy did not extend their investigation beyond the
principal buyers. In the Maryland conspiracy, the appellant estab-
lished regular buyers such as Troy Perkins and Jimmie Jones. Thus,
because the principals differed between the Florida and Maryland
conspiracy, the existence of two conspiracies is likewise strengthened.
D. Overt Acts
The appellant also alleges that the wording of the indictments
charging the appellant with conspiring to distribute cocaine is indica-
tive of the existence of only one conspiracy. The court is unable to
compare the overt acts specified in the indictments because only the
Florida indictment details these acts. Instead, the Maryland indictment
broadly charges the appellant with cocaine distribution activities.
However, the court can consider the conspiracies' joint ventures in
drug trafficking. See MacDougall, 790 F.2d at 1145. If a pattern of
mutual cooperation throughout the participating individuals exists
along with an interdependence between the organizations, then it is
more likely that there was only one conspiracy. See id. at 1146.
There was a brief period of time in the early 1990's when the
appellant was purchasing drugs from the Florida conspiracy and sell-
ing them to his primary buyers in the Maryland conspiracy. However,
these buyers continued to purchase drugs from the appellant after the
dissolution of the Florida conspiracy, denoting that no interdepen-
dence was prevalent between the two organizations because their abil-
ity to buy drugs from the appellant was not hindered. Additionally,
the Florida indictment specified overt acts that would be proven at
trial. This evidence included illegal acts that the appellant committed
between 1988 and 1991. The government proffers that at the Mary-
land trial, the evidence that will be admitted relates to the appellant's
drug trafficking business after 1992. Thus, the appellant would not be
convicted for the same overt acts because of the time lag between the
allegations. This time lag, perhaps of most importance in this matrix,
likewise is strongly indicative of the existence of two conspiracies.
E. Substantive Statutes
The statutory offenses in the two indictments are identical. Both
indictments charge the appellant with violating 21 U.S.C. § 841.
12
However, this coincidence does not mandate a finding of one conspir-
acy because it is conceivable that two distinct conspiracies commit
exactly the same kind of crime. See United States v. Ledon, 49 F.3d
457, 460 (11th Cir. 1995) (recognizing that "the statutory offenses
charged are the same, but in context with the other factors, this is a
minor point, since one can certainly enter two conspiracies to commit
the same type of crime"). This is particularly true when one indict-
ment charges specific acts and the other broadly charges conspiracy
and cocaine distribution activities. See United States v. Nino, 967 F2d
1508, 1512 (11th Cir. 1992). Thus, the fact that both indictments
charge the appellant with the same statutory offense is a minor simi-
larity compared to the other factors. In considering each of the above
factors, and their cumulative effect, it is clear that the court below did
not err in determining the appellant was involved in two separate and
distinct conspiracies.
III.
The court concludes that the district judge was not in clear error in
determining that the appellant engaged in two distinct and separate
conspiracies. Consequentially, the appellant's claim of a double jeop-
ardy violation fails and the United States may prosecute the appellant
on the Maryland indictment. The district court's decision is
AFFIRMED.
13