Filed: Jun. 05, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4885 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC BERNARD DIXON, a/k/a Fat Cat, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:10-cr-00649-PMD-1) Argued: March 22, 2012 Decided: June 5, 2012 Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4885 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC BERNARD DIXON, a/k/a Fat Cat, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:10-cr-00649-PMD-1) Argued: March 22, 2012 Decided: June 5, 2012 Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by d..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4885
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC BERNARD DIXON, a/k/a Fat Cat,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:10-cr-00649-PMD-1)
Argued: March 22, 2012 Decided: June 5, 2012
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: James Thomas McBratney, III, MCBRATNEY LAW FIRM, PA,
Florence, South Carolina, for Appellant. Jeffrey Mikell
Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Matthew J. Modica, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Bernard Dixon was convicted of one count of conspiracy
to possess with intent to distribute cocaine and cocaine base,
eight counts of possession with intent to distribute cocaine and
cocaine base, and one count of possession of a firearm in
furtherance of a drug trafficking crime. Dixon now challenges
the denial of his motion for a mistrial and raises a conflict of
interest claim for the first time on appeal. Finding no
reversible error, we affirm.
I.
A.
In May of 2009, Lieutenant Phillip Ardis of the Clarendon
County Sheriff’s Office began an investigation into possible
narcotics activity. Ardis enlisted the help of Melvin Lawson, a
confidential informant, and Agent Janell McMillan, a member of
the South Carolina State Law Enforcement Division who would
serve as an undercover officer. Through conversations with
Lawson, Ardis determined that Dixon and Randy Gibson would be
targets of the investigation. Subsequently, seven drug buys
were orchestrated, in which Gibson purchased cocaine base
(“crack”) from Dixon at McMillan’s request and with her money.
In the first transaction on June 17, 2009, Lawson called
Gibson and expressed interest in purchasing one ounce of crack.
2
Thereafter, McMillan and Lawson picked up Gibson, drove to
Dixon’s club, Fat Cats (the “club”), and parked their vehicle in
the parking lot. Gibson then entered the club with $1,200 in
cash provided by McMillan and purchased $410 worth of crack
weighing 14.31 grams, which was all that was available for sale
that day. The next three transactions similarly involved Lawson
initiating contact with Gibson; McMillan and Lawson picking up
Gibson; the three of them driving to the club; and Gibson
entering the club to purchase crack. In the second transaction
on June 18, 2009, Dixon was not at the club when they arrived.
Once Dixon arrived, however, Gibson followed Dixon into the club
and purchased 17.31 grams of crack. In the third transaction on
June 24, 2009, Gibson purchased 3.31 grams of crack for $200.
In the fourth transaction on August 6, 2009, Gibson purchased 27
grams of crack for $1200.
Following the fourth transaction, McMillan was able to deal
with Gibson directly without relying on Lawson to initiate
communication or participate in the transaction. In the fifth
transaction on August 28, 2009, Gibson initiated contact by
calling McMillan, and McMillan expressed interest in purchasing
one ounce of crack. McMillan later picked up Gibson, who
explained that Dixon would be at the club when they arrived.
While driving to the club, McMillan observed Gibson call Dixon.
3
Upon arriving at the club, Gibson entered the club and returned
with 18.7 grams of crack purchased for $800.
After the fifth transaction, McMillan was unable to reach
Gibson by phone. Therefore, she drove to an area where she knew
Gibson could be located, and she eventually found him. McMillan
and Gibson then drove to the club where Gibson entered the club
and purchased 20.7 grams of crack for $1,000. In the seventh
and final transaction on September 3, 2009, Gibson called
McMillan, they discussed purchasing two ounces of crack for
$1,950, and they subsequently drove to the club, where Gibson
purchased 34.87 grams of crack. While McMillan never purchased
drugs directly from Dixon in any of the seven orchestrated
transactions, she provided “buy money” to Gibson and observed
Gibson reenter her vehicle with drugs in hand.
Later the same day of the final transaction, the Clarendon
County Sheriff’s Office executed a warrant for the club, where
they found and arrested Dixon. Dixon was in possession of
$3,685.00 in currency, which included some of the marked “buy
money” used by McMillan in the prior drug transactions. Within
the club, law enforcement officers also located 19.22 grams of
cocaine, drug paraphernalia, two firearms, and ammunition. A
third firearm was located under the driver’s seat of Dixon’s
vehicle parked outside of the club.
4
Dixon was indicted on one count of conspiracy to possess
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 846; eight counts of possession with
intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. § 841(a)(1); and one count of possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1). He pled not guilty, and a trial ensued. 1
B.
Dixon was initially represented by Robert Haley of the
Charleston County Federal Public Defender’s Office. For reasons
that are not clear from the record, the presiding federal
magistrate judge relieved Haley as counsel prior to trial, and a
new attorney from the Criminal Justice Act panel was appointed
to represent Dixon.
On the first day of trial, McMillan testified in court
that Lawson, during an interview with law enforcement prior to
the drug transactions, stated that Gibson was a person who could
purchase drugs directly from Dixon. The district court also
permitted the government to introduce into evidence recordings
of the drug transactions. These recordings included phone calls
setting up the transactions and conversations between McMillan,
1
Gibson was also charged in the same indictment as a co-
defendant; however, he pled guilty pursuant to a plea agreement.
5
Gibson, and Lawson while driving to and from the club to
purchase crack. Relevant to this case on appeal, these
recordings also included statements made by Lawson. During the
direct examination of McMillan, the recordings were played in
open court, and McMillan provided narration.
During McMillan’s testimony about the first transaction,
the court and counsel for the parties became aware that Lawson
had indicated that he would not testify despite being under a
government subpoena to do so. 2 The district court appointed Mary
Gordon Baker to represent Lawson. Like Dixon’s initial attorney
Haley, Baker was also employed by the Charleston County Federal
Public Defender’s Office. Upon learning that Lawson was
refusing to testify, counsel for Dixon moved for a mistrial on
the ground that the admission into evidence of statements
attributed to Lawson violated Dixon’s rights under the Sixth
Amendment’s Confrontation Clause. The district court did not
rule on the motion at that time based on the possibility that
Lawson might later in fact testify.
Subsequently, McMillan testified about the other
transactions involving Lawson and narrated the associated
recordings, subject to Dixon’s preserved objection. Lawson
2
Lawson’s refusal to testify was based on threats to his
family and his own poor health. The government was in no way
complicit in Lawson’s unavailability.
6
never testified at trial. Therefore, at the close of evidence,
Dixon renewed his motion for a mistrial. However, the court
denied the motion, focusing on the fact that Lawson’s statements
were admissible not for the truth of the matters asserted but,
rather, to put the co-conspirator’s statements into context.
The jury found Dixon guilty on all counts, and the court
imposed a within-guidelines sentence of 138 months, consisting
of 78 months for each of the nine drug counts, to be served
concurrently, and a minimum 60-month term for the firearm
offense, to be served consecutively. This appeal followed.
II.
Dixon first argues that the appointment of Baker to
represent Lawson created a conflict of interest because Baker
and Dixon’s former counsel Haley both worked for the same
federal public defender’s office. Because this claim was raised
for the first time on appeal, we review for plain error. See
Fed. R. Crim. P. 52(b); United States v. Offill, 666 F.3d 168,
174 (4th Cir. 2011). “[T]he burden is on the defendant in the
plain error context.” In re Gates,
600 F.3d 333, 340 (4th Cir.
2010). To satisfy this burden, Dixon must establish (1) there
was error; (2) the error was plain; (3) the error affected his
substantial rights; and (4) the error seriously affected the
7
fairness, integrity, or public reputation of the trial. United
States v. Olano, 507 U.S. 725, 732 (1993).
An error is plain if it is clear or obvious under current
law. See id. at 734. “This standard is satisfied when the
settled law of the Supreme Court or this circuit establishes
that an error has occurred.” United States v. Neal,
101 F.3d
993, 998 (4th Cir. 1996) (internal quotation marks omitted). In
most cases, a plain error affects substantial rights if the
error was prejudicial. See
Olano, 507 U.S. at 734. An error is
prejudicial under the plain-error standard when there is “a
reasonable probability that, but for the error claimed, the
result of the proceeding would have been different.” United
States v. Dominguez Benitez,
542 U.S. 74, 82 (2004) (alteration
and internal quotation marks omitted).
Dixon frames his argument in terms of certain rules of
professional conduct, and the government cites to others.
Without weighing in on the applicability or significance of
those rules, we conclude that there was no plain error. Even if
appointing Baker to represent Lawson was an error, and even if
that error was plain, Dixon still fails to establish a
reasonable probability that the proceedings would have been
different if an attorney other than Baker had been appointed to
represent Lawson.
8
Dixon attempts to show prejudice by focusing on Baker’s
advocacy skills in preventing Lawson from testifying. Dixon
fails to explain, however, why there is a reasonable probability
that a lawyer from an organization other than the Charleston
County Federal Public Defender’s Office would have provided
materially different advice and advocacy.
In any event, even if Lawson, through the representation of
a different lawyer, had been compelled to testify, and even if
he had chosen not to exercise his right under the Fifth
Amendment to remain silent, there is still no reasonable
probability that the result would have been different. In
attempting to persuade the court of a likelihood that the result
would have been different, Dixon suggests in his opening brief
that the evidence “cannot be considered overwhelming.” We
simply disagree with this contention.
In this case, in addition to Gibson’s testimony, McMillan
testified in detail about her involvement in seven drug
purchases from Dixon; Rudy Tisdale, a member of the Clarendon
County Sheriff’s Office, who was involved in executing the
search warrant for the club, testified about drug paraphernalia
found in the club; Harold Morris, a member of the Clarendon
County Sheriff’s Office at the time of executing the search
warrant for the club, testified about finding a large wad of
cash in Dixon’s pocket; and Quincy Jackson, a former drug dealer
9
assisting the government pursuant to a plea agreement, testified
that he witnessed his former clients frequently entering Dixon’s
apartment with money in hand and leaving with no money.
Additionally, Dixon has already stipulated to the fact that the
substances received by McMillan in each of the seven
transactions were determined to be crack. Because Dixon cannot
show prejudice from the appointment of Baker to represent
Lawson, he cannot satisfy the plain-error standard.
III.
Dixon also challenges the denial of his motion for a
mistrial, arguing that the admission of testimony attributed to
Lawson violated his rights under the Sixth Amendment due to his
inability to confront Lawson about that testimony. “We review
alleged Confrontation Clause violations under the de novo
standard of review.” United States v. Lighty, 616 F.3d 321, 376
(4th Cir. 2010). However, we review the denial of a motion for
a mistrial under an abuse-of-discretion standard. See United
States v. Wallace,
515 F.3d 327, 330 (4th Cir. 2008).
The Confrontation Clause of the Sixth Amendment affords
Dixon the right “to be confronted with the witnesses against
him.” U.S. Const. amend. VI. The Supreme Court has interpreted
this clause to bar the introduction of out-of-court testimonial
statements unless the declarant is unavailable and the defendant
10
has had a prior opportunity to cross-examine the declarant. See
Crawford v. Washington, 541 U.S. 36, 68 (2004). Inherent in
this rule are two limitations. First, the statements at issue
must be testimonial in nature. See Davis v. Washington,
547
U.S. 813, 821 (2006). Second, the statements at issue must be
hearsay. See
Crawford, 541 U.S. at 60 n.9 (“The Clause . . .
does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.”).
Dixon’s mistrial motion focused on two parts of McMillan’s
testimony: (1) Lawson’s statement made during an interview with
law enforcement that Gibson was a person who could purchase
crack from Dixon, and (2) Lawson’s statements heard by the jury
on the recordings of the drug transactions and through
McMillan’s narration of the recordings. We address this latter
testimony first.
A.
With regard to Lawson’s statements on the recordings and
McMillan’s narration of the recordings, the district court
concluded that they were not hearsay because they were
admissible not for the truth of the matters asserted, but rather
to provide context to the conversations between Lawson, Gibson,
and McMillan. We have previously held that out-of-court
statements may be admissible to provide context to
conversations. See United States v. Wills, 346 F.3d 476, 490
11
(4th Cir. 2003). The decision to admit the evidence was also
supported by United States v. Hendricks, 395 F.3d 173 (3d Cir.
2005). In Hendricks, the Third Circuit considered the
admissibility of face-to-face conversations between several
defendants and a confidential informant who was wearing a taping
device at the time but was later unavailable to testify. That
court found that the admission of statements made by the
confidential informant did not violate the Confrontation Clause
because the statements “put the statements of the other parties
to the conversations into perspective and ma[d]e them
intelligible to the jury.”
Id. at 184 (internal quotation marks
omitted).
We find the Third Circuit’s reasoning compelling. In this
case, not only did the district court indicate that it would
limit Lawson’s out-of-court testimony to the specific purpose of
providing context, but it also gave a limiting instruction to
the jury. See J.A. 101 (“[Hendricks] held . . . that the
statements [of a confidential informant] can be entered to put
the co-conspirators’ nontestimonial statements in context, but
not for the truth of the matter. And I’m going to allow it for
those same purposes.”); J.A. 448 (“Any words of the confidential
informant, Melvin Lawson, were admitted for the sole and limited
purpose of providing context to both the undercover agent’s and
Randy Gibson’s testimony.”); see also United States v. Powers,
12
59 F.3d 1460, 1468 (4th Cir. 1995) (noting that “cautionary or
limiting instructions generally obviate . . . prejudice”).
Rather than disputing the purpose for which these
statements were admitted, Dixon argues that the statements were
testimonial. Whether the statements were testimonial is
immaterial, however, because even if they were testimonial, the
Confrontation Clause does not bar their admission “for purposes
other than establishing the truth of the matter asserted.”
Crawford, 541 U.S. at 60 n.9; see also
Hendricks, 395 F.3d at
183 (“[E]ven if we were to hold that [the CI’s] statements
within the conversations are themselves testimonial, . . . such
an outcome would not preclude the United States from introducing
[the CI’s] statements for a purpose other than establishing the
truth of the matters contained therein.”). 3 Accordingly, because
this testimony was not admitted for the truth of the matters
asserted, it was not hearsay and its admission did not violate
the Confrontation Clause. The district court, therefore, did
not abuse its discretion in denying Dixon’s motion for a
mistrial with regard to this testimony.
3
Because we find that the statements at issue were not
admitted for the truth of the matters asserted, we do not
address whether they were testimonial.
13
B.
We turn finally to Lawson’s statement that Gibson could
purchase drugs from Dixon. Assuming, but without deciding, that
the admission of this statement violated the Confrontation
Clause, we find that the error was harmless. See Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986) (“Confrontation Clause
errors[ are] subject to . . . harmless-error analysis.”). “When
reviewing the erroneous admission of [evidence], the appellate
court . . . simply reviews the remainder of the evidence against
the defendant to determine whether the admission of the
[evidence] was harmless beyond a reasonable doubt.” Arizona v.
Fulminante,
499 U.S. 279, 310 (1991). Factors to consider in
determining whether the error was harmless include “the presence
. . . of evidence corroborating . . . the testimony” and “the
overall strength of the prosecution’s case.” Van
Arsdall, 475
U.S. at 684.
In this case, the assertion that Gibson could purchase
crack from Dixon was corroborated by significant evidence
proving that Gibson could in fact purchase crack from Dixon.
Moreover, the evidence of Dixon’s guilt was overwhelming.
Therefore, even if the district court erred in admitting the
statement at issue, which we assume without deciding, we find
any error to be harmless.
14
IV.
For the foregoing reasons, we affirm Dixon’s convictions.
AFFIRMED
15
