United States v. Donald Dickerson , 403 F. App'x 354 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 08, 2010
No. 09-16137 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00036-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD DICKERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 8, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Donald Dickerson appeals his conviction and 37-month sentence for making
a false declaration in a United States court proceeding, 18 U.S.C. § 1623(a). No
reversible error has been shown; we affirm.
Dickerson previously had been convicted of managing a drug establishment,
in violation of 21 U.S.C. § 856(a)(2). After Dickerson was sentenced on this
charge, he filed a motion for disqualification of the district court judge and
attached an affidavit claiming that Dickerson had not been present at the jury
selection proceedings in his drug case. This affidavit formed the basis of the
instant prosecution.
Before trial, Dickerson filed a motion requesting that he be allowed to
contact selected, excused, and alternate jurors from his earlier drug case to get
information about his claim that he was not present at jury selection in that earlier
case and to determine if it was necessary to call the jurors as witnesses in his
defense. The district court denied the motion. On appeal, Dickerson argues that
the court’s denial of his motion denied him access to eye witnesses and violated his
due and compulsory process rights.1
To establish a defense, a defendant has a due process right to have access to
1
We review de novo a defendant’s claim that his constitutional rights were violated.
United States v. Terry, 60 F.3d 1541, 1543 (11th Cir. 1995).
2
prospective witnesses. United States v. Brown, 555 F.2d 407, 425 (5th Cir. 1977).
In its order denying Dickerson’s motion, the district court cited to caselaw about
the court’s discretion to disallow post-trial juror interviews. But Dickerson did not
seek to contact the jurors in their roles as jurors, but just as witnesses who could
provide testimony in support of his defense: the truth of his declaration. So, the
court did deny Dickerson access to prospective witnesses.
But the error by the district court does not entitle Dickerson to reversal. A
defendant seeking reversal on the basis of access to witnesses “must allege specific
demonstrable prejudice to set forth a constitutional claim.” United States v. Pepe,
747 F.2d 632, 654-55 (11th Cir. 1984). Dickerson has set forth no such prejudice
because he presented no evidence to suggest that a restricted witness would have
provided testimony to help his defense. Dickerson, in fact, called some jurors to
testify; and each testified either that Dickerson was present at the jury selection
proceeding or that the juror did not remember whether Dickerson was present. He
proffers no witness who would have testified he was not present during the jury
selection process. See United States v. Avila-Dominguez, 610 F.2d 1266, 1269-70
(5th Cir. 1980) (reversal is unwarranted where the record is completely devoid of
anything to suggest that the testimony of a restricted witness would have been
helpful to defendant).
3
Dickerson next challenges the sufficiency of the government’s evidence. He
argues that the evidence failed to conform to the indictment because the
government presented no evidence to show that his statement was sworn under
oath.2 We review this challenge only for a manifest miscarriage of justice because
Dickerson failed to renew his motion for judgment of acquittal at the end of all the
evidence. United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994); see also
United States v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985) (to find manifest
injustice, we must conclude that the evidence on a required part of the offense was
“so tenuous that a conviction would be shocking”). Dickerson also argues that
insufficient evidence existed to show that his statement was material and
knowingly made. We review this claim for plain error because Dickerson raises it
for the first time on appeal. United States v. Hunerlach, 197 F.3d 1059, 1068 (11th
Cir. 1999).
We reject Dickerson’s sufficiency challenges. To sustain a conviction under
section 1623(a), the government must prove beyond a reasonable doubt that the
statement was (1) made under oath, (2) false, (3) material, and (4) made with
knowledge of its falsity. United States v. Cross, 638 F.2d 1375, 1378 (5th Cir.
2
A claim that a material variance existed between the indictment and the proof at trial is
one form of challenge to the sufficiency of the evidence. United States v. Jenkins, 779 F.2d 606,
616 (11th Cir. 1986).
4
1981). Section 1623 “does not require the government to prove who administered
the oath, nor whether that person was competent or authorized to administer it.
Instead, [it] merely requires that the government prove that the maker of a
knowingly false declaration before a court be under oath at the time of the
statement.” United States v. Molinares, 700 F.2d 647, 651-52 (11th Cir. 1983).
Here, the indictment charged that Dickerson filed “an affidavit he made under oath
. . . in which [he] swore” that he was not present at his jury selection. And
Dickerson’s signed and notarized affidavit admitted at this trial stated that he had
been “sworn on [his] oath.” Thus, the government’s presentation of Dickerson’s
signed and notarized affidavit, in which he stated that he came before the court
sworn under oath, sufficiently supported the oath element of the offense and
conformed to the indictment. See id.Sufficient evidence also existed to show that Dickerson’s statement that he
was not present at his jury selection was material and knowingly made. The test
for materiality is whether the false statement is capable of influencing the tribunal
on the issue before it. United States v. Cosby, 601 F.2d 754, 756 n.2 (5th Cir.
1979). “The statements need not be material to any particular issue, but may be
material to collateral matters that might influence the court.” United States v.
Damato, 554 F.2d 1371, 1373 (5th Cir. 1977). Here, trial testimony revealed that,
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if Dickerson’s claim were true, he would have been entitled to a new trial in his
drug case. Testimony also revealed that the district court had cautioned Dickerson,
before he submitted his sworn affidavit, that evidence supported he was present at
the earlier jury selection and that persisting with his claim to the contrary could
result in his prosecution for perjury. Drawing all reasonable inferences on these
facts in the government’s favor, the government met its burden of proof; and there
was no error, plain or otherwise.
Dickerson also challenges the reasonableness of his 37-month sentence,
arguing that the district court enhanced his sentence to the high end of the
guidelines range because of his prior conviction. We evaluate the reasonableness
of a sentence under an abuse-of-discretion standard. Gall v. United States,
128 S.Ct. 586, 597 (2007).
We conclude that Dickerson’s 37-month, within-range, sentence was
reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)
(noting that “ordinarily we would expect a sentence within the Guidelines range to
be reasonable”). The court stated that it had considered the arguments of the
parties and saw no reason to depart from the guidelines range in Dickerson’s case.
The court also noted that the sentence was at the high end of the guidelines
range because Dickerson had put the government to its burden in this case and he
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had been dishonest. See 18 U.S.C. § 3553(a) (listing factors for the court to
consider in imposing sentence, including the guidelines range, the nature and
circumstances of the offense, and the characteristics of the defendant). The district
court’s statement of reasons was sufficient. See United States v. Rita, 127 S.Ct.
2456, 2468-69 (2007) (a lengthy explanation is not necessarily required when a
judge decides to follow the guidelines in a particular case, especially where a
sentencing judge has listened to the arguments of the parties, considered the
supporting evidence, and was aware of the special conditions of the defendant).
Dickerson’s argument that the court considered his prior drug conviction in
determining the sentence for the instant offense plainly is belied by the record.
The court specifically noted that the 37-month sentence was “totally independent”
of his previous sentence. Dickerson has not carried his burden of showing that his
sentence is unreasonable. See Talley, 431 F.3d at 788.
AFFIRMED.3
3
We reject Dickerson’s claim of prosecutorial misconduct based on the prosecutor’s
remark during closing argument that Dickerson was a drug dealer. While Dickerson argues that
the comment prejudiced him, he has not provided us with an adequate record to evaluate the
remark’s prejudicial effect because the record contains no copy of the closing arguments. Loren
v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (where an appellant fails to provide all the
evidence that the trial court had before it when making contested evidentiary rulings, we cannot
review the district court’s decision for error and must affirm); United States v. Jacoby, 955 F.2d
1527, 1541 (11th Cir. 1992) (prosecutorial misconduct is viewed in the light of the facts of the
case and the context of the whole record).
7