[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 10, 2007
No. 06-13445 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00016-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
_________________________
(April 10, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
A jury convicted appellant of knowingly and intentionally making his
residence available from 1995 through July 2005 for the purpose of distributing
drugs in violation of 21 U.S.C. § 856(a)(2), and the district court sentenced him to
prison for a term of 170 months. He now appeals, seeking a new trial on the
grounds that the district court abused its discretion (1) in precluding him from
introducing into evidence payroll records purportedly indicating that he was
working at the time an undercover agent said he observed him at his residence
during a controlled drug buy, and (2) in limiting his attorney’s cross-examination
of prosecution witnesses.1 We find no merit in either ground and therefore affirm.
The evidence of guilt in this case was overwhelming. The evidence – much
of it consisting of the testimony of drug traffickers and users – established that
throughout the time frame indicated in the indictment, appellant’s residence was
used to cook crack cocaine and as a place where drug sellers and buyers met to
consummate their transactions. On many occasions appellant was present and
tacitly, if not explicitly, approved of what was going on.
Appellant was a city firefighter whose working hours were such that he was
able to hold several odd jobs on the side: car detailing (which he did in his yard),
apartment maintenance, floor waxing and lawn work. His residence was, as police
1
Appellant’s attorney objected to the court’s action in limiting cross-examination with
respect to one witness only, Gantry Habersham. As for the other witnesses, appellant voiced no
objection.
2
officers described it, a “hot spot” for sales of crack cocaine, “a bee-hive of
activity,” and “one of the hottest locations in town” for drug trafficking. The
trafficking spanned at least a decade. One drug user bought crack at appellant’s
home at least 40 or 50 times from 1994-1997, and a Jamaican drug dealer delivered
narcotics to the house on approximately 100 occasions from 2002-2003. Given
the frequency of drug dealing at appellant’s residence, officers obtained two search
warrants and videotaped their execution. The first search occurred in 1995, at
eleven o’clock at night, and uncovered crack cocaine, marijuana, drug
paraphernalia, a .380 caliber pistol, and cash.2 Three individuals were arrested,
charged with drug offenses, and convicted.3
Drug trafficking at appellant’s residence abated for a while following this
incident, but by 1998, the police had enough concrete evidence of drug dealing
there to obtain another search warrant. Executing the warrant, the officers found
crack cocaine and various items of drug paraphernalia. They arrested appellant
later in the day; he told them that he knew drugs were being dispensed at his home,
but that he had no control over it.
2
Appellant was not present when the officers arrived to execute the search warrant. But
his children were. They called him at the fire station, and he arrived at the scene a short time
later.
3
Before leaving appellant’s residence that evening, a Georgia Bureau of Investigation
agent told appellant that his house was “a known drug distribution area,” subject to forfeiture,
and cautioned him to “take control” of the place.
3
Drug dealing at appellant’s residence continued. Drug users testified that
when they went to the house to purchase drugs, appellant would call his children or
his daughter’s boyfriend – so they could handle the deal. If they failed to respond,
he would sell the users the crack cocaine they were seeking.
I.
Appellant’s first ground for a new trial is that the court abused its discretion
in barring the admission of Pawn City payroll records which, appellant submits,
indicated that he was working during the afternoon of July 8, 2004, when,
according to a DEA agent’s testimony, he was present at his residence while the
agent and a confidential informant (CI) were there to purchase two ounces of crack
cocaine.4 The payroll records showed that, on July 8, appellant was paid $65 for
unspecified work at one Pawn City location and $25 for cutting grass at another
Pawn City location.5 The court excluded the records in response to the
Government’s objection that appellant, in waiting until the second day of trial –
during the defendant’s case – had failed to produce them as required by Federal
Rule of Criminal Procedure 16.
4
The agent and (CI) purchased the crack from appellant’s daughter’s boyfriend, Kerry
Lipsey, who cooked it in appellant’s kitchen while they waited. Gantry Habersham, a drug
dealer (unconnected to the controlled buy), said that appellant was present in the kitchen while
Lipsey was cooking the crack.
5
No one at Pawn City could testify that appellant worked for Pawn City on July 8, and if
he did for how long, or was simply paid that day.
4
The parties had reciprocal discovery obligations under Rule 16. A district
court has the authority to remedy a party’s failure to comply with the rule’s
discovery requirements, including barring “that party from introducing the
undisclosed evidence.” Fed. R. Crim. P. 16(d)(2)(C). Appellant’s attorney offered
the court no justifiable reason for his delay in providing the Government with the
payroll records. The records were readily available; in fact, counsel had been to
Pawn City to retrieve the records yet failed to obtain them and turn them over to
the prosecution. Allowing the records to come before the jury would have
prejudiced the Government. Although the Government could have asked the court
for a recess so it could examine the records and prepare to meet them, the trial was
about to conclude – as soon as appellant rested his defense. Under the
circumstances at hand, we find no abuse of discretion in the court’s refusal to allow
the records into evidence.
Even if we were to assume that the court should have allowed the records to
come before the jury, we would be hard pressed to hold that the court’s ruling
prejudiced appellant’s substantial rights. As noted above, the evidence of guilt was
overwhelming, and the July 8 episode was merely one of many drug transactions
that spanned a ten-year period of continuous drug trafficking.
II.
5
Appellant complains of the court’s limitation of his cross-examination of
prosecution witnesses. The cross-examination at issue concerned statements
appellant made to police officers regarding his knowledge of the drug trafficking
taking place at his residence. As noted in the margin, appellant only objected to
the court’s limitation of his cross-examination of Gantry Habersham. His attorney
cross-examined Habersham about his prior felonies and that his cooperation with
the Government led to charges being dropped.6 On several occasions, the
Government objected to counsel’s questions – usually because Habersham had
either already answered them or was obviously unable to do so – and the court
sustained the objections. On the second day of trial, counsel argued that the court
should have allowed him further latitude in cross-examining Habersham about the
criminal charges that had been lodged against him. In response, the court stated
that counsel could recall Habersham to the witness stand for that purpose. For
reasons not disclosed by the record, counsel chose not to recall him.
We find no abuse of discretion in the court’s handling of appellant’s cross-
examination of this witness. Counsel was fully able to impeach Habersham’s
credibility. In the end, in light of the overwhelming evidence of guilt, further
cross-examination would have done nothing to avoid an adverse verdict.
6
The court properly stopped counsel from impeaching Habersham with an inadmissible
DEA report.
6
In sum, we find no lawful reason for granting appellant an new trial.
AFFIRMED.
7