United States v. Dickerson

UNITED STATES of America, Plaintiff-Appellee,

v.
Frank DICKERSON, a.k.a. Lane, a.k.a. Frank Dixon, Defendant-Appellant.

No. 98-5829.

United States Court of Appeals,
Eleventh Circuit.

April 16, 2001.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI,* Judge.(No. 96-3760-CR-DMM),
Donald M. Middlebrooks, Judge.
RESTANI, Judge:
Frank Dickerson ("Dickerson") appeals his conviction of conspiracy to possess cocaine with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1994). In his appeal pursuant to 28
U.S.C. § 1291, Dickerson alleges prosecutorial misconduct, improper refusal by the District Court to strike

a juror for cause, erroneous evidentiary rulings, an unlawfully coercive Allen charge given to the jury, and

insufficient evidence to support conviction under the present charge. We affirm.

I. Facts
From early 1988 Albert Nelson ("Nelson") operated a cocaine distribution conspiracy in the

southeastern United States. See United States v. Nelson, No. 97-4741 (4th Cir.1998) ("Nelson II"), cert.

denied, 528 U.S. 1197, 120 S.Ct. 1261, 146 L.Ed.2d 117 (2000); United States v. Nelson, No. 95-5706 (4th

Cir.1996) ("Nelson I"). The Government obtained an indictment in October 1989 in Georgia against Nelson

for conspiracy to distribute cocaine with intent to distribute. The charged conspiracy lasted from 1984 to
1989 and took place in Georgia, Florida, "and elsewhere." Nelson pled guilty to this conspiracy charge in

1992 and was incarcerated for 58 months. See Nelson I.

In 1995 the Government indicted Nelson in South Carolina upon learning that Nelson had been
involved in cocaine distribution in states not covered by the 1989 indictment. Throughout his trial and even

after his conviction, Nelson claimed that the new indictment violated the Double Jeopardy Clause of the Fifth

Amendment. See Nelson II. The trial court, upheld by the United States Court of Appeals for the Fourth

*
Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.
Circuit, concluded that another prosecution was appropriate because of the multiple, independent conspiracies

operated by Nelson in the different jurisdictions. See Nelson I.

In 1996, the Government charged another conspiracy against Nelson, Dickerson, Richard Williams
("Williams"), and two other defendants. The conspiracy charged covered late April 1988 to at least

November 1991, but identified only one overarching conspiracy to distribute cocaine along the eastern

seaboard. Testimony at trial, including that of the Government's key witness Williams, who had entered into
a plea agreement, revealed the following additional information:

(1) Nelson was assisted in his criminal enterprise by Williams, who served as a courier in the cocaine

distribution network. To facilitate Williams' deliveries, Nelson provided certain vehicles to Williams, in
particular, a 1983 Cadillac Eldorado equipped with a secret compartment on the floorboard of the car.

Beginning in late 1988, Williams delivered cocaine to Dickerson in Philadelphia. During one trip to

Philadelphia in 1988, Dickerson accepted delivery of the cocaine at Williams' hotel. The arranged transaction
took place after Dickerson arrived at the hotel, and the two men retrieved the cocaine from Williams' car in
the hotel parking lot. Williams continued making cocaine deliveries to Dickerson regularly through the

spring of 1990.
(2) After Nelson's March 1990 arrest following the October 1989 indictment, James Hanks assumed
Nelson's responsibilities to manage the operations of the cocaine distribution conspiracy. Notwithstanding
Nelson's arrest, Dickerson, Williams and Nelson financed the purchase of a house in Miami under the name
"Frank Dixon." Hanks then assisted Dickerson and Williams in paying the mortgage on the house, which

served as Dickerson's residence during his visits to Miami.
(3) Williams was stopped by the police during one of his deliveries in Georgia in September 1991.

Inside Williams' car they discovered a small amount of marijuana, just under $20,000 cash, and a

telephone/address book belonging to Hanks. Responding to a call from a Georgia trooper about the Williams

stop, DEA Special Agent Kenneth McLeod reviewed the items removed from Williams' car and photocopied
Hanks' telephone book before returning it to Williams.

(4) Hanks died in October 1991, and his funeral was attended by Williams, Kirkland, and Dickerson.

At some point during the funeral, the three men met to discuss the deliveries that remained to be made after
Hanks' death.

(5) Although Mark Sears ("Sears") had also worked as a courier for Nelson from 1987 to 1990, the

Government introduced Sears to testify as to his relationship with Dickerson during the time period after the
charged conspiracy had ended. After Hanks had taken over Nelson's operation, Sears operated his own
cocaine distribution network. Sears supplied Dickerson with cocaine from mid-1993 to early 1994. In
addition, Dickerson told Sears that the 1983 Cadillac Eldorado that had belonged to Nelson was now in

Dickerson's possession.

II. Prosecutorial Misconduct as Violations of Due Process
A. Giglio Claims
Dickerson first claims the Government knowingly presented perjured testimony, thereby violating

his Fifth Amendment Due Process rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d

1217 (1959), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and their progeny.

Dickerson cites two instances of false testimony presented by the Government's key witness,
Williams, and notes the Government's failure to correct the perjury before the court.1 First, when defense
counsel questioned Williams as to the preparation he had received from the prosecution before testifying in

the Dickerson trial, Williams denied being prepared.2 Subsequently, during cross-examination of Agent

1
Dickerson also attempts to argue that the Government violated the tenets of Giglio and Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by refusing to disclose a possible promise
of immunity made to Williams by Assistant U.S. Attorney Marvin Caughman, and by allowing Williams
to testify falsely that he did not know why he had not been prosecuted in other jurisdictions. See
Dickerson Reply Br. at 7. Because this argument was raised for the first time in Dickerson's Reply Brief,
however, we decline to consider it here. See United States v. Martinez, 83 F.3d 371, 377 n. 6 (11th
Cir.1996), cert. denied, 519 U.S. 1133, 117 S.Ct. 998, 136 L.Ed.2d 877 (1997); United States v. Oakley,
744 F.2d 1553, 1556 (11th Cir.1984).
2
The following exchange took place between defense counsel and Williams:

Q: By the way, before you came in and testified here yesterday and today, did you spend
time with Agent Skrak going through all of these reports?

A: No, I did not.
Q: Did you go through them with anybody?

A: No, I did not.
Q: You had no preparation, just came in here cold and testified?

A: Yes.

Q: And you never—did you not meet with an agent or a prosecutor to go over your
proposed testimony, is that what you are telling us under oath?

A: That's correct.
R9-186 to 187.
Skrak, defense counsel questioned whether the Agent and prosecutors had met with Williams prior to trial
"to prepare him for his day in court." R12-123. Agent Skrak responded that such preparation had taken

place, but on re-direct examination, he clarified that Williams' preparation did not include "tell[ing] Mr.

Williams what to say." R12-125.
Dickerson also points to Williams' testimony about his drug use as further evidence of perjured

testimony uncorrected by the prosecution. When asked about his drug use, Williams testified as follows: that
he stopped using cocaine in 1988, then "started back using [it] in 1995 to 1996," R9-12 to 13, 47; that he had

only used cocaine "to stay awake," R9-165, 168 to 169; that he had never been treated for drug abuse, R9-

182; and that he had tested positive only once for marijuana and cocaine since his arrest in this case, R9-
47,50. At Williams' sentencing hearing, his counsel acknowledged that Williams had also tested positive for

drug use only eight days before the opening of Dickerson's trial and that Williams had indeed entered a drug

treatment program for thirty days. R17-6, 27 to 28

A successful Giglio challenge requires that the defendant establish that the prosecutor " 'knowingly

used perjured testimony, or failed to correct what he subsequently learned was false testimony,' and that the

falsehood was material." Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir.1999) (quoting United States

v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995)), cert. denied, --- U.S. ----, 121 S.Ct. 149, 148 L.Ed.2d 99

(2000). The materiality element is satisfied if the false testimony " 'could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.' " Strickler v. Greene, 527 U.S.

263, 290, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115

S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).3
Even were we to accept Dickerson's contention that Williams testified falsely as to his pre-trial

preparation by the prosecution4 and his prior drug use, neither violation, when viewed independently or in

3
Although Strickler discussed the materiality requirement in the context of a Brady violation, that is, a
claim that the prosecution had not provided potentially exculpatory evidence to the defense, the
articulated standard nevertheless remains relevant for the evaluation of materiality in a Giglio claim. See
Strickler, 527 U.S. at 299, 119 S.Ct. at 1957 (Souter, J. concurring in part and dissenting in part) ("We
have treated 'reasonable likelihood' as synonymous with 'reasonable possibility' and thus have equated
materiality in the perjured-testimony cases with a showing that suppression of the evidence was not
harmless beyond a reasonable doubt.") (citing United States v. Bagley, 473 U.S. 667, 678-680 & n. 9, 105
S.Ct. 3375, 3381-82 & n. 9, 87 L.Ed.2d 481 (1985)).
4
It is not clear that Williams committed perjury, particularly with regard to pre-trial preparation. As
noted by the district court judge, the defense counsel's question—"Did you meet with an agent or
prosecutor to go over your proposed testimony?"—could be understood to ask whether the witness had
been "coached." R12-134. Thus, Williams' negative response is arguably a denial of having been unduly
conjunction with each other, can be said to "undermine confidence in the verdict." Any prejudice from

Williams' arguably misleading affirmative response when asked if he had come into court "cold" to testify

was dispelled during the cross-examination of Agent Skrak, who clearly stated that he and other Government

agents had met with Williams prior to Williams' testimony. Cf. Hays v. Alabama, 85 F.3d 1492, 1499 (11th

Cir.1996) (finding insufficient materiality where, inter alia, cross-examination elicited statements

acknowledging inconsistency with testimony on direct examination), cert. denied, 520 U.S. 1123, 117 S.Ct.

1262, 137 L.Ed.2d 341 (1997).
At trial the Government did not correct Williams' testimony regarding his prior drug use; the

falsehood became apparent only at Williams' sentencing hearing three months later. Thus, defense counsel

was unable to highlight the falsity in impeaching Williams during cross-examination. Nevertheless, Williams

did testify that he had tested positive once for drug use after his arrest. See R9-46-, 72-76, 105-108. Because

Williams effectively admitted to ongoing drug use, an admission of an additional positive drug test

subsequent to his arrest would not have tarnished his character or credibility further to any significant degree.
Furthermore, the defense emphasized numerous possible inconsistencies in Williams' testimony during

cross-examination. See R9-46 to 50, 72-76, 105-108. Thus, an additional instance of alleged perjury would

have been of minimal significance in the jury's assessment of Williams' credibility, and certainly not enough

to raise the reasonable possibility of a different verdict. See Hays, 85 F.3d at 1498. Therefore, because we

find that the uncorrected, allegedly perjurious statements do not "undermine confidence in the verdict,"

Strickler, 527 U.S. at 290, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566), we reject

Dickerson's Giglio challenge. Cf. Strickler, 527 U.S. at 289-92, 119 S.Ct. at 1952-53 (finding insufficient

materiality even where "[w]ithout a doubt, [witness'] testimony was prejudicial in the sense that it made
petitioner's conviction more likely than if she had not testified, and discrediting [witness'] testimony might

have changed the outcome of the trial").

B. Inconsistent Theories in Multiple Prosecutions for the Same Crime
Dickerson's second Due Process claim rests on a comparison of the theories employed by the

prosecution when charging Dickerson in the trial below and his co-conspirators in the previous trials in

Georgia and South Carolina. The Government's cases in Georgia and South Carolina rested on Nelson's

influenced rather than, as Dickerson contends, an answer to the simple query whether he had met at all
with any Government agent before the trial.
participation in multiple cocaine distribution conspiracies covering distinct geographic regions of the United

States, including Florida. See Nelson I. The Government in this case indicted Nelson and Dickerson, among

others, for their involvement in one overarching conspiracy "to distribute cocaine from South Florida

throughout the eastern seaboard and midwest states of the United States," including Georgia and South

Carolina. R1-30-2. Essentially, Dickerson claims that the fundamental inconsistency between the theory of
the case underlying the South Carolina prosecution and the theory used to prosecute him here constitutes

prosecutorial misconduct and gives rise to a violation of his Due Process rights.
Dickerson claims his prosecution falls within the line of cases raising concerns about the Due Process

implications of separate prosecutions for the same crime under contradictory theories or inconsistent factual

premises. See, e.g., Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995) (Stevens, J.,

dissenting from denial of cert.); Thompson v. Calderon, 120 F.3d 1045, 1055 (9th Cir.1997) (Fletcher, J.,

writing for en banc plurality), rev'd on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998);

Drake v. Kemp, 762 F.2d 1449, 1470 (11th Cir.1985) (Clark, J., concurring), cert. denied, 478 U.S. 1020, 106

S.Ct. 3333, 92 L.Ed.2d 738 (1986).5 The facts of this case, however, do not support such a claim.6
Dickerson has failed to establish the type of inconsistency here that was present in the cases cited.

The prosecution in Jacobs, Thompson, and Drake did assert a new theory or factual premise inconsistent with

that presented in a previous trial for the same crime against another defendant. In those cases, however, the

inconsistency in the subsequent presentation was essential in order to prosecute the individual in question.
In other words, the Government in those subsequent cases could not have prosecuted the remaining individual

5
Similarly, the Eighth Circuit recently held that "the use of inherently factually contradictory theories
violates the principles of due process." Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.), cert. denied sub
nom. Gammon v. Smith, --- U.S. ----, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000).
6
Dickerson also quotes extensively from United States v. Kattar, 840 F.2d 118 (1st Cir.1988), to
emphasize the impropriety of the Government's inconsistent actions in this case. The portion of the
opinion relied upon by Dickerson, however, addressed the Government's alleged presentation of false
testimony, a separate argument raised by Dickerson infra. The Kattar court highlighted the constitutional
problems that may arise when the Government introduces testimony that it knows to be false. See 840
F.2d at 128 (discussing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and its
progeny). The discrepancy between what the Government believes is true and what it knowingly presents
as witness testimony, is an understood constitutional violation under Napue. In contrast, neither the
Supreme Court nor this court has addressed the constitutional implications of inconsistent litigation
positions taken by the Government against defendants being tried separately for the same crime. The
Kattar court recognized the difference between these two issues, addressing the presentation of false
testimony in one section of its opinion while dismissing the challenge to the Government's differing
litigation positions in a footnote. Compare 840 F.2d at 127 with 840 F.2d at 129 n. 7.
for the same crime had the Government maintained the theory or facts argued in the earlier trial.7 Even if,
as Dickerson alleges, the Government argued a theory in the underlying prosecution that was inconsistent
with that presented in the trials of Dickerson's co-conspirators, the change in the prosecution's argument was

not undertaken in order to allow the Government to prosecute Dickerson. Dickerson would have been

susceptible to prosecution as a conspirator whether the Government alleged the existence of multiple

conspiracies, as in the trials of Dickerson's co-conspirators, or one overarching conspiracy, as in Dickerson's

trial. Cf. United States v. Paul, 217 F.3d 989, 998 (8th Cir.2000). (rejecting Due Process claim based on

inconsistent prosecutorial arguments because defendant "could have been convicted under either theory"),

reh'g en banc denied.

Underlying Thompson and Drake—and implicit in Justice Stevens' dissent in Jacobs—is the concern

that the Government would attempt to prosecute and convict multiple defendants for the same crime in the
hopes that one of them is the true perpetrator of the crime. "The state cannot divide and conquer in this

manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed search

for truth." Thompson, 120 F.3d at 1059 (quoting Drake, 762 F.2d at 1479). No such concerns of "mere

gamesmanship" are implicated here, however, where any alleged inconsistency in the Government's
conspiracy theory had no impact on the likelihood of Dickerson being convicted.

III. Juror Challenge
Dickerson next challenges the District Court's refusal to strike a juror for cause. Dickerson claims
that this juror, Gabriel Fortun ("Fortun"), evinced such bias as to warrant further questioning by the District
Court Judge before allowing the juror to serve.8 The Government responds that the District Court's

7
In Jacobs and Drake, the prosecution at defendant A's trial had argued that the murder was
committed by A and that B did not participate in the actual killing. At defendant B's subsequent trial, the
prosecution, relying on testimony provided by (now-convicted) A, insisted that B was the sole murderer.
See Jacobs, 513 U.S. at 1068, 115 S.Ct. at 711; Drake, 762 F.2d at 1471-75. In Thompson, the
prosecution in defendant A's trial claimed that A & B had been at the murder scene together, but that only
A had the motive to kill the victim, and that, in fact, A did commit the murder. Following A's conviction,
the prosecution argued at defendant B's trial that B had been in the victim's apartment alone, B held
sufficient motive to perpetrate the crime, and B acted alone when killing the victim. See 120 F.3d at
1056-57.
8
In addition, Dickerson originally argued that the District Court erred in refusing to excuse certain
jurors for cause, thereby forcing Dickerson to exhaust his peremptory challenges by the time juror Fortun
appeared, against whom a peremptory challenge would have been employed. Such error, according to
Dickerson, constituted a violation of Due Process. See Dickerson Initial Br. at 27-30. At oral argument
Dickerson addressed the Supreme Court's recent decision in United States v. Martinez-Salazar, 528 U.S.
304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), holding that a defendant's Due Process rights are not
necessarily implicated when a District Court's improper refusal to strike a juror for cause results in an
questioning of Fortun was sufficient to demonstrate the juror's ability to render a fair decision based upon the
evidence presented at trial.

The decision to strike a prospective juror for cause "upon a suggestion of partiality is within the

sound discretion of the trial judge." E.g., United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.1999) (citation

omitted). The trial judge evaluating the fitness of prospective jurors must consider whether the jurors "had

such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467

U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (citing Irvin v. Dowd, 366 U.S. 717, 723, 81

S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)). In particular, when reviewing juror impartiality, this court has

focused on whether (1) the juror may be affected by matters not in evidence, and (2) the juror may presume

guilt rather than innocence. See Depree v. Thomas, 946 F.2d 784, 790 n. 11 (11th Cir.1991) (discussing

United States v. Martin, 749 F.2d 1514 (11th Cir.1985)). Thus, we review a district court's denial of a request

that a juror be stricken from a jury panel for cause to determine whether there is "fair support" in the record

for district court's conclusion that the juror would be impartial. See, e.g., Bailey v. Bd. of County Comm'rs,

956 F.2d 1112, 1128-29 (11th Cir.), cert. denied sub nom. Hayes v. Bailey, 506 U.S. 832, 113 S.Ct. 98, 121

L.Ed.2d 58 (1992).
The record below establishes that the District Court ensured that the challenged juror would be able

to evaluate the evidence objectively and render a fair decision. The jurors in Martin and Bailey made

statements that clearly reflected an inability to evaluate evidence in light of the presumption of innocence,
and they openly admitted that they could not assure the court of their impartiality.9 In contrast, Fortun's
unequivocal responses to direct questions posed by defense counsel and the trial judge confirm that no further

inquiry was warranted.10 See Rhodes, 177 F.3d at 966 ("[A]lthough [the juror] may have had preconceived

exhaustion of a defendant's peremptory challenges. In light of this decision, Dickerson stated that this
portion of his argument had effectively been "eliminate[d]." This court therefore does not address the
relevance of Martinez-Salazar to Dickerson's argument related to peremptory challenges.
9
For example, the juror in Martin stated the following in response to questioning by defense counsel:
"If there is the slightest bit of doubt of his innocence, I would feel that—I would—I would try to weigh
what was said in the courtroom, but the slightest bit of doubt, I would say he was guilty probably." 749
F.2d at 1516 (emphasis added). Similarly, in Bailey, when asked if her personal knowledge of the
defendant would affect her decision-making on the jury, the juror had responded, "I don't believe so but
I'm not quite sure. I'm not the one to make that decision." 956 F.2d at 1128 n. 21 (emphasis added).
10
When defense counsel initially questioned Fortun on his ability to evaluate evidence, the following
exchange took place:
notions ... she demonstrated that those notions would not prevent her from deciding the case solely based on

the evidence presented in court....").

IV. Evidentiary Rulings
Dickerson also claims the trial judge committed reversible error in admitting the following items into

evidence: (1) testimony regarding post-conspiracy drug activity; (2) hotel records reflecting Williams' stay

in Philadelphia; and (3) a telephone book belonging to co-conspirator Hanks, found in Williams' car.
Because Dickerson properly objected at trial to the relevant rulings, we review the District Court's evidentiary

rulings for clear abuse of discretion. See United States v. Gonzalez, 940 F.2d 1413, 1420 & n. 13 (11th

Cir.1991), cert. denied sub nom. Garcia v. United States, 502 U.S. 1103, 112 S.Ct. 1194, 117 L.Ed.2d 435

(1992). Factual findings underlying evidentiary rulings are reviewed for clear error. See City of Tuscaloosa

A: I feel that you have to meet certain criteria to get a trial, and if you do that, it will be a waste of
money if you don't have enough evidence on the part of the federal government.
Q: Enough evidence for what?

A: To convict them or enough evidence that you think you can convict them.
Q: All right. But you are not part of the government, you are a juror in this case?
A: Yes.

Q: And you have to weigh the evidence?
A: Right.
Q: Okay. Well, the next question is: Do you think you can weigh the evidence fairly?

A: Yes.

R8-8.
The trial judge also inquired into Fortun's friendship with a state court judge:

Q: Your friend that's the Judge, where is that person the Judge?
A: Alex Ferrer. [sic]

Q: In Dade County Circuit Court?

A: He's a friend of the family. [sic]

Q: Is there any reason why you believe you would not sit as a juror and be fair to both sides in this
case?
A: No.

R19-86.
v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th Cir.1998), cert. denied, 528 U.S. 812, 120 S.Ct. 309, 145

L.Ed.2d 42 (1999).

A. Post-Conspiracy Drug Activity
The Government sought to introduce testimony of Sears regarding Dickerson's cocaine possession

and distribution in late 1993, almost two years after the last overt act in the alleged conspiracy. After

reviewing the relevant standards, the trial judge found Sears' testimony relevant to proof of Dickerson's intent

and plans and therefore ruled it admissible under Federal Rule of Evidence 404(b).11 See R10-10. In

addition, the judge issued limiting instructions to the jury before allowing Sears' testimony to continue. See

R10-9 to 10. Sears then testified that he had sold cocaine to Dickerson on numerous occasions in late 1993

and early 1994 with the intent to distribute. See R10-12 to 17. The judge again issued limiting instructions

to the jury at the end of the trial. See R3-220-11.12

It is well-settled in this circuit that "the principles governing what is commonly referred to as other
crimes evidence are the same whether the conduct occurs before or after the offense charged, and regardless

of whether the activity might give rise to criminal liability." United States v. Delgado, 56 F.3d 1357, 1365

(11th Cir.1995) (footnote omitted), cert. denied, 516 U.S. 1049, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996).

Those principles have been incorporated into the following three-step inquiry:

First, the evidence must be relevant to an issue other than the defendant's character; Second, the act
must be established by sufficient proof to permit a jury finding that the defendant committed the
extrinsic act; Third, the probative value of the evidence must not be substantially outweighed by its
undue prejudice, and the evidence must meet the other requirements of Rule 403.

Delgado, 56 F.3d at 1365 (citing United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.) (en banc), cert.

denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992), in turn citing Huddleston v. United States, 485

U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988)).

To establish relevance under the first prong where testimony is offered as proof of intent, "it must

11
Federal Rule of Evidence 404(b) provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident....
12
The court instructed that Sears' testimony may be considered only with respect to Dickerson's
intent. Cf. R10-9 to 10 (judge's jury instruction during trial) with R3-220-11 (judge's post-trial jury
instruction). The Government also argues the relevance of Sears' testimony only to the issue of
Dickerson's intent. We therefore evaluate the propriety of the District Court's 404(b) ruling only insofar
as it relates to intent, without considering whether the evidence could have been admitted to show a plan.
be 'determined that the extrinsic offense requires the same intent as the charged offense....' " United States

v. Cardenas, 895 F.2d 1338, 1343 (11th Cir.1990) (quoting United States v. Barnes, 586 F.2d 1052, 1057 (5th

Cir.1978), in turn quoting United States v. Beechum, 582 F.2d 898, 913 (5th Cir.1978), cert. denied, 440 U.S.

920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)). The charge in this case is conspiracy to possess with intent to

distribute cocaine, see R1-30-2; the subsequent extrinsic act revealed by Sears' testimony was the purchase

and possession of large quantities of cocaine. See R10-12 to 17. The charged act and the challenged similar

act involve the same mental state. See United States v. Green, 40 F.3d 1167, 1174 (11th Cir.1994) (finding

prior arrest for possession of distributable amount of cocaine relevant to establish intent for charge of

conspiracy to possess with intent to distribute cocaine), cert. denied, 514 U.S. 1089, 115 S.Ct. 1809, 131

L.Ed.2d 733 (1995). The Government therefore permissibly relied on the subsequent act to prove intent of
the charged crime.

With respect to the second prong, "the uncorroborated word of an accomplice ... provides a sufficient

basis for concluding that the defendant committed extrinsic acts admissible under Rule 404(b)." United States

v. Bowe, 221 F.3d 1183, 1192 (11th Cir.2000) (citing United States v. Trevino, 565 F.2d 1317, 1319 (5th

Cir.1978)). Here, Sears, the supplier of Dickerson's subsequent cocaine purchases, provided sufficient proof
of the extrinsic act through his testimony to support a jury's conclusion that Dickerson did purchase and

possess cocaine after the charged conspiracy ended.
Third, the probative value of Sears' testimony substantially outweighs its possible prejudicial effect.

See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir.1993) (identifying criteria for weighing

probative value against prejudicial effect). The charged crime and the extrinsic act are extremely similar, as
both offenses required proof of certain common elements, and each offense furthered the overall purpose of

trafficking in cocaine. See United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir.1998); Delgado, 56 F.3d

at 1366. Furthermore, the two-year time period between the last overt act of the alleged conspiracy and the

cocaine transactions identified in Sears' testimony is not so remote as to undercut the probative value of the

subsequent acts in establishing Dickerson's intent. See Diaz-Lizaraza, 981 F.2d at 1225. Finally, the

Government's remaining evidence of Dickerson's intent rested on the testimony of other co-conspirators. The
Government therefore needed to rely upon the Sears testimony to bolster its case regarding Dickerson's intent.

See Martinez, 127 F.3d at 1332 (finding extrinsic act probative where co-conspirator testimony was

Government's sole evidence of defendant's intent); Cardenas, 895 F.2d at 1343-44 (same).
 Sears' testimony regarding Dickerson's post-conspiracy drug transactions was thus relevant and

highly probative of Dickerson's intent. The District Court did not abuse its discretion in admitting the
testimony.

B. Hotel Records
The Government sought to introduce Williams' hotel records to establish the dates of Williams' stay

in Philadelphia. See R8-182 to 184. Because the Government introduced the records to "prove the truth of

the matter asserted," Dickerson objected to these records as inadmissible hearsay. See Fed.R.Evid. 801(c).

In response, the Government cited Federal Rule of Evidence 803(6), the business records exception to the
hearsay rule. After reviewing the document, the District Court overruled the objection.

The plain language of Rule 803(6) permits the introduction of business records that would otherwise

be inadmissible as hearsay evidence provided that "the testimony of the custodian or other qualified witness"
verifies the record-keeping procedure of the document in question and confirms that such document is created

as part of normal business practice. Fed.R.Evid. 803(6). In this case, however, the Government presented

no "custodian or qualified witness" to authenticate the records as required by the rule. Id. Thus, the District

Court abused its discretion in admitting the hotel records without any basis for determining their reliability.

See United States v. Williams, 837 F.2d 1009, 1013 n. 6 (11th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490,

102 L.Ed.2d 527 (1988).
The trial court's evidentiary ruling, however, "will result in reversal only if the resulting error was

not harmless." United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999) (citing United States v. Church,

955 F.2d 688, 700 (11th Cir.), cert. denied, 506 U.S. 881, 113 S.Ct. 233, 121 L.Ed.2d 169 (1992), and

Fed.R.Crim.P. 52(a)). We find an error harmless where "the purported error had no substantial influence on

the outcome and sufficient evidence uninfected by error supports the verdict." United States v. Fortenberry,

971 F.2d 717, 722 (11th Cir.1992) (citation omitted), cert. denied, 506 U.S. 1068, 113 S.Ct. 1020, 122

L.Ed.2d 166 (1993).

Even discounting the credibility of Williams' testimony, we find sufficient evidence in the record to

support the jury's conclusion that Dickerson was nevertheless involved in the charged conspiracy. Cf. Hands,

184 F.3d at 1330-31 n. 23 ("Harmless error review, unlike a determination of the sufficiency of the evidence,

does not require us to view witnesses' credibility in the light most favorable to the government.") (citations

omitted). The testimony of Sears and Kirkland sufficiently linked Dickerson with other co-conspirators, see
R10-202; R10-16, 22 to 23; R10-207; R10-192 to 193,13 and supported Dickerson's intent to participate in

the conspiracy and his actual participation therein. See, e.g., R10-12 to 17 (Sears testimony); R10-188 to

192, 194, 198, 199, 202 (Kirkland testimony). Furthermore, as discussed infra, Dickerson was also connected

to his co-conspirators by his phone number written into one co-conspirator's personal phone book, found in

yet another co-conspirator's car. In light of this remaining evidence, therefore, we cannot conclude that the

District Court's error in admitting the hotel records had a "substantial influence on the outcome" of
Dickerson's trial.

C. Hanks' Telephone Book
Dickerson's final evidentiary objection relates to a telephone book discovered by police in Williams'

car when Williams was arrested. Williams testified that the telephone book had belonged to Hanks. See R9-

15 to 16. The telephone book contained the name "Frank" inscribed next to various telephone numbers. See

R12-96 to 98. Over Dickerson's objection that the phone book lacked sufficient authentication, the District
Court admitted the book under Federal Rule of Evidence 801(d)(2)(E)14 as the statement of a co-conspirator.15

See R11-97-98, 102, 107.

When seeking to offer a co-conspirator's statement into evidence under Rule 801(d)(2)(E), the
Government must first establish the following by a preponderance of the evidence: (1) that a conspiracy
existed; (2) that the conspiracy included the declarant and the defendant against whom the statement is

offered; and (3) that the statement to be introduced was made during the course and in furtherance of the

conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987);

13
In particular, the testimony of Sears and Kirkland connected Dickerson to the other conspirators
through Dickerson's presence, with other co-conspirators, at Hanks' funeral, see R10-202 to 203 (Kirkland
testimony); his possession of one of the vehicles known to carry cocaine among the distribution
locations, see R10-16, 22 to 23 (Sears testimony), R10-207 (Kirkland testimony); and his joint financial
interest with other co-conspirators in the Miami house in which certain drug transactions took place, see
R10-192 to 193 (Kirkland testimony).
14
Federal Rule of Evidence 801(d)(2)(E) provides as follows:

A statement is not hearsay if—

(2) Admission by party opponent. The statement is offered against a party and is
... (E) a statement made by a coconspirator of a party during the course and in furtherance
of the conspiracy....
15
The Government also argued at trial that Federal Rule of Evidence 803(24), the catch-all provision,
provided an alternative basis for admission of the telephone book. R11-102. Because we find the
requirements of Rule 801(d)(2)(E) satisfied, we do not address this alternative argument.
United States v. Van Hemelryck, 945 F.2d 1493, 1497-98 (11th Cir.1991).16 When determining whether the

above elements have been satisfied, the District Court may rely on information provided by the

co-conspirator's proffered statement as well as independent external evidence. See Bourjaily, 483 U.S. at 180-

81, 107 S.Ct. at 2781; United States v. Byrom, 910 F.2d 725, 735-36 (11th Cir.1990).

As an initial matter, we reject Dickerson's contention that the District Court failed to make the above

findings before admitting the telephone book into evidence. After hearing Williams' testimony that the book
had belonged to Hanks, and Agent McLeod's testimony that he had made photocopies of the telephone book

found in Williams' car, the trial judge concluded that the writings belonged to Hanks. See R11-101, 104. The

judge also concluded that the individuals in question were linked to Hanks through their participation in the

same conspiracy and that the address book was being used during the time period encompassed by this

conspiracy. See R11-102. Admittedly, the judge did not expressly state that he was making the requisite

factual findings under Rule 801(d)(2)(E) when arriving at his conclusions regarding the authentication of the
telephone book. Nevertheless, the transcript reveals sufficient decision-making for us to base our review on
the District Court's findings.17
We agree that the prerequisites of Rule 801(d)(2)(E) have been satisfied here. Williams' testimony
that the phone book belonged to Hanks was sufficient circumstantial evidence from which the trial court

could have concluded authorship of the entries by Hanks. See United States v. Dynalectric Co., 859 F.2d

1559, 1581-82 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 157 (1989). The

testimony of Sears, Kirkland, and Williams also sufficiently establish that Dickerson and Hanks were part

of the same conspiracy and, therefore, that the "Frank" noted in the book likely referred to Dickerson. See

R9-9 to 11 (Williams); R10-12 to 17 (Sears); R10-188 to 202 (Kirkland). As recognized by the trial judge,
Hanks' entries were made "during the course" of the conspiracy, because the fact that Hanks continued to

carry the book (as attested to by Williams, see R9-15) revealed that "it was being used as [the conspirators']

address book during the time period encompassed by this conspiracy." R11-102.

Finally, we apply "a liberal standard in determining whether a statement is made in furtherance of

16
Dickerson does not challenge the first element of the Bourjaily standard, which requires that the
Government establish the existence of a conspiracy.
17
Dickerson argues that United States v. West, 142 F.3d 1408 (11th Cir.1998), vacated on other
grounds, 526 U.S. 1155, 119 S.Ct. 2042, 144 L.Ed.2d 211 (1999), mandates reversal. Because we
determine that the District Court, unlike the trial court in West, did make the factual findings required
under Rule 801(d)(2)(E), we reject Dickerson's argument.
a conspiracy." United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir.1988) (citation omitted). Relying

on the ongoing use of the telephone book, the District Court apparently concluded that any time Hanks relied

on the phone numbers of co-conspirators inscribed in the book, the objectives of the conspiracy would have
been furthered by facilitating communication among co-conspirators to engage in the unlawful ends of the

conspiracy, for example, the scheduling of cocaine deliveries. When viewed in the context of the remaining

testimony, therefore, the factual prerequisites for Rule 801(d)(2)(E) have been satisfied, and the District Court
did not abuse its discretion in admitting the phone book into evidence.

V. Allen Charge
Finally, Dickerson challenges the District Court's issuance of a modified Allen charge, based on this

circuit's pattern instructions,18 claiming that the charge coerced the jury into returning a guilty verdict.

Because the District Judge did not poll the jurors before reading the Allen charge, "we can reverse their

verdict only if we find that the giving of the Allen charge was inherently coercive." United States v. Trujillo,

146 F.3d 838, 846 (11th Cir.1998).

We previously have upheld the language employed in the Allen charge given here, see Trujillo, 146

F.3d at 846-47, even when used in conjunction with a polling of jurors. See United States v. Chigbo, 38 F.3d

543, 545-46 (11th Cir.1994), cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). Dickerson

specifically challenges the reference to the costs of a trial, the impact of the charge upon jurors in the

minority, and the timing of the jury's decision after hearing the Allen charge. In United States v. Rey, 811

F.2d 1453, 1458-60 (11th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 103, 98 L.Ed.2d 63 (1987), we

acknowledged the potential for coercion in the pattern instructions, see id., the language of which has not

changed in the intervening years. Compare id. at 1461 (Appendix) with Pattern Allen Instruction.

Nevertheless, we upheld the charge in Rey in light of binding precedent expressly upholding a

similarly-worded Allen charge and under arguably more severe circumstances. See 811 F.2d at 1460 (citing

United States v. Alonso, 740 F.2d 862, 876-78 (11th Cir.1984), cert. denied, 469 U.S. 1166, 105 S.Ct. 928,

83 L.Ed.2d 939 (1985) (similarly-worded Allen charge upheld); and Andrews v. United States, 309 F.2d 127,

129 (5th Cir.1962), cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970 (1963) (no coercion when jury

returned verdict 25 minutes after hearing Allen charge)). Likewise, given our more recent precedent, see, e.g.,

18
See U.S. Eleventh Circuit District Judges Ass'n, Pattern Jury Instructions (Criminal Cases), Trial
Instructions n.6 (West 1997) [hereinafter "Pattern Allen Instruction"].
Trujillo, 146 F.3d at 846-47; Chigbo, 38 F.3d at 546; United States v. West, 898 F.2d 1493, 1500-01 & n.

3 (11th Cir.1990), cert. denied, 498 U.S. 1030, 111 S.Ct. 685, 112 L.Ed.2d 676 (1991), and in the absence

of further evidence of coercion, we affirm the verdict below.

VI. Conclusion19
We hold that the District Court (1) properly refused to dismiss the superseding indictment, (2) did

not issue an unduly coercive Allen charge in its jury instruction; and (3) did not abuse its discretion in

denying Dickerson's motion for a new trial based on Williams' allegedly perjured testimony; refusing to
strike a challenged juror for cause; and admitting into evidence testimony regarding post-conspiracy offenses

and a co-conspirator's telephone book. The District Court's error in admitting Williams' hotel records into

evidence under Federal Rule of Evidence 803(6) was harmless. For the foregoing reasons, the judgment of
the District Court is

AFFIRMED.

* * *

* * *

19
Dickerson also argues that the Government presented insufficient evidence to support the charge, in
particular, that the evidence proffered at trial fails to establish the existence of one single conspiracy in
this case as opposed to multiple conspiracies. Reviewing the evidence in the light most favorable to the
Government, and drawing all inferences and determinations of witness credibility in favor the jury's
verdict, see United States v. Glinton, 154 F.3d 1245, 1258 (11th Cir.1998), cert. denied sub nom. Davis v.
United States, 526 U.S. 1104, 119 S.Ct. 1587, 143 L.Ed.2d 681 (1999), we find this claim meritless.