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United States v. Dickerson

United States Court of Appeals, Fifth Circuit

November 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
EARLIE DICKERSON, Defendant-Appellant

          Appeals from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.


         This appeal arises from defendant Earlie Dickerson's participation in a scheme to defraud insurance companies by submitting claims for fraudulent chiropractic treatments. Dickerson was convicted of conspiracy and several counts of mail fraud. He challenges his conviction and his sentence. We affirm the district court.


         Defendant Earlie Dickerson managed the Bryan, Texas office of Sanjoh & Associates, a law firm. The firm specialized in representing clients involved in car accidents. It prepared and submitted claims to insurers on behalf of clients who had been in accidents, then negotiated settlements. The firm's sole attorney, Divine Sanjoh, visited the office every few months to review settlements and receive payment.

         At some point between 2004 and 2005, Dickerson and Edward Graham, a Bryan radio disc jockey and wing-shop proprietor, agreed that Graham would open a chiropractic clinic. They agreed that Sanjoh & Associates would refer clients to Graham's clinic, that the clinic would generate bills for chiropractic treatment, the firm would submit them to insurers, and negotiate a settlement. The client, clinic, and firm would divide the proceeds equally.

         Dickerson and Graham were not interested in providing effective chiropractic care to Sanjoh & Associates clients. The plan was to generate larger settlements with insurers by fraudulent means. In March 2005, Graham opened the Texas Avenue Chiropractic Clinic immediately next door to the Sanjoh firm's office. Graham invested $15, 000 to $16, 000 in chiropractic equipment for the clinic, and hired a chiropractor, Olva Ryan, to work there part time. Within months, Ryan left the clinic due to his objections to billing irregularities. He was replaced, and over the next two years Dickerson referred clients to Graham's clinic, insisting that treatment at this particular clinic was necessary for the pursuit of claims. Dickerson openly encouraged clients to visit the clinic as often as possible to increase future settlements. At the clinic, treatment sessions were often carried out by staff untrained and unqualified to practice chiropractic therapy, in some cases risking client injury. Sometimes Dickerson and Graham submitted claims for treatment never done. The clinic would generate "treatment notes" or "daily notes" to evidence appointments or treatments. The Sanjoh firm would then use these notes to support demand letters to insurers. Dickerson would negotiate settlements, dividing the payments between the firm, the clinic and client. In early 2007, after another chiropractor quit, Graham and Dickerson recruited chiropractor Chase Lindsey to continue the scheme, periodically relocating equipment and operations to new clinics. The conspirators also involved Marion Young, a former Sanjoh & Associates client, as well as Brittany Jessie, who was Dickerson's assistant at the firm. The scheme was successful. From March 2005 to November 2009, Sanjoh & Associates submitted $5, 768, 070 in "claims" to 55 insurance companies, receiving $2, 140, 839.27 from settlements.

         Alerted by a tip from a nurse at the clinic, the FBI began investigating in late 2008. In November 2012, a grand jury indicted Dickerson, Graham, Lindsey, Young, and Jessie on one count of conspiracy to commit mail fraud and 30 counts of mail fraud, committed between February 2007 and December 2009. Lindsey, Young, and Jessie reached plea agreements. Graham and Dickerson proceeded to trial.

         Young was called to the stand as the Government's first witness in a seven-day joint trial. He testified to Dickerson's participation in the fraudulent scheme based on his experience as a four-time client and chiropractic patient, a collaborator with Dickerson in orchestrating staged accidents, and later an organizer of a sham clinic. Questioned about the terms of his cooperation with the Government, Young testified that he was "hoping" to reduce his sentence, but that he had no "understanding that [he would] get less time in prison" by taking the stand.

         The Government called FBI Special Agent Hopp to testify. He testified that he interviewed Graham in December 2009, that Graham then admitted (1) that he had engaged in inaccurate billing, reflecting treatments that had not occurred; (2) that he had generated bills for patients his clinic did not treat; (3) that patients referred to him by Sanjoh & Associates did not appear to be injured; (4) that his clinic engaged in improper billing, (5) including overbilling; (6) that he had submitted fraudulent bills to insurers; and (7) that he had brought the issue of overbilling to Dickerson's attention. After hearing the testimony of others, including numerous clients of the clinics, the jury found Dickerson and Graham guilty on all counts of the indictment. Dickerson appeals his conviction.

         The presentencing report for Dickerson included information from the United States Attorney's Office, FBI investigators, and National Insurance Crime Bureau investigators. The PSR calculated that in total the conspirators had submitted claims for $5, 768, 070 to over 50 different insurance companies, resulting in payments totaling $2, 140, 839.27 in settled claims. The PSR recommended enhancement of the total offense level by four levels due to Dickerson's status as a leader or organizer within a conspiracy involving five or more individuals, by another four levels due to the criminal scheme affecting more than 50 victims, and finally, a further 18 levels due to the $5, 768, 0700 in "intended losses" attributable to the scheme. The PSR also recommended a restitution order in the amount of $1, 192, 382.94, equivalent to "actual losses" resulting from the offenses of conviction. The district court adopted the PSR's recommendations over Dickerson's objections, sentencing him to 168 months' imprisonment and ordering restitution of $1, 192, 382.94, to be paid jointly and severally with his co-conspirators Jessie, Young, and Lindsey, and forfeiture in the same amount[1]

         On October 13, 2016, Dickerson filed a pro se motion seeking a new trial on the basis of new evidence, attaching an affidavit of Sylinna Johnson, who swore that before Dickerson's trial, Young had told her about an agreement with the Government capping his sentence at five years. As part of this agreement, "if [Young] . . . did not testify against [Dickerson] it would invalidate [his] plea deal." Johnson only shared Young's description with Dickerson after the conclusion of the trial. Dickerson had persuaded Johnson to record Young describing his agreement with the Government, which she did. Johnson also brought to Dickerson's attention a Facebook post in which Young described a plea deal for no more than five years. Both the Facebook post and Johnson's recordings-attached to the Motion-describe a deal with the Government for a five-year sentence, though the speaker in the recording also concedes that the length of the sentence ultimately remained at the discretion of the sentencing court: "the prosecutor . . . he can't even offer you nothing, he can only recommend it . . . it's up to the judge-the judge and the Guidelines." Dickerson argued that his new evidence-affidavit, recordings, and Facebook post-showed that Young had perjured himself; exposure of perjury and Young's incentives to cooperate with the prosecution would have impeached his testimony.

         Dickerson requested an evidentiary hearing to examine Young's agreement with the prosecution.[2] The district court denied Dickerson's motion, persuaded that Young's plea agreement included no five-year cap on his sentence-that it could not, because the length of the sentence remained at the court's discretion up to a statutory maximum. The new evidence, it held, failed to demonstrate that Young's trial testimony was false. Dickerson appealed.[3]


         Dickerson's appeal raises four groups of issues. He argues that the district court erred in denying his motion for a new trial and request for an evidentiary hearing. He also challenges the district court's admission of Special Agent Hopp's testimony regarding the admissions of co-defendant Graham, assertedly in violation of the Confrontation Clause of the Sixth Amendment. He then challenges his sentence, arguing the district court misapplied the Sentencing Guidelines in enhancing his offense level, and that the restitution and forfeiture orders were unsubstantiated and improper.


         Dickerson challenges the district court's denial of his motion for a new trial on the basis of new evidence. Under Rule 33, a defendant can move for vacatur of any judgment and for a new trial on the basis of new evidence.[4] Such motions are disfavored and reviewed with great caution.[5] To succeed they must meet the "Berry rule conditions": first, the evidence must be newly discovered, unknown to the defendant at the time of trial; second, the failure to detect the evidence must not have been due to a lack of diligence; third, the evidence cannot be merely cumulative or impeaching; fourth, the evidence must be material; and, fifth, if the evidence were introduced at a new trial, the probable result must be an acquittal.[6] Where new evidence indicates that the Government knowingly used false testimony-a Napue violation[7]-the fifth condition is not required.[8] We review the district court's denial of a motion for new trial and its denial of a motion for an evidentiary hearing for abuse of discretion.[9]

         Dickerson's argument is unclear. At times, it is that Johnson's conversations with Young and Young's Facebook post expose a Government agreement to cap Young's sentence at five years. While the length of Young's sentence was determined by the district court, not the Government, the recording, purportedly of Young, acknowledges this reality. Construed liberally, Dickerson's motion might argue that, in consideration of Young's testimony, the Government would recommend a five-year sentence. Young's plea agreement did provide that the Government would seek a downward departure if it was satisfied with Young's cooperation, but with no mention of a recommended five years. Dickerson replies that the Government ultimately did recommend a five-year sentence when the district court sentenced Young. Yet such a deal-testimony for a recommendation-in any event would not carry his motion.

         Dickerson's new evidence contravenes no element of the Government's case; it speaks only to the credibility of Young's testimony. As Dickerson concedes, it is impeachment evidence, failing the third Berry rule condition. Young's plea agreement expressly provided that the Government would seek a downward departure if satisfied with Young's cooperation. The new evidence adds nothing of moment.

         Hearings under Rule 33 are reserved for "unique situations" typically involving allegations of jury tampering, prosecutorial misconduct, or third-party confession.[10] There was no need for an evidentiary hearing to consider an asserted Napue violation, as it could not have changed the outcome: on either track of the Berry rule, Dickerson's motion fails. The district court did not abuse its discretion in denying the motion for a new trial and evidentiary hearing.


         We turn now to Dickerson's challenge to the district court's admission of statements of his non-testifying co-defendant Graham. The Sixth Amendment's Confrontation Clause provides a criminal defendant "the right . . . to be confronted with the witnesses against him, "[11] and to cross-examine these witnesses.[12] In Bruton v. United States, the Supreme Court held that a defendant's confrontation right is violated when, during a joint trial, the court admits a non-testifying co-defendant's confession that incriminates the defendant.[13] Bruton violations pose a "substantial risk that juries, despite any instructions to the contrary, will improperly use a non-testifying co-defendant's inculpatory statements against the defendant-so powerful is this form of evidence."[14] In Bruton, a non-testifying co-defendant's confession facially implicated the defendant in an armed postal robbery.[15] This must be distinguished from a non-testifying co-defendant's admission implicating the defendant in the crime only when taken together with other evidence in the trial.[16] Admitting into evidence the admissions of a non-testifying co-defendant that only implicate the defendant when added to other trial evidence is not a Bruton violation.[17]

         Nor did Dickerson object to the trial testimony of Special Agent Hopp. Our review of the court's admission of this testimony is for plain error.[18]Dickerson must show (1) an error; (2) that was plain; (3) affecting substantial rights; (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.[19] A Bruton violation cannot constitute plain error when the court is "convinced beyond a reasonable doubt" that, in light of other evidence presented at trial, there is no reasonable probability the defendant would be acquitted absent the improper evidence.[20]

         Dickerson challenges seven statements in Special Agent Hopp's testimony, each regarding Graham's admissions. The first six of these statements do not facially implicate Dickerson, and speak only to Graham's involvement in fraudulent activity.[21] In the seventh statement, Hopp described Graham's admission that he had "brought . . . to the attention of Earlie Dickerson" "a problem, that patients weren't getting their treatments[, ] that [Graham] was aware that there was billing that was not reflecting that that was going out." This statement does not facially implicate Dickerson in criminal activity. It rather describes him learning information that should have alerted him to fraudulent conduct. The other evidence against Dickerson was overwhelming. Olva Ryan, chiropractor at Graham's first clinic, testified to his observation of fraud and quitting as a result of its persistence. Young provided a detailed account of Dickerson's involvement with the chiropractic clinics' operation and billing practices, speaking both as a four-time client and a later co-conspirator. Numerous other clients testified to fraudulent ...

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