USA v. Darick Dewayne Dillard, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11704
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARICK DEWAYNE DILLARD,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 2:21-cr-00029-KD-B-1
____________________
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2 Opinion of the Court 22-11704
____________________
No. 22-11705
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARICK DEWAYNE DILLARD,
LAMETRIUS DILLARD,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 2:21-cr-00066-KD-B-1
____________________
Before N EWSOM , BRANCH, and G RANT, Circuit Judges.
PER CURIAM:
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22-11704 Opinion of the Court 3
Siblings Darick Dillard and Lametrius Dillard appeal their
respective convictions following their trial in the Southern District
of Alabama. The jury convicted Darick of two counts of possession
of a firearm by a convicted felon, one count of possession with
intent to distribute a controlled substance, and one count of
possession of a firearm in relation to a drug-trafficking crime. The
jury convicted Lametrius of witness tampering.1 On appeal,
Darick argues that the district court erred in denying his motion to
dismiss the indictment based on outrageous governmental
conduct. Lametrius argues that there is insufficient evidence to
support her conviction for witness tampering and that the district
court abused its discretion in admitting an unauthenticated
Facebook post at trial. After review, we affirm.
I. Background
In February 2021, a federal grand jury indicted Darick on
two counts of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g), based on his sale of firearms to a
confidential informant (“CI”), Sarah Turner. Later, Darick and his
sister, Lametrius, were indicted in a separate case on charges of
(1) possession with intent to distribute less than 500 grams of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2
(Darick only), (2) possessing a firearm during and in relation to a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
1 The jury also convicted Darick of witness tampering, but his post-verdict
motion for judgment of acquittal was granted as to that count.
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4 Opinion of the Court 22-11704
(Darick only), and (3) witness tampering, in violation of 18
U.S.C. § 1512(b)(1) (both Darick and Lametrius).
Darick filed a motion to dismiss the indictment in the first
case (charging him with two counts of possession of a firearm by a
convicted felon), arguing that “the Government violated the law
by using a convicted felon to conduct the controlled buys” that
formed the basis of the charges. He conceded that he could not
“find any case in support of [his] argument,” but maintained that
the indictment should still be dismissed. The district court denied
the motion in an endorsed paperless order.
Thereafter, the district court consolidated the two cases, and
Darick and Lametrius proceeded to trial. At trial Michael Kiser, a
sheriff with Alabama’s Dallas County Sheriff’s Department,
testified that he had known Sarah Turner, a CI, for “five or six
years,” and she had reliably provided tips on narcotic activity in the
Selma, Alabama, area. In May 2020, Turner approached him and
stated that Darick “was a menace to her area,” because he was
involved in drug and firearm activity in her neighborhood, and she
wanted “to help get [him] off the street.” Kiser investigated and
corroborated the information Turner provided. He then arranged
for Turner to purchase firearms from Darick through controlled
buys on two separate occasions. When officers arrested Darick at
his home for the firearm transactions, they discovered large
amounts of marijuana, crack cocaine, powder cocaine, and
methamphetamine, and digital scales. Officers also discovered a
loaded firearm under Darick’s bed.
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22-11704 Opinion of the Court 5
Kiser admitted that he discovered that Turner was a
convicted felon shortly before the trial. Kiser explained that he
conducted background checks on CIs; however, he only checked
the state database for convictions, which did not reveal Turner’s
federal felony conviction.2
During the course of the trial, the government introduced a
recorded jail call between Darick and his sister, Lametrius, from
the day of Darick’s arraignment. During the conversation, Darick
denied selling a firearm and said, “that’s why I need you to go down
to [Turner], because I need to see what the hell [Turner] and them
got going on, cause [Turner] knows that I ain’t never sold them no
gun.” Darick stated that Arthur Harris (“Arthur”), his nephew, had
sold Turner the gun. Darick stated “[s]o, shit, they need to get that
shit together. Because [Turner] or somebody’s telling lies. They
know I ain’t sell ‘em, cause Arthur sold them that gun.” He then
reiterated to Lametrius that he needed her to “go by there and
holler at [Turner], ask [Turner] what the hell’s going on. Because
I think her son probably got caught with the gun and they probably
said that I was, because Arthur was with me. But . . . Arthur’s the
2 Turner testified that in 2009 she was convicted of stealing money from the
United States. She explained that, at that time, she lived in Section 8 housing
and when she got a job, she did not report it. Thus, she was convicted of
stealing money from the government in the form of unpaid rent. Turner
erroneously believed that she could possess a firearm after five years from the
date of conviction. She did not remember whether she reported being a
convicted felon on her CI application, but she “assum[ed] they knew about it”
because they did a background check.
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6 Opinion of the Court 22-11704
one [who] went around there and sold the gun. I didn’t sell
[Turner] no gun.” He continued, “you need to go there—you need
to go ask her. You need to see. Because that shit ain’t gonna fly
with me, because [Turner] know I ain’t sold her nothing.”
Lametrius told Darick that she was “headed over there now.”
Darick continued, telling Lametrius that “Arthur knows for hisself
[sic] that he sold that gun to [Turner]. You need to go by there and
tell [Turner] the truth—because she knows the truth.” “Go over
there, holler at [Turner]. See what she said. Because let her know
that they called, like she’s the one saying that I—I ain’t sold
[Turner] shit.”3
Following the call, Lametrius went to Turner’s home. The
government introduced a recording of the conversation that took
place between Turner and Lametrius.
[Lametrius]: [Darick] said they said something about
you had put—said that your boyfriend or somebody
got caught with a—some .22 and said that you signed
the thing and said he sold you a gun. He said he ain’t
sold you no gun.
. . .
Something about he said he don’t know what going
on or what done happened but he said somebody put
it in writing, said it came from you—that your—
3 In other recorded calls between Darick and other individuals that were
introduced at trial, Darick referred to Lametrius as “his muscle.”
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somebody sold you a .22 gun. A pistol. He said he
ain’t sell you no damn gun.
[Turner]: I don’t even know what y’all talking about
no—huh-uh.
. . .
[Lametrius]: They had called, something about
talking about they indicted him for and said that you
said that your—somebody got caught with a gun or
you had the gun in your car. I don’t know who—I
don’t know what it was. I don’t know how the
incident came up. But [Darick]—he ain’t sell you no
gun. But he said you put it in writing that he sold you
a pistol.
[Turner]: Ain’t put nothing in no writing. I don’t
even know what you talking about.
[Lametrius]: Huh?
[Turner]: Who I need to call?
[Lametrius]: I don’t know who you need to—they
need to call somebody ‘cause [Darick] said I know
[Turner] ain’t told nobody no shit like that. He say
Arthur had sold her a gun one time. He ain’t had shit
to do with nobody selling you no gun or buying no
gun from—for—you know, from him.
Turner continued to deny knowing what Lametrius was talking
about, but Lametrius continued to ask Turner whether Darick sold
her a gun. Lametrius also asked Turner why she would “put
something in writing saying that [Darick] sold [her] a gun [when]
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8 Opinion of the Court 22-11704
you sitting here telling me you don’t know nothing about it and
you ain’t sold him nothing.” Turner stated that she was “not trying
to get caught up in no bullshit like this” and would “straighten it
out.” Lametrius responded, “No. It ain’t that you trying to get
caught up in none of that. Tell the truth. If [Darick] ain’t sold you
no pistol, just tell them folks straight.” She reiterated “I’m just
going to be honest because I’m for real . . . ain’t nobody got time
for that shit. These folk plotting and telling folks—telling lies and
stuff, now. Tell the truth. You understand what I’m saying.”
Turner denied that Darick sold her a gun, and she told Lametrius
that she would call someone and fix the situation.
Turner testified that the conversation with Lametrius made
her feel “scared” because Lametrius referenced “Arthur,” and
Turner knew that Arthur was dead. Turner “was kind of scared
that somebody was going to kill [her]” and confirmed that she was
intimidated by the conversation with Lametrius. She confirmed
that Lametrius made it clear that she wanted Turner to lie and tell
the police that Darick did not sell her the gun. Turner contacted
Kiser after Lametrius’s visit, and they moved Turner out of Selma
for her safety.
Sometime after the conversation with Lametrius, Turner
saw a Facebook post from Lametrius that implicated Turner’s
involvement as a CI. Turner took a screenshot of the post and sent
it to Kiser. Turner testified that she recognized the post as
Lametrius’s because the post contained Lametrius’s name and
likeness in the upper left-hand corner, and she was friends on
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22-11704 Opinion of the Court 9
Facebook with Lametrius at the time. The government then
offered the screenshot of the Facebook post into evidence.
Lametrius objected to the admission of the post as “hearsay
without any proper predicate,” and argued that Turner “lack[ed]
foundation to determine whether or not [Lametrius] had sent it.”
She also argued that the evidence was more prejudicial than
probative and should be excluded under Federal Rule of Evidence
403. The district court overruled her objections without
explanation, and the post was admitted. The post stated:
How many more people paperwork she’s on????? If
any of y’all been involved with Sarah Turner she
working for CIS Snitching she have been recording
Darick Dillard for 9 months she’s all over his paper
Murder Mill than run club 27 it’s real she’s Working
for the Feds thank it’s a joke I have proof but God has
the last say so!!!! Rat[t]ing on people video recording
pictures taking be careful out their y’all she’s
snitching posting truth in Jesus name.
The post also contained two photographs of Turner. Turner
testified that she was terrified and thought that Lametrius was
“put[ting] [her] out there so somebody [could] actually kill [her] or
something.” On cross-examination, Turner confirmed that,
although the Facebook post was made on Lametrius’s Facebook
account, Turner had no way to confirm that Lametrius actually
made the post.
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10 Opinion of the Court 22-11704
At the close of the government’s case-in-chief, both Darick
and Lametrius rested and moved for a judgment of acquittal on all
charges. In particular, Lametrius argued, as to her sole charge of
witness tampering, that she asked Turner to “tell the truth” and
that her actions did not rise to the level of witness tampering. The
district court took their motions for judgment of acquittal on the
witness tampering charge under advisement. Following closing
arguments, the district court denied the motions, noting that the
court needed “research and case law” on the issue, which counsel
was not prepared to provide at that time. The district court noted
that, if the jury returned a guilty verdict, then the defendants could
reargue the motion.
Following deliberations, the jury convicted Darick and
Lametrius as charged. Lametrius did not renew her motion for a
judgment of acquittal. Darick, on the other hand, filed a renewed
motion for judgment of acquittal on all counts. With regard to his
conviction for possession of a firearm by a convicted felon, he
argued in relevant part, that because Turner was a convicted felon,
it was illegal for her to possess a firearm, and, therefore, the
government could not obtain a conviction against Darick based on
Turner’s alleged purchase of firearms from him. The district court
denied his motion as to his conviction for being a felon in
possession of a firearm, but granted the motion as to his conviction
for witness tampering. The district court sentenced Darick to a
total of 147 months’ imprisonment, followed by 5 years’ supervised
release. It sentenced Lametrius to 12 months’ imprisonment,
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22-11704 Opinion of the Court 11
followed by 3 years’ supervised release. Darick and Lametrius both
timely appealed, and we consolidated their appeals.
II. Discussion
A. Whether the district court erred in declining to dismiss
the indictment charging Darick with two counts of
possession of a firearm by a convicted felon
Darick raises one issue on appeal. He argues that the district
court erred in declining to dismiss the indictment based on the
government’s “outrageous conduct” of failing to properly
investigate Turner’s background, which resulted in the
government’s use of a convicted felon as a CI to purchase firearms
from him—items which the CI could not legally possess. He
maintains that the government’s conduct was so outrageous that it
violated his Fifth Amendment due process right to “fundamental
fairness within the executive and judicial process[es].”4
“[W]e review
de novo the denial of a motion to dismiss
based on outrageous government conduct.”
United States v.
Castaneda, 997 F.3d 1318, 1325 (11th Cir. 2021) (quotation
omitted). As we previously explained,
4 The government suggests in passing that Darick’s “barebones motion in the
district court” may not have adequately preserved the issue, but it also notes
that we “need not linger” on this issue because his claim fails on the merits.
Because the government did not fully brief the preservation issue and we
conclude that the claim fails on the merits, we find it unnecessary to reach the
preservation question.
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[o]utrageous government conduct is a potential
defense that focuses on the tactics employed by law
enforcement officials to obtain a conviction for
conduct beyond the defendant’s predisposition. It is
based on the Supreme Court’s recognition of the
possibility that law enforcement’s tactics may be so
outrageous that due process principles would
absolutely bar the government from invoking judicial
processes to obtain a conviction. To establish
outrageous government conduct, a defendant must
show that law enforcement’s techniques violate
fundamental fairness, shocking to the universal sense
of justice, mandated by the Due Process Clause of the
Fifth Amendment.
United States v. Cannon, 987 F.3d 924, 941 (11th Cir. 2021)
(quotations and internal citations omitted). Importantly,
“[o]utrageous conduct is only a
potential defense in this circuit
because neither the Supreme Court nor this Court has ever found
it to actually apply and barred the prosecution of any case based on
it.”
Castaneda, 997 F.3d at 1324 (emphasis added);
United States v.
Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (noting that “[w]e
have never applied the outrageous government conduct defense
and have discussed it only in dicta”).
Although we have yet to apply the doctrine, we have
determined that “the actionable government misconduct must
relate to the defendant’s underlying or charged criminal acts.
Outrageous government conduct occurs when law enforcement
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22-11704 Opinion of the Court 13
obtains a conviction for conduct beyond the defendant’s
predisposition by employing methods that fail to comport with due
process guarantees.”
Jayyousi, 657 F.3d at 1111–12 (quotation
omitted).
Darick does not allege that the government’s use of a
convicted felon caused him to engage in the criminal conduct in
question. Instead, he merely asserts that had the police known of
Turner’s felon status, they would have “as a minimum, [had to]
find an alternate informant without such prohibitions, or seek
proper approval to use a convicted felon in a sting operation to
purchase firearms.” Although Darick takes issue with the fact that
Turner as a felon could not lawfully possess a firearm, whether the
CI could legally purchase and possess a firearm is not relevant. In
short, the government’s alleged misconduct did not infringe on his
fundamental Fifth Amendment due process rights. Moreover,
Darick has cited no legal authority for the proposition that the
government is precluded from using convicted felons as
confidential informants. Accordingly, the district court properly
denied the motion to dismiss the indictment.
B. Whether sufficient evidence supported Lametrius’s
conviction for witness tampering
Lametrius argues that the district court erred in denying her
motion for a judgment of acquittal because the evidence was
insufficient to sustain her conviction for witness tampering. She
maintains that in the conversation between her and Turner, she
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14 Opinion of the Court 22-11704
only asked Turner to tell the truth, and the conversation was not
an act of intimidation or a threat to Turner.
We review the sufficiency of the evidence to support a
conviction
de novo, considering the evidence in the light most
favorable to the government and drawing all reasonable inferences
and credibility choices in favor of the verdict.
United States v.
Moran, 778 F.3d 942, 958 (11th Cir. 2015). “We review de novo the
district court’s denial of a motion for judgment of acquittal,
applying the same standard used in reviewing the sufficiency of the
evidence[.]”
United States v. Descent, 292 F.3d 703, 706 (11th Cir.
2002). “[W]e will not disturb a guilty verdict unless, given the
evidence in the record, no trier of fact could have found guilt
beyond a reasonable doubt.”
United States v. White, 663 F.3d
1207, 1213 (11th Cir. 2011) (quotation omitted).
It is illegal to use or attempt to use intimidation or threats
with the intent to “influence, delay, or prevent the testimony of
any person in an official proceeding.” 18 U.S.C. § 1512(b)(1).
“[W]hether a communication is a threat is a question of fact to be
left to the [trier of fact].”
United States v. Davis, 854 F.3d 1276,
1293 (11th Cir. 2017) (quotation omitted). “If a reasonable
recipient, familiar with the context of the communication, would
interpret it as a threat, the issue should go to the [trier of fact].”
Id.
(quotation omitted). The factfinder is free to conclude that the
defendant intended to tamper with a witness’s testimony, even if
the witness did not actually feel threatened.
Id.
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Here, the superseding indictment alleged that Lametrius
“did knowingly attempt to intimidate, threaten, and corruptly
persuade a[n] . . . informant . . . by directing the . . . informant to
say that [Arthur] sold the gun . . . .” And there was sufficient
evidence to convict Lametrius of witness tampering. The
government presented a recorded jail call in which Darick and
Lametrius discussed that discovery in his felon-in-possession case
indicated that he sold a gun to Turner. Darick denied selling the
gun to Turner, and asked Lametrius to go to Turner’s house to talk
to her and find out “what the hell [Turner] and them got going on.”
He told Lametrius, “[y]ou need to go by there and tell [Turner] the
truth—because she knows the truth.” Following the call,
Lametrius went to Turner’s house and questioned Turner about
whether Darick sold her a gun, explaining that Darick said Arthur
sold the gun to Turner. When Turner denied knowing what
Lametrius was referring to, Lametrius questioned why Turner
would allegedly make a written statement if she did not know what
Lametrius was talking about. Lametrius repeatedly told Turner to
“[t]ell the truth” and stated “[y]ou understand what I’m saying.”
And Turner testified that the conversation with Lametrius made
her feel “scared” because Lametrius referenced “Arthur,” and
Turner knew that Arthur was dead. Viewing this evidence in the
light most favorable to the government, the trier of fact was free to
conclude that Lametrius knowingly intended to influence or
tamper with Turner’s testimony.
See Davis, 854 F.3d at 1293.
Accordingly, we conclude that the evidence was sufficient to
sustain Lametrius’s conviction for witness tampering.
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C. Whether the district court abused its discretion in
admitting the Facebook post
Lametrius argues that the district court abused its discretion
in admitting the unauthenticated Facebook post, which accused
Turner of “snitching.” She maintains that the post did not satisfy
Federal Rule of Evidence 901’s authentication requirements, and it
was unduly prejudicial because it suggested she had a propensity
to intimidate.
“We review the district court’s evidentiary rulings for abuse
of discretion.”
United States v. Lanzon, 639 F.3d 1293, 1300 (11th
Cir. 2011). “[E]ven if an evidentiary ruling is erroneous, it will not
result in a reversal of the conviction if the error was harmless. An
error is harmless unless there is a reasonable likelihood that it
affected the defendant’s substantial rights.”
United States v.
Langford, 647 F.3d 1309, 1323 (11th Cir. 2011) (quotation and
internal citation omitted). Thus, “[n]o reversal will result if
sufficient evidence uninfected by any error supports the verdict,
and the error did not have a substantial influence on the outcome
of the case.”
Id.
We need not decide whether the district court abused its
discretion in admitting the Facebook post because any error was
harmless. Based on the recorded conversations between Darick
and Lametrius, and Lametrius and Turner, as well as Turner’s
testimony that the conversation with Lametrius scared her, the
jury had more than enough evidence to convict Lametrius of
witness tampering even without the Facebook post. Accordingly,
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the Facebook post did not have a substantial influence on the
outcome of the case and is not grounds for reversal.
Id.
III. Conclusion
Accordingly, for the above reasons, Darick and Lametrius
are not entitled to relief on their claims, and we affirm their
convictions and sentences.
AFFIRMED.
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