United States v. Stanley Hickman, 85 F.3d 617, 4th Cir. (1996)

85 F.
3d 617
NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Stanley HICKMAN, Defendant-Appellant.
No. 94-5851.
United States Court of Appeals, Fourth Circuit.

Argued April 4, 1996.
Decided May 6, 1996.
Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CR-93144-BO)
ARGUED: Richard Lawrence Zaffiro, Wauwatosa, Wisconsin, for
Appellant. William Arthur Webb, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Raleigh, North Carolina, for Appellee.
E.D.N.C.
AFFIRMED.
Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM:
Following a jury trial, appellant, Stanley Hickman (Hickman), was convicted of

numerous offenses arising from his participation in a drug conspiracy. On
appeal, he challenges his convictions and his sentence. For the reasons that
follow, we affirm.
2
* This case involved a conspiracy to possess with the intent to distribute and to
distribute cocaine base (crack) in Henderson, North Carolina from June 1990
until October 26, 1993. Generally, the drugs were acquired in New York and
transported to Henderson via couriers, the post office, and United Parcel
Service. The conspiracy used Western Union money transfers and couriers to
transport the proceeds of the transactions to the suppliers in New York. The
conspiracy was headed by Hickman's brother, Steve Hickman; Hickman's role
in the conspiracy was essentially one of a street dealer.
In November 1993, Hickman and eleven others were charged with numerous
violations of the federal drug laws. Hickman and eight others were charged
with conspiracy to possess with the intent to distribute and to distribute crack,
see 21 U.S.C. 841(a)(1) and 846. Hickman was also charged with one count
of aiding and abetting the use of a communications facility in aid of
racketeering, see 18 U.S.C. 1952 and 2, and one count of aiding and abetting
the possession of crack with intent to distribute, see 21 U.S.C. 841(a)(1) and
2.
Some of Hickman's codefendants pled guilty and agreed to cooperate with the
government. Hickman went to trial along with three codefendants. During the
trial, counsel for Hickman moved for a severance, and this motion was joined
by Hickman's codefendants. The government opposed the motion for
severance. The district court then stated:
5 you want a mistrial, is that it, an order of severance, is that right as to each
So
defendant? ... But I want to make sure that you and your clients--and I'll have to ask
you directly on the record--to state categorically without equivocation that you
knowingly and intentionally waive any challenge to double jeopardy and that you
concede as a matter of binding stipulation in this case that you're eligible for retrial.
And you can think about that.
6
We'll take a break and I'll let you think about that....
7 right. Thank you. I believe I'm going to sever these cases and mistry them and
All
then schedule them at a convenient time for all the parties in the future and try them
seriatim. It won't create too much difficulty for your proof because you can marshal
your proof for the particular defendants. I think the motions have been made and the
parties insist on their confrontation rights, and I wouldn't want to compromise their
rights in any regard. And they have been forthright about making those requests; and
in order to make sure that everybody is satisfied with their respective position, I
think I'll do that.

8 it's clear that the bar of double jeopardy cannot apply because the defendants
And
have precipitated the request for severance and in the inevitability of severance by
the manner in which they have posed questions on cross-examination, and so double
jeopardy is not present and would not be a bar. And I state that as a conclusion of
law. If anybody has an objection to that conclusion, I'll hear you now respecting it....
9All right. [Counsel for Hickman], any objection to my ruling?
10
(J.A. 37-41). Counsel for Hickman stated he had "no objection" to the district
court's ruling. (J.A. 41). Thereafter, the district court stated:
11 jury was dismissed on ruling of allowance of the motions by each of the four
The
defendants to sever. And as a result of the severance the defendants will be tried
sepa rately. And this case is mistried accordingly. The Court rules that there is no bar
from the calendaring and trial of each of the defendants' cases separately because of
any jeopardy, the motion being initiated by each defendant and the mistrial being
precipitated by the allowance of that motion without any charge against the
government. So it was a defendant-induced mistrial and it could be retried as if it
never had been tried before.
12
(J.A. 43).
13
Hickman was then tried separately. At trial, the government's evidence

consisted of, among other things, drug seizures, the testimony of cooperating
witnesses, and documentation of money transfers and drug shipments. After
trial, the jury convicted Hickman on all three counts charged against him. The
district court sentenced Hickman to life. Hickman noted a timely appeal.
II
14
On appeal, Hickman raises numerous assignments of error, only a few of which

merit discussion. We shall address these assignments of error in turn.
15
* Hickman contends his second trial violated his rights under the Double
Jeopardy Clause of the Fifth Amendment. We disagree.
16
The Fifth Amendment provides, in pertinent part, that no person shall "be
subject for the same offence to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. The classic case of a Double Jeopardy Clause violation is
where the defendant is retried following an acquittal. See Arizona v.
Washington, 434 U.S. 497, 503 (1978). However, the Double Jeopardy Clause
also protects a defendant's right to have his or her trial completed by the
particular tribunal he or she has chosen. Id. This right, however, does not, in
certain circumstances, prevent a retrial following a mistrial. For example, if the
defendant moved for a mistrial or otherwise consents to a mistrial, the
defendant can be reprosecuted unless he can demonstrate that the prosecutor or
the judge provoked the mistrial. Oregon v. Kennedy, 456 U.S. 667, 676 (1982);
United States v. Johnson, 55 F.3d 976, 978 (4th Cir.1995). This principle is
consistent with the Supreme Court's consistent refusal to allow a criminal
defendant to claim double jeopardy from a later proceeding where the
defendant was responsible for terminating the initial proceeding for reasons
unrelated to factual guilt or innocence. See Ohio v. Johnson, 467 U.S. 493
(1984) (double jeopardy does not protect a defendant who pled guilty to a lesser
included offense because the defendant's efforts contributed to the separate
disposition of the counts); United States v. Scott, 437 U.S. 82 (1978)
(defendant suffers no injury cognizable under the Double Jeopardy Clause if
the government is permitted to appeal a dismissal of part of an indictment
because the defendant deliberately sought termination of the proceedings
against him on a basis unrelated to factual guilt or innocence); Jeffers v. United
States, 432 U.S. 137 (1977) (plurality opinion) (no double jeopardy violation
where petitioner opposed the government's motion to consolidate the
petitioner's trials on two indictments).
17
In this case, the district court declared a mistrial only after Hickman's motion
for severance. As the mistrial was a necessary consequence of his severance
motion, Hickman consented to the mistrial; indeed, counsel for Hickman
indicated he had "no objection" to the district court's ruling. (J.A. 41). Because
Hickman consented to the mistrial and because the record does not reflect that
the government or the district court provoked the mistrial, Hickman's second
trial did not violate the Double Jeopardy Clause of the Fifth Amendment.
B
18
Hickman also argues that he was denied a fair trial because the district court
violated Rule 614(c) of the Federal Rules of Evidence by improperly
questioning witnesses at trial. We disagree.
19
Under Rule 614(c), objections to the court's interrogation of witnesses is to "be

made at the time or at the next available opportunity when the jury is not
present." Fed.R.Evid. 614(c). We have held that "the failure of ... counsel to
object to any of[the district court's] questioning at trial precludes our review of
this issue on appeal." Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 839 (4th
Cir.1987). One exception to this rule, allowing appellate review, is "[w]here a

trial judge's comments [are] so prejudicial as to deny a party an opportunity for
a fair and impartial trial." Id. (citation and internal quotes omitted). In setting
the parameters of this exception in Stillman, we cited a case in which the
district court interrupted the witness to answer counsel's question himself,
referred to the question as one that "any five-year old idiot" could answer, and
then instructed counsel, "Don't waste my time and the jury's on that." Id.
(internal quotes omitted). But even those highly inflammatory comments were
not sufficiently prejudicial to permit appellate review absent an objection at
trial. Id.
20
In this case, Hickman claims that the district court erred by posing "fifty-seven
questions of witnesses at the second federal trial." Appellant's Br. at 32. The
specific questions that Hickman objects to need not be recited here. Suffice it to
say that the record reflects that the district court's questions were proper, as
they were designed to ensure that the case was presented in such a way as to be
understood by the jury. Because the district court's questioning at trial was not
so prejudicial as to deny Hickman a fair trial, Hickman's failure to object to the
district court's questioning is fatal to his claim.1
C
21
Hickman contends that he was denied the effective assistance of counsel

because his trial counsel: (1) failed to object to the district court's granting of
the mistrial; (2) failed to object to the district court's questioning of witnesses;
and (3) conducted inadequate cross-examination.
22
A claim of ineffective assistance of counsel should be raised by a 28 U.S.C.

2255 motion in the district court and not on direct appeal, unless it
"conclusively appears" from the record that defense counsel did not provide
effective representation. United States v. Fisher, 477 F.2d 300, 302 (4th
Cir.1973); see also United States v. Williams, 977 F.2d 866, 871 (4th
Cir.1992), cert. denied, 113 S.Ct. 1342 (1993).
23
Because it does not conclusively appear from the record that Hickman received
ineffective assistance of counsel, we do not address this claim on direct appeal.
Hickman may bring these claims in a 2255 motion should he so desire.
D
24
At sentencing, the district court attributed five kilograms of crack to Hickman,

resulting in a base offense level of forty. See United States Sentencing
Commission, Guidelines Manual, 2D1.1(c)(2) (Nov.1993). Hickman

contends that assignment of this amount of crack to him was clearly erroneous
based on his knowledge of and involvement in the conspiracy. The quantity of
controlled substances involved in a drug offense, to a large degree, determines
the calculation of the sentencing range under the sentencing guidelines. See
USSG 2D1.1(c). To arrive at the proper drug quantity, the guidelines require
consideration of "all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant." USSG
1B1.3(a)(1)(A). In cases involving jointly undertaken criminal activity, such as
the conspiracy involved in this case, the guidelines also require consideration of
"all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity." USSG 1B1.3(a)(1)(B). Thus, in
conspiracies involving drug offenses, the quantity of controlled substances for
which each participant will be held accountable may vary. See USSG 1B1.3,
comment. (n.2). The commentary to the relevant conduct guideline explains:
25
Because
a count may be broadly worded and include the conduct of many
participants over a period of time, the scope of the criminal activity jointlyundertaken by the defendant (the "jointly-undertaken criminal activity") is not
necessarily the same as the scope of the entire conspiracy, and hence relevant
conduct is not necessarily the same for every participant. In order to determine the
defendant's accountability for the conduct of others under subsection (a)(1)(B), the
court must first determine the scope of the criminal activity the defendant agreed to
jointly undertake (i.e., the scope of the specific conduct and objectives embraced by
the defendant's agreement). The conduct of others that was both in furtherance of,
and reasonably foreseeable in connection with, the criminal activity jointly
undertaken by the defendant is relevant conduct under this provision. The conduct of
others that was not in furtherance of the criminal activity jointly undertaken by the
defendant, or was not reasonably foreseeable in connection with that criminal
activity, is not relevant conduct under this provision.
26
Id. Accordingly, to identify the proper sentencing range for a participant in a

conspiracy to distribute drugs, the district court must determine the scope of the
criminal activity the defendant agreed to jointly undertake. Id. Then, the district
court must determine whether the conduct of others was both in furtherance of,
and reasonably foreseeable in connection with, the criminal activity jointly
undertaken by the defendant. Id. When an issue regarding the amount of drugs
is properly raised, the district court must make an independent resolution of this
factual issue at sentencing. See USSG 6A1.3(b), p.s.; United States v.
Morgan, 942 F.2d 243, 245 (4th Cir.1991), cert. denied, 113 S.Ct. 829 (1992).
The government bears the burden of establishing the quantity of crack
attributable to Hickman and must do so by a preponderance of the evidence.
See United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990). Determining
the reasonable foreseeability and quantity of crack are factual inquiries, and
hence our review is limited to ascertaining whether the factual findings of the
district court are clearly erroneous. See United States v. Banks, 10 F.3d 1044,
1057 (4th Cir.1993), cert. denied, 114 S.Ct. 1850 (1994).
27
Initially, we note that the district court did not make specific findings as to the
scope of Hickman's agreement and what conduct of others was both in
furtherance of, and reasonably foreseeable in connection with, the conspiracy.
Instead, the district court found that Hickman was accountable for at least five
kilograms of crack in rather conclusory terms:
I28heard the evidence in this trial and in the Steve Hickman trial, and those are two
coconspirators. I can rely on the facts from each of those trials and I do. I believe
that by a preponderance of the evidence that at least five kilograms of crack cocaine
have been proven attributable to this defendant....
29 now I listened to the first trial that ended in a mistrial, and I listened to the
Well,
whole Steven Hickman trial. I listened to Stanley Hickman's trial, and I've sentenced
probably two dozen other people, all had factual basis in it.... I think he was a--the
evidence supports the finding by a preponderance of the evidence that he was an
active coconspirator in the conspiracy and I believe knew the nature and extent of
the drug trafficking.... And there was plenary testimony from other coconspirators
that Stanley Hickman was alert and involved and in a position of authority in this.
That's my factual finding.
30
(J.A. 124-27).2
31
Although the district court's factual findings were no paradigm of precision,3

we believe the record reflects that five kilograms of crack was within the scope
of Hickman's agreement and reasonably foreseeable to him. First, the overall
conspiracy in which Hickman was a part distributed at least thirty-seven
kilograms of crack. Second, there is evidence in the record that Hickman
personally participated in transactions that totaled between 4.45 and 4.92
kilograms of crack. In light of these facts, coupled with the evidence of
Hickman's ongoing relationship with the principal leaders of the conspiracy, his
drug activities in New York, and the district court's finding that Hickman
"knew the nature and extent of the drug trafficking," (J.A. 127), the record
supports the attribution of five kilograms of crack to Hickman.
III
32
Hickman raises several other arguments that he contends should be resolved in

his favor. We have reviewed these assignments of error and find them to be
without merit. Accordingly, for the reasons stated herein, Hickman's
convictions and sentence are affirmed.
33
AFFIRMED.
We also note that the district court gave the jury several curative instructions
concerning its interrogation of witnesses. For example, the district court
instructed the jury that "[a]ny question that I have made or ruling--question that
I've asked or ruling that I've made during the trial should not be interpreted by
you as indicating what your verdict should be. I don't have any position as to
the outcome of the case." (J.A. 178)
During his sentencing, Steve Hickman was held accountable for thirty-seven
kilograms of crack for his participation in the conspiracy
The district court's conclusory findings skirt the precipe for reversible error.
When confronted with a similar issue in the future, the district court should
make specific findings as to the scope of the defendant's agreement and what
conduct of others was both in furtherance of, and reasonably foreseeable in
connection with, the conspiracy

United States v. Stanley Hickman, 85 F.3d 617, 4th Cir. (1996)

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85 F.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

United States Court of Appeals, Fourth Circuit.

Following a jury trial, appellant, Stanley Hickman (Hickman), was convicted of

think I'll do that.

Hickman was then tried separately. At trial, the government's evidence

On appeal, Hickman raises numerous assignments of error, only a few of which

Under Rule 614(c), objections to the court's interrogation of witnesses is to "be

Cir.1987). One exception to this rule, allowing appellate review, is "[w]here a

Hickman contends that he was denied the effective assistance of counsel

A claim of ineffective assistance of counsel should be raised by a 28 U.S.C.

At sentencing, the district court attributed five kilograms of crack to Hickman,

Commission, Guidelines Manual, 2D1.1(c)(2) (Nov.1993). Hickman

Id. Accordingly, to identify the proper sentencing range for a participant in a

Although the district court's factual findings were no paradigm of precision,3

Hickman raises several other arguments that he contends should be resolved in

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