UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5851

STANLEY HICKMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CR-93-144-BO)

Argued: April 4, 1996

Decided: May 6, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
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.

I

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:

So you want a mistrial, is that it, an order of severance, is

that right as to each defendant? . . .

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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.

We'll take a break and I'll let you think about that. . . .

All right. Thank you. I believe I'm going to sever these

cases and mistry them and 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.

And it's clear that the bar of double jeopardy cannot apply

because the defendants 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. . . .

All right. [Counsel for Hickman], any objection to my ruling?

(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:

The jury was dismissed on ruling of allowance of the

motions by each of the four defendants to sever. And as a

result of the severance the defendants will be tried sepa-

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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.

(J.A. 43).

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

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

few of which merit discussion. We shall address these assignments of

error in turn.

A

Hickman contends his second trial violated his rights under the

Double Jeopardy Clause of the Fifth Amendment. We disagree.

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

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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).

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

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.

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."

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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.

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

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 crossexamination.

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,

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1 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).

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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).

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

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:

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 jointly-undertaken 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

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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.

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).

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:

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I heard 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. . . .

Well, now I listened to the first trial that ended in a mistrial,

and I listened to the 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.

(J.A. 124-27).2

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

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2 During his sentencing, Steve Hickman was held accountable for

thirty-seven kilograms of crack for his participation in the conspiracy.

3 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.

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"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

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.

AFFIRMED

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