U.S. v. Hickman

Decision Date29 November 2010
Docket NumberNo. 08-4764,08-4764
Citation626 F.3d 756
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kevin Anthony HICKMAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Francis Albert Pommett, III, Baltimore, Maryland, for Appellant. Benjamin M. Block, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Bryan M. Giblin, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and DAVIS and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge DAVIS wrote the opinion, in which Chief Judge TRAXLER and Judge KEENAN joined.

OPINION

DAVIS, Circuit Judge:

Appellant Kevin Hickman was charged in two of the 11 counts in a superseding indictment, namely (1) conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin (Count I) and (2) possession of heroin with intent to distribute (Count VI), in violation of 21 U.S.C. §§ 846 and 841(a)(1). Alone among the eight defendants, Hickman proceeded to trial. The jury convicted Hickman on both counts and, pursuant to the Government's notice of enhanced punishment, the district court imposed a mandatory life sentence on the conspiracy count and a concurrent sentence of 360 months of imprisonment on the possession with intent to distribute count. In this timely appeal, Hickman principally contends that the Government failed to offer sufficient evidence to support his conspiracy conviction and therefore the district court erred in denying his motion for judgment of acquittal on that count. He also assigns error with respect to (1) the district court's jury instructions; (2) its handling of jury questions; and (3) its use of a prior conviction in calculating Hickman's sentence.

We readily conclude that the evidence of Hickman's knowing participation in a conspiracy to distribute large amounts of heroin was overwhelming. Nevertheless, for the reasons stated within, we further conclude that the district court erred, in part, when it denied Hickman's motion for judgment of acquittal as to the one-kilogram conspiracy charged in the indictment. The Government's strained attempt, through extrapolations testified to by a drug enforcement agent, to prove beyond a reasonable doubt that the charged conspiracy involved at least one kilogram of heroin relies on impermissible speculation and cannot be sustained. Nevertheless, we hold that the evidence was sufficient to prove the lesser included offense of conspiracy to distribute 100 grams or more of heroin. Accordingly, we vacate Hickman's conspiracy conviction and remand with directions that the district court impose judgment on the lesser included offense. In all other respects, we affirm the judgment of the district court.

I.
A.

The evidence offered by the Government in this prosecution resulted from the confluence of two distinct investigations by federal and local law enforcement agencies into heroin distribution activities in Baltimore. In the course of the federal component of the investigation, agents of the Drug Enforcement Administration obtained wiretaps on the phones of Hickman's co-defendants James Jones (also known as "Fat Cat") and James Henderson, among others, and instituted surveillance of an inner-city store known as Fat Cat's Variety Store, run by Jones.

The wiretaps intercepted calls between Tony Caldwell (who was also a co-defendant) and Jones on April 24, 2007, in which Caldwell informed Jones he had found a buyer for him, whom he called "Hookie" (Hickman). Agents then set up surveillance at Fat Cat's Variety Store. Special Agent Bennet Strickland observed Hickman's car arrive at Fat Cat's Variety Store, and the wiretap confirmed that Hickman and Henderson spoke by phone only minutes before.

A few minutes after Hickman's arrival, Jones called Caldwell to ask if the person named "Kevin" at his store was, in fact, "Hookie," and was told that he was. Jones also told Caldwell that he had five more grams of heroin than Hickman could pay for, and asked whether he should give Hickman the extra five; Caldwell instructedhim to deliver only "what he [was] supposed to get," J.A. 405. Shortly afterward, Caldwell asked Jones, "You all know each other?" and Jones confirmed, "Yeah, yeah, yeah, I know him, I know him. Definitely yeah." J.A. 407. Caldwell then told Jones that Hickman was "my co-defendant," J.A. 407 (apparently alluding to an earlier drug prosecution in state court). Just after leaving the store, Hickman spoke with Henderson by phone; Henderson asked if he "ever ma[d]e it to the store" and Hickman confirmed that he had. J.A. 409.

The investigators directed city police to stop Hickman, and after allowing Hickman to drive a few blocks away from the store so as not to raise suspicion, Baltimore Police Officer Keith Sokolowski stopped Hickman's vehicle for a traffic violation. Hickman was driving and his girlfriend, Claudia Lake, was in the front passenger seat. Officer Sokolowski testified that he discovered and seized 32.14 grams of heroin in the passenger area of the car, which Lake had tried to hide. Subsequent analysis revealed that the heroin was 38% pure. Sokolowski also found 17 gold-topped vials of heroin hidden under the gas cap of the vehicle, though the heroin in the vials was never weighed.

Hickman was arrested and then released on bail. The day of his release, he called Henderson about arranging an additional purchase from Jones. Over the next few days, the two spoke several times about it; though Hickman told Henderson that he had spoken with Jones and was simply waiting on him, the Government produced no evidence that this plan was ever consummated.

Meanwhile, in a search of Caldwell's house on May 8, 2007 arising from a separate investigation, local law enforcement officers seized 139 grams of heroin, later found to be 29% pure. In a subsequent search of Fat Cat's Variety Store on June 7, 2007, federal agents seized more than 25,000 vials and a variety of colored tops, packaged by the hundred. The evidence showed that the vials were of the sort customarily employed to package street-level quantities of heroin (one-tenth of a gram).

Additional facts are set forth in the following analyses as needed.

B.

Hickman was charged with seven others in an 11-count superseding indictment. He was named in two counts; count one alleged a "conspir[acy] ... to distribute, and possess with intent to distribute, one kilogram or more of ... heroin," and count six alleged "possess[ion] with the intent to distribute a quantity ... of heroin." J.A. 10-11, 16. Although all of Hickman's co-defendants pled guilty, none of them testified at trial, nor did the Government call as a witness any other participant in the overall conspiracy. Rather, the Government adduced the testimony of the following witnesses: Special Agent Strickland, who was conducting surveillance outside of Fat Cat's Variety Store at the time of Hickman's purchase; Officers Sokolowski and Michael Woodlon, who took part in the traffic stop of Hickman; Detective Constantine Passamichalis, who assisted in the raid on Caldwell's residence; and criminologists Anthony Rumber and Theodis Warnick, Jr., who tested the narcotics seized from Hickman and Caldwell.

Perhaps most significant for purposes of this appeal was extensive testimony from Special Agent Brendan O'Meara, who monitored the Jones wiretap and who was accepted by the court as an expert in narcotics investigations. The Government relied heavily on the content of the wiretap recordings, and it was Agent O'Meara whointerpreted them for the jury, explaining the vague and coded terminology used by drug dealers. In its effort to prove that the conspiracy (which the indictment alleged subsisted for only four months, from February 2007 through May 2007) involved more than one kilogram of heroin, the Government asked Agent O'Meara to explain how heroin is typically cut down from its raw, high-purity state to user-strength level of approximately 8% via mixture with mannite and quinine. Critical to the Government's theory of the case was O'Meara's opinion that the 25,000 vials seized from Fat Cat's Variety Store would be enough to hold one kilogram of user-strength heroin.

After the Government rested, the defense moved for a judgment of acquittal, which the district court denied. The defense at no time specifically argued that the Government's proof established only a conspiracy involving a lesser amount than one kilogram, and the defense never requested a lesser included offense instruction. Nor did the defense call any witnesses.

The jury found Hickman guilty on both the conspiracy and possession with intent to distribute counts. The jury was asked on the verdict form to determine whether the amount of heroin involved in the conspiracy and reasonably foreseeable to Hickman was (1) one kilogram or more, (2) less than one kilogram but greater than or equal to one hundred grams, or (3) less than one hundred grams. It found the conspiracy involved one kilogram or more and that such amount was foreseeable to Hickman. After the verdict, Hickman moved for a new trial pursuant to Rule 33, which was denied. Because Hickman had two predicate felony drug convictions which the Government had noticed pursuant to 21 U.S.C. § 851, he was sentenced to life imprisonment on the conspiracy count and to a concurrent sentence of 360 months for possession with intent to distribute.

II.

We first address Hickman's contention that the evidence was insufficient to prove the one-kilogram conspiracy. We easily conclude that the evidence adduced by the Government proved the existence of a heroin conspiracy, but we are unable to find in the record adequate evidence to prove beyond a reasonable doubt that the conspiracy involved one kilogram or...

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