U.S. v. Hickman
| Decision Date | 17 January 1995 |
| Docket Number | No. 94-5233,94-5233 |
| Citation | 46 F.3d 1128 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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. Robert HICKMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jeffrey Lee Starkweather, Chapel Hill, NC, for Appellant.
William Arthur Webb, Assistant United States Attorney, Raleigh, NC, for Appellee.
Janice McKenzie Cole, United States Attorney, Raleigh, NC, for Appellee.
Before ERVIN, Chief Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.
This is an interlocutory appeal, taken pursuant to Abney v. United States, 431 U.S. 651 (1977), from the district court's order denying defendant Robert Hickman's pre-trial motion to dismiss a drug conspiracy indictment against him on double jeopardy grounds. Hickman challenges both the district court's rejection on the merits of his double jeopardy claim and the court's refusal to grant an evidentiary hearing to resolve the claim. 1 We find no error and affirm.
On August 4, 1992, Hickman was indicted in the United States District Court for the District of Vermont under 21 U.S.C. Sec. 846 for conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The conspiracy count listed no specific overt acts. The activities of the alleged, and ultimately proven, conspiracy occurred in New York City and Vermont and consisted largely of transfers of cocaine and money between the two locations and of distribution of cocaine within Vermont. Hickman's alleged co-conspirators were Jacob Washington, Frank Salas, Dexter Wilson, Jerome Washington, Marlon Douglas, Stephen Collins, Percy Culcleasure, and Chance Marden (who was not indicted). He was convicted of the charged conspiracy in that court on December 23, 1993.
On October 26, 1993, Hickman was indicted under 21 U.S.C. Sec. 846 for conspiring to violate 21 U.S.C. Sec. 841(a)(1) by distributing and possessing with the intent to distribute cocaine in the United States District Court for the Eastern District of North Carolina. This conspiracy indictment listed 146 overt acts. The activities of this conspiracy were alleged to have occurred primarily in Henderson, North Carolina, and New York City and to have involved the transfer of cocaine and money between the two cities and related criminal acts. Hickman's alleged co-conspirators included Steve Hickman, Stanley Hickman, Stephanie Hartsfield, Tony Lee Daniels, Mickey Hayes, Anita Dunston, Corrine Felicia Gillard, a Jane Doe, and "certain unindicted co-conspirators, including Kim Crosson, Michael Eric Sutton, Terrence Davis, Frederick Hargrove, Troy Lamont Martin., a/k/a Trick, and Vincent MacArthur Hartsfield." JA at 77.
Hickman made a motion to dismiss this second conspiracy charge in the United States District Court for the Eastern District of North Carolina. He offered numerous exhibits and presented arguments that the previous conspiracy charge for which he was prosecuted in Vermont was sufficiently identical to the later charge to support a dismissal based on the prohibition against being placed twice in jeopardy for the same offense. On March 22, 1994, after considering the exhibits and arguments and after comparing the two conspiracy charges, the district court orally denied the motion to dismiss. In a written order filed April 4, 1994, which confirmed and elaborated its previous oral ruling, the court explained that the "co-conspirators are different, the situs and conduct are different, and [there is] no overlapping that would act as a bar based on the plea of double jeopardy." JA at 271. The district court also denied Hickman's request for a full evidentiary hearing on the double jeopardy claim, explaining that he had failed to make "a colorable showing of identity between the charges" to justify such a hearing. JA at 271. Hickman appealed from the order denying his motion and moved for a stay pending appeal. The stay was denied, and this appeal proceeded. 2
Hickman first challenges the district court's rejection on the merits of his double jeopardy dismissal motion. Having carefully considered the parties' briefs, the oral arguments of counsel, and the record, we affirm the conclusion of the district court that, on the record then before it, the Vermont conspiracy charge and the North Carolina conspiracy charge were not shown to be sufficiently identical to warrant the latter's pre-trial dismissal on double jeopardy grounds.
As to this holding, we adopt the reasoning of the district court. The court applied the "totality of the circumstances test" adopted in United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.1986) (). It found that Hickman had failed to establish three of the five MacDougall factors (namely, identity of the co-conspirators, of the overt acts and activities, and of the locations where the activities took place): the only conspirator common to both indictments was Hickman himself; the only location common to both conspiracies was New York...
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