United States v. Hicks

• Decision Date: 16 July 2021
• Docket Number: Docket No. 19-590-cr,August Term, 2020
• Citation: 5 F.4th 270
• Parties: UNITED STATES of America, Appellee, v. Aaron HICKS, aka Boog, aka Boogy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

5 F.4th 270

UNITED STATES of America, Appellee,

v.Aaron HICKS, aka Boog, aka Boogy, Defendant-Appellant.^*

Docket No. 19-590-cr

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: February 11, 2021

Decided: July 16, 2021

Jamesa J. Drake, Drake Law LLC, Auburn, ME, for Defendant-Appellant Aaron Hicks.

Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee United States of America.

Before: PARKER, LOHIER, and MENASHI, Circuit Judges.

LOHIER, Circuit Judge:

Aaron Hicks was retried on one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d), after having been convicted in an earlier trial of participating in a marijuana trafficking conspiracy but acquitted of participating in a cocaine and cocaine base conspiracy and a related firearms charge. Before his first trial, Hicks moved to disqualify the attorney for one of his co-defendants because the attorney had previously represented Hicks in a related state court matter. The United States District Court for the Western District of New York (Arcara, J. ) denied the motion. It elected instead to sever Hicks's trial from that of the co-defendant and proceeded to try Hicks alone. Hicks claims that this was an abuse of discretion. During the retrial, moreover, the District Court admitted evidence suggesting that Hicks had participated in the cocaine conspiracy notwithstanding his earlier acquittal. On appeal, Hicks argues that this violated his rights under the Double Jeopardy Clause.

We address two questions. First, did the District Court's decision to admit evidence of Hicks's involvement in cocaine or cocaine base trafficking during his retrial on the RICO conspiracy charge violate the prohibition against double jeopardy? Second, did the District Court err when it denied Hicks's motion to disqualify his co-defendant's counsel and instead severed Hicks's trial?

We answer each question in the negative and affirm the judgment of the District Court.

BACKGROUND

In 2015 Hicks, along with other defendants, was charged principally with conspiracy to distribute marijuana, cocaine, and cocaine base in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a crime of violence and a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and RICO conspiracy in violation of 18 U.S.C. § 1962(d). Before trial, Hicks moved to disqualify co-defendant Roderick Arrington's counsel, Andrew LoTempio, on the ground that LoTempio had previously represented Hicks in a state court matter that, it turned out, the Government alleged was an overt act in furtherance of the RICO conspiracy charged in this case. The District Court held a Curcio hearing to probe the nature of LoTempio's potential conflict and to determine whether Arrington would waive the conflict. See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). After the hearing, Arrington waived the potential conflict, and the District Court accepted Arrington's waiver.¹

The District Court nevertheless recognized that Arrington's waiver did not fully resolve the potential conflicts that might arise in a joint trial. If Hicks testified, the court observed, LoTempio could exploit his prior representation of Hicks to cross-examine him. To avoid this problem, LoTempio proposed severing Hicks's trial from Arrington's, while Hicks sought LoTempio's disqualification altogether. The District Court decided that severing the trials was the better option. Disqualifying LoTempio as Hicks proposed, it explained, would violate Arrington's Sixth Amendment right to be represented by the counsel of his choice.

Hicks was tried alone. At trial the Government sought to prove that Hicks was a member of a violent Buffalo-based drug-trafficking organization it called the "Schuele Boys." The Government introduced evidence that Hicks and other Schuele Boys members trafficked in marijuana, cocaine, and cocaine base.² For example, one cooperating government witness, Julio Contreras, testified that he started selling cocaine to Hicks, his main contact within the Schuele Boys, in late 2010, with an initial shipment of sixteen kilograms of cocaine from Texas to Buffalo. Contreras continued to transport cocaine routinely from Texas directly to Hicks until Contreras was arrested a year later, in November 2011. There was also evidence that Hicks, Arrington, and others plotted to murder Quincy Balance in retaliation for the murder of a Schuele Boys member. One witness testified that Hicks and others discussed murdering Balance, while another placed Hicks at the scene of Balance's murder.

The jury reached a mixed verdict. It found Hicks guilty of engaging in the marijuana conspiracy, but it acquitted him of conspiring to traffic in cocaine or cocaine base.³ Hicks was also acquitted of the firearm possession charge. The jury was unable to reach a verdict on the RICO conspiracy count, as to which the District Court declared a mistrial. Hicks moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Because it was likely that he would be retried on the RICO conspiracy count, he also moved to exclude evidence of any cocaine or cocaine base trafficking in the retrial. Admitting the evidence, he claimed, would violate his double jeopardy rights.

The District Court denied both motions. On the motion to exclude evidence at the retrial, it explained that the jury could have concluded "that cocaine and cocaine base conspiracies existed but that [Hicks] was not a member of the conspiracies." Sp. App'x 35. Because double jeopardy attached only if the jury had necessarily decided both of those elements in Hicks's favor and because the retrial involved the very different charge of RICO conspiracy, the court reasoned, there was no basis to preclude evidence of the cocaine or cocaine base trafficking in Hicks's retrial.

Hicks was retried in 2018. At the retrial, the Government relied on substantially the same evidence that it had presented during the first trial.⁴ In particular, it reintroduced evidence that Contreras regularly shipped cocaine from Texas to Hicks in Buffalo—the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy. The Government also emphasized the relationship between Contreras and Hicks in its summation, as follows: "Contreras told you that they became members, right; that he came up in November of 2010 with 16 kilograms of cocaine and they established what the prices were going to be and how they were going to be sold .... [T]hey established their agreement then. [Hicks] knew that he was a member, knew what he was getting into." App'x 2820.

The second jury convicted Hicks of the RICO conspiracy count. The District Court then sentenced Hicks principally to 360 months’ imprisonment. This appeal followed.

DISCUSSION

Hicks challenges his RICO conspiracy conviction on double jeopardy grounds. He challenges his convictions for both marijuana conspiracy and RICO conspiracy on the ground that the District Court should not have severed his trial.

I

A

The Double Jeopardy Clause of the Fifth Amendment guarantees 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. "This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek." Currier v. Virginia, ––– U.S. ––––, 138 S. Ct. 2144, 2149, 201 L.Ed.2d 650 (2018).

The clause has two components. The more familiar "charging" component derives from the Supreme Court's opinion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and governs the charges that the government may pursue against a criminal defendant. It "embodies a kind of ‘claim preclusion’ rule, [but] bears little in common with its civil counterpart." Currier, 138 S. Ct. at 2154. The charging component "asks whether each offense contains an element not contained in the other, and provides that, if not, they are the same offense and double jeopardy bars additional punishment." United States v. Garavito-Garcia, 827 F.3d 242, 250 (2d Cir. 2016) (quotation marks omitted).

The Government was not barred on double jeopardy grounds from retrying Hicks for RICO conspiracy. As Hicks concedes, the elements of the narcotics conspiracy of which he was acquitted and the elements of the RICO conspiracy count of conviction that he challenges on appeal differ substantially. A narcotics conspiracy that involves five or more kilograms of cocaine, as was alleged here, requires that the Government prove the existence of the conspiracy, that the defendant willfully joined it, and the drug quantity. See United States v. Taylor, 816 F.3d 12, 19 (2d Cir. 2016). The RICO conspiracy charged here, meanwhile, has the following elements: (1) "an agreement to join a racketeering scheme"; (2) "the defendant's knowing engagement in the scheme with the intent that the overall goals be effectuated"; and (3) "that the scheme involved, or by agreement between any members of the conspiracy was intended to involve, two or more predicate acts of racketeering." United States v. Zemlyansky, 908 F.3d 1, 11 (2d Cir. 2018). Because each offense contains at least one element not contained in the other, we are persuaded that the charging component of the Double Jeopardy Clause is not implicated here.

We therefore turn to the second component of double jeopardy, sometimes described as the "issue preclusion" component, which is more relevant to this appeal. It "precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial." Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78...