UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 dis-
tribute 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 couri-
ers, 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 oth-
ers were charged with conspiracy to possess with the intent to distrib-
ute 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 cooper-
ate with the government. Hickman went to trial along with three code-
fendants. 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? . . .

                    2
          But I want to make sure that you and your clients--and I'll
          have to ask you directly on the record--to state categori-
          cally without equivocation that you knowingly and inten-
          tionally 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 conve-
          nient 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 defen-
          dants. 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 posi-
          tion, 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 sev-
          erance 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 rul-
          ing?

(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 evi-
dence 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 cir-
cumstances, prevent a retrial following a mistrial. For example, if the
defendant moved for a mistrial or otherwise consents to a mistrial, the

                       4
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 jeop-
ardy 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 jeop-
ardy 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 Hick-
man's motion for severance. As the mistrial was a necessary conse-
quence 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 dis-
trict 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 wit-
nesses 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."

                    5
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 objec-
tion 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." Appel-
lant'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 preju-
dicial 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 cross-
examination.

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,
_________________________________________________________________
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).

                     6
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 Hick-
man 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 calcula-
tion of the sentencing range under the sentencing guidelines. See
USSG § 2D1.1(c). To arrive at the proper drug quantity, the guide-
lines require consideration of "all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or will-
fully 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 con-
trolled 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

                    7
          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 fore-
          seeable 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 provi-
          sion.

Id. Accordingly, to identify the proper sentencing range for a partici-
pant in a conspiracy to distribute drugs, the district court must deter-
mine 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 foresee-
able 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 resolu-
tion 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 find-
ings as to the scope of Hickman's agreement and what conduct of oth-
ers 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:

                    8
         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 defen-
         dant. . . .

         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 preponder-
         ance 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 fore-
seeable 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 ongo-
ing relationship with the principal leaders of the conspiracy, his drug
activities in New York, and the district court's finding that Hickman
_________________________________________________________________
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.

                   9
"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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