United States v. Hickman, 2010 U.S. App. LEXIS 24367

Background

Hickman was charged in Counts I and VI of a superseding indictment, convicted on both, and sentenced to life on Count I and 360 months for Count VI.
The conspiracy alleged ran February–May 2007, involving distribution of heroin and analysis focused on whether the conspiracy amount reached one kilogram or more.
Evidence included wiretaps and surveillance around Fat Cat's Variety Store, interactions among Hickman, Jones, Henderson, and Caldwell, and a traffic stop yielding 32.14 grams of heroin at 38% purity.
Additional seizures included 139 grams (29% purity) from Caldwell and over 25,000 vials at Fat Cat's Store, with vials used for packaging street-level quantities of heroin.
Expert testimony explained dilution of heroin to user-strength (approximately 8%), forming the basis for calculating potential weight from the seized quantities.
The jury asked for the amount involved; it found one kilogram or more and that such amount was foreseeable to Hickman, leading to life imprisonment under § 841(b)(1)(A); the court later vacated the Count I kilogram conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence proves a one-kilogram conspiracy beyond a reasonable doubt	Hickman joined a large-scale conspiracy with kilograms involved.	Quantity was not proven beyond a reasonable doubt; only lesser amounts were supported.	Insufficient evidence for one-kilogram conspiracy; vacate and remand for lesser offense (100 grams or more).
Whether Pinkerton/foreseeability principles correctly allocated quantity to Hickman	Co-conspirators' acts were foreseeable to Hickman, justifying a large quantity.	Scope/foreseeability did not justify one-kilogram weight given evidentiary limits.	Quantity must be proven with particularized evidence; one-kilogram finding cannot stand.
Whether the jury instructions properly limited liability to quantities reasonably foreseeable to Hickman	Instructions correctly tied liability to foreseeable quantities within the conspiracy scope.	Requests to limit to precisely what Hickman knew or agreed to were proper.	Instructions were correct; defense request misstates law.
Whether the district court erred in allowing limited use of wiretap transcripts during deliberations	Use of wiretap transcripts was appropriate to aid deliberations.	Use was improper and invited error.	Error invited by Hickman; merits no reversal.
Whether the use of a prior drug-conviction for sentencing under § 841(b)(1)(A) was proper	Predicate conviction supports enhanced life sentence.	Underlying charging document improperly relied on common-law attempt.	Conviction valid; common-law attempt properly charged in Maryland.

Key Cases Cited

United States v. Kellam, 568 F.3d 125 (4th Cir. 2009) (three elements of conspiracy; knowledge and participation)
United States v. Green, 599 F.3d 360 (4th Cir. 2010) (standard for reviewing sufficiency of evidence de novo)
United States v. Bynum, 604 F.3d 161 (4th Cir. 2010) (sufficiency review; substantial evidence standard)
United States v. Godwin, 272 F.3d 659 (4th Cir. 2001) (conspiracy may be proven by circumstantial evidence)
United States v. Brooks, 524 F.3d 549 (4th Cir. 2008) (Pinkerton liability for quantity attributable to conspirators)
United States v. Williams, 986 F.2d 86 (4th Cir. 1993) (sentencing/conspiracy attribution of coconspirator conduct)
Rutledge v. United States, 517 U.S. 292 (1996) (directing entry of judgment for lesser included offense when greater is reversed)
United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001) (limitations on extrapolating drug quantities)
United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992) (limits on drug-quantity extrapolation)
United States v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998) (cannot uphold quantity by hunch; need particularized findings)
United States v. Henderson, 58 F.3d 1145 (7th Cir. 1995) (reliability of packaging evidence in quantity determinations)