United States v. Hicks, 5 F.4th 270

Background

Aaron Hicks was indicted on marijuana, cocaine, and cocaine‑base conspiracy counts, a related § 924(c) firearms charge, and a RICO conspiracy count; he was tried alone after the district court declined to disqualify a co‑defendant’s counsel and instead severed trials.
At the first trial the jury convicted Hicks of marijuana conspiracy, acquitted him of cocaine and cocaine‑base conspiracy and the § 924(c) charge, and deadlocked on the RICO conspiracy (mistrial on RICO).
Before retrial on the RICO count Hicks moved to exclude evidence of cocaine/cocaine‑base trafficking as barred by the Double Jeopardy Clause; the district court denied the motion, reasoning the prior acquittal did not necessarily decide the facts the Government would offer at retrial.
At the RICO retrial the Government reintroduced much of the same evidence (including testimony that Contreras shipped large quantities of cocaine to Hicks); the jury convicted Hicks of RICO conspiracy.
Hicks appealed, arguing (1) the admission and prosecutor’s use of evidence of cocaine trafficking at the RICO retrial violated the Double Jeopardy Clause, and (2) the district court abused its discretion by refusing to disqualify counsel for his co‑defendant and instead severing the trials.
The Second Circuit affirmed, rejecting Hicks’s double jeopardy and severance/disqualification challenges.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admitting evidence of Hicks’s cocaine trafficking at the RICO retrial violated double jeopardy	Hicks: evidence resurrected acquitted conduct and was used to prove he joined a cocaine conspiracy, which he had been acquitted of.	Gov: RICO and narcotics conspiracy are different offenses; an acquittal on the cocaine conspiracy did not necessarily decide absence of the underlying acts or preclude reusing evidence at retrial for a different charge.	Court: No double jeopardy violation; offenses have different elements and the prior acquittal did not necessarily decide the issues the Government later litigated.
Whether the prosecutor’s summation improperly used acquitted conduct to prove Hicks joined the cocaine conspiracy	Hicks: summation argued Contreras’s testimony showed Hicks was a member of the cocaine conspiracy, reusing acquitted conduct.	Gov: summation urged that Contreras’s testimony showed Hicks’s role in the charged RICO scheme; remarks were not plainly intended to relitigate the acquitted cocaine conspiracy.	Court: Remarks did not amount to reuse for the specific purpose barred by precedent, and any objection was forfeited so review was for plain error — none that affected substantial rights.
Whether the district court should have disqualified co‑defendant’s counsel (LoTempio) instead of severing Hicks’s trial	Hicks: LoTempio’s prior representation of Hicks created a conflict; disqualification was required rather than severance.	Gov/Dist. Ct.: Disqualification would have violated Arrington’s Sixth Amendment right to counsel of choice; severance protected both defendants’ rights.	Court: No abuse of discretion. Severance was a permissible, not clearly erroneous, way to reconcile competing Sixth Amendment interests.

Key Cases Cited

Currier v. Virginia, 138 S. Ct. 2144 (2018) (explains double jeopardy principles and rationale for charging vs. issue‑preclusion components)
Blockburger v. United States, 284 U.S. 299 (1932) (establishes element‑test for when two offenses are the same for double jeopardy)
Yeager v. United States, 557 U.S. 110 (2009) (acquittal bars relitigation of issues necessarily decided in defendant’s favor)
United States v. Zemlyansky, 908 F.3d 1 (2d Cir. 2018) (reusing acquitted conduct at retrial is barred only if offered for the specific purpose of proving the acquitted conduct)
United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979) (distinguishes retrial use of evidence when first trial involved a substantive possession charge rather than a conspiracy charge)
United States v. Arrington, 941 F.3d 24 (2d Cir. 2019) (discusses waiver and the consequences of counsel conflict in the related co‑defendant’s appeal)
Zafiro v. United States, 506 U.S. 534 (1993) (no absolute right to a joint trial; severance within district court’s discretion)