Federal Drug Conviction Overturned due to the govt’s “impermissible speculation.”

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT


UNITED STATES oF AMERICA,
Plaintiff-Appellee,
v. No. 08-4764

KEVIN ANTHONY HICKMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:07-cr-00261-WDQ-8)
Argued: September 22, 2010
Decided: November 29, 2010
Before TRAXLER, Chief Judge, and DAVIS and
KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instruc-
tions by published opinion. Judge Davis wrote the opinion, in
which Chief Judge Traxler and Judge Keenan joined.
COUNSEL
ARGUED: Francis Albert Pommett, III, Baltimore, Mary-
land, for Appellant. Benjamin M. Block, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Bryan M. Giblin, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee.
OPINION
DAVIS, Circuit Judge:
Appellant Kevin Hickman was charged in two of the 11
counts in a superseding indictment, namely (1) conspiracy to
distribute and to possess with intent to distribute one kilogram
or more of heroin (Count I) and (2) possession of heroin with
intent to distribute (Count VI), in violation of 21 U.S.C.
§§ 846 and 841(a)(1). Alone among the eight defendants,
Hickman proceeded to trial. The jury convicted Hickman on
both counts and, pursuant to the Government’s notice of
enhanced punishment, the district court imposed a mandatory
life sentence on the conspiracy count and a concurrent sen-
tence of 360 months of imprisonment on the possession with
intent to distribute count. In this timely appeal, Hickman prin-
cipally contends that the Government failed to offer sufficient
evidence to support his conspiracy conviction and therefore
the district court erred in denying his motion for judgment of
acquittal on that count. He also assigns error with respect to
(1) the district court’s jury instructions; (2) its handling of
jury questions; and (3) its use of a prior conviction in calculat-
ing Hickman’s sentence.
We readily conclude that the evidence of Hickman’s know-
ing participation in a conspiracy to distribute large amounts of
heroin was overwhelming. Nevertheless, for the reasons
stated within, we further conclude that the district court erred,
in part, when it denied Hickman’s motion for judgment of
acquittal as to the one-kilogram conspiracy charged in the
indictment. The Government’s strained attempt, through
2 UNITED STATES v. HICKMAN
extrapolations testified to by a drug enforcement agent, to
prove beyond a reasonable doubt that the charged conspiracy
involved at least one kilogram of heroin relies on impermissi-
ble speculation and cannot be sustained. Nevertheless, we
hold that the evidence was sufficient to prove the lesser
included offense of conspiracy to distribute 100 grams or
more of heroin. Accordingly, we vacate Hickman’s conspir-
acy conviction and remand with directions that the district
court impose judgment on the lesser included offense. In all
other respects, we affirm the judgment of the district court.
I.
A.
The evidence offered by the Government in this prosecu-
tion resulted from the confluence of two distinct investiga-
tions by federal and local law enforcement agencies into
heroin distribution activities in Baltimore. In the course of the
federal component of the investigation, agents of the Drug
Enforcement Administration obtained wiretaps on the phones
of Hickman’s co-defendants James Jones (also known as “Fat
Cat”) and James Henderson, among others, and instituted sur-
veillance of an inner-city store known as Fat Cat’s Variety
Store, run by Jones.
The wiretaps intercepted calls between Tony Caldwell
(who was also a co-defendant) and Jones on April 24, 2007,
in which Caldwell informed Jones he had found a buyer for
him, whom he called “Hookie” (Hickman). Agents then set up
surveillance at Fat Cat’s Variety Store. Special Agent Bennet
Strickland observed Hickman’s car arrive at Fat Cat’s Variety
Store, and the wiretap confirmed that Hickman and Hender-
son spoke by phone only minutes before.
A few minutes after Hickman’s arrival, Jones called Cald-
well to ask if the person named “Kevin” at his store was, in
fact, “Hookie,” and was told that he was. Jones also told Cald-
3
UNITED STATES v. HICKMAN
well that he had five more grams of heroin than Hickman
could pay for, and asked whether he should give Hickman the
extra five; Caldwell instructed him to deliver only “what he
[was] supposed to get,” J.A. 405. Shortly afterward, Caldwell
asked Jones, “You all know each other?” and Jones con-
firmed, “Yeah, yeah, yeah, I know him, I know him. Defi-
nitely yeah.” J.A. 407. Caldwell then told Jones that Hickman
was “my co-defendant,” J.A. 407 (apparently alluding to an
earlier drug prosecution in state court). Just after leaving the
store, Hickman spoke with Henderson by phone; Henderson
asked if he “ever ma[d]e it to the store” and Hickman con-
firmed that he had. J.A. 409.
The investigators directed city police to stop Hickman, and
after allowing Hickman to drive a few blocks away from the
store so as not to raise suspicion, Baltimore Police Officer
Keith Sokolowski stopped Hickman’s vehicle for a traffic vio-
lation. Hickman was driving and his girlfriend, Claudia Lake,
was in the front passenger seat. Officer Sokolowski testified
that he discovered and seized 32.14 grams of heroin in the
passenger area of the car, which Lake had tried to hide. Sub-
sequent analysis revealed that the heroin was 38% pure. Soko-
lowski also found 17 gold-topped vials of heroin hidden under
the gas cap of the vehicle, though the heroin in the vials was
never weighed.
Hickman was arrested and then released on bail. The day
of his release, he called Henderson about arranging an addi-
tional purchase from Jones. Over the next few days, the two
spoke several times about it; though Hickman told Henderson
that he had spoken with Jones and was simply waiting on him,
the Government produced no evidence that this plan was ever
consummated.
Meanwhile, in a search of Caldwell’s house on May 8,
2007 arising from a separate investigation, local law enforce-
ment officers seized 139 grams of heroin, later found to be
29% pure. In a subsequent search of Fat Cat’s Variety Store
4 UNITED STATES v. HICKMAN
on June 7, 2007, federal agents seized more than 25,000 vials
and a variety of colored tops, packaged by the hundred. The
evidence showed that the vials were of the sort customarily
employed to package street-level quantities of heroin (one-
tenth of a gram).
Additional facts are set forth in the following analyses as
needed.
B.
Hickman was charged with seven others in an 11-count
superseding indictment. He was named in two counts; count
one alleged a “conspir[acy] . . . to distribute, and possess with
intent to distribute, one kilogram or more of . . . heroin,” and
count six alleged “possess[ion] with the intent to distribute a
quantity . . . of heroin.” J.A. 10-11, 16. Although all of Hick-
man’s co-defendants pled guilty, none of them testified at
trial, nor did the Government call as a witness any other par-
ticipant in the overall conspiracy. Rather, the Government
adduced the testimony of the following witnesses: Special
Agent Strickland, who was conducting surveillance outside of
Fat Cat’s Variety Store at the time of Hickman’s purchase;
Officers Sokolowski and Michael Woodlon, who took part in
the traffic stop of Hickman; Detective Constantine Passami-
chalis, who assisted in the raid on Caldwell’s residence; and
criminologists Anthony Rumber and Theodis Warnick, Jr.,
who tested the narcotics seized from Hickman and Caldwell.
Perhaps most significant for purposes of this appeal was
extensive testimony from Special Agent Brendan O’Meara,
who monitored the Jones wiretap and who was accepted by
the court as an expert in narcotics investigations. The Govern-
ment relied heavily on the content of the wiretap recordings,
and it was Agent O’Meara who interpreted them for the jury,
explaining the vague and coded terminology used by drug
dealers. In its effort to prove that the conspiracy (which the
indictment alleged subsisted for only four months, from Feb-
5
UNITED STATES v. HICKMAN
ruary 2007 through May 2007) involved more than one kilo-
gram of heroin, the Government asked Agent O’Meara to
explain how heroin is typically cut down from its raw, high-
purity state to user-strength level of approximately 8% via
mixture with mannite and quinine. Critical to the Govern-
ment’s theory of the case was O’Meara’s opinion that the
25,000 vials seized from Fat Cat’s Variety Store would be
enough to hold one kilogram of user-strength heroin.
After the Government rested, the defense moved for a judg-
ment of acquittal, which the district court denied. The defense
at no time specifically argued that the Government’s proof
established only a conspiracy involving a lesser amount than
one kilogram, and the defense never requested a lesser
included offense instruction. Nor did the defense call any wit-
nesses.
The jury found Hickman guilty on both the conspiracy and
possession with intent to distribute counts. The jury was asked
on the verdict form to determine whether the amount of her-
oin involved in the conspiracy and reasonably foreseeable to
Hickman was (1) one kilogram or more, (2) less than one
kilogram but greater than or equal to one hundred grams, or
(3) less than one hundred grams. It found the conspiracy
involved one kilogram or more and that such amount was
foreseeable to Hickman. After the verdict, Hickman moved
for a new trial pursuant to Rule 33, which was denied.
Because Hickman had two predicate felony drug convictions
which the Government had noticed pursuant to 21 U.S.C.
§ 851, he was sentenced to life imprisonment on the conspir-
acy count and to a concurrent sentence of 360 months for pos-
session with intent to distribute.
II.
We first address Hickman’s contention that the evidence
was insufficient to prove the one-kilogram conspiracy. We
easily conclude that the evidence adduced by the Government
6 UNITED STATES v. HICKMAN
proved the existence of a heroin conspiracy, but we are unable
to find in the record adequate evidence to prove beyond a rea-
sonable doubt that the conspiracy involved one kilogram or
more. After examining the evidence surrounding each of the
transactions proven at trial, we consider the two inferences the
Government asked the jury to draw in order to reach its find-
ing that the conspiracy involved at least one kilogram— most
notably, that the conspirators’ seeming familiarity with the
drug trade indicated that this conspiracy concerned some
greater amount of heroin than was otherwise proved at trial.
As we explain, the direct and circumstantial evidence in the
record simply will not do the work the Government assigned
it, and we hold the evidence is insufficient to prove beyond
a reasonable doubt the charged one-kilogram conspiracy.
Accordingly, we vacate the conviction and sentence on Count
I and remand with directions to the district court to enter judg-
ment against Hickman for conspiracy to distribute one hun-
dred grams or more of heroin, a lesser included offense
encompassed by Count I of the superseding indictment amply
supported by sufficient evidence.
A.
We review the denial of Hickman’s motion for judgment of
acquittal de novo. See United States v. Green, 599 F.3d 360,
367 (4th Cir. 2010), cert. denied, No. 10-5288, and No. 10-
5735 (U.S. Oct. 4, 2010). “[V]iewing the evidence in the light
most favorable to the Government,” United States v. Bynum,
604 F.3d 161, 166 (4th Cir.) (internal quotation marks omit-
ted), cert. denied, 130 S. Ct. 3442 (2010), we are to determine
whether the conviction is supported by “substantial evidence,”
where “substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to sup-
port a conclusion of a defendant’s guilt beyond a reasonable
doubt,” United States v. Young, 609 F.3d 348, 355 (4th Cir.
2010).
Though this is a “heavy burden,” id., it is by no means insu-
perable. The ultimate question is whether “any rational trier
7
UNITED STATES v. HICKMAN
of facts could have found the defendant guilty beyond a rea-
sonable doubt.” Bynum, 604 F.2d at 166 (internal quotation
marks omitted). Where, as here, the trier of fact would have
had to rely on attenuated inferences of drug quantity, the find-
ing of quantity cannot stand.
B.
Overwhelming evidence supports the jury’s finding that
Hickman was a knowing member of the basic conspiracy
alleged in Count I of the superseding indictment.
Conviction for conspiracy to distribute narcotics under 21
U.S.C. § 846 requires proof beyond a reasonable doubt of
three elements: (1) “an agreement between two or more per-
sons to engage in conduct that violates a federal drug
law”—here, to distribute or possess narcotics with intent to
distribute; “(2) the defendant’s knowledge of the conspiracy;
and (3) the defendant’s knowing and voluntary participation
in the conspiracy.” United States v. Kellam, 568 F.3d 125, 139
(4th Cir.), cert. denied, 130 S. Ct. 657 (2009). Proof of a con-
spiratorial agreement need not be by direct evidence, and
rather may “be proven inferentially and by circumstantial evi-
dence.” United States v. Godwin, 272 F.3d 659 (4th Cir.
2001).
Given the plethora of direct evidence, including but not
limited to the content of the telephone communications and
the circumstances surrounding the traffic stop of Hickman,
only very modest inferences, if any, were required here to
show the existence of a conspiratorial agreement and Hick-
man’s knowing membership in a heroin conspiracy. The
damning wiretap recordings reveal Hickman and Henderson’s
coordination before1 and after2 Hickman purchased 32 grams
1
See J.A. 400-01 (on the day of the buy, Henderson reporting to Hick-
man that Henderson is driving “[r]ight behind” him in “the gold car” at
3:04 p.m.).
2
See J.A. 408-09 (at 3:29 p.m., Henderson calling Hickman to ask if he
8 UNITED STATES v. HICKMAN
of heroin from Jones; Henderson discussing his stake in the
transaction;3 and later exchanges between Hickman and Hen-
derson concerning the possibility of a subsequent transaction
after the police seized the heroin initially purchased.4 More-
over, agents observed Hickman entering and exiting Jones’s
store5; in the interim, wiretaps record Jones discussing the
Hickman sale with Caldwell;6 and a police stop some minutes
later found Hickman in possession of those 32 grams.7 In the
face of this mountain of evidence of Hickman’s knowing par-
ticipation in a heroin distribution conspiracy, Hickman’s
“ever ma[d]e it to the store” and if he was “on [his] way back from seeing
him [Jones],” and Henderson arranging that he will “just come on up” to
Hickman’s house to “get that shit out the way”—that is, collect the pur-
chased heroin).
3
See J.A. 426-27 (an hour after the buy, having just learned of Hick-
man’s arrest, Henderson telling an unidentified man that Hickman “had
my fucking bread yo” and complains “I ain’t even get to get that [i.e.,
retrieve the narcotics] from him yo”).
4
See J.A. 446 (two days after Hickman’s purchase, consequent arrest
and release on bail, Henderson asking Hickman to “check with him and
see if we able to do something tomorrow man,” to which Hickman replies,
“I’ve been trying to call but yeah I’ll do that”); J.A. 448 (the next day,
Henderson checking in with Hickman, who reports that he’s “waiting on
him to call” but that “[everything]’s still good”); J.A. 450-51 (the day after
that, Henderson asking Hickman if he can “see if that dude can do the
same thing again”; Hickman confirming he “talked to him”); J.A. 457-58
(the following day, Henderson again asking after Hickman’s progress and
Hickman informing him that he is “trying now man” and that he is “going
to go down there and see . . . Fat Cat”).
5
See J.A. 81 (Agent Strickland testifying to seeing a “gold sedan” pull
up at Jones’s store at 3:13 p.m. and a black male exiting the car and enter-
ing the store); J.A. 95-96, 123 (Detective Sokolowski testifying to stop-
ping the sedan with the same license tag at 3:39 p.m.)
6
J.A. 402-05 (at 3:20 p.m., Jones calling Caldwell to confirm that Hick-
man is Caldwell’s man and to ask Caldwell whether to spot Hickman
Jones’s last five grams of heroin, which Hickman’s funds wouldn’t cover).
7
J.A. 95-98, 123 (Detective Sokolowski testifying to stopping Hickman
and finding the bag of heroin).
9
UNITED STATES v. HICKMAN
broader challenge to the sufficiency of the evidence is plainly
unavailing.8
C.
Although there is overwhelming evidence of Hickman’s
knowing membership in a heroin distribution conspiracy, his
challenge to the jury’s finding that the conspiracy of which he
became a member involved at least one kilogram of heroin
has merit. Sufficient evidence supported a finding that Hick-
man knowingly became a member of a large-scale heroin dis-
tribution conspiracy which involved, at the least Jones,
Henderson, and Caldwell, and that many of the acts of the co-
conspirators were reasonably foreseeable to Hickman. Yet, no
matter how generously we indulge the available reasonable
inferences in favor of the Government, adding the post-
dilution weight of heroin from all known and reasonably
inferable transactions— whether completed, attempted, or
merely agreed upon by any of Hickman’s co-conspirators—
to reach a sum of one kilogram, if not a mathematical impos-
sibility, would require reasoning so attenuated as to provide
insufficient support for the jury’s verdict on the one-kilogram
verdict.
The jury heard evidence of the amounts and purity of her-
oin seized during the traffic stop of Hickman and the raid on
8
We pause to acknowledge the practical conundrum faced by counsel
for Hickman. Rare is the lawyer who wants to make an argument to a jury
that, “My client was not involved in a conspiracy, but if you disagree, it
was at most a conspiracy involving less than one kilogram of heroin.”
Thus, in his arguments on the motion for judgment of acquittal, in his
request for jury instructions (discussed infra), and in his closing argument
to the jury, counsel largely sought to cast Hickman as involved merely in
one or more buy-sell transactions rather than in a conspiracy, and that
argument is pressed on us in this appeal. Nonetheless, we have no doubt
that Hickman’s argument on the motion for judgment of acquittal was ade-
quate to alert the district court to the deficiency in the Government’s proof
of drug quantity and to preserve the sufficiency of evidence issue for pur-
poses of this appeal.
10 UNITED STATES v. HICKMAN
Caldwell’s home; evidence of discussion between Hickman
and Henderson of an attempt in the days after Hickman’s ini-
tial arrest to “do the same thing [transaction] again,” J.A. 450,
presumably with Jones; and a vague statement the defense
itself elicited on recross-examination of a Government wit-
ness concerning the “recover[y] [of] heroin . . . the week
prior” from someone exiting Jones’s store, J.A. 335.
The indictment alleged a four-month conspiracy. The only
definite amounts of heroin established by the Government
were the 32.14 grams of 38% pure heroin recovered during
the stop of Hickman’s vehicle; 17 gold-topped vials also
recovered during the traffic stop, the contents of which were
never weighed; the 5 grams of heroin Jones kept from Hick-
man; and 139 grams of 29% pure heroin seized from the raid
on Caldwell’s apartment. Expert testimony from Agent
O’Meara provided a basis for inferring that the co-
conspirators intended that the heroin be substantially diluted
before reaching end-users. To “step on” or “cut down” the
heroin, a dealer would mix one part raw heroin with one, two,
or three parts of “cut”— the solvent used to dilute the heroin,
often mannite or quinine— to reach a concentration fit for
most users, which Agent O’Meara estimated to be 8%. J.A.
286-88.
Agent O’Meara’s discussion of the dilution process was the
jury’s only basis for inflating the weight of the recovered her-
oin, and as such the method of dilution he described must
constrain the trier of fact’s reasonable inferences. As Agent
O’Meara described, raw heroin is said, in the “slang vernacu-
lar,” to “take[ ] a one, two, or a three” depending on how
many parts of solvent are mixed with each part of heroin, J.A.
288; because “the drug dealers on the street don’t have a labo-
ratory,” J.A. 289, they are limited to this simple mixing pro-
cess. Agent O’Meara’s lengthy discussion, and the vernacular
terms he cites, indicate that this mixing of heroin with “cut”
is always in the ratio of 1:n, where n is a natural number.
This, of course, would bound the maximum dilution of heroin
11
UNITED STATES v. HICKMAN
of a given purity: without “a laboratory” capable of more pre-
cise measurements and mixtures, dilution to precisely 8% will
ordinarily be impossible. Thus the 38% pure heroin recovered
from Hickman would only “take a four”— be mixed 1:4 with
solvent— since a 1:5 mixture would decrease the purity
below 8%; similarly, the heroin seized from Caldwell, 29%
pure, would “take a three.”9 These dilutions would result in
128.56 grams of 9.5% purity and 417 grams of 9 2/3% puri-
ty—together, approximately 546 grams of heroin. But we will
assume, arguendo, that the Hickman conspiracy would have
diluted this heroin precisely to 8% purity, generating 153
grams and 504 grams for Hickman and Caldwell, respec-
tively. Together with the 5 grams Jones kept from Hickman—
which, assuming it was of the same purity as the 32 grams
Jones sold him, would add another 23.75 grams— the Gov-
ernment would have established a total of 681 grams.
As for the 17 gold-top vials recovered during the traffic
stop of Hickman, their contents were never weighed. J.A.
177-78. Rumber, one of the Government’s two criminologists
at trial, testified that the gross weight of the vials was 24.30
grams, and confirmed that the net weight— the weight of the
heroin itself— was never measured. The only testimony on
point is from Agent O’Meara, who explained that a vial of
9
We note that 8%, though Agent O’Meara gave it as a “rough” estimate
of the “average” for lowest-purity “scramble” heroin in Baltimore City,
J.A. 286, was the lowest purity discussed at trial. The Government’s crim-
inologist, who had worked for the Baltimore City Police Department for
eleven years and tested “thousands” of samples for the presence of con-
trolled dangerous substances, J.A. 168-69, put the weakest heroin submit-
ted to the crime lab for testing at “around 9 to about 11” percent, J.A. 173.
(In fact, Government counsel pegged “[w]hat’s on the street” at “10%”
during a colloquy with the district judge and defense counsel, in which he
went on to explain to the judge that the Government’s theory was that the
seized heroin would have been “cut down further . . . [d]own to 10%.” J.A.
206.) As we view the facts in the light most favorable to the Government,
we assume 8% purity was the conspiracy’s intended target. But finding,
beyond a reasonable doubt, even higher weights via speculation as to a
lower purity target would be wholly unreasonable on this record.
12 UNITED STATES v. HICKMAN
heroin typically contains 0.1 grams. Thus the 17 vials support
an additional 1.7 grams of heroin. Added to the 681 grams
assumed above, this would support a finding of no more than
683 grams.
Evidence concerning the remaining two potential transac-
tions is scant, to say the least. During the week after Hick-
man’s initial arrest and release, he and Henderson spoke about
attempting to “do the same thing again,” J.A. 450, and Hick-
man claimed he had made several telephone calls to a poten-
tial narcotics supplier, apparently Jones. Though Hickman
remained free until his arrest in August 2007, no evidence of
this transaction was offered. Aside from Henderson’s refer-
ence to “do[ing] the same thing again,” J.A. 450 (emphasis
added), there is no evidence concerning the amount of heroin
Hickman and Henderson sought. Attributing any more than
another 32.14 grams to this potential transaction— like the
earlier purchase from Jones— would be purely speculative;
thus, at a maximum, the jury could find that the conspiracy
involved another 153 grams of “cut” heroin, giving them a
hypothetical sum of 836 grams.
Evidence of the final alleged transaction— a brief state-
ment on recross-examination by Agent O’Meara about the
seizure of some amount of heroin from some individual exit-
ing Jones’s store a week before Hickman’s purchase— is
extremely vague:
Q. How many people did you stop coming out
of Fat Cat’s and recover heroin from?
A. We recovered heroin out of – the week prior.
I think it was April 17th.
Q. And you recovered it in terms of the stop of
Hickman; is that right?
A. Yes, sir.
13
UNITED STATES v. HICKMAN
J.A. 335. There is no evidence that this seizure had anything
to do with Hickman, Henderson, or Caldwell. Moreover,
given that Jones was in the business of selling drug parapher-
nalia and so would likely be visited by those who had recently
bought (or intended to buy) narcotics elsewhere, there is little
reason to believe that the seized heroin had just been sold
through Jones’s store. That the month-long surveillance of
Jones’s store bore no more fruit than this single drug seizure
further undermines the circumstantial evidence of drug quan-
tity implicating Jones.10 Even if, squinting our eyes, it were to
appear nonspeculative to attach an amount to this earlier sei-
zure and link it to the Count I conspiracy, the evidence could
by no means bear any more than the “stepped on” amount of
Hickman’s purchase from Jones, 153 grams. And even with
this final amount, the sum would fall short of one kilogram.
D.
To reach its finding that the Count I conspiracy involved at
least one kilogram, the jury would have had to rely on either
or both of two grounds: (1) that Hickman was criminally lia-
ble for the distribution of heroin by buyers of paraphernalia
from Jones— a theory that fails as a matter of law; or that, (2)
on account of the conspirators’ apparent familiarity with the
drug trade, they must have undertaken to distribute some
amount beyond the amounts involved in the evidenced trans-
actions. Neither theory can sustain Hickman’s conviction on
the one-kilogram conspiracy.
10
During a pre-trial hearing on a suppression motion, Officer Soko-
lowski testified that he knew of only two other seizures related to Jones’s
store, the first involving “over 100 gel caps of heroin,” and the other,
“without having notes in front of [him], [he recalled to be] a large quantity
of heroin and cocaine.” J.A. 58-59. When the Government attempted to
elicit this testimony from Sokolowski during trial, the court sustained a
defense objection as the witness began to answer, and the Government
was forced to move on. J.A. 94-95.
14 UNITED STATES v. HICKMAN
1.
The Government told jurors during closing argument that
Jones “basically runs a one-stop shop[ ] for heroin,” with
“thousands and thousands of vials that heroin goes in.” Tr. in
United States v. Hickman, No. 1:07-cr-00261, vol. 3, at 33-34
(D. Md. April 30, 2008). Indeed, the evidence well supports
the inference that Jones was in the business of selling drug
paraphernalia. As Agent O’Meara testified, a raid on Jones’s
store produced bins containing more than 25,000 glass vials
of the sort used to distribute heroin, packaged in groups of
one hundred, in various sizes and with variously colored tops,
also packaged in groups of one hundred; customers were
apprised of the merchandise by a three-ring binder on the
counter. J.A. 276-77, 284-85, 292.
Yet there is absolutely no evidence to support a finding that
Hickman is liable for heroin distributions by those who had
purchased empty vials from Jones. Indeed, it strains credulity
even to think that, on the evidence in the record, Jones him-
self could be convicted of a widespread conspiracy to distrib-
ute heroin on the mere fact that he sells drug paraphernalia
and had such packaged merchandise at his store. Finding such
conspiracy liability for Jones would have required the trier of
fact to find beyond a reasonable doubt that Jones’s purchase
of paraphernalia for resale evidenced a conspiracy to conspire
with future paraphernalia buyers concerning subsequent dis-
tribution. While paraphernalia vendors can certainly become
parties to the distribution conspiracies of their buyers, such
cases present substantial evidence of the vendor’s involve-
ment in and/or knowing facilitation of, a distributor’s opera-
tions. See, e.g., United States v. Meredith, 824 F.2d 1418,
1428 (4th Cir. 1987).
Tellingly, Agent O’Meara testified that law enforcement
“did not stop a lot of people coming out of [Jones’s store]”
because they knew that Jones was “also selling paraphernalia,
like vials, and . . . we’re not going to go out and arrest a par-
15
UNITED STATES v. HICKMAN
ticular person just for having the actual vials . . . empty vials.”
J.A. 331-32. “Unless there is a specific reason, [and] we know
that a drug deal is taking place,” he testified, “we’re not just
stopping everybody that’s coming out of there and . . . trying
to pull a bunch of empty vials off the street.” J.A. 332. In fact,
the jury was told that in more than a month of surveillance of
Jones’s store, only a single patron other than Hickman was
found with narcotics on his person. Where the Government
failed to present evidence about even a single buyer of the
paraphernalia or any plans on the part of Jones to involve
himself in the distribution activities of his paraphernalia cus-
tomers, it would be mere speculation to find that Jones’s own
distribution activities were coextensive with his paraphernalia
business.11 On this paltry evidence, no reasonable inference as
to the scope of Jones’s conspiracy to distribute narcotics
could be drawn from the amount of paraphernalia merchan-
dise he hoped to sell.
Furthermore, even if the evidence had supported wide-
spread conspiracy liability for Jones on the basis of his traf-
ficking in drug paraphernalia, this liability could not be
transferred to Hickman on this record. As an initial matter,
while we have assumed that Hickman and Jones conspired
together with respect to the distribution chain that included
Henderson and Caldwell, no evidence was presented to sug-
gest that the selling of paraphernalia entered into this agree-
ment. Moreover, as there was no evidence that Hickman had
11
Even where co-conspirators have had no connection to paraphernalia
sales, and thus any packaging materials would presumably be used for
their own distribution, some circuit courts have been skeptical of relying
on unused drug packaging materials to increase drug amounts charged to
a conspiracy. See United States v. Henderson, 58 F.3d 1145 (7th Cir.
1995) (explaining that the court “question[ed] whether multiple boxes of
unused baggies present the same degree of reliability [as the used baggies
relied on in an earlier case]” and declining to rely upon them to support
lower court’s finding as to amount of narcotics within the scope of the
conspiracy, where lower court’s methodology appeared to lack sufficient
indicia of reliability).
16 UNITED STATES v. HICKMAN
or planned to have any involvement with (or even any knowl-
edge of) Jones’s paraphernalia buyers, such a conspiracy
(having Jones at the center) would have been a classic “rim-
less,” “hub-and-spokes” conspiracy, which has long been held
to make out multiple, distinct conspiracies and not a single,
large one, see Kotteakos v. United States, 328 U.S. 750, 754-
55 (1946); Dickson v. Microsoft Corp., 309 F.3d 193, 203-04
(4th Cir. 2002). Thus evidence of the number of packaged,
empty vials in Jones’s store is not a sufficient basis for further
inflating the amount of heroin ascribable to the Count I con-
spiracy.
2.
Nor could the jury properly convict Hickman of the one-
kilogram conspiracy in reliance on the Government’s repeated
assertions during closing argument that the four-month Count
I conspiracy encompassed far more drug distribution activity
(and that Hickman could reasonably foresee such quantity)
than that of which the Government could produce competent
evidence. The Government strenuously urged jurors to draw
such an inference, claiming that the evidence presented was
only “a window into the conspiracy,” merely “part of some-
thing larger”; that the evidenced transactions were simply
“two brief episodes . . . in the life of this conspiracy” or “a
few days in the life of a heroin conspiracy”; that “this [was] an ongoing course of business,” an “ongoing thing.” Tr. in
United States v. Hickman, No. 1:07-cr-00261, vol. 3, at 33,
38, 41-42 (D. Md. April 30, 2008). “[I]t’s clear,” said the
prosecutor, “that this is a regular course of business for these
gentlemen. It’s clear that this isn’t the first time they’ve done
this before [sic]. It’s clear that this wasn’t going to be the last
time . . . . [ Hickman] would have continued to [seek out drug
transactions].”
This line of argument is troubling, not just because it seems
to urge jurors to convict the defendant for what he “would
have continued to do” which, to the extent these hypothesized
17
UNITED STATES v. HICKMAN
future bad acts were not captured by an agreement within the
charged period, is clearly improper, see United States v. Cun-
ningham, 54 F.3d 295 (7th Cir. 1995) (“The Government may
not attempt to obtain a conviction by appealing to jurors to
prevent futures crimes . . . .”); United States v. Monaghan,
741 F.2d 1434 (D.C. Cir. 1984) (“A prosecutor may not urge
jurors to convict a criminal defendant in order to . . . deter
future lawbreaking.”), but also because it invites the jury to
speculate as to the amount of heroin involved in the conspir-
acy.
Where no evidence exists to guide the trier of fact in deter-
mining the outer scope of a conspiracy, the trier may not sim-
ply guess at the magnitude or frequency of unknown criminal
activity. Unbridled speculation is an impermissible basis for
conviction beyond a reasonable doubt.
Under more than two decades of federal law, it is imper-
missible to enhance drug amounts without particularized evi-
dence of narcotics transactions. Federal district courts have
long struggled with extrapolating drug amounts under the
U.S. Sentencing Guidelines, which instruct that, “[w]here . . .
the amount [of narcotics] seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.” U.S.S.G. § 2D1.1 n.12. In reviewing
district courts’ findings, the courts of appeals have developed
a sizable body of case law narrowing the range of permissible
inferences. Its teachings are instructive here.
As the First Circuit has explained, “[w]here drug-quantity
extrapolations have been upheld, the Government managed to
demonstrate an adequate basis in fact and that the drug quanti-
ties were determined in a manner consistent with the accepted
standards of reasonable reliability.” United States v. Rivera-
Maldonado, 194 F.3d 224, 232 (1st Cir. 1999) (citing to Sec-
ond and Third Circuit cases). Concerned about the methodol-
ogies district courts employ to calculate their extrapolations,
courts have cautioned against using small sample sizes. See,
18 UNITED STATES v. HICKMAN
e.g., Rivera-Maldonado, 194 F.3d at 231-33 (warning that
“the smaller the sampling, the less reliable the resulting prob-
ability estimate,” the court reversed where the sample size
was “minuscule”); United States v. Howard, 80 F.3d 1194
(7th Cir. 1996) (“[A]bsent a reliable evidentiary basis support-
ing the . . . assumption as to the amounts [buyers] were able
to purchase from [defendant] . . . we are unwilling to rest on
speculation [from the details of a known purchase]. . . . On
remand, it will be the Government’s responsibility to proffer
some evidentiary basis from which a reasonable and reliable
estimate may be made of the amounts [buyers] purchased
from [defendant] on the other occasions.”).
To be sure, where courts have evidence of a number of
transactions, they have been permitted to multiply that num-
ber by an average weight-per-transaction to reach an estimate,
see, e.g., United States v. Correa-Alicea, 585 F.3d 484 (1st
Cir. 2009) (upholding such a calculation using “highly conser-
vative” estimates), cert. denied, 130 S. Ct. 1909 (2010);
United States v. Rodriguez, 525 F.3d 85, 107-08 (1st Cir.
2008) (approving of a calculation using a “conservative esti-
mate” of weight-per-transaction); United States v. Durham,
211 F.3d 437, 444 (7th Cir. 2000) (“[I]t is also permissible for
a court to take witness’ estimates of the amount of drugs they
purchased and multiply that by the minimum quantity sold on
each occasion . . . .”), though the circuit courts have urged dis-
trict courts to “make conservative approximations,” Hender-
son, 58 F.3d at 1151; see also United States v. Sklar, 920 F.2d
107 (1st Cir. 1990) (“[W]hen choosing between a number of
plausible estimates of drug quantity . . . a court must err on
the side of caution.”) (quoting United States v. Walton, 908
F.2d 1289, 1302 (6th Cir. 1990)).
Such conservative extrapolation as to the amount sold in
evidenced transactions is perfectly proper; but the courts of
appeals have refused to allow a trier of fact to extend this
extrapolation so far as to fabricate transactions of which there
is no evidence. Thus the First Circuit has held that evidence
19
UNITED STATES v. HICKMAN
that a drug conspiracy “did a substantial amount of narcotics
business” was insufficient, “[i]n the absence of particularized
findings,” to support a determination by a preponderance of
the evidence of an amount of narcotics that “seem[ed] attain-
able given the appellant’s role in the conspiracy,” explaining
that a court “cannot uphold a drug quantity calculation on the
basis of hunch or intuition.” United States v. Marrero-Ortiz,
160 F.3d 768, 779-80 (1st Cir. 1998) (emphasis added). Like-
wise the Third Circuit has reversed and remanded for more
particularized findings despite proof that defendant’s “in-
volvement with cocaine was extensive and continued over a
long period of time,” holding that such evidence “does not
translate readily into a specific drug quantity finding.” United
States v. Miele, 989 F.2d 659, 668 (3d Cir. 1993).
Here the Government contends, unpersuasively, that Hick-
man’s use of “vague and coded language” establishes “famil-
iar[ity] with drug trafficking” and that “only someone heavily
involved in repeated drug trafficking would be so brazen and
unrepentant to return almost immediately to trying to find
more heroin to sell.” Br. of Appellee at 27-28. In a case like
Hickman’s, where a lack of evidence would make particular-
ized findings impossible, courts would have reversed a sen-
tencing court’s finding— made by a mere preponderance of
the evidence— that Hickman’s conspiracy involved one kilo-
gram or more of heroin. And if such an inference would have
been too speculative to satisfy the Sentencing Guidelines,
which merely require an “approximat[ion],” U.S.S.G. § 2D1.1
n.12, based on evidence with “sufficient indicia of reliability
to support a conclusion that they are probably accurate,”
U.S.S.G. § 6A1.3, then a fortiori it would fail to satisfy a
rational trier of fact tasked with making findings beyond a
reasonable doubt.
E.
In this case, where evidence of unknown transactions was
meager and offered virtually no guide as to the amounts that
20 UNITED STATES v. HICKMAN
may have been involved, we hold that the jury verdict finding
the heroin conspiracy involved one kilogram or more was not
supported by sufficient evidence.
Yet it is within our power to direct entry of judgment on a
lesser included offense when vacating a greater offense for
insufficient evidence. See Rutledge v. United States, 517 U.S.
292, 306 (1996) (noting that “federal appellate courts appear
to have uniformly concluded that they may direct the entry of
judgment for a lesser included offense when a conviction for
a greater offense is reversed on grounds that affect only the
greater offense”); accord United States v. Silvers, 90 F.3d 95
(4th Cir. 1996); United States v. Plenty Arrows, 946 F.2d 62,
66-67 (8th Cir. 1991) (doing so); Government of Virgin
Islands v. Brown, 685 F.2d 834, 841-42 (3d Cir. 1982)
(same). Some circuits have introduced limitations on this rem-
edy, chief among them that the jury have been instructed on
the lesser included offense. See, e.g., United States v. Dhinsa,
243 F.3d 635, 674-76 (2d Cir. 2001); United States v.
Vasquez-Chan, 978 F.2d 546, 553-54 (9th Cir. 1992), over-
ruled on other grounds by United States v. Nevils, 598 F.3d
1158 (9th Cir. 2010). We decline to consider that question
here, where even the most stringent limitations would be
functionally satisfied.
Because we conclude that the record contains sufficient
evidence to persuade a rational fact finder beyond a reason-
able doubt of Hickman’s guilt on the lesser included offense
of conspiracy to distribute one hundred grams or more of her-
oin, we direct entry of judgment against Hickman under
Count I of the indictment for conspiracy to distribute and to
possess with intent to distribute heroin in the amount of one
hundred grams or more.12
12
Because Hickman had been convicted of two prior felony drug
offenses, the Government filed a notice of enhanced punishment mandat-
ing a minimum mandatory sentence for the one-kilogram conspiracy of
life imprisonment. See 21 U.S.C. §§ 846, 841(b)(1)(A). We of course
express no view as to what might be an appropriate sentence after further
proceedings.
21
UNITED STATES v. HICKMAN
III.
Hickman’s second contention, that the trial judge erred in
rejecting his proposed instructions regarding the amount of
heroin attributable to him, is without merit.
Reviewing the refusal to give a jury instruction for abuse
of discretion, we will reverse only when the requested instruc-
tion “(1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the
trial so important, that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” United States v. Lighty, 616 F.3d 321, 366 (4th Cir.
2010) (internal quotation marks omitted). This review is
holistic: “we do not view a single instruction in isolation;
rather we consider whether[,] taken as a whole and in the con-
text of the entire charge, the instructions accurately and fairly
state the controlling law.” Id. (internal quotation marks omit-
ted).
At trial, defense counsel requested that the judge instruct
the jury that Hickman could only be held responsible for the
“amount of drugs that were foreseeable to the Defendant and
within the scope of his agreement.” J.A. 347. And counsel
objected to the verdict form’s second question—”If you find
the Defendant . . . guilty as to Count 1, how do you find as
to the amount of heroin involved?”—asking that the following
be appended: “and that is foreseeable to him and within the
scope of his agreement.” J.A. 348.
The trial court repeatedly instructed the jury that co-
conspirators’ actual or intended distribution of narcotics could
only be charged to Hickman “so long as it was reasonably
foreseeable to [him] that such a type and quantity of drugs
would be involved in the conspiracy which he joined.” J.A.
358 (twice); see also J.A. 359 (“acts or plans” of co-
conspirators only attributable to Hickman if “reasonably fore-
seeable” to him). With respect to the special verdict form, the
22 UNITED STATES v. HICKMAN
judge specifically instructed the jury that the second question
asked “the type and amount of drugs reasonably foreseeable
to the Defendant that would be involved in the conspiracy, or
that he possessed or distributed,” and explained that “[t]he
burden is on the Government to establish the type and amount
of drugs beyond a reasonable doubt.” J.A. 359a.
These instructions accord with the principles of Pinkerton
v. United States, 328 U.S. 640 (1946), and our case law, see,
e.g., United States v. Brooks, 524 F.3d 549, 558 (4th Cir.
2008) (“[A] trial court is obliged to instruct a jury to use Pin-
kerton principles to determine the quantity of drugs attribut-
able to each individual defendant involved in a drug
conspiracy.”); United States v. Williams, 986 F.2d 86, 90 (4th
Cir. 1993) (“A defendant convicted of conspiracy should be
sentenced not only on the basis of his conduct, but also on the
basis of conduct of coconspirators in furtherance of the con-
spiracy that was known to the defendant or reasonably fore-
seeable to him.”).
To the extent that defendant’s proposed instruction differs
from the instructions given, it misstates the law. It is true that
Hickman is responsible only for the amount of drugs “within
the scope of his agreement,” if this “scope” is properly under-
stood as encompassing any co-conspirators’ conduct in fur-
therance of the conspiracy and reasonably foreseeable to him;
but the trial court instructions adequately covered this. If the
requested instruction is taken to mean that Hickman is respon-
sible only for an amount of drugs he personally knew of and
explicitly agreed to distribute or have distributed, then it mis-
takes a basic tenant of our conspiracy law, see Pinkerton, 328
U.S.; Williams, 986 F.2d at 90. There was no abuse of discre-
tion in the district court’s rejection of Hickman’s proposed
instruction.
IV.
Appellant next argues that the trial court abused its discre-
tion in refusing to grant a new trial after allowing the jury to
23
UNITED STATES v. HICKMAN
make limited use during deliberations of the wiretap tran-
scripts, which were not in evidence. This contention lacks
merit.
Under ordinary circumstances, this court will not consider
alleged errors that were invited by the appellant. See United
States v. Quinn, 359 F.3d 666, 674-75 (4th Cir. 2004); United
States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) (“The
‘invited error’ doctrine recognizes that a court cannot be
asked by counsel to take a step in a case and later be con-
victed of error, because it has complied with such request.”)
(internal quotation marks omitted). Here, the jury asked to
rehear a wiretap recording “of Hickman after April 25 talking
about getting something going.” J.A. 363. The trial court and
counsel agreed that this might refer to any of six different
intercepted calls, and discussed several options. J.A. 363-65.
After the court suggested playing all six calls for the jury,
counsel for Hickman— likely concerned about replaying so
many recordings of his client planning a drug purchase—
interjected, “Well, I would like to ask them if they can take
a look at the book and specify more carefully what they want
to have played.” J.A. 365. The court immediately confirmed
that defense counsel “ha[d] no objection to them having the
book, then,” and counsel agreed, “I have no objection to them
having the book, and then we can take the books back, to
specify, as long as we get the books back after that.” J.A. 365.
When the prosecutor suggested allowing the deputy to take
back the relevant book, defense again agreed: “Okay. Just
send one book back, yeah.” J.A. 365.
Hickman complains that when the jury concluded its delib-
erations less than thirty minutes later, it had yet to request a
specific tape and return the transcript book, and that this was
a misuse of the book that tainted the jury verdict. But defense
counsel agreed to the method by which the jury was to use the
transcript book—having the deputy leave the book with the
jurors until they requested a particular tape. Defense did insist
that “we get the books after [the jurors select a tape],” but this
24 UNITED STATES v. HICKMAN
proviso was never violated; rather, the triggering condi-
tion—the jury’s selection of the tape—never occurred. Had
the jury perused the book over thirty minutes, sent for a par-
ticular tape, and then arrived at a verdict before hearing it, the
defense clearly would have invited any error that accrued. The
mere fact that the jury never bothered to send for a particular
tape is immaterial. Thus any error here was invited by Hick-
man.
In the absence of extraordinary circumstances like an
apparent “miscarriage of justice” or doubt as to “the integrity
of the judicial process,” United States v. Herrera, 23 F.3d 74,
76 (4th Cir. 1994), this court has never reviewed errors
invited by the appellant. We decline Hickman’s invitation to
do so here.
V.
Finally, Hickman challenges the district court’s reliance on
one of two predicate drug offenses to enhance his sentence
under 21 U.S.C. § 841(b)(1)(A), claiming that the conviction
was “illegal,” Br. of Appellant at 28. Hickman was convicted
in 2006 for attempted distribution of heroin in a Maryland
court. Hickman contends that the underlying charging docu-
ment wrongly charged this attempt under the common law,
rather than under Maryland criminal statutes. This contention
is unavailing.
Even if Hickman were able to evade the conclusive pre-
sumption that a prior conviction not set aside on direct or col-
lateral review is valid by establishing a violation of the right
to counsel, see Daniels v. United States, 532 U.S. 374, 380-82
(2001), his claim would fail. In Maryland, attempt is a
common-law crime, see Moore v. State, 388 Md. 623, 644-45
(2005) (“By Maryland common law, the attempt to commit a
crime is, itself, a separate crime . . . .”), and thus the attempted
distribution was properly charged under the common law.
25
UNITED STATES v. HICKMAN
VI.
For the reasons explained, we conclude that the evidence
was insufficient to establish beyond a reasonable doubt that
Hickman knowingly became a member of a conspiracy to dis-
tribute or to possess with the intent to distribute more than
one kilogram of heroin. On the other hand, there is over-
whelming evidence in the record to show, beyond a reason-
able doubt, that Hickman knowingly became a member of a
lesser included conspiracy involving 100 grams or more of
heroin, and that such amount was reasonably foreseeable to
Hickman. Accordingly, we vacate the conviction for conspir-
acy to distribute heroin in the amount of one kilogram or
more and the life sentence imposed thereon, and we remand
the case to the district court with directions to enter a judg-
ment of sentence as to the lesser offense and to resentence
accordingly. In all other respects, the judgment is affirmed.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
26 UNITED STATES v. HICKMAN