United States v. Ray Dicks, Jr. ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4594
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAY ALLEN DICKS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:14-cr-00015-LO-2)
Submitted: May 29, 2015 Decided: June 17, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Adam M. Krischer, DENNIS, STEWART, KRISCHER, & TERPAK, PLLC,
Arlington, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Patricia T. Giles, Rebecca H. Bellows,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ray Allen Dicks, Jr., was convicted by a jury of conspiracy
to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (2012), and
sentenced to 144 months’ imprisonment. He appeals, arguing that
the evidence is insufficient to support his conviction and that
the trial judge improperly interrupted his attorney during
closing arguments. Finding no error, we affirm.
The evidence presented at Dicks’ trial, viewed in the light
most favorable to the Government, see United States v. Burgos,
94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows. On
November 17, 2013, a Safeway store in Alexandria, Virginia, was
robbed by three armed men wearing masks. After learning of the
robbery, a customer who had been in the store the day before the
robbery contacted police. The customer testified that he
noticed a group of “two or three people . . . behaving in a way
that seemed unusual to me and worthy of comment.” According to
the customer, the men were “walking independently in the aisles,
and then meeting up and talking with one another briefly, and
then separating and going down the aisles again.” The customer
noticed that one of the men was standing behind him in the
checkout line with “only a few smallish items to buy which were
the sort of things that you might get at a corner drug store.
They didn’t seem to be the kind of things that you would make a
special trip to a supermarket to buy.” Based on these
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observations, the customer concluded that the men might have
been “casing” the store in order to rob it.
Surveillance footage showed the customer in the checkout
line; the man behind him was identified as Dicks. Store records
also confirmed that the purchase was made using Dicks’ Safeway
Club card.
Louis Jackson testified that he, along with Dicks, Artemis
Riley, and Calvin Lewis (Dicks’ cousin), decided to rob the
Safeway store and that they all went together on November 16 to
“see where all the registers was at, how many people was there,
where the booth was at where they kept money . . . checking
cameras.” The following day, Jackson, Dicks, Riley, and Lewis
drove to the Safeway, parked outside the store, and donned
masks. According to Jackson, Lewis retrieved the cash from the
store’s office, while he (Jackson) and Dicks remained in the
store. On their way out, Lewis shot and injured one of the
customers using a gun that Jackson had taken from the customer.
Having heard the gunshot, Riley drove away, leaving the others
to flee on foot.
Riley also testified that he, along with Dicks, Lewis, and
Jackson, planned to rob the Safeway store and that they had gone
“to look at it” the day before the robbery. Riley once worked
at the store and claimed some familiarity with it. According to
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Riley, after the group visited the store, they decided it was
“an easy robbery.”
After Lewis was arrested, he made a call to his girlfriend
that was recorded and played for the jury. During the
conversation, Lewis told his girlfriend to tell his “Cuz” to
“stay out of the way . . . cause they got him too.” She
responded, “Who, Ray?” to which Lewis replied, “yeah.” A
subsequent search of Lewis’ residence revealed a black backpack,
latex gloves, items of mail addressed to Dicks, and clothing
associated with Dicks.
During closing arguments, the following exchange took place
between Dicks’ counsel and the district court judge:
[Counsel:] You have to ask yourselves if the evidence
is so overwhelming, why offer Artemis and Louis a
deal? These guys are dangerous, confessed robbers.
Why even get into bed with these guys?
The Court: That’s improper argument. Disregard
that please.
[Counsel:] I would tell you, Judge - - I’m sorry, I
would tell you that the reason is that the physical
evidence is not sufficient to prove Mr. Dicks beyond a
reasonable doubt. Three men went into a Safeway store
on November 17.
The Court: You will disregard that last statement
as well. Counsel, there’s no evidence of why other
individuals entered into those plea agreements. It’s
pure speculation on his behalf, and he’s got no basis
for making that statement.
Dicks’ counsel did not object.
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Dicks argues, first, that the evidence was insufficient to
support the jury’s guilty verdict. A defendant challenging the
sufficiency of the evidence faces “a heavy burden.” United
States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal
quotation marks omitted). The jury’s verdict must be sustained
if, viewed in the light most favorable to the Government, there
is substantial evidence in the record to support the
conviction. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.
2011). “Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Jaensch, 665 F.3d at 93 (internal quotation marks and
alteration omitted). “Reversal for insufficient evidence is
reserved for the rare case where the prosecution’s failure is
clear.” United States v. Ashley, 606 F.3d 135, 138 (4th Cir.
2010) (internal quotation marks omitted). In evaluating the
sufficiency of the evidence, this Court does not review the
credibility of the witnesses and assumes that the jury resolved
all contradictions in the testimony in favor of the
Government. United States v. Kelly, 510 F.3d 433, 440 (4th Cir.
2007).
To prove robbery in violation of the Hobbs Act, the
Government must prove:
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(1) that the defendant coerced the victim to part with
property; (2) that the coercion occurred through the
wrongful use of actual or threatened force, violence
or fear or under color of official right; and (3) that
the coercion occurred in such a way as to affect
adversely interstate commerce.
United States v. Reed, 780 F.3d 260, 271 (4th Cir. 2015)
(internal quotation marks omitted). Conspiracy to commit Hobbs
Act robbery requires the Government to prove that the defendant
agreed with at least one other person to commit acts that would
satisfy the above three elements. United States v. Buffey, 899
F.2d 1402, 1403 (4th Cir. 1990).
We conclude that the Government presented ample evidence
upon which to support a finding that Dicks agreed with Lewis,
Riley, and Jackson to rob the Safeway store. Riley and Jackson
testified that Dicks participated in the planning of the robbery
(as well as the robbery itself), and independent evidence placed
Dicks at the Safeway the day before the robbery, along with
Riley and Jackson, both of whom confessed to the robbery.
Nevertheless, Dicks argues that the evidence is insufficient to
support the jury’s verdict because “[t]here was no evidence
beyond the testimony of two convicted felons that placed [him]
at the Safeway in Old Town Virginia on November 17, 2013, the
date of the robbery.” This argument fails for three reasons.
First, “determinations of credibility are within the sole
province of the jury and are not susceptible to judicial
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review.” Burgos, 94 F.3d at 863 (internal quotation marks
omitted). Second, the testimony of an accomplice is “sufficient
to sustain a conviction, even though uncorroborated, if it
convinces a jury of the defendant’s guilt beyond a reasonable
doubt.” United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.
1976) (per curiam). And, finally, the Government did not need
to prove Dicks’ presence on the day of the robbery itself in
order to sustain its burden of proof for the conspiracy
conviction.
Next, Dicks argues that the district court judge’s
interruption during counsel’s closing argument deprived him of
his Sixth Amendment right to a fair trial. Because Dicks failed
to note an objection to the interruption, however, review is for
plain error only. See United States v. Godwin, 272 F.3d 659,
672-73 (4th Cir. 2001) (failure to object limits review of
“judicial interference contention only for plain error”). To
establish a plain error affecting his substantial rights, Dicks
“must establish that the jury actually convicted [him] based
upon the trial error.” United States v. Williamson, 706 F.3d
405, 412 (4th Cir.), cert. denied, 134 S. Ct. 421 (2013)
(internal quotation marks and alteration omitted). We find no
error, let alone plain error.
“[I]t is settled beyond doubt that in a federal court the
judge has the right, and often [the] obligation, to interrupt
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the presentations of counsel in order to clarify
misunderstandings,” and “must manage litigation to avoid
needless consumption of time.” United States v. Smith, 452 F.3d
323, 332 (4th Cir. 2006) (citations and internal quotation marks
omitted). “In the specific context of judicial intervention
claims, [this court] may not intervene unless the judge’s
comments were so prejudicial as to deny the defendant[] an
opportunity for a fair and impartial trial.” Id. (internal
quotation marks omitted).
Dicks appears to argue that the district court judge
prevented his attorney from asserting that Riley’s and Jackson’s
testimony should be given less weight because they were offered
“a deal with the government in exchange for [their] testimony
implicating [him].” However, this argument misrepresents the
record: counsel had, in fact, already argued in some detail
that Riley’s and Jackson’s testimony was not credible, pointing
out numerous inconsistencies in their statements, highlighting
the sentencing benefits each received as a result of their
testimony, and reminding the jurors of their status as convicted
felons. It was only when counsel then began to question the
Government’s motives that the judge interrupted. This court has
upheld a trial judge’s interruption during counsel’s closing
argument when counsel suggests, without any support in the
record, an inappropriate motive on the part of the
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Government. See, e.g., United States v. Newsome, 322 F.3d 328,
335 (4th Cir. 2003) (“Because counsel for [the defendant] was
suggesting in this statement to the jury some impropriety by the
United States, a position that counsel never established in
court, the district court appropriately concluded that the
argument that counsel was making had limited value and may have
been unfair.”). Accordingly, we find that the district court
did not err by interrupting Dicks’ attorney during closing
argument.
Therefore, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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