United States v. Ricketts , 122 F. App'x 4 ( 2004 )

Rehearing granted, February 11, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4721
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONEY RICKETTS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-02-393)
Submitted: October 1, 2004 Decided: December 9, 2004
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey B. Welty, Durham, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael A. DeFranco, Michael
F. Joseph, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark Anthoney Ricketts appeals from the judgment of the
district court convicting him of conspiracy to distribute cocaine
base, distribution of cocaine base, and possession with intent to
distribute cocaine base, all in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). Finding no error, we affirm.
Ricketts first claims that the district court erred in
denying his motion for a judgment of acquittal made pursuant to
Fed. R. Crim. P. 29. Ricketts alleges a variance between the
indictment, which charged a single conspiracy, and the evidence at
trial, which Ricketts claims supports multiple conspiracies. This
Court has held that “[a] multiple conspiracy instruction is not
required unless the proof at trial demonstrates that [the
defendants] were involved only in ‘separate conspiracies unrelated
to the overall conspiracy charged in the indictment’.” United
States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994). The fact that
one or some of the participants may have been unknown to the others
is not dispositive. United States v. Gray, 47 F.3d 1359, 1368 (4th
Cir. 1995). Rather, the question is whether there is “an overlap
of key actors, methods, and goals.” United States v. Strickland,
245 F.3d 368, 385 (4th Cir. 2001) (internal quotation marks and
citations omitted). We conclude that there is such an overlap.
The evidence supports the conclusion that Ricketts and his co-
conspirators (Christopher Sumner, Orel Dawes, and Richard Moore)
- 2 -
shared a common purpose to facilitate the distribution of narcotics
and thus were involved in the single conspiracy charged in the
indictment. Accordingly, we deny this claim.
Ricketts next claims that the district court erred in
excluding the expert testimony of a scientist in the field of
spectrographic voice analysis. Expert testimony is admissible
under Fed. R. Evid. 702 if it concerns: (1) scientific, technical,
or other specialized knowledge, that (2) will aid the jury or other
trier of fact to understand or resolve a fact at issue. See
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). We
conclude that the proffered evidence was lacking in probative value
because it did not make “more probable or less probable” a fact of
consequence to the jury. See Fed. R. Evid. 401. To the contrary,
the evidence demonstrated only that no “meaningful” scientific
analysis was possible. Given this fact, we find no abuse of
discretion in the district court’s decision to exclude the
testimony of the witness. See Gen. Elec. Co. v. Joiner, 522 U.S.
136, 139 (1997) (stating standard of review).
Ricketts also claims that the district court erred in
dismissing a juror for cause based on his alleged bias against law
enforcement officers. Because Ricketts did not object to the
juror’s dismissal at trial, we review this claim for plain error.
See United States v. Olano, 507 U.S. 725, 732-34 (1993). The
ultimate issue in a dismissal for cause is whether the juror “could
- 3 -
be fair and impartial and decide the case on the facts and law
presented.” United States v. Capers, 61 F.3d 1100, 1105 (4th Cir.
1995). Our review of the record discloses no error on the part of
the court. The juror responded under questioning by the court that
he was “bothered” by the police and “really mad” at their behavior
two years previously in handling criminal charges against him that
eventually were dismissed. He raised this information on his own
volition and not at the prodding of the court or counsel.
Accordingly, we conclude that it was not unreasonable for the
district court to strike the juror for cause.
Finally, invoking Blakely v. Washington, 124 S. Ct. 2531(2004), Ricketts claims that the district court denied him his
Sixth Amendment right to trial by jury through its application of
sentencing enhancements under the federal sentencing guidelines.
Because Ricketts did not raise this claim in the district court, we
review for plain error. See United States v. Osborne, 345 F.3d
281, 284 (4th Cir. 2003). This court has considered the
applicability of Blakely to the federal sentencing guidelines and
has concluded that their application by a district court comports
with the requirements of the Sixth Amendment. See United States v.
Hammoud, ___ F.3d ___, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,
2004) (No. 03-4253) (en banc); United States v. Hammoud, 378 F.3d
426 (4th Cir. 2004) (order), petition for cert. filed, ___ U.S.L.W.
___ (U.S. Aug. 6, 2004) (No. 04-193). Because the district court’s
- 4 -
sentence did not exceed the statutory maximum sentence authorized
by law, see Apprendi v. New Jersey, 530 U.S. 466 (2000), we find no
error.
We affirm the judgment of the district court. 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
- 5 -