United States v. Hicks , 255 F. App'x 749 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH LEE HICKS, a/k/a Jo Jo Hicks, a/k/a Jo
Jo Mosby,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:06-cr-00005-FPS)
Submitted: October 29, 2007 Decided: November 28, 2007
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Franklin W. Lash, Wheeling, West Virginia, for Appellant. Sharon
L. Potter, United States Attorney, John C. Parr, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Joseph Lee Hicks was convicted of
two counts of distributing more than five grams of cocaine base
while within 1000 feet of a public school, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 860 (2000). Hicks was sentenced to
262 months’ imprisonment. For the reasons set forth below, we
affirm the district court’s judgment.
Taken in the light most favorable to the Government,
Evans v. United States, 504 U.S. 255, 257 (1992), the evidence
adduced at trial established the following facts. On two occasions
in September 2005, the Ohio County Drug Task Force arranged for
Raymond Prayear, a confidential informant, to buy cocaine base from
Hicks. Prior to each controlled buy, police officers installed
cameras behind the rearview mirror of Prayear’s vehicle and on
Prayear’s body (“Hawk camera”).
In taped conversations with Hicks, Prayear arranged to
meet Hicks at designated locations and times to complete the
controlled buys. Upon Hicks’ arrival, Hicks entered Prayear’s
vehicle and gave Prayear the requested amounts of cocaine base. To
complete the transactions, Prayear paid Hicks with cash provided
him by the Drug Task Force. On September 8, 2005, Hicks sold
Prayear an ounce of cocaine base for $1100, and on September 9,
2005, Hicks sold Prayear one and a half ounces of cocaine base for
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$1650. After completing the transaction, Prayear returned to the
designated rendevous point and surrendered the drugs to the police.
Police officers created audio and video recordings of
both controlled buys. The video tapes depicted Hicks entering
Prayear’s car and making movements consistent with Prayear’s
testimony. When the Government moved to introduce the video tapes
from September 9, Hicks objected, arguing the tapes were not
relevant because the drugs were not clearly visible.1 The district
court overruled the objection.
Hicks raises four issues on appeal. We will address each
in turn.
I. Validity of the Indictment
Hicks first contends his indictment was invalid because
it was not signed, in cursive, by the jury’s foreperson.
Pursuant to Fed. R. Crim. P. 12(b)(3), any motion
alleging a defect in the indictment must be made prior to the
commencement of trial. A defendant’s failure to raise such a
challenge prior to trial results in the waiver of the challenge,
save for those instances in which the waiver is excused for good
cause. Fed. R. Crim. P. 12(e); United States v. Colton, 231 F.3d
1This was the same argument Hicks presented in his pretrial
motion in limine, in which Hicks sought to preclude the Government
from using the video tapes from both September 8 and 9. However,
at trial, Hicks abandoned his objection to the September 8 tapes.
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890, 909 (4th Cir. 2000). “Relief from the waiver of an objection
is appropriate only if the moving party demonstrates cause for the
failure to object and actual prejudice resulting from the defect.”
Colton, 231 F.3d at 909.
Hicks first raised this issue at sentencing. Hicks’
failure to raise it prior to trial effectively waived any challenge
to the indictment, Colton, 231 F.3d at 909; moreover, Hicks fails
to show cause and resulting prejudice. Thus, we decline to
consider the merits of this issue.
II. Admission of Video and Audio Tape Evidence
Hicks next contends the district court erred in denying
his motion in limine to preclude the Government from introducing
into evidence the video tape of the September 9 controlled buy.
Hicks maintains this evidence should have been excluded because it
was irrelevant and because “admission of the tape allowed the
government to put on evidence that mislead [sic] the jury into
believing that a drug transaction had taken place even though the
tape did not support such a transaction.”
This court reviews the admission of evidence for an abuse
of discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005). “[A]n abuse [of discretion] occurs only when it can be said
that the trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams, 445 F.3d 724, 732 (4th Cir.)
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(internal quotation marks and citation omitted), cert. denied, 127
S. Ct. 314 (2006).
Despite Hicks’ protestations to the contrary, the
videotape remains relevant even if the cocaine base was not visible
on the tape. The video recordings taken on September 9 depicted
the actual events that formed the basis for the criminal charge and
corroborated Prayear’s account of Hicks’ actions on the day in
question. Accordingly, we reject Hicks’ contention that the
district court abused its discretion in finding this evidence
relevant and admitting it.
III. Sufficiency of the Evidence
In his penultimate assignment of error, Hicks asserts the
Government failed to present legally sufficient evidence to support
the jury’s guilty verdict.
This court reviews sufficiency of the evidence challenges
by determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The court reviews
both direct and circumstantial evidence, and permits the
“[G]overnment the benefit of all reasonable inferences from the
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facts proven to those sought to be established.” Tresvant, 677
F.2d at 1021.
In evaluating the sufficiency of the evidence, this court
does not “weigh the evidence or review the credibility of the
witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Where the evidence supports differing reasonable
interpretations, the jury decides which interpretation to credit.
Id. The uncorroborated testimony of a single witness may be
sufficient evidence of guilt, even if the witness is an accomplice,
a co-defendant, or an informant. United States v. Wilson, 115 F.3d
1185, 1189-90 (4th Cir. 1997).
Hicks’ challenge to the sufficiency of the evidence fails
because it is predicated entirely on his contention that the jury
should have credited his testimony and rejected Prayear’s testimony
regarding what occurred in Prayear’s vehicle on September 8 and 9.
Although Hicks’ testimony plainly contradicted the Government’s
evidence, whether to credit Hicks’ or Prayear’s version of events
was entirely within the jury’s province, and we will not review
such credibility determinations on appeal. Wilson, 118 F.3d at
234.
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IV. Hicks’ Request to File Pro Se Supplemental Brief
Although his appeal was not filed pursuant to Anders,2
which would afford Hicks a right to file a pro se supplemental
brief, see Anders, 386 U.S. at 743-44, Hicks nonetheless requests
leave to submit a pro se supplemental brief. In the proposed
supplement submitted with Hicks’ motion, Hicks raises only one
contention: that his sentence violates Apprendi v. New Jersey, 530
U.S. 466 (2000), because he was sentenced for distribution of crack
cocaine but the indictment charged and the Government’s evidence
proved distribution of cocaine base.
Although we grant Hicks leave to file the proposed
supplemental brief, we nonetheless reject the claim raised therein.
Tracking the language of 21 U.S.C. § 841(b)(1)(B), the indictment
charged Hicks with distribution of more than five grams of cocaine
base. This court has opined that crack cocaine and cocaine base
are interchangeable terms. United States v. Ramos, 462 F.3d 329,
334 (4th Cir.), cert. denied, 127 S. Ct. 697 (2006).
Accordingly, we grant leave to file the proposed pro se
supplemental brief and we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
2
Anders v. California, 386 U.S. 738 (1967).
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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