US v. Kathryn Hemetek, No. 09-4443 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4443 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KATHRYN ANN HEMETEK, a/k/a Kathryn Ann Johnson, Defendant Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:08-cr-00198-1) Submitted: July 29, 2010 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, August 26, 2010 and HAMILTON, Affirmed by unpublished per curiam opinion. Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following discovery by law enforcement of 219 marijuana plants in three separate plots growing in and around her farm, Kathryn Ann Hemetek was charged in a one-count indictment with manufacturing by growing and cultivating 100 or more marijuana (2006). plants in violation of 21 U.S.C. § 841(a)(1) Hemetek was found guilty following a jury trial, and sentenced to sixty months in prison. Hemetek now appeals. For the reasons that follow, we affirm. On appeal, Hemetek raises three issues. argues that the district court erred in First, she admitting an e-mail found on a computer at the school where she worked, which showed an exchange between her and a website called medicalseeds.com. Hemetek claims that the Government, by using the e-mail, improperly suggested that because she had bought seeds in the past she was likely to have cultivated the plants, and because of the suspicious circumstances surrounding the discovery of the email, the district court should have suppressed this evidence. The e-mail thread between Hemetek and the website medicalseeds.com was admitted into evidence pursuant to Fed. R. Evid. 404(b). Rule 404(b) prohibits the use of evidence of other crimes, wrongs, or acts, where such evidence is used to prove the character of a person in order to show action in conformity therewith. Fed. R. Evid. 404(b). 2 However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial. Id. Even if such evidence meets the criteria of Rule 404(b), however, [t]he danger of unfair prejudice should not . . . substantially outweigh the evidence s probative value, pursuant to Fed. R. United States v. Branch, 537 F.3d 328, 342 (4th Cir. Evid. 403. 2008), cert. denied, 129 S. Ct. 943 (2009). Accordingly, as we explained in United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997), evidence of prior bad acts is admissible under Rules 404(b) and 403 if it meets the following criteria: (1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process. 132 F.3d provides admitting at a 997. Additionally, limiting evidence of instruction prior the explaining acts, 3 where and the district the court purpose required for advance notice of the intent to introduce prior act evidence is provided, the use of such evidence will not . . . be applied to convict a defendant on the basis of bad character, or to convict him for prior acts, or to try him by ambush. at 997. Queen, 132 F.3d Instead, such evidence will be probative of elements of the offense in trial. Id. evidence 404(b) pursuant to Rule We review the admission of for abuse of discretion. Branch, 537 F.3d at 341. The evidence admitted at trial and now challenged by Hemetek is a printout of an e-mail exchange between Hemetek and medicalseeds.com, a website that sells marijuana seeds, in which Hemetek explained that she had placed an order for seeds and that her check had been cashed but that she had not received her order. The correspondence Hemetek s printout between displeasure purchased came up. also Hemetek that only contained and the two of the subsequent website, the twenty indicating seeds she The Government provided advance notice to Hemetek that it would be introducing the e-mail pursuant to Rule 404(b), and Hemetek had the opportunity to file a motion in limine and to argue before the court why the evidence should not be admitted. Despite Hemetek s contentions, the e-mail demonstrates that she had previously sought to purchase and plant marijuana seeds, that she had the knowledge 4 and intent to cultivate marijuana, and that she had taken preparatory steps to do so. The e-mail also tends to demonstrate that the presence of marijuana on Hemetek s property was not a mistake or accident, and that she the motive Thus, cultivation. had and the evidence was opportunity both for relevant such to and probative of the charged act of cultivating marijuana, which required that the Government prove that Hemetek did so knowingly and intentionally. The disputed evidence was reliable because the e-mail came from her personal e-mail account and contained her name, address, and the number of the check she wrote to pay for the order, confirmed with a copy of the check from her bank. Finally, the evidence was not more prejudicial than probative, as it was not inflammatory or offensive, it did not cause confusion, and the court provided a limiting instruction to the jury. Accordingly, we find that the district court did not abuse its discretion in admitting the e-mail pursuant to Rule 404(b). Hemetek next claims that the district court erred when it denied her motion for acquittal, because [t]here was absolute [sic] no direct evidence connecting the Appellant with the plants that were cultivated near her farm. She asserts that the court should have required the [G]overnment to connect this Appellant to those plants and should not have permitted a 5 loose circumstantial case to proceed to verdict. She claims that without admission of the challenged e-mail, there would have been no basis on which to find Appellant guilty. This court reviews de novo a district court's denial of a motion, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal. v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). United States In undertaking such a review, we are obliged to sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial evidence. Id. (internal quotation marks omitted). When determining whether there is substantial evidence in the record, we view the evidence in the light most favorable to the government and inquire whether there 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. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007); see also Smith, 451 F.3d at 216. Moreover, when evaluating the sufficiency of the evidence, this court does not review the credibility of the witnesses and assume[s] that the jury resolved all contradictions in the testimony in favor of the government. Id. The record demonstrates that Hemetek s conviction is supported by substantial evidence. 6 The properly-admitted e-mail demonstrated Hemetek s e-mail sufficient had intent to indicia cultivate of marijuana. reliability, The containing Hemetek s name and address, and reference to a check that was written out to the name given by the website for the purchase of seeds. Moreover, viewed in the light most favorable to the Government, the additional evidence at trial was sufficient to support the reasonable conclusion doubt. The that Hemetek testimony at was guilty trial beyond showed that a a marijuana eradication team aerially spotted multiple marijuana plots on or closely bordering Hemetek s property. crew received discovered 219 consent marijuana to search plants, testing, in three separate plots. the as When a ground property, confirmed by officers forensic These officers also testified that there were well-worn paths leading to the various plots, that the roots of the plants appeared to have been planted in potting soil or fertilizer prior to being placed in the ground, that the plants were arranged in rows, that there were watering containers found in one plot, and that some plants in a plot were found in pots similar to pots found at Hemetek s house. On the basis of the extensive evidence presented by the Government, we hold that the district court did not err in denying Hemetek s motion for acquittal. Finally, Hemetek argues that she received ineffective assistance of counsel when her counsel waived the challenge to 7 admissibility of statements given against herself and her son under Rule 404(b). counsel was ineffective by her interest by She also alleges that failing to object when the [G]overnment s witness Starcher contended he was familiar with [A]ppellant from other cases. Hemetek argues that her prior contentious dealings with Sergeant Starcher should have been the subject of a motion in limine by the defense, and at least, should have been objected to at trial. A claim of ineffective assistance of counsel should be raised by a habeas corpus motion under 28 U.S.C. § 2255 in the district court and not on direct appeal, unless it conclusively appears from the record that defense counsel did not provide effective Richardson, 195 representation. F.3d 192, 198 (4th United Cir. quotation marks and alterations omitted). us does not allegations on meet this direct test, we appeal. 1999) v. (internal As the record before decline Hemetek States to may consider raise them these in a motion pursuant to 28 U.S.C.A § 2255 (West Supp. 2010). Accordingly, sentence. legal before affirm Hemetek s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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