Professional Documents
Culture Documents
No. 09-4443
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:
GREGORY,
Decided:
Circuit
Judges,
and
HAMILTON,
PER CURIAM:
Following
discovery
by
law
enforcement
of
219
farm,
Kathryn
Ann
Hemetek
was
charged
in
one-count
marijuana
(2006).
plants
in
violation
of
21
U.S.C.
841(a)(1)
For
that
the
district
court
erred
in
First, she
admitting
an
claims
that
the
Government,
by
using
the
e-mail,
thread
between
Hemetek
and
the
website
However, such
opportunity,
intent,
preparation,
plan,
knowledge,
Even if
of
unfair
prejudice
should
not
substantially
Evid. 403.
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
evidences
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
Id.
evidence
404(b)
pursuant
to
Rule
abuse
of
discretion.
The
correspondence
Hemeteks
printout
between
displeasure
also
Hemetek
that
only
contained
and
the
two
of
the
subsequent
website,
the
twenty
indicating
seeds
she
that
she
had
the
knowledge
4
and
intent
to
cultivate
also
tends
to
demonstrate
that
the
presence
of
that
she
cultivation.
had
the
motive
and
Thus,
the
evidence
was
opportunity
both
for
relevant
such
to
and
confirmed
with
copy
of
the
check
from
her
bank.
it
was
not
inflammatory
or
offensive,
it
did
not
cause
denied
her
motion
for
acquittal,
because
[t]here
was
She asserts
She claims
United States
In undertaking
the
evidence
in
the
light
most
favorable
to
the
(internal
quotation
marks
omitted).
When
determining
could
accept
as
adequate
and
sufficient
to
support
of
the
witnesses
and
assume[s]
that
the
jury
Id.
demonstrated
Hemeteks
sufficient
had
intent
to
indicia
cultivate
of
marijuana.
reliability,
The
containing
the
reasonable
conclusion
doubt.
The
that
Hemetek
testimony
at
was
guilty
trial
beyond
showed
that
a
a
received
discovered
219
consent
marijuana
to
search
plants,
the
as
When a ground
property,
confirmed
by
officers
forensic
On
admissibility
of
statements
given
against
was
ineffective
by
her
interest
by
failing
to
object
when
the
district
court
and
not
on
direct
appeal,
unless
it
provide
effective
Richardson,
195
representation.
F.3d
192,
198
(4th
United
Cir.
does
not
allegations
on
meet
this
direct
test,
we
appeal.
1999)
v.
(internal
decline
Hemetek
States
to
may
consider
raise
them
these
in
affirm
Hemeteks
conviction
and
contentions
the
we
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
8