UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HASSAN GENELL HINES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00323-BO-1)
Submitted: May 6, 2010 Decided: May 27, 2010
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Hassan Hines of conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846 (2006); possession of a firearm after having previously
been convicted of a crime punishable by more than one year, in
violation of 18 U.S.C. § 922(g)(1) (2006); possession with
intent to distribute marijuana, cocaine, and cocaine base, in
violation of 21 U.S.C. § 841(a) (2006); maintaining a residence
for distributing controlled substances, in violation of 21
U.S.C. § 856 (2006); and possession of a firearm in relation to
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2006). The district court sentenced Hines to a total of 480
months of imprisonment and he now appeals. For the reasons that
follow, we affirm.
Hines first argues that comments the district court
made during his testimony and the court’s extensive questioning
of witnesses deprived him of a fair trial. A trial court is
specifically authorized by the Federal Rules of Evidence to
“interrogate witnesses, whether called by itself or by a party.”
Fed. R. Evid. 614(b). On appeal, this court will afford a
measure of deference to the decision by a district court to
exercise its authority under Rule 614(a) to question a witness.
United States v. Smith, 452 F.3d 323, 333 (4th Cir. 2006). As
with other matters of trial management, the decision to question
2
a witness is quintessentially within the province of the
district court. Smith, 452 F.3d at 332.
As Hines did not object to the district court’s
statements during his testimony or to the court’s questioning of
the witnesses, this issue is reviewed for plain error. United
States v. Godwin, 272 F.3d 659, 679 (4th Cir. 2001); see United
States v. Moore, 11 F.3d 475 (4th Cir. 1993). To prevail on a
claim of unpreserved error, Hines must demonstrate that
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Furthermore, even if Hines satisfies this
standard, this court will exercise its discretion to notice the
error only “if the error seriously affect[s] the fairness,
integrity, or public reputation of the judicial proceedings.”
Id. (internal quotation marks and citation omitted).
We have thoroughly reviewed the record and conclude
that Hines has failed to satisfy these standards. Even if we
assume that the district court committed error that was plain,
Hines fails to demonstrate that the error affected his
substantial rights as the evidence of his guilt presented at
trial was compelling and overwhelming. See Godwin, 272 F.3d at
680.
Hines next argues that his counsel rendered
ineffective assistance. Under Strickland v. Washington, 466
3
U.S. 668, 687 (1984), to prove a claim of ineffective assistance
of counsel a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” With respect to the first prong, the
defendant must show that counsel’s performance “fell below an
objective standard of reasonableness.” Id. at 688. In
addition, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. Under the second prong of the
test, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694. Moreover, this court may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears from the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Hines contends that his counsel was ineffective for
failing to object to the court’s statement and requesting a
mistrial, failing to call his brother as a witness, and failing
to argue that the court’s statement was improper in his Fed. R.
Crim. P. 29 motion. We conclude, however, that Hines has failed
to demonstrate that ineffective assistance conclusively appears
from the record. We accordingly decline to consider this claim
on direct appeal.
4
Finally, Hines argues that the admission of statements
made by a confidential informant violated his Sixth Amendment
right to confront witnesses against him. In Crawford v.
Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that
the Confrontation Clause bars the “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” The Court explained,
however, “[t]hat the [Confrontation] Clause . . . does not bar
the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Id. at 59 n.9
(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Here, a government witness testified to information
provided by the confidential informant to explain why the
authorities undertook an investigation into Hines. Accordingly,
as this information was not offered for its truth, the
introduction of these statements did not violate the
Confrontation Clause. Crawford, 541 U.S. at 59 n.9. With
respect to the remainder of the confidential informant’s
statements, defense counsel elicited this information during
cross-examination and, therefore, the admission of these
statements “provides no basis for reversal.” United States v.
Neal, 78 F.3d 901, 904 (4th Cir. 1996) (finding error invited by
the defendant not to require reversal of conviction).
5
Accordingly, 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
6