UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4325
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EUNICE HUSBAND,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:08-cr-00016-IMK-JSK-1)
Submitted: July 7, 2010 Decided: July 22, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Betsy
C. Jividen, Acting United States Attorney, David E. Godwin,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A corrections officer conducted a “pat down” search of
Eunice Husband, an inmate at the United States Penitentiary in
Hazelton, West Virginia, which revealed that Husband had in his
possession a seven-inch long metal “shank.” Husband was placed
in handcuffs and taken to the special housing unit, where a
“visual” search was conducted in a holding cell. During the
visual search, Husband stripped-down to his boxer shorts, at
which time he turned his back to corrections officers, moved
toward the back of the holding cell, and began placing items in
his mouth. The officers ordered Husband to stop, but Husband
refused and continued taking objects from his boxer shorts and
placing them in his mouth. Officers entered the room and
subdued Husband. The officers found 35 small packages of
marijuana on the floor and in Husband’s mouth after they gained
control of him. Laboratory tests determined that the 35 packets
contained a net weight of 6.6 grams of marijuana.
A two-count indictment was returned in the Northern
District of West Virginia charging Husband with possession of an
object intended to be used as a weapon in violation of 18 U.S.C.
§ 1791(a)(2) and (b)(3) and possession of marijuana with the
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(d). During the ensuing jury trial, Husband made motions
for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29,
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which the court denied. The jury convicted Husband on each of
the two charges. The court sentenced Husband to 120 months of
imprisonment. Husband timely appealed.
Husband’s appointed appellate counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he concludes that this matter does not present any
meritorious issues on appeal, but examines whether: (1) there
was sufficient evidence to convict Husband of possession with
intent to distribute; (2) Husband received effective assistance
of counsel; and (3) Husband’s rights were violated by the fact
that he did not timely receive a detention hearing. The
Government has filed a brief, in which it concurs with counsel’s
ultimate conclusion. Husband has filed two documents, one of
which was styled as a “traverse” brief, and the other was styled
as a supplemental pro se brief. 1
I. Right to a Detention Hearing
It is undisputed that Husband was entitled to a
detention hearing, and that he did not timely receive one.
Appellate review of violations of the Bail Reform Act’s timely
hearing requirement is for harmless error. See, e.g., United
1
Husband’s “traverse” brief is dedicated mainly to
attacking the effectiveness of appellate counsel’s assistance.
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States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990); see also
United States v. Meyers, 95 F.3d 1475, 1488 (10th Cir. 1996).
A district court’s failure to provide a timely
detention hearing, in and of itself, does not require a
reviewing court to release a defendant, Montalvo-Murillo,
495 U.S. at 717-22, and, taken alone, it is not a sufficient
justification to reverse an otherwise valid conviction, Meyers,
95 F.3d at 1488. Rather, the record, taken as a whole, must
establish that “the error may have had a ‘substantial influence’
on the outcome of the proceeding.” Montalvo-Murillo, 495 U.S.
at 722. Here, neither Husband, nor his attorney have argued
that his pre-trial release would have had any bearing, much less
“substantially influenced,” the jury’s decision to convict him,
or the district court’s decision to sentence him as it did.
Indeed, given the fact that he was already serving a lengthy
federal sentence and that he had no ties to the community, it
would seem unlikely that a detention hearing would have resulted
in Husband’s release. In any event, as in Meyers, the issue of
whether the district court erred has been effectively mooted by
Husband’s subsequent convictions. See 95 F.3d at 1488.
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II. Sufficiency of the Evidence
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. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). In conducting such a
review, the Court is 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.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc) (citing Glasser v. United States, 315 U.S. 60, 80 (1942)).
This Court has “defined substantial evidence as 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.” Alerre, 430 F.3d at 693 (internal
quotation and citation omitted); see Burgos, 94 F.3d at 862.
This Court “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982).
In evaluating the sufficiency of the evidence, this
Court does not assess the credibility of the witnesses and
assumes that the jury resolved all contradictions in the
testimony in favor of the Government. United States v. Brooks,
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524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519
(2008). This Court “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal
quotation marks and citation omitted).
We find that there is ample evidence to support the
jury’s decision to convict Husband of possession of marijuana
with the intent to distribute. The fact that that officers
recovered thirty-five pre-packaged and individually wrapped bags
of marijuana from inside and around Husband’s person more than
supports the conclusion that Husband possessed the drugs with
the intent to distribute them. Affording all reasonable
inferences to the Government, it is clear that the Government
adduced sufficient evidence to convict Husband.
III. Ineffective Assistance of Counsel
Husband contends that his trial counsel was
ineffective because he advocated for a charge of simple
possession rather than arguing that Husband did not possess the
drugs in question at all, as it seems Husband would have
preferred, and that his appellate counsel has not fulfilled his
obligations to adequately represent him. Claims of ineffective
assistance of counsel are not cognizable on direct appeal unless
the record conclusively establishes that counsel provided
ineffective assistance. United States v. Baldovinos, 434 F.3d
6
233, 239 (4th Cir. 2006). We find that Husband’s claims are not
ripe for review at this time.
IV. Other Issues
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform his client, in writing of his right
to petition the Supreme Court of the United States for further
review. If the client requests that such a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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
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