United States of America v. Kathryn Ann Hemetek, a/k/a Kathryn Ann Johnson

UNPUBLISHED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 Decided: August 26, 2010
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 plants in violation of 21 U.S.C. § 841(a)(1)
(2006). 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. First, she
argues that the district court erred in 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). However, such

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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.
Evid. 403. United States v. Branch, 537 F.3d 328, 342 (4th Cir.
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 at 997. Additionally, where the district court
provides a limiting instruction “explaining the purpose for
admitting evidence of prior acts,” and the required advance

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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.” Queen, 132 F.3d
at 997. Instead, such evidence will be “probative of elements
of the offense in trial.” Id. We review the admission of
evidence pursuant to Rule 404(b) 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 printout also contained the subsequent
correspondence between Hemetek and the website, indicating
Hemetek’s displeasure that only two of the twenty seeds she
purchased “came up.” 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 and intent to cultivate

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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 had the motive and opportunity for such
cultivation. Thus, the evidence was both relevant 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

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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.” United States
v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). 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. The properly-admitted e-mail

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demonstrated Hemetek’s intent to cultivate marijuana. The
e-mail had sufficient indicia of reliability, 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 conclusion that Hemetek was guilty beyond a
reasonable doubt. The testimony at trial showed that a
marijuana eradication team aerially spotted multiple marijuana
plots on or closely bordering Hemetek’s property. When a ground
crew received consent to search the property, officers
discovered 219 marijuana plants, as confirmed by forensic
testing, in three separate plots. 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

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admissibility of statements given against her interest by
herself and her son” under Rule 404(b). She also alleges that
counsel was ineffective by 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 representation.” United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal
quotation marks and alterations omitted). As the record before
us does not meet this test, we decline to consider these
allegations on direct appeal. Hemetek may raise them in a
motion pursuant to 28 U.S.C.A § 2255 (West Supp. 2010).
Accordingly, we affirm Hemetek’s conviction and
sentence. 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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