United States of America v. Michael Hardy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL HARDY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:10-cr-00048-2)
Submitted: September 28, 2012 Decided: October 15, 2012
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Herbert L. Hively, II, Charleston, West Virginia, for Appellant.
R. Booth Goodwin, II, United States Attorney, Monica D. Coleman,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Hardy was charged in a two-count indictment
with aiding and abetting the distribution of five grams or more
of crack cocaine, in violation of 21 U.S.C. §§ 2, 841(a)(1)
(2006). The evidence presented at Hardy’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as
follows. On December 2, 2009, a confidential informant working
with the Metropolitan Drug Enforcement Network Team (MDENT) of
Kanawha County, West Virginia, arranged, via telephone, to make
a controlled purchase of an ounce of cocaine from Hardy for
$1200.00. The informant arrived at the designated meeting
place—a Hardee’s restaurant in Charleston, West Virginia—and,
upon direction from Hardy, completed the purchase from Hardy’s
associate. One week later, the informant again arranged, via
telephone, to purchase an ounce of crack cocaine from Hardy.
Hardy instructed him to go to a 7-11 parking lot where the
informant again purchased an ounce of crack from Hardy’s
associate (who was arrested shortly after the exchange).
A consensual search of Hardy’s residence later that
day revealed three sets of digital scales, $3400 in cash, and
crack cocaine residue in a bathroom sink. In a recorded
statement, Hardy admitted receiving a call from the informant,
who was looking for crack cocaine, and that he (Hardy) had put

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the informant in touch with his associate. The jury found Hardy
guilty of both counts; the district court imposed a 144-month
term of imprisonment. Hardy noted a timely appeal.
Hardy raises two claims on appeal: (1) the evidence
was insufficient to support his conviction; and (2) he was
denied effective assistance of counsel. An appellant
challenging the sufficiency of the evidence faces a heavy
burden. See United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997). “[A]n appellate court’s reversal of a conviction on
grounds of insufficiency of evidence should be ‘confined to
cases where the prosecution’s failure is clear.’” United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). A
verdict “must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
The elements of distribution are “(1) distribution of
[a] narcotic controlled substance, (2) knowledge of the
distribution, and (3) intent to distribute the narcotic
controlled substance.” United States v. Randall, 171 F.3d 195,
209 (4th Cir. 1999). To establish aiding and abetting, “the
[G]overnment must show that the defendant knowingly associated
himself with and participated in the criminal venture.” United
States v. Kingrea, 573 F.3d 186, 197 (4th Cir. 2009).

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We find that the evidence outlined above clearly
supported the jury’s verdict. Hardy’s argument that “the
government did not present sufficient evidence to sustain
convictions,” without identifying the specific shortcomings in
the prosecution’s case falls far short of establishing that the
“prosecution’s failure is clear.” See Burks, 437 U.S. at 17.
Hardy also argues that he was denied effective
assistance of counsel because his attorney failed to adequately
cross-examine government witnesses at trial. Unless an
attorney’s ineffectiveness is conclusively apparent on the face
of the record, ineffective assistance claims are not cognizable
on direct appeal. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). Instead, such claims should be raised in a
motion brought pursuant to 28 U.S.C.A. § 2255 (West Supp. 2011),
in order to promote sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). Because counsel’s ineffectiveness is not
conclusively established by the record here, we decline to
consider this claim at this juncture.
We grant Hardy’s motion to file a pro se supplemental
brief. However our review of the claims raised therein reveal
no reversible error. Accordingly, we affirm Hardy’s conviction.
We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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