                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

                                           2
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

                                           4
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

                                             5
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

                                              6
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

                                         7
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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