                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5174



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSEPH LEE HICKS, a/k/a Jo Jo Hicks, a/k/a Jo
Jo Mosby,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:06-cr-00005-FPS)


Submitted:   October 29, 2007          Decided:     November 28, 2007


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Franklin W. Lash, Wheeling, West Virginia, for Appellant. Sharon
L. Potter, United States Attorney, John C. Parr, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Following a jury trial, Joseph Lee Hicks was convicted of

two counts of distributing more than five grams of cocaine base

while within 1000 feet of a public school, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), 860 (2000). Hicks was sentenced to

262 months’ imprisonment.    For the reasons set forth below, we

affirm the district court’s judgment.

          Taken in the light most favorable to the Government,

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

adduced at trial established the following facts. On two occasions

in September 2005, the Ohio County Drug Task Force arranged for

Raymond Prayear, a confidential informant, to buy cocaine base from

Hicks.   Prior to each controlled buy, police officers installed

cameras behind the rearview mirror of Prayear’s vehicle and on

Prayear’s body (“Hawk camera”).

          In taped conversations with Hicks, Prayear arranged to

meet Hicks at designated locations and times to complete the

controlled buys.   Upon Hicks’ arrival, Hicks entered Prayear’s

vehicle and gave Prayear the requested amounts of cocaine base. To

complete the transactions, Prayear paid Hicks with cash provided

him by the Drug Task Force.       On September 8, 2005, Hicks sold

Prayear an ounce of cocaine base for $1100, and on September 9,

2005, Hicks sold Prayear one and a half ounces of cocaine base for




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$1650.   After completing the transaction, Prayear returned to the

designated rendevous point and surrendered the drugs to the police.

            Police officers created audio and video recordings of

both controlled buys.         The video tapes depicted Hicks entering

Prayear’s    car   and   making      movements     consistent   with   Prayear’s

testimony.    When the Government moved to introduce the video tapes

from September 9, Hicks objected, arguing the tapes were not

relevant because the drugs were not clearly visible.1                The district

court overruled the objection.

            Hicks raises four issues on appeal. We will address each

in turn.



I.   Validity of the Indictment

            Hicks first contends his indictment was invalid because

it was not signed, in cursive, by the jury’s foreperson.

            Pursuant     to   Fed.    R.   Crim.    P.   12(b)(3),    any   motion

alleging a defect in the indictment must be made prior to the

commencement of trial.          A defendant’s failure to raise such a

challenge prior to trial results in the waiver of the challenge,

save for those instances in which the waiver is excused for good

cause.   Fed. R. Crim. P. 12(e); United States v. Colton, 231 F.3d


     1
      This was the same argument Hicks presented in his pretrial
motion in limine, in which Hicks sought to preclude the Government
from using the video tapes from both September 8 and 9. However,
at trial, Hicks abandoned his objection to the September 8 tapes.


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890, 909 (4th Cir. 2000).   “Relief from the waiver of an objection

is appropriate only if the moving party demonstrates cause for the

failure to object and actual prejudice resulting from the defect.”

Colton, 231 F.3d at 909.

           Hicks first raised this issue at sentencing.      Hicks’

failure to raise it prior to trial effectively waived any challenge

to the indictment, Colton, 231 F.3d at 909; moreover, Hicks fails

to show cause and resulting prejudice.        Thus, we decline to

consider the merits of this issue.



II.   Admission of Video and Audio Tape Evidence

           Hicks next contends the district court erred in denying

his motion in limine to preclude the Government from introducing

into evidence the video tape of the September 9 controlled buy.

Hicks maintains this evidence should have been excluded because it

was irrelevant and because “admission of the tape allowed the

government to put on evidence that mislead [sic] the jury into

believing that a drug transaction had taken place even though the

tape did not support such a transaction.”

           This court reviews the admission of evidence for an abuse

of discretion.   United States v. Forrest, 429 F.3d 73, 79 (4th Cir.

2005).   “[A]n abuse [of discretion] occurs only when it can be said

that the trial court acted arbitrarily or irrationally in admitting

evidence.” United States v. Williams, 445 F.3d 724, 732 (4th Cir.)


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(internal quotation marks and citation omitted), cert. denied, 127

S. Ct. 314 (2006).

            Despite    Hicks’   protestations   to     the    contrary,   the

videotape remains relevant even if the cocaine base was not visible

on the tape.    The video recordings taken on September 9 depicted

the actual events that formed the basis for the criminal charge and

corroborated Prayear’s account of Hicks’ actions on the day in

question.      Accordingly, we reject Hicks’ contention that the

district court abused its discretion in finding this evidence

relevant and admitting it.



III. Sufficiency of the Evidence

            In his penultimate assignment of error, Hicks asserts the

Government failed to present legally sufficient evidence to support

the jury’s guilty verdict.

            This court reviews sufficiency of the evidence challenges

by determining whether, viewing the evidence in the light most

favorable to the Government, any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt.

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).           The court reviews

both   direct    and   circumstantial      evidence,    and    permits    the

“[G]overnment the benefit of all reasonable inferences from the




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facts proven to those sought to be established.”         Tresvant, 677

F.2d at 1021.

            In evaluating the sufficiency of the evidence, this court

does not “weigh the evidence or review the credibility of the

witnesses.”    United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997).       Where   the   evidence   supports   differing   reasonable

interpretations, the jury decides which interpretation to credit.

Id.      The uncorroborated testimony of a single witness may be

sufficient evidence of guilt, even if the witness is an accomplice,

a co-defendant, or an informant. United States v. Wilson, 115 F.3d

1185, 1189-90 (4th Cir. 1997).

            Hicks’ challenge to the sufficiency of the evidence fails

because it is predicated entirely on his contention that the jury

should have credited his testimony and rejected Prayear’s testimony

regarding what occurred in Prayear’s vehicle on September 8 and 9.

Although Hicks’ testimony plainly contradicted the Government’s

evidence, whether to credit Hicks’ or Prayear’s version of events

was entirely within the jury’s province, and we will not review

such credibility determinations on appeal.        Wilson, 118 F.3d at

234.




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IV.   Hicks’ Request to File Pro Se Supplemental Brief

            Although his appeal was not filed pursuant to Anders,2

which would afford Hicks a right to file a pro se supplemental

brief, see Anders, 386 U.S. at 743-44, Hicks nonetheless requests

leave to submit a pro se supplemental brief.         In the proposed

supplement submitted with Hicks’ motion, Hicks raises only one

contention: that his sentence violates Apprendi v. New Jersey, 530

U.S. 466 (2000), because he was sentenced for distribution of crack

cocaine but the indictment charged and the Government’s evidence

proved distribution of cocaine base.

            Although we grant Hicks leave to file the proposed

supplemental brief, we nonetheless reject the claim raised therein.

Tracking the language of 21 U.S.C. § 841(b)(1)(B), the indictment

charged Hicks with distribution of more than five grams of cocaine

base.     This court has opined that crack cocaine and cocaine base

are interchangeable terms.    United States v. Ramos, 462 F.3d 329,

334 (4th Cir.), cert. denied, 127 S. Ct. 697 (2006).

            Accordingly, we grant leave to file the proposed pro se

supplemental brief and we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions




      2
        Anders v. California, 386 U.S. 738 (1967).

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are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




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