                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4594


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RAY ALLEN DICKS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:14-cr-00015-LO-2)


Submitted:   May 29, 2015                 Decided:   June 17, 2015


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Adam M. Krischer, DENNIS, STEWART, KRISCHER, & TERPAK, PLLC,
Arlington, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Patricia T. Giles, Rebecca H. Bellows,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Ray Allen Dicks, Jr., was convicted by a jury of conspiracy

to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (2012), and

sentenced to 144 months’ imprisonment.         He appeals, arguing that

the evidence is insufficient to support his conviction and that

the   trial   judge   improperly   interrupted    his    attorney      during

closing arguments.    Finding no error, we affirm.

      The evidence presented at Dicks’ 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

November 17, 2013, a Safeway store in Alexandria, Virginia, was

robbed by three armed men wearing masks.         After learning of the

robbery, a customer who had been in the store the day before the

robbery   contacted   police.      The   customer     testified    that   he

noticed a group of “two or three people . . . behaving in a way

that seemed unusual to me and worthy of comment.”           According to

the customer, the men were “walking independently in the aisles,

and then meeting up and talking with one another briefly, and

then separating and going down the aisles again.”           The customer

noticed that one of the men was standing behind him in the

checkout line with “only a few smallish items to buy which were

the sort of things that you might get at a corner drug store.

They didn’t seem to be the kind of things that you would make a

special   trip   to   a   supermarket    to   buy.”     Based     on    these

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observations, the customer concluded that the men might have

been “casing” the store in order to rob it.

     Surveillance footage showed the customer in the checkout

line; the man behind him was identified as Dicks.                Store records

also confirmed that the purchase was made using Dicks’ Safeway

Club card.

     Louis Jackson testified that he, along with Dicks, Artemis

Riley,   and     Calvin   Lewis    (Dicks’     cousin),    decided   to     rob   the

Safeway store and that they all went together on November 16 to

“see where all the registers was at, how many people was there,

where the booth was at where they kept money . . . checking

cameras.”       The following day, Jackson, Dicks, Riley, and Lewis

drove    to    the   Safeway,     parked   outside   the    store,    and    donned

masks.    According to Jackson, Lewis retrieved the cash from the

store’s office, while he (Jackson) and Dicks remained in the

store.        On their way out, Lewis shot and injured one of the

customers using a gun that Jackson had taken from the customer.

Having heard the gunshot, Riley drove away, leaving the others

to flee on foot.

     Riley also testified that he, along with Dicks, Lewis, and

Jackson, planned to rob the Safeway store and that they had gone

“to look at it” the day before the robbery.                  Riley once worked

at the store and claimed some familiarity with it.                   According to



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Riley, after the group visited the store, they decided it was

“an easy robbery.”

       After Lewis was arrested, he made a call to his girlfriend

that    was   recorded     and    played    for    the    jury.      During    the

conversation, Lewis told his girlfriend to tell his “Cuz” to

“stay out of the way . . . cause they got him too.”                            She

responded,    “Who,      Ray?”    to   which      Lewis   replied,   “yeah.”    A

subsequent search of Lewis’ residence revealed a black backpack,

latex gloves, items of mail addressed to Dicks, and clothing

associated with Dicks.

       During closing arguments, the following exchange took place

between Dicks’ counsel and the district court judge:

       [Counsel:] You have to ask yourselves if the evidence
       is so overwhelming, why offer Artemis and Louis a
       deal?   These guys are dangerous, confessed robbers.
       Why even get into bed with these guys?

       The Court:        That’s    improper       argument.       Disregard
       that please.

       [Counsel:]   I would tell you, Judge - - I’m sorry, I
       would tell you that the reason is that the physical
       evidence is not sufficient to prove Mr. Dicks beyond a
       reasonable doubt. Three men went into a Safeway store
       on November 17.

       The Court:     You will disregard that last statement
       as well.   Counsel, there’s no evidence of why other
       individuals entered into those plea agreements.  It’s
       pure speculation on his behalf, and he’s got no basis
       for making that statement.

Dicks’ counsel did not object.



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      Dicks argues, first, that the evidence was insufficient to

support the jury’s guilty verdict.                        A defendant challenging the

sufficiency     of     the   evidence          faces      “a    heavy     burden.”        United

States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal

quotation marks omitted).                The jury’s verdict must be sustained

if, viewed in the light most favorable to the Government, there

is    substantial        evidence         in        the     record        to    support        the

conviction.          Glasser        v.    United          States,       315     U.S.    60,     80

(1942); United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.

2011).      “Substantial         evidence        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.”     Jaensch, 665 F.3d at 93 (internal quotation marks and

alteration      omitted).        “Reversal           for       insufficient         evidence    is

reserved for the rare case where the prosecution’s failure is

clear.”     United States v. Ashley, 606 F.3d 135, 138 (4th Cir.

2010) (internal quotation marks omitted).                               In evaluating the

sufficiency     of     the   evidence,          this      Court     does      not    review    the

credibility of the witnesses and assumes that the jury resolved

all    contradictions          in        the     testimony           in       favor     of     the

Government.      United States v. Kelly, 510 F.3d 433, 440 (4th Cir.

2007).

      To    prove      robbery      in    violation            of   the    Hobbs       Act,    the

Government must prove:

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     (1) that the defendant coerced the victim to part with
     property; (2) that the coercion occurred through the
     wrongful use of actual or threatened force, violence
     or fear or under color of official right; and (3) that
     the coercion occurred in such a way as to affect
     adversely interstate commerce.


United    States      v.     Reed,    780       F.3d     260,   271   (4th     Cir.     2015)

(internal quotation marks omitted).                        Conspiracy to commit Hobbs

Act robbery requires the Government to prove that the defendant

agreed with at least one other person to commit acts that would

satisfy the above three elements.                      United States v. Buffey, 899

F.2d 1402, 1403 (4th Cir. 1990).

     We conclude that the Government presented ample evidence

upon which to support a finding that Dicks agreed with Lewis,

Riley, and Jackson to rob the Safeway store.                          Riley and Jackson

testified that Dicks participated in the planning of the robbery

(as well as the robbery itself), and independent evidence placed

Dicks at the Safeway the day before the robbery, along with

Riley    and     Jackson,     both        of    whom     confessed    to    the    robbery.

Nevertheless, Dicks argues that the evidence is insufficient to

support    the      jury’s    verdict          because     “[t]here   was    no    evidence

beyond the testimony of two convicted felons that placed [him]

at the Safeway in Old Town Virginia on November 17, 2013, the

date of the robbery.”                This argument fails for three reasons.

First,     “determinations           of    credibility          are   within      the    sole

province       of   the    jury      and       are   not    susceptible      to    judicial

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review.”        Burgos,    94    F.3d     at       863       (internal    quotation      marks

omitted).       Second, the testimony of an accomplice is “sufficient

to   sustain      a    conviction,      even       though       uncorroborated,          if   it

convinces a jury of the defendant’s guilt beyond a reasonable

doubt.”        United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.

1976) (per curiam).          And, finally, the Government did not need

to prove Dicks’ presence on the day of the robbery itself in

order     to    sustain    its    burden           of    proof      for    the    conspiracy

conviction.

        Next,    Dicks     argues       that        the       district      court       judge’s

interruption during counsel’s closing argument deprived him of

his Sixth Amendment right to a fair trial.                          Because Dicks failed

to note an objection to the interruption, however, review is for

plain error only.          See United States v. Godwin, 272 F.3d 659,

672-73    (4th    Cir.    2001)     (failure            to    object     limits    review     of

“judicial interference contention only for plain error”).                                     To

establish a plain error affecting his substantial rights, Dicks

“must establish that the jury actually convicted [him] based

upon the trial error.”              United States v. Williamson, 706 F.3d

405,    412     (4th    Cir.),    cert.    denied,            134   S.    Ct.     421   (2013)

(internal quotation marks and alteration omitted).                                We find no

error, let alone plain error.

        “[I]t is settled beyond doubt that in a federal court the

judge has the right, and often [the] obligation, to interrupt

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the      presentations             of      counsel             in         order      to        clarify

misunderstandings,”              and      “must          manage        litigation         to     avoid

needless consumption of time.”                      United States v. Smith, 452 F.3d

323, 332 (4th Cir. 2006) (citations and internal quotation marks

omitted).       “In      the    specific        context         of     judicial      intervention

claims,       [this      court]      may      not       intervene         unless     the       judge’s

comments      were     so      prejudicial          as    to    deny       the    defendant[]        an

opportunity        for    a    fair     and     impartial            trial.”        Id.    (internal

quotation marks omitted).

      Dicks        appears      to      argue    that          the    district       court       judge

prevented his attorney from asserting that Riley’s and Jackson’s

testimony should be given less weight because they were offered

“a deal with the government in exchange for [their] testimony

implicating [him].”               However, this argument misrepresents the

record:        counsel had, in fact, already argued in some detail

that Riley’s and Jackson’s testimony was not credible, pointing

out numerous inconsistencies in their statements, highlighting

the   sentencing         benefits        each       received         as    a    result     of    their

testimony, and reminding the jurors of their status as convicted

felons.       It was only when counsel then began to question the

Government’s motives that the judge interrupted.                                   This court has

upheld    a    trial      judge’s       interruption            during         counsel’s       closing

argument      when       counsel       suggests,          without         any     support      in   the

record,       an      inappropriate             motive          on        the      part     of      the

                                                    8
Government.        See, e.g., United States v. Newsome, 322 F.3d 328,

335 (4th Cir. 2003) (“Because counsel for [the defendant] was

suggesting in this statement to the jury some impropriety by the

United   States,      a   position    that   counsel    never   established     in

court,      the    district   court    appropriately     concluded    that    the

argument that counsel was making had limited value and may have

been unfair.”).           Accordingly, we find that the district court

did   not    err     by   interrupting   Dicks’     attorney    during     closing

argument.

      Therefore, we affirm the district court’s judgment.                      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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