                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4773


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LENNY CAIN,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:12-cr-00019-ELH-6)


Submitted:    September 30, 2014           Decided:   October 7, 2014


Before AGEE, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary A. Ticknor, Columbia, Maryland, for Appellant.        Rod J.
Rosenstein, United States Attorney, Kenneth S. Clark, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Lenny Cain appeals the district court’s judgment after

the jury convicted him of (1) conspiracy to distribute and to

possess with intent to distribute oxycodone in violation of 21

U.S.C.      §§ 841(a)(1),     846,   and   (2)     possession    with   intent    to

distribute oxycodone, and aiding and abetting, in violation of

18 U.S.C. § 2, 21 U.S.C. § 841(a)(1).                  On appeal, Cain raises

six issues concerning his trial. ∗             We affirm.

               Cain first contends that the district court erred in

using the word “slight” when instructing the jury on what is

required to find that a defendant participated in a conspiracy.

Specifically, the district court instructed the jury that “[a]

defendant’s connection to the conspiracy can be slight”; and

“the       Defendant   must   have   participated      in   some   way,   however,

slight,      with   knowledge   of   at    least    some    of   the   purposes   or

objectives of the conspiracy and with the intention of aiding in

the accomplishment of those unlawful ends.”                  The district court

also instructed the jury that the Government had to prove the

elements of the conspiracy charge, including Cain’s knowing and

       ∗
       In addition to his attorney’s briefs, Cain has filed pro
se motions to file a supplemental brief and pro se supplemental
briefs.   Because he is represented by counsel who has filed a
merits brief on his behalf, not a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), he is not entitled to file a
supplemental brief. See United States v. Penniegraft, 641 F.3d
566, 569 n.1 (4th Cir. 2011). Accordingly, we deny the motions.



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voluntary participation in the conspiracy, beyond a reasonable

doubt.      Nonetheless, Cain argues that the district court’s use

of the word “slight” created a risk that the jury would use a

standard of proof less than beyond a reasonable doubt.

              We    review    a   claim    that   a   jury    instruction    did    not

correctly state the applicable law de novo.                      United States v.

Washington, 743 F.3d 938, 941 (4th Cir. 2014).                      “In conducting

such a review, we do not view a single instruction in isolation;

rather we consider whether taken as a whole and in the context

of the entire charge, the instructions accurately and fairly

state the controlling law.”                 United States v. Jefferson, 674

F.3d 332, 351 (4th Cir. 2012) (citation and internal quotation

marks    omitted).          Based   on    our   review,   we   conclude     that    the

district court correctly stated the applicable law.                        See United

States v. Allen, 716 F.3d 98, 103 (4th Cir.), cert. denied, 133

S.   Ct.    2819    (2013)    (noting      that   once    a   conspiracy    has    been

shown, the evidence need only show a slight connection between a

defendant and the conspiracy to support a conviction).

              Cain next contends that the district court erred in

instructing the jury in response to a juror’s question.                             The

juror      asked,    “How    reliable     is    fingerprint     analysis?”         Over

Cain’s objection, the district court responded:                    “Members of the

jury, you have heard the evidence, including the testimony of

fingerprint examiners, and it is your responsibility to make a

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determination as to the facts.”                         On appeal, Cain argues that the

district court “subtly told the jury to credit the experts” and

“infringed upon [the] fact-finding duty of the jury.”

               “We review a district court’s decision to respond to a

jury’s question, and the form of that response, for an abuse of

discretion.”          United States v. Foster, 507 F.3d 233, 244 (4th

Cir. 2007).         “[T]he trial court must take care, in responding to

a jury question, not to encroach upon its fact-finding power.”

United States v. Cooper, 482 F.3d 658, 664 (4th Cir. 2007).

“[I]n    responding         to    a    jury’s       request         for    clarification          on   a

charge, the district court’s duty is simply to respond to the

jury’s     apparent         source         of    confusion          fairly      and    accurately

without creating prejudice.”                       Foster, 507 F.3d at 244 (citation

and   internal        quotation            marks    omitted).             “An   error      requires

reversal only if it is prejudicial in the context of the record

as a whole.”          Id.        We conclude that the district court did not

abuse    its    discretion            in    responding         to    the    juror’s        question.

Rather than infringe on the jury’s fact-finding duty, the court

reminded       them    that       it       was     their    responsibility            to    make       a

determination of the facts based on the relevant evidence.

               In   his     fourth          issue,      Cain    also       contends        that    the

district court erred in denying his requested jury instruction

on reasonable doubt.                  We review a district court’s refusal to

give a jury instruction for abuse of discretion.                                 United States

                                                    4
v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).             A district court

is “not required to define reasonable doubt to the jury so long

as the jury was instructed that the defendant’s guilt must be

proven beyond a reasonable doubt.”           United States v. Hornsby,

666 F.3d 296, 310 (4th Cir. 2012).                 “Not requiring such an

instruction is based on this Circuit’s belief that attempting to

explain the words beyond a reasonable doubt is more dangerous

than leaving a jury to wrestle with only the words themselves.”

Id. at 310-11 (citation and internal quotation marks omitted).

Here, the district court instructed the jury that Cain’s guilt

had to be proven beyond a reasonable doubt, and the court did

not abuse its discretion in denying the requested instruction.

           In his third issue, Cain contends that the district

court erred by admitting prescriptions that were hearsay, not

properly authenticated, and in violation of his Confrontation

Clause rights under the Sixth Amendment.               Cain preserved his

claims   that   the   prescriptions   were   hearsay      and   not   properly

authenticated, but he did not preserve his Confrontation Clause

claim.   See United States v. Keita, 742 F.3d 184, 189 (4th Cir.

2014).     “Whereas    we   generally     review    the   district    court’s

evidentiary rulings for abuse of discretion, when a defendant

fails to make a specific and timely objection at trial, our

review is restricted to plain error.”        Id. (citations omitted).



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            We conclude that the district court did not abuse its

discretion or plainly err in admitting the prescriptions.                     The

fake prescriptions were created by Cain and his co-conspirators,

and the Government did not offer them into evidence to prove the

truth of any matter asserted.           Thus, the prescriptions were not

hearsay; and even if they were, they were admissible as co-

conspirator statements.       See Fed. R. Evid. 801(c), 801(d)(2)(E);

United    States   v.   Bruner,   657   F.2d    1278,    1284-85   (D.C.      Cir.

1981).     Moreover, the court did not abuse its discretion in

finding they were properly authenticated.                See Fed. R. Evid.

901(b)(1); United States v. Hassan, 742 F.3d 104, 133 (4th Cir.

2014); United States v. Vidacak, 553 F.3d 344, 349 (4th Cir.

2009); Bruner, 657 F.2d at 1283-84.             Finally, the court did not

plainly err in admitting them in violation of the Confrontation

Clause because they were not testimonial statements.                  See United

States v. Keita, 742 F.3d 184, 189-90 (4th Cir. 2014).

            In his fifth issue, Cain contends that the district

court plainly erred in asking questions at trial.                     A district

court    “should   exercise   reasonable       control   over   the    mode   and

order of examining witnesses and presenting evidence” to “make

those procedures effective for determining the truth” and to

“avoid wasting time.”       Fed. R. Evid. 611(a).         The court may also

“examine a witness regardless of who calls the witness.”                      Fed.

R. Evid. 614(b).        “In this regard, it is settled beyond doubt

                                        6
that in a federal court the judge has the right, and often [the]

obligation, to interrupt the presentations of counsel in order

to clarify misunderstandings”; and district courts “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).

             Because Cain did not object in the district court, we

review this issue for plain error.                 See id. at 331.            “In the

specific context of judicial intervention claims, we may not

intervene unless the judge’s comments were so prejudicial as to

deny   the   defendants     an    opportunity   for     a    fair   and   impartial

trial.”      Id. (citation and internal quotation marks omitted).

To show that a plain error affected his substantial rights, Cain

“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)

(citations    and    internal      quotation    marks       omitted).         We   have

reviewed the record and Cain’s brief, and we conclude that Cain

has not shown any plain error affecting his substantial rights.

             Finally, in his sixth issue, Cain contends that the

evidence was insufficient to support his conviction on count

two, and the district court erred in not granting his Fed. R.

Crim. P. 29 motion for judgment of acquittal.                    Specifically, he



                                         7
argues that there was insufficient evidence that Cain possessed

oxycodone with intent to distribute it on January 21, 2011.

             We review a district court’s denial of a motion for

judgment of acquittal de novo.                  United States v. Hassan, 742

F.3d 104, 139 (4th Cir. 2014).                 “Applying that standard, it is

well settled that ‘[t]he verdict of a jury must be sustained if

there is substantial evidence, taking the view most favorable to

the   [g]overnment,        to   support    it.”       Id.    (quoting         Glasser    v.

United States, 315 U.S. 60, 80 (1942)).                    “[S]ubstantial evidence

is    that   which    a   reasonable      finder      of   fact       could    accept    as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                  Id. (citation and internal

quotation marks omitted).             “Simply put, a defendant challenging

the sufficiency of the evidence faces a heavy burden.”                                  Id.

(citation and internal quotation marks omitted).

             The     elements      necessary     to    prove      a    conviction       for

possession     with       intent    to    distribute       oxycodone          are:      (1)

possession of oxycodone; (2) knowledge of the possession; and

(3) intention to distribute the oxycodone.                   See United States v.

Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).                           “Possession

may be actual or constructive, and it may be sole or joint.”

Id.     (citations        and      internal      quotation            marks     omitted).

“Constructive possession may be proved by demonstrating that the

defendant exercised, or had the power to exercise, dominion and

                                           8
control over the item.”           Id. (citation and internal quotation

marks omitted).

            “A defendant is guilty of aiding and abetting if he

has knowingly associated himself with and participated in the

criminal venture.”     Id. (citation and internal quotation marks

omitted).      “The   same     evidence       establishing   a     defendant’s

participation in a conspiracy may support a conclusion that a

defendant   participated     in   the   principal’s     unlawful    intent   to

possess and distribute drugs, thereby proving guilt of aiding

and abetting as well.”       Id. (citation omitted).

            Based on our review of the record, we conclude that

the evidence was sufficient to support Cain’s conviction.                 This

evidence included testimony that the Government’s summary chart

of patient profiles listing the January 21, 2011 prescription

was a record of prescriptions that had been “filled” on the date

listed; the original fake prescription for that date; testimony

that Cain’s fingerprints were found on the prescription; and

testimony that when a prescription was filled, a co-conspirator

would give the pills to Cain and he would distribute them.                   As

in   Burgos,   “the   fingerprint           evidence   was   not    the   only

incriminating evidence establishing [his] guilt; rather, there

was an abundance of evidence establishing that [he] was guilty

of possession with intent to distribute [oxycodone], namely the

evidence    establishing     that    [he]     was   guilty   of    conspiracy.

                                        9
Because sufficient evidence proved that [he] participated in the

conspiracy    to   possess    with   intent   to    distribute    [oxycodone],

proof of constructive possession is sufficient to convict him of

possession with intent to distribute.”             94 F.3d at 874-75.

           Accordingly, 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

this court and argument would not aid the decisional process.


                                                                       AFFIRMED




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