US v. Michael Hardy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for leave to file [998921117-2]; granting Motion to file supplemental brief(s) [998921117-3] Originating case number: 2:10-cr-00048-2 Copies to all parties and the district court/agency. [998958777].. [11-5171]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

The

informant

Hardee’s

arrived

restaurant

in

at

the

Charleston,

designated
West

meeting

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:
was

insufficient

denied

effective

challenging
burden.

the

support

his

assistance
sufficiency

conviction;

of
of

and

counsel.

the

(2)

An

evidence

he

was

appellant

faces

a

heavy

See United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997).
grounds
cases

to

(1) the evidence

“[A]n appellate court’s reversal of a conviction on

of

insufficiency

where

States v.

the

Jones,

of

evidence

prosecution’s
735

should

failure

F.2d

785,

is

791

be

‘confined

clear.’”
(4th

to

United

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

distribution,

controlled
and

(3)

substance,
intent

to

(2)

knowledge

distribute

the

of

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.”
States v. Kingrea, 573 F.3d 186, 197 (4th Cir. 2009).
3

United

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We
supported

find

the

government

that

jury’s

did

not

the

Pg: 4 of 5

evidence

verdict.
present

outlined

Hardy’s

sufficient

above

argument
evidence

clearly

that
to

“the

sustain

convictions,” without identifying the specific shortcomings in
the prosecution’s case falls far short of establishing that the
“prosecution’s failure is clear.”
Hardy

also

argues

See Burks, 437 U.S. at 17.

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

record.
Cir.

to

promote

sufficient

development

of

the

United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
2010).

conclusively

Because
established

counsel’s
by

the

ineffectiveness
record

here,

we

is

not

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.
We

dispense

with

Accordingly, we affirm Hardy’s conviction.

oral

argument

4

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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