US v. Ray Dicks, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00015-LO-2. Copies to all parties and the district court. [999603757]. [14-4594]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

closing arguments.

improperly

interrupted

his

attorney

during

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
2

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.”
drove
masks.

to

The following day, Jackson, Dicks, Riley, and Lewis
the

Safeway,

parked

outside

the

store,

and

donned

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.

3

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.”
responded,

“Who,

Ray?”

to

which

Lewis

replied,

“yeah.”

She
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 please.

That’s

improper

argument.

Disregard

[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.

4

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Dicks argues, first, that the evidence was insufficient to
support the jury’s guilty verdict.

A defendant challenging the

sufficiency

“a

of

the

evidence

faces

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

conviction.

evidence

Glasser

v.

in

the

United

record
States,

to
315

support
U.S.

60,

the
80

(1942); United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.
2011).
finder

“Substantial
of

fact

evidence

could

accept

is

that

adequate

as

evidence

and

a

reasonable

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).
sufficiency

of

the

evidence,

this

Court

In evaluating the
does

not

review

the

credibility of the witnesses and assumes that the jury resolved
all

contradictions

Government.

in

the

testimony

in

favor

of

the

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

2007).
To

prove

robbery

in

violation

Government must prove:
5

of

the

Hobbs

Act,

the

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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,

(internal quotation marks omitted).

271

(4th

Cir.

2015)

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,

of

province

“determinations
of

the

jury

and

credibility
are
6

not

are

within

susceptible

to

the

sole

judicial

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review.”

Burgos,

omitted).

Second, the testimony of an accomplice is “sufficient

to

sustain

a

94

F.3d

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conviction,

at

863

even

(internal

though

quotation

uncorroborated,

marks

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.
672-73

(4th

Cir.

See United States v. Godwin, 272 F.3d 659,
2001)

(failure

to

object

limits

review

“judicial interference contention only for plain error”).

of
To

establish a plain error affecting his substantial rights, Dicks
“must establish that the jury actually convicted [him] based
upon the trial error.”
405,

412

(4th

Cir.),

United States v. Williamson, 706 F.3d
cert.

denied,

134

S.

Ct.

(internal quotation marks and alteration omitted).

421

(2013)

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
7

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the

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presentations

of

misunderstandings,”

and

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counsel
“must

in

order

needless consumption of time.”

manage

to

litigation

clarify
to

avoid

United States v. Smith, 452 F.3d

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

“In

claims,

[this

comments

the

were

opportunity

specific

court]
so

for

may

context
not

prejudicial

a

fair

and

of

judicial

intervene
as

to

unless

deny

impartial

the

intervention
the

judge’s

defendant[]

trial.”

Id.

an

(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].”
record:

However, this argument misrepresents the

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.
upheld

a

trial

argument

when

record,

an

judge’s
counsel

interruption
suggests,

inappropriate

without

motive
8

during

on

This court has

counsel’s

any

support

the

part

closing
in
of

the
the

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Government.

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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,

court,

the

a

position

district

court

that

counsel

never

appropriately

established

concluded

that

in
the

argument that counsel was making had limited value and may have
been unfair.”).

Accordingly, we find that the district court

did

interrupting

not

err

by

Dicks’

attorney

during

closing

argument.
Therefore, we affirm the district court’s judgment.
dispense

with

oral

argument

because

the

facts

and

We
legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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