UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4721

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK ANTHONEY RICKETTS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CR-02-393)

Submitted: October 1, 2004 Decided: December 9, 2004

Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeffrey B. Welty, Durham, North Carolina, for Appellant. Anna

Mills Wagoner, United States Attorney, Michael A. DeFranco, Michael

F. Joseph, Assistant United States Attorneys, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Rehearing granted, February 11, 2005
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PER CURIAM:

Mark Anthoney Ricketts appeals from the judgment of the

district court convicting him of conspiracy to distribute cocaine

base, distribution of cocaine base, and possession with intent to

distribute cocaine base, all in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2000). Finding no error, we affirm. 

Ricketts first claims that the district court erred in

denying his motion for a judgment of acquittal made pursuant to

Fed. R. Crim. P. 29. Ricketts alleges a variance between the

indictment, which charged a single conspiracy, and the evidence at

trial, which Ricketts claims supports multiple conspiracies. This

Court has held that “[a] multiple conspiracy instruction is not

required unless the proof at trial demonstrates that [the

defendants] were involved only in ‘separate conspiracies unrelated

to the overall conspiracy charged in the indictment’.” United

States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994). The fact that

one or some of the participants may have been unknown to the others

is not dispositive. United States v. Gray, 47 F.3d 1359, 1368 (4th

Cir. 1995). Rather, the question is whether there is “an overlap

of key actors, methods, and goals.” United States v. Strickland,

245 F.3d 368, 385 (4th Cir. 2001) (internal quotation marks and

citations omitted). We conclude that there is such an overlap.

The evidence supports the conclusion that Ricketts and his coconspirators (Christopher Sumner, Orel Dawes, and Richard Moore)
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shared a common purpose to facilitate the distribution of narcotics

and thus were involved in the single conspiracy charged in the

indictment. Accordingly, we deny this claim.

Ricketts next claims that the district court erred in

excluding the expert testimony of a scientist in the field of

spectrographic voice analysis. Expert testimony is admissible

under Fed. R. Evid. 702 if it concerns: (1) scientific, technical,

or other specialized knowledge, that (2) will aid the jury or other

trier of fact to understand or resolve a fact at issue. See

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). We

conclude that the proffered evidence was lacking in probative value

because it did not make “more probable or less probable” a fact of

consequence to the jury. See Fed. R. Evid. 401. To the contrary,

the evidence demonstrated only that no “meaningful” scientific

analysis was possible. Given this fact, we find no abuse of

discretion in the district court’s decision to exclude the

testimony of the witness. See Gen. Elec. Co. v. Joiner, 522 U.S.

136, 139 (1997) (stating standard of review).

Ricketts also claims that the district court erred in

dismissing a juror for cause based on his alleged bias against law

enforcement officers. Because Ricketts did not object to the

juror’s dismissal at trial, we review this claim for plain error.

See United States v. Olano, 507 U.S. 725, 732-34 (1993). The

ultimate issue in a dismissal for cause is whether the juror “could
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be fair and impartial and decide the case on the facts and law

presented.” United States v. Capers, 61 F.3d 1100, 1105 (4th Cir.

1995). Our review of the record discloses no error on the part of

the court. The juror responded under questioning by the court that

he was “bothered” by the police and “really mad” at their behavior

two years previously in handling criminal charges against him that

eventually were dismissed. He raised this information on his own

volition and not at the prodding of the court or counsel.

Accordingly, we conclude that it was not unreasonable for the

district court to strike the juror for cause. 

Finally, invoking Blakely v. Washington, 124 S. Ct. 2531

(2004), Ricketts claims that the district court denied him his

Sixth Amendment right to trial by jury through its application of

sentencing enhancements under the federal sentencing guidelines.

Because Ricketts did not raise this claim in the district court, we

review for plain error. See United States v. Osborne, 345 F.3d

281, 284 (4th Cir. 2003). This court has considered the

applicability of Blakely to the federal sentencing guidelines and

has concluded that their application by a district court comports

with the requirements of the Sixth Amendment. See United States v.

Hammoud, ___ F.3d ___, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,

2004) (No. 03-4253) (en banc); United States v. Hammoud, 378 F.3d

426 (4th Cir. 2004) (order), petition for cert. filed, ___ U.S.L.W.

___ (U.S. Aug. 6, 2004) (No. 04-193). Because the district court’s
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sentence did not exceed the statutory maximum sentence authorized

by law, see Apprendi v. New Jersey, 530 U.S. 466 (2000), we find no

error. 

We affirm the judgment of the district court. 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