UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4443

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KATHRYN ANN HEMETEK, a/k/a Kathryn Ann Johnson,

Defendant – Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

District Judge. (3:08-cr-00198-1)

Submitted: July 29, 2010 Decided: August 26, 2010

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston, 

West Virginia, for Appellant. Charles T. Miller, United States 

Attorney, Joshua C. Hanks, Assistant United States Attorney, 

Charleston, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Following discovery by law enforcement of 219 

marijuana plants in three separate plots growing in and around 

her farm, Kathryn Ann Hemetek was charged in a one-count 

indictment with manufacturing by growing and cultivating 100 or 

more marijuana plants in violation of 21 U.S.C. § 841(a)(1) 

(2006). Hemetek was found guilty following a jury trial, and 

sentenced to sixty months in prison. Hemetek now appeals. For 

the reasons that follow, we affirm.

On appeal, Hemetek raises three issues. First, she 

argues that the district court erred in admitting an e-mail 

found on a computer at the school where she worked, which showed 

an exchange between her and a website called medicalseeds.com. 

Hemetek claims that the Government, by using the e-mail, 

improperly suggested “that because she had bought seeds in the 

past she was likely to have cultivated the plants, and because 

of the suspicious circumstances surrounding the discovery of the 

email, the district court should have suppressed this evidence.” 

The e-mail thread between Hemetek and the website 

medicalseeds.com was admitted into evidence pursuant to Fed. R. 

Evid. 404(b). Rule 404(b) prohibits the use of “evidence of 

other crimes, wrongs, or acts,” where such evidence is used “to 

prove the character of a person in order to show action in 

conformity therewith.” Fed. R. Evid. 404(b). However, such 
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evidence may “be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident, provided that upon 

request by the accused, the prosecution in a criminal case shall 

provide reasonable notice in advance of trial.” Id. Even if 

such evidence meets the criteria of Rule 404(b), however, “[t]he 

danger of unfair prejudice should not . . . substantially 

outweigh the evidence’s probative value,” pursuant to Fed. R. 

Evid. 403. United States v. Branch, 537 F.3d 328, 342 (4th Cir. 

2008), cert. denied, 129 S. Ct. 943 (2009). 

Accordingly, as we explained in United States v. 

Queen, 132 F.3d 991, 997 (4th Cir. 1997), evidence of “prior bad 

acts” is admissible under Rules 404(b) and 403 if it meets the 

following criteria:

(1) The evidence must be relevant to an issue, such as 

an element of an offense, and must not be offered to 

establish the general character of the defendant. In 

this regard, the more similar the prior act is (in 

terms of physical similarity or mental state) to the 

act being proved, the more relevant it becomes. (2) 

The act must be necessary in the sense that it is 

probative of an essential claim or an element of the 

offense. (3) The evidence must be reliable. And (4) 

the evidence’s probative value must not be 

substantially outweighed by confusion or unfair 

prejudice in the sense that it tends to subordinate 

reason to emotion in the factfinding process. 

132 F.3d at 997. Additionally, where the district court 

provides a limiting instruction “explaining the purpose for 

admitting evidence of prior acts,” and the required advance 
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notice “of the intent to introduce prior act evidence” is 

provided, the use of such evidence “will not . . . be applied to 

convict a defendant on the basis of bad character, or to convict 

him for prior acts, or to try him by ambush.” Queen, 132 F.3d 

at 997. Instead, such evidence will be “probative of elements 

of the offense in trial.” Id. We review the admission of 

evidence pursuant to Rule 404(b) for abuse of discretion. 

Branch, 537 F.3d at 341.

The evidence admitted at trial and now challenged by 

Hemetek is a printout of an e-mail exchange between Hemetek and 

medicalseeds.com, a website that sells marijuana seeds, in which 

Hemetek explained that she had placed an order for seeds and 

that her check had been cashed but that she had not received her 

order. The printout also contained the subsequent 

correspondence between Hemetek and the website, indicating 

Hemetek’s displeasure that only two of the twenty seeds she 

purchased “came up.” The Government provided advance notice to 

Hemetek that it would be introducing the e-mail pursuant to Rule 

404(b), and Hemetek had the opportunity to file a motion in 

limine and to argue before the court why the evidence should not 

be admitted. 

Despite Hemetek’s contentions, the e-mail demonstrates 

that she had previously sought to purchase and plant marijuana 

seeds, that she had the knowledge and intent to cultivate 
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marijuana, and that she had taken preparatory steps to do so. 

The e-mail also tends to demonstrate that the presence of 

marijuana on Hemetek’s property was not a mistake or accident, 

and that she had the motive and opportunity for such 

cultivation. Thus, the evidence was both relevant to and 

probative of the charged act of cultivating marijuana, which 

required that the Government prove that Hemetek did so knowingly 

and intentionally. 

The disputed evidence was reliable because the e-mail 

came from her personal e-mail account and contained her name, 

address, and the number of the check she wrote to pay for the 

order, confirmed with a copy of the check from her bank. 

Finally, the evidence was not more prejudicial than probative, 

as it was not inflammatory or offensive, it did not cause 

confusion, and the court provided a limiting instruction to the 

jury. Accordingly, we find that the district court did not 

abuse its discretion in admitting the e-mail pursuant to Rule 

404(b).

Hemetek next claims that the district court erred when 

it denied her motion for acquittal, because “[t]here was 

absolute [sic] no direct evidence connecting the Appellant with 

the plants that were cultivated near her farm.” She asserts 

that the court “should have required the [G]overnment to connect 

this Appellant to those plants and should not have permitted a 
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loose circumstantial case to proceed to verdict.” She claims 

that without admission of the challenged e-mail, “there would 

have been no basis on which to find Appellant guilty.” 

This court reviews “de novo a district court's denial 

of a motion, made pursuant to Rule 29 of the Federal Rules of 

Criminal Procedure, for judgment of acquittal.” United States

v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). In undertaking 

such a review, “we are obliged to sustain a guilty verdict if, 

viewing the evidence in the light most favorable to the 

prosecution, the verdict is supported by substantial evidence.” 

Id. (internal quotation marks omitted). When determining 

whether there is substantial evidence in the record, “we view 

the evidence in the light most favorable to the government and 

inquire whether there 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.” 

United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007); see 

also Smith, 451 F.3d at 216. Moreover, when evaluating the 

sufficiency of the evidence, this court does not “review the 

credibility of the witnesses and assume[s] that the jury 

resolved all contradictions in the testimony in favor of the 

government.” Id. 

The record demonstrates that Hemetek’s conviction is 

supported by substantial evidence. The properly-admitted e-mail 
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demonstrated Hemetek’s intent to cultivate marijuana. The 

e-mail had sufficient indicia of reliability, containing 

Hemetek’s name and address, and reference to a check that was 

written out to the name given by the website for the purchase of 

seeds. Moreover, viewed in the light most favorable to the 

Government, the additional evidence at trial was sufficient to 

support the conclusion that Hemetek was guilty beyond a 

reasonable doubt. The testimony at trial showed that a 

marijuana eradication team aerially spotted multiple marijuana 

plots on or closely bordering Hemetek’s property. When a ground 

crew received consent to search the property, officers 

discovered 219 marijuana plants, as confirmed by forensic 

testing, in three separate plots. These officers also testified 

that there were well-worn paths leading to the various plots, 

that the roots of the plants appeared to have been planted in 

potting soil or fertilizer prior to being placed in the ground, 

that the plants were arranged in rows, that there were watering 

containers found in one plot, and that some plants in a plot 

were found in pots similar to pots found at Hemetek’s house. On 

the basis of the extensive evidence presented by the Government, 

we hold that the district court did not err in denying Hemetek’s 

motion for acquittal.

Finally, Hemetek argues that she received ineffective 

assistance of counsel when her counsel “waived the challenge to 
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admissibility of statements given against her interest by 

herself and her son” under Rule 404(b). She also alleges that 

counsel was ineffective by failing “to object when the 

[G]overnment’s witness Starcher contended he was familiar with 

[A]ppellant from ‘other cases.’” Hemetek argues that her “prior 

contentious dealings with Sergeant Starcher should have been the 

subject of a motion in limine by the defense, and at least, 

should have been objected to at trial.” 

“A claim of ineffective assistance of counsel should 

be raised by a habeas corpus motion under 28 U.S.C. § 2255 in 

the district court and not on direct appeal, unless it 

conclusively appears from the record that defense counsel did 

not provide effective representation.” United States v. 

Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal 

quotation marks and alterations omitted). As the record before 

us does not meet this test, we decline to consider these 

allegations on direct appeal. Hemetek may raise them in a 

motion pursuant to 28 U.S.C.A § 2255 (West Supp. 2010). 

Accordingly, we affirm Hemetek’s conviction and 

sentence. 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