UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4934

MARTIN FITZGERALD WINFRED

CAVINESS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4950

LAWRENCE WOODARD,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4969

MICHAEL ANTION DAVIS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4103

THEODORE ARTHUR SEARCY,

Defendant-Appellant.
Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CR-96-109-R, CR-97-20)

Submitted: June 1, 1999

Decided: June 21, 1999

Before HAMILTON, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Thomas Marvin Blaylock, Roanoke, Virginia; Randy V. Cargill,

MAGEE, FOSTER, GOLDSTEIN & SAYERS, Roanoke, Virginia;

Anthony F. Anderson, Melissa Friedman, Roanoke, Virginia; Lawrence J. Fine, Winston-Salem, North Carolina, for Appellants. Robert

P. Crouch, Jr., United States Attorney, Karen B. Peters, Assistant

United States Attorney, Thomas E. Booth, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Martin Caviness, Lawrence Woodard, Michael Davis,

and Theodore Searcy were convicted of conspiracy to distribute

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cocaine powder in violation of 21 U.S.C.A. § 846 (West Supp. 1999).

In their consolidated appeals, they raise several claims of error arising

from their trial and sentencing. Having reviewed the briefs and

records of the trial proceedings, we find no error. Accordingly, we

affirm.

Appellant Searcy first assigns error to the district court's denial of

his motion for acquittal pursuant to FED. R. CRIM. P. 29(a). In support

of this claim Searcy asserts that because he conspired only with a

government agent, the Government's case was insufficient as a matter

of law. Because the evidence reflects that Searcy conspired with at

least one person not a government agent, the district court did not err

in denying his motion for acquittal.

Searcy next assigns error to the decision of the district court to

admit an audiotape of a telephonic conversation between himself and

a government agent. A district court's admission of a tape recording

is reviewed for an abuse of discretion and will only be overturned if

the "foundation for admission is clearly insufficient to insure the

accuracy of the recording." United States v. Wilson, 115 F.3d 1185,

1188 (4th Cir. 1997) (quoting United States v. Capers, 61 F.3d 1100,

1106 (4th Cir. 1995)). Having reviewed the record, we are satisfied

that the accuracy of the recording was sufficiently guaranteed.

Appellants Searcy and Davis each challenge the district court's

attribution of the relevant amounts of cocaine to them for sentencing

purposes. A district court's drug quantity finding is reviewed by this

court for clear error. See United States v. Lamarr, 75 F.3d 964, 972-

73 (4th Cir. 1996). Evidence adduced at the trial sufficiently tied both

Searcy and Davis to the conspiracy and to the relevant quantities of

cocaine powder attributed to each. Accordingly, we find no error in

the district court's sentencing of either appellant.

Appellants Caviness and Woodard assign error to the district

court's denial of their motions for acquittal pursuant to FED. R. CRIM.

P. 29(a). Specifically, they assert that the Government failed to establish they were participants of the conspiracy. We disagree. The evidence firmly attaches both Caviness and Woodard to a conspiracy to

purchase two kilograms of cocaine powder. Therefore, we affirm the

district court's findings with respect to these claims.

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Caviness and Woodard also assign error to the district court's decision declining to grant a mistrial because of the prosecutor's reference

to the "undisputed" evidence. The Fifth Amendment commands that

we must reverse a conviction if it can be said that offending language

was "manifestly intended to be, or [is] of such character that the jury

would naturally and necessarily take it to be a comment on the failure

of the accused to testify." United States v. Anderson, 481 F.2d 685,

701 (4th Cir. 1973). Because the comments in question do not rise to

the standard set forth in Anderson, a mistrial was not warranted.

Finally, Appellant Caviness assigns error to the district court's

enhancement of his sentence for possession of a firearm during the

commission of the offense. See U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (1997). A defendant may be held liable for the possession of a firearm by a co-conspirator during the conspiracy if the possession was reasonably foreseeable by the defendant. See United

States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir. 1994). We find

the possession was reasonably foreseeable to Caviness.

Having considered each of Appellants' claims and finding them to

be without merit, we affirm the convictions and sentences imposed by

the district court. We deny Appellants' motions to file supplemental

briefs. 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

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