UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4703

TOMMY LEE MCBRIDE,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

Frank W. Bullock, Jr., Chief District Judge.

(CR-96-264)

Submitted: February 23, 1999

Decided: March 18, 1999

Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Wayne Richard Hartke, HARTKE & HARTKE, Falls Church, Virginia, for Appellant. Walter C. Holton, Jr., United States Attorney,

Paul A. Weinman, Assistant United States Attorney, Winston-Salem,

North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Tommy McBride appeals his jury conviction for conspiring to distribute powder cocaine in violation of 21 U.S.C.§ 846 (1994). The

jury heard evidence that McBride caused others to bring cocaine into

the Mount Airy, North Carolina, area and sold it from 1989 until

1996. McBride challenges his conviction and sentence on several

grounds. Finding no reversible error, we affirm.

McBride first seeks to attack the validity of the search warrant for

his home. He argues that the search warrant affidavit contained false

allegations of his drug activity. However, he failed to file in the district court a motion to suppress the evidence obtained from this

search. His failure to file the motion to suppress results in waiver of

the issue on appeal. See United States v. Wilson , 115 F.3d 1185, 1190

(4th Cir. 1997); Fed. R. Crim. P. 12(b)(3), (f). McBride never sought

relief below for his default by showing cause and fails to establish

plain error on appeal. The reasoning underlying McBride's conclusion that the affidavit contained false allegations suffers from a fatal

flaw. The failure of the officers to find cocaine in McBride's residence during the search does not establish the falsity of the informant's statements referred to in the search warrant affidavit, which

were that the informant had earlier purchased cocaine from McBride

at his residence. Therefore, McBride has failed to show that the district court committed plain error by admitting into evidence testimony

concerning the $26,000 in cash found during the search.

McBride next challenges the sufficiency of the evidence to support

his conspiracy conviction. He claims that for several reasons, such as

because one of the government's witnesses admitted that she lied to

the grand jury and because many of the witnesses stood to gain from

testifying against him by receiving reduced sentences, the jury should

not have believed the government's evidence. However, "[c]redibility

determinations are within the sole province of the jury and are not

susceptible to judicial review." See United States v. Lowe, 65 F.3d

1137, 1142 (4th Cir. 1995). If the government's witnesses are

believed, there was sufficient evidence to support his conspiracy conviction. The government's evidence showed that McBride agreed

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with at least Judy King and Edgar France to purchase cocaine in New

York City, have it transported to North Carolina, and to distribute it

in the Mount Airy area. See United States v. Mills, 995 F.2d 480, 483

(4th Cir. 1993) (stating elements of conspiracy). Thus, this claim fails.

McBride also contends that he was prejudiced by the publication

of a newspaper article in the Mount Airy News . The article recounted

the evidence that had been given at trial against McBride which

linked him to the distribution of cocaine. The article was published

the day before the jury returned its guilty verdict. McBride complains

that the trial judge made no determination whether this publicity created a danger of substantial prejudice to him. See United States v.

Burchinal, 657 F.2d 985, 997 (8th Cir. 1981). This article was not

brought to the attention of the trial judge, thus we review for plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993); Fed. R.

Crim. P. 52(b). McBride fails to establish plain error. He fails to show

that any likelihood exists that any juror saw this article published in

Mount Airy when the trial was being held in Greensboro, North Carolina. McBride cannot now fault the district court for not inquiring into

the effect of this article when he made no attempt below to draw the

court's attention to it.

A grand jury returned a true bill of indictment against McBride,

finding that he "and divers other persons, known and unknown to the

Grand Jurors," conspired to distribute cocaine. McBride contends that

his indictment was defective because it failed to name any other specific person that he conspired with. The record contains no showing

that McBride challenged the validity of his indictment before trial as

Rule 12 requires. See Fed. R. Crim. P. 12(b)(2). This argument is

therefore waived on appeal. See Fed. R. Crim. P. 12(f). Moreover, we

have previously approved of such language in a conspiracy indictment. See United States v. American Waste Fibers Co., 809 F.2d

1044, 1046 (4th Cir. 1987).

McBride's final three claims relate to his sentencing. He first contends that the district court erred by enhancing his sentence under

United States Sentencing Guidelines Manual § 3B1.1 (1995), for

being a leader or organizer of criminal activity. We review this claim

for clear error. See United States v. Daughtrey , 874 F.2d 213, 217

(4th Cir. 1989). The four-level enhancement was proper if McBride

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"was an organizer or leader of a criminal activity that involved five

or more participants or was otherwise extensive." USSG § 3B1.1(a).

The district court found, in applying this guideline section, that

McBride directed the activities involving drugs for resale of seven

persons. The evidence supports the district court's finding that

McBride was a leader or organizer of this extensive drug distribution

activity in the Mount Airy area. We find no clear error in the fourlevel enhancement.

McBride next contends that the district court improperly calculated

the amount of drugs for which he should be held responsible. This

issue is also reviewed for clear error. See Daughtrey, 874 F.2d at 217.

Below, McBride objected to the drug amounts to the extent they were

based upon the allegedly unreliable testimony of Judy King and, to

a much lesser extent, Darrell Leonard. The court specifically found

King's testimony to be credible based on her demeanor under crossexamination and the corroboration offered at trial, including the unexplained, large amounts of money to which McBride had access. We

find no clear error in the court relying on King's testimony. McBride

failed to include any reference to Leonard in his written objections to

the presentence report and at the sentencing hearing simply referred

to Leonard's testimony as "generalized" but did not wish to argue the

point. We find no clear error in the trial court relying upon Leonard's

testimony in the face of an objection raised in this manner. Any other

claims of error as to the drug amount were waived by not raising them

below.

Finally, McBride objects to the court's enhancement of his offense

level under USSG § 3C1.1 for obstruction of justice. This enhancement was made because the court found that McBride attempted to

intimidate Judy King and Tommy Ceasar. McBride does not argue

that attempting to intimidate a witness against him would not constitute obstruction. See USSG § 3C1.1, comment. (n.3(a)). Rather, his

argument is that his purported conduct did not amount to an obstruction of justice because there are other possible interpretations of his

actions. We review this claim for clear error. See United States v. Self,

132 F.3d 1039, 1041 (4th Cir. 1997), cert. denied, 118 S. Ct. 1573

(1998). King testified that after she was arrested for possessing

cocaine which she was transporting for McBride, he came into the

Hardee's restaurant in which she was working and told her that he did

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not like people "telling lies on him" and that he would take a gun and

blow their heads off. King testified that McBride was trying to get the

point across that he did not want anyone telling anything on him and

that she was scared by this encounter. We find no clear error in the

district court's finding that this conduct was an attempt by McBride

to intimidate a witness against him.

We therefore affirm McBride'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

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