UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4382

GENE R. EATON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-95-178)

Submitted: February 13, 1997

Decided: February 28, 1997

Before WIDENER and HAMILTON, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James O. Broccoletti, J. F. Hoen, ZOBY & BROCCOLETTI, P.C.,

Norfolk, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Robert E. Bradenham II, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Gene R. Eaton, Jr. appeals his jury convictions for armed bank robbery, 18 U.S.C. §§ 2113(a) and (d) (1994), and using and carrying a

firearm during the robbery, 18 U.S.C. § 924(c) (1994). Finding no

error, we affirm.

First, Eaton claims the Government failed to present sufficient evidence that his gun was actually a firearm, rather than a toy gun. We

review challenges to the sufficiency of the evidence by viewing the

evidence at trial in the light most favorable to the prosecution, including all reasonable inferences that can be drawn from the evidence.

Glasser v. United States, 315 U.S. 60, 82 (1942); United States v.

Russell, 971 F.2d 1098, 1109 (4th Cir. 1992). A verdict must be sustained if supported by substantial evidence. Glasser, 315 U.S. at 80.

Four eyewitnesses testified that Eaton brandished a firearm during

the robbery. Additionally, another witness testified that Eaton told

him he used a Tec-9 firearm during the robbery, and another witness

testified that Eaton inquired about obtaining a firearm to use in the

robbery. While the Government did not present expert testimony that

the gun was an actual firearm, eyewitness testimony is sufficient to

sustain a conviction. United States v. Jones, 907 F.2d 456, 460 (4th

Cir. 1990). Viewed in the light most favorable to the Government,

there was substantial evidence to uphold Eaton's convictions. See

Glasser, 315 U.S. at 80.

Second, Eaton claims the trial court committed plain error by

admitting testimony about his drug use. See United States v. Olano,

507 U.S. 725 (1993). If error, it must have been"clear" and seriously

affect the fairness, integrity, or public reputation of judicial proceedings. Id. at 732.

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One witness testified that Eaton asked him to participate in the robbery while they were smoking marijuana. Two other witnesses testified that Eaton told them about the robbery to prove he had money

to purchase drugs. These statements did not constitute plain error

because, even if error, they did not seriously affect the fairness, integrity or public reputation of the judicial proceeding. See id. Further, the

Government presented substantial evidence that Eaton committed the

crimes, including eyewitness testimony and surveillance photographs.

Accordingly, we affirm Eaton's convictions. We dispense with oral

argument because the facts and legal contentions are adequately presented in the material before the court and argument would not aid the

decisional process.

AFFIRMED

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