UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4353

DWIGHT KNIBBS, a/k/a Paul Bougle,

a/k/a Jamaican Paul,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-90-122)

Submitted: October 28, 1997

Decided: November 24, 1997

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul M. McKay, MCKAY & MCKAY, Wheeling, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Lisa Grimes

Johnston, Assistant United States Attorney, Wheeling, West Virginia,

for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, Dwight Knibbs was convicted of engaging

in a continuing criminal enterprise, see 21 U.S.C. § 848 (1994); two

counts of aiding and abetting the possession with intent to distribute

cocaine base, see 21 U.S.C. § 841(a)(1) (1994), 18 U.S.C. § 2 (1994);

three counts of distributing cocaine base, see 21 U.S.C. § 841(a)(1)

(1994); three counts of distributing cocaine base to a person under the

age of twenty-one, see 21 U.S.C. § 845(a) (renumbered to § 859(a) by

the Crime Control Act of 1990, Pub. L. No. 101-647,§ 1002 (1990));

and possession of a firearm during and in relation to a drug trafficking

crime, see 18 U.S.C. § 924(c)(1) (1994). On appeal, Knibbs contends

that (1) his cross-examination violated his Fifth Amendment right to

remain silent, (2) he received ineffective assistance of counsel based

upon counsel's own conduct and two rulings made by the district

court, (3) the prejudicial value of a photograph of plastic sandwich

bags substantially outweighed its probative value, (4) the Government

suborned perjury, and (5) the district court erred by enhancing his

sentence for obstruction of justice. For the reasons stated below, we

affirm his convictions and resulting life sentence.

Knibbs organized a crack distribution ring in the Wheeling, West

Virginia, area in 1989. Knibbs employed numerous persons, including

juveniles, many of whom testified at trial, to sell $100 packages of

crack cocaine. Witnesses testified that sales ranged from $1000 to

$10,000 per day. In addition, the organization possessed several firearms. Knibbs was known to use a firearm to keep his runners in line.

Knibbs was indicted for numerous narcotics offenses in 1990, but he

had already fled the area and was not apprehended until 1995.

Knibbs voluntarily testified on his own behalf. He now contends

that some of the Government's questions on cross-examination,

which were asked without objection, violated his Fifth Amendment

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right to remain silent. Knibbs correctly asserts that a defendant's decision to testify does not operate as a waiver of the privilege. See Fed.

R. Evid. 608. However, the Fifth Amendment protects against compelled testimony. If a witness desires the protection of the Fifth

Amendment, "he must claim it or he will not be considered to have

been `compelled' within the meaning of the Fifth Amendment." See

United States v. Monia, 317 U.S. 424, 427 (1943). Because Knibbs

voluntarily testified and answered the Government's questions without asserting the protection of the Fifth Amendment, he was not compelled to answer the Government's questions. See Minnesota v.

Murphy, 465 U.S. 420, 427 (1984).

Knibbs also contends that he received ineffective assistance of

counsel. He points to his counsel's failure to object to the crossexamination discussed above, the district court's failure to grant a

longer continuance, and the denial of a motion for appointment of cocounsel. As for the latter two assertions, it is Knibbs's contention that

the court's rulings resulted in his having a counsel who was not sufficiently prepared to go to trial. Claims regarding the effectiveness of

counsel are considered on direct appeal only if"it `conclusively

appears' from the record that defense counsel did not provide effective assistance." United States v. Gastiaburo , 16 F.3d 582, 590 (4th

Cir. 1994) (quoting United States v. Fisher, 477 F.3d 300, 302 (4th

Cir. 1973)). We have held that these claims are better left to a motion

under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). See United

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Because the

record does not conclusively demonstrate that Knibbs received ineffective assistance of counsel, we will not review the claims.

Knibbs, citing Fed. R. Evid. 403, contends that the prejudicial

impact of the admission of a photograph of plastic sandwich bags

with the corners removed outweighed its probative value. The Government contended that the sandwich bags were evidence of drug paraphernalia. A district court's evidentiary rulings are entitled to

substantial deference and will not be reversed absent a clear abuse of

discretion. That discretion is abused only when the district court acted

arbitrarily or irrationally. See United States v. Moore, 27 F.3d 969,

974 (4th Cir. 1994). A photograph of sandwich bags is unlikely to

elicit an emotional response from the jury, see Fed. R. Evid. 403 advisory committee note, and the photograph did not dominate the evi-

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dence or mislead the jury. Accordingly, we conclude that the district

court did not abuse its discretion in admitting the photograph as evidence.

Knibbs further contends that the Government knowingly presented

false testimony. The testimony at issue was not objected to at trial

and, thus, is reviewed for plain error. See United States v. Cedelle, 89

F.3d 181, 184 (4th Cir. 1996). Knibbs fails to show that the witness's testimony was false. At best, the testimony merely contradicted

Knibbs's own testimony. Thus, we find no plain error.

Finally, Knibbs asserts that the court erred in increasing his offense

level by two levels for obstruction of justice under U.S. Sentencing

Guidelines Manual § 3C1.1 (1995). Whether Knibbs's conduct

amounted to obstruction of justice is a legal question which is

reviewed de novo. See United States v. Saintil , 910 F.2d 1231, 1232

(4th Cir. 1990). The underlying factual findings are reviewed for clear

error. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.

1989). The district court clearly stated that, among other reasons, the

two-level enhancement was due to Knibbs's perjury at trial. The court

examined the record and made all the appropriate findings. See

United States v. Dunnigan, 507 U.S. 87, 95 (1993). Accordingly, the

district court did not err in imposing the enhancement.

We therefore affirm Knibbs's convictions 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 in the decisional process.

AFFIRMED

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