UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4933

EUGENE SMALLS, a/k/a Gene Smalls,

a/k/a Kishawnie Henry, a/k/a

Quickness,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4954

MITCHELL SMALLS, a/k/a Gary

Richardson, a/k/a Cebo, a/k/a Kilo,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-96-131)

Submitted: August 19, 1997

Decided: October 10, 1997

Before WILKINS and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Charles R. Burke, Virginia Beach, Virginia; Anthony S. Mulford,

Chesapeake, Virginia, for Appellants. Helen F. Fahey, United States

Attorney, Robert E. Bradenham, II, Assistant United States Attorney,

Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In these consolidated appeals, Appellants Eugene Smalls (No. 96-

4933) and his brother Mitchell Smalls (No. 96-4954) appeal from

their jury convictions and resulting life sentences for drug trafficking

offenses. Finding no error in the conduct of the jury trial or sentencing, we affirm the convictions and sentences.

The Government maintained at trial that the Smalls were at the

center of a cocaine smuggling operation that imported cocaine into

the United States from the Virgin Islands. The Government based its

case on recorded telephone conversations between Eugene and a confidential informant; videotapes depicting Eugene's involvement in

drug transactions; photographs of both brothers posing with firearms

and large amounts of cash; evidence of both brothers wiring large

sums of money to the Virgin Islands; and testimony from coconspirators concerning the involvement of both brothers in the drug

trafficking conspiracy.

Appellants assert that there was insufficient probable cause to support the issuance of search warrants to search Eugene's Virginia

Beach home. When reviewing a magistrate's assessment of probable

cause, this Court must give great deference to the magistrate's assessment of the facts presented to him. United States v. Blackwood, 913

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F.2d 139, 142 (4th Cir. 1990). We ask only whether the magistrate

had a substantial basis for concluding probable cause existed, and the

magistrate is required only to make a "practical, commonsense decision whether, given all the circumstances in the affidavit before him,

including the `veracity' and the `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place." Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). With these standards

in mind, we conclude that both magistrates clearly had substantial

basis for finding probable cause to issue both warrants.

Appellants next assert that there is insufficient evidence to sustain

their jury convictions. Contrary to their assertions, we find ample evidence presented at trial that the Smalls brothers engaged in a conspiracy to illegally import cocaine into the United States from the Virgin

Islands. The trial transcripts disclose that numerous people worked

with the Smalls organization in planting drugs in airplanes flying to

this country from the Virgin Islands, receiving packages from the Virgin Islands containing drugs, processing and distributing the drugs in

the United States, and wiring proceeds to and from the Virgin Islands.

The Government verified this activity with recorded telephone conversations, video tapes of drug transactions, and testimony from coconspirators who implicated both brothers in the drug trafficking

operation. We must sustain a jury's verdict if there is substantial evidence, taking the view most favorable to the Government to support

it. Glasser v. United States, 215 U.S. 60, 80 (1942). Construing the

evidence presented at trial in the light most favorable to the Government, it is sufficient to support the jury's verdicts.

Eugene asserts that his federal conviction and sentence violates

principles of Double Jeopardy because he was convicted in Virginia

state courts as well. This claim is meritless. See United States v.

Iaquinta, 674 F.2d 260, 264 (4th Cir. 1982).

Eugene also asserts in conclusory fashion that evidence was mishandled and mislabelled at trial. Since no such objections were raised

below, this issue is forfeited absent plain error. United States v.

Olano, 507 U.S. 725, 731 (1993); Fed. R. Crim. P. 52(b). Though

there was some discussion at trial about a heat seal on a package of

cocaine coming unglued and about a small amount of cocaine in a

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ziploc bag, those issues were resolved by the trial court without objection. We find no plain error here.

Appellants next complain about the admission into evidence of

photographs of each of them with weapons and large amounts of cash.

The pictures were developed from negatives seized from Eugene's

home. The pictures were shown to prosecution witnesses for identification and to at least two defense witnesses on cross examination.

Appellants objected to use of the photos with only two prosecution

witnesses. Therefore, this issue is waived in each instance but the

occasions to which defense counsel objected but for plain error. As

to the instances preserved for our review, we accord the district

court's ruling substantial deference and we review the court's ruling

for abuse of discretion. United States v. Moore , 27 F.3d 969, 974 (4th

Cir. 1994). We find no abuse of discretion in the district court's rulings. As for the occasions when the photos were admitted or used

without objection, we find no plain error.

Mitchell asserts that the trial court erred in denying his Fed. R.

Crim. P. 29 motion for judgment of acquittal. We review denial of

such a motion under a sufficiency of the evidence standard of review.

See United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). The

jury convicted Mitchell of one count of conspiracy to import cocaine.

As we have already discussed, we find ample evidence was presented

to support the jury's verdict when construed in the light most favorable to the Government. Therefore, the court properly denied the

motion for judgment of acquittal.

Mitchell next asserts that the court improperly held him accountable at sentencing for 2.32 kilograms of crack cocaine. The sentencing court heard testimony from a United States Customs Agent and

then Mitchell himself at the sentencing hearing. After argument on

the issue, the court concluded that Mitchell was responsible for 2.32

kilograms of crack cocaine. In so doing, the court approved the findings of Mitchell's pre-sentence report and concluded that the findings

were supported by a preponderance of the evidence.

The Government bears the burden of proving quantity of drugs for

which a defendant is to be held responsible at sentencing by a preponderance of the evidence. United States v. Gilliam, 987 F.2d 1009,

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1013 (4th Cir. 1993). Drug quantities distributed by co-conspirators

are attributable to a defendant if the conduct was within the defendant's agreement, foreseeable by him, and in furtherance of jointly

undertaken criminal activity. United States v. Banks, 10 F.3d 1044,

1057 (4th Cir. 1993). Whether the entire amount of drugs involved in

an overall conspiracy was foreseeable to the defendant is a question

of fact, and we review the district court's determination under a

clearly erroneous standard. United States v. Brooks, 957 F.2d 1138,

1148 (4th Cir. 1992). From the materials before us, we conclude that

a preponderance of the evidence supports the drug quantity attributable to Mitchell and that the district court's factual findings are not

clearly erroneous.

Mitchell asserts that the trial court's questioning of witnesses was

an abuse of discretion, indicated that the court was not impartial, and

deprived him of a fair trial. While a district court must maintain "`a

general atmosphere of impartiality'" during the course of a trial, it

nevertheless may interrogate witnesses as necessary to ensure the

proper development of the facts. United States v. Castner, 50 F.3d

1267, 1272 (4th Cir. 1995) (quoting United States v. Cassiagnol, 420

F.2d 868, 878 (4th Cir. 1970)). Again, there was no objection at trial

to any of the court's questions, so we review for plain error. We find

none.

Finally, Mitchell complains about a portion of the trial court's jury

instructions on conspiracy. Again, there was no objection to the

instructions at trial, so we review for plain error. Mitchell has failed

to demonstrate plain error in regard to the jury instructions.

For these reasons, we affirm the convictions and sentences of both

Appellants. 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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