UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4391

DARRELL ADDAIR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4394

WAYNE ADDAIR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4480

WAYNE ADDAIR,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CR-96-140)

Submitted: November 30, 1998

Decided: December 31, 1998

Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Barbara H. Allen, Michael C. Allen, ALLEN & ALLEN, Charleston,

West Virginia; Steven L. Miller, Charleston, West Virginia, for

Appellants. Rebecca A. Betts, United States Attorney, Stephanie D.

Thacker, Assistant United States Attorney, Charleston, West Virginia,

for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Darrell Addair ("Darrell") appeals from his convictions for violations of the Federal Mine Health and Safety Act ("Act"), see 30

U.S.C. § 820(d), (f) (1994). Specifically, Darrell was convicted of

willfully allowing the continued use of mining equipment that needed

repair, see 30 U.S.C. § 865(g) (1994), falsifying entries in the electrical inspection book (Count 2), see id., and falsifying entries in the

ventilation inspection book (Count 4), see 30 U.S.C. § 863(a) (1994).

Wayne Addair ("Wayne") appeals from his conviction and twentyfour-month sentence for falsifying training certificates (Count 5), see

30 U.S.C. § 825(a) (1994). The Addairs raise numerous issues on

appeal, none of which have merit. Accordingly, we affirm Darrell's

convictions and Wayne's conviction and sentence.

First, the Addairs challenge their convictions on the ground that the

district court erred by denying their motions for judgment of acquittal

under Fed. R. Crim. P. 29.* We review the district court's decision

_________________________________________________________________

*Although the Government contends that Wayne Addair's appeals

were untimely filed, we find that they are timely. In criminal cases, a

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to deny a motion for judgment of acquittal de novo. See United States

v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). Where, as here, the

motion is based on insufficient evidence, the relevant question is not

whether the court is convinced of guilt beyond a reasonable doubt, but

rather whether the evidence, when viewed in the light most favorable

to the government, was sufficient for a rational trier of fact to have

found the essential elements of the crime beyond a reasonable doubt.

See United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc), cert. denied, 117 S. Ct. 1087 (1997); Glasser v. United States,

315 U.S. 60, 80 (1942). If substantial evidence exists to support a verdict, the verdict must be sustained. See Glasser , 315 U.S. at 80.

Taking the evidence in the light most favorable to the Government,

see id., we find that the evidence was sufficient to convict Darrell of

allowing unsafe mining equipment to remain in operation. See

Burgos, 94 F.3d at 862. Many of the Addairs' employees testified that

the remote disengage device on the continuous miner had been inoperable for several weeks prior to the fatality at the mine and that the

continuous miner was operating with the manual device. While using

the manual device, the augers on the continuous miner repeatedly

came out of gear and slowed production. To maintain production,

wedges were used to keep the augers engaged. Employees testified

that Darrell knew the wedges were being used because he was present

_________________________________________________________________

defendant must file his notice of appeal within 10 days of the entry of

judgment. See Fed. R. App. P. 4(b). After the jury rendered its verdict,

Wayne timely moved for judgment of acquittal and a new trial. Because

these motions were pending, Wayne's notice of appeal from the judgment of conviction was ineffective until the court entered its order disposing of the post-judgment motions. See id. On the date the court

decided the post-judgment motions, the notice of appeal became effective and was timely filed. Moreover, although Wayne's notice of appeal

from the order denying the post-judgment motions was filed beyond the

10-day appeal period, "a valid notice of appeal is effective without

amendment to appeal from an order disposing of any of the [postjudgment] motions." Id. Because no new notice of appeal had to be filed

to appeal from the denial of the post-judgment motions, the fact that one

was filed twelve days after the court entered its order does not divest this

court of jurisdiction.

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when they were placed in the continuous miner. We find this evidence

sufficient to convict. See id.

Darrell next contends that the evidence was insufficient to convict

him of falsifying the electrical and ventilation inspection books. Testimony at trial disclosed that Jack Bolden completed the electrical and

ventilation inspection books until he resigned from the mine on January 17, 1992. Bolden testified that he did not complete the January 20

to 24 entries in the books. Moreover, a handwriting expert testified

that neither the information nor the signatures in the entries could be

attributed to Bolden or Wayne. The expert found that the information

written on the pages was in Darrell's handwriting, but he could not

say definitively that the signatures were Darrell's because the signatures appeared to be laboriously prepared, as if they had been traced.

The expert testified, however, that the signatures had common characteristics with Darrell's handwriting sample. On these facts, a rational

trier of fact could find the essential elements beyond a reasonable

doubt. See Burgos, 94 F.3d at 862.

Wayne also challenges the sufficiency of the evidence to convict

him of falsifying training certificates. Many of the Addairs' employees testified that Wayne called them and other miners to the mine

office to sign training certificates for which they had not attended any

annual refresher or newly employed experienced miner training.

Because the miners did not receive the training required by the Act

and because Wayne did not maintain the proper certificates, the evidence was sufficient to convict. See Burgos, 94 F.3d at 862.

While Darrell and Wayne provide different explanations for what

transpired and challenge the Government's use of circumstantial evidence, it is well established that we may not review the credibility of

witnesses or weigh the evidence. See United States v. Wilson, 118

F.3d 228, 234 (4th Cir. 1997). When viewed in the light most favorable to the Government, the evidence was sufficient. See Burgos, 94

F.3d at 862.

Second, the Addairs challenge the district court's admission of

Luther Greenwall's plea agreement. Wayne challenges the district

court's admission of a training certificate and of testimony regarding

an unsigned certificate from other mines owned by the Addairs; he

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also challenges the district court's exclusion of a training certificate

on the ground of unfair surprise to the Government. We review the

district court's admission or exclusion of evidence for an abuse of discretion. See United States v. Patterson, 150 F.3d 382, 387 (4th Cir.

1998). After a thorough review of the parties' briefs and the record

on appeal, we find no abuse of discretion in the district court's evidentiary rulings. See id.

Third, Wayne asserts on appeal that the district court erred in

enforcing its discovery orders or failing to dismiss Count 5 because

the training records seized from the mine had been lost or destroyed

by the Government. We review the district court's actions in managing discovery for an abuse of discretion. See Lone Star Steakhouse &

Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir.

1995). Although Wayne contends that the Government ignored his

motions to compel the training records, the record belies his claim.

The Government provided the information required by the standard

discovery request. Moreover, Wayne's motions to compel did not

relate to training certificates. On these facts, the district court did not

abuse its discretion in managing discovery. See id.

Fourth, Wayne asserts that the Government engaged in prosecutorial misconduct by eliciting testimony from Jack Bolden, Nathan

Adkins, Luther Greenwall, and Donald Faulkner that they received

training certificates from Wayne without completing the training.

Wayne contends that those witnesses were not required to participate

in training because they were employed as supervisors or foremen at

the mine. However, Bolden, Adkins, and Faulkner were required to

complete the training mandated by the Act. Although Greenwall testified that he worked for the Addairs as a certified foreman, the record

does not suggest that the Government engaged in misconduct. See

United States v. Ellis, 121 F.3d 908, 927 (4th Cir. 1997), cert. denied,

118 S. Ct. 738 (1998). We therefore find this claim to be without

merit.

Finally, Wayne raises numerous sentencing issues. We review the

district court's factual determinations for clear error and its legal conclusions de novo. See United States v. Martinez , 136 F.3d 972, 979

(4th Cir.), cert. denied, 118 S. Ct. 2385 (1998).

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We find that the district court properly used the 1995 version of the

sentencing guidelines manual, in fashioning Wayne's sentence. See

USSG § 1B1.11(a), (b)(1) (1995); United States v. Heater, 63 F.3d

311, 331 (4th Cir. 1995). Wayne's challenge to the district court's

enhancement for more than minimal planning under USSG

§ 2F1.1(b)(2) fails because it is clear that Wayne repeatedly had miners sign training certificates for which they had received no training.

Wayne also contends that the district court's application of enhancements for more than minimal planning and being an organizer or

leader under USSG § 3B1.1 constituted "double dipping," but his

claim fails because the guidelines do not prohibit the application of

both. See United States v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991).

Wayne next challenges the district court's application of USSG

§ 3B1.1 for being a leader or organizer, of USSG § 3B1.3 for abuse

of the public trust, and of USSG § 2F1.1(b)(4) for recklessly increasing the risk of serious bodily injury. These claims are foreclosed by

this court's decision in United States v. Turner , 102 F.3d 1350, 1359-

60 (4th Cir. 1996). Finally, Wayne's contention that the district court

ignored provisions of the West Virginia Code in sentencing him

clearly is meritless because this is a federal case governed by the sentencing guidelines.

Accordingly, we affirm Darrell's convictions and Wayne'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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