UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5410

AARON LAMONT BARNES,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-94-80)

Submitted: November 15, 1995

Decided: June 14, 1996

Before WILKINSON, Chief Judge, and WILKINS and

WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cary B. Bowen, BOWEN & BOWEN, P.C., Richmond, Virginia, for

Appellant. Helen F. Fahey, United States Attorney, Nicholas S. Altimari, Assistant United States Attorney, Richmond, 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Unpublished opinions are not binding precedent in this circuit.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:

Following a bench trial, Aaron Lamont Barnes was convicted on

one count of possession with intent to distribute crack cocaine. 21

U.S.C.A. § 841 (West 1981 & Supp. 1995). Barnes appeals his conviction arguing that the evidence was insufficient to support his conviction. In his motion for leave to file a pro se supplemental brief,

Barnes contends that the admission of a statement he allegedly made

was improper and the statement should have been excluded on the

grounds of unfair prejudice and surprise. We grant Barnes's motion

to file a supplemental brief and affirm.

Two Virginia State Troopers stopped a green van on suspicion that

the operator was driving while under the influence of alcohol. The

driver was the only occupant of the van. His eyes were glassy and he

smelled of alcohol. He identified himself as Danny Lee Watts and

stated that he had no identification with him and that he did not own

the van. The van had temporary tags issued by the Virginia Department of Motor Vehicles to Aaron Lamont Barnes. Only after his

arrest, the driver admitted that he was Aaron Barnes and that he

owned the van.

A pat-down search resulted in more than $1000 in cash being

removed from Barnes's pockets. A consensual search of the van

uncovered a total of 62.64 grams of crack secreted in several locations

in the van and in a case attached to the key chain holding the ignition

key.

Both officers testified that while they were taking precautions to

prevent Barnes from escaping, Barnes commented that it was a lot of

hassle to go through for sixty-some grams of crack. At the time

Barnes made this statement, the officers did not know and had not

indicated to Barnes how much crack had been discovered in the van.

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Neither officer had memorialized this statement in his report, having

forgotten it until just prior to trial.

In addition to the crack cocaine and the large sum of money, the

officers found in the van: an electronic scale on which was found

cocaine residue, a cellular phone, and an electronic calendar and

memo book containing telephone numbers. Barnes had on his person

a digital pager. Detective John Riani, an expert witness in the field of

narcotic investigations, described how each of these items could be

used to facilitate the distribution of illegal drugs while minimizing the

risk of detection. Riani also testified that the quantity of drugs and the

packaging was consistent with crack cocaine that is to be distributed,

rather than for personal use. That the crack was intended for distribution was further supported by the absence of a pipe or other means

of ingesting the crack cocaine.

After hearing this evidence, the district court found Barnes guilty

of possession of the crack cocaine with intent to distribute it. The

court expressly found Barnes's testimony incredible and the officers'

testimony credible.

This court reviews sufficiency of the evidence deferentially, determining whether, viewing the evidence in the light most favorable to

the government, any rational trier of fact could have found guilt

beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80

(1942); United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991).

This standard is not altered by the fact that, in this case, the trier of

fact was a judge, and not a jury. See Jackson v. Virginia, 443 U.S.

307, 317 n.8 (1979).

To sustain Barnes's conviction for possession with intent to distribute, the government had to prove that Barnes knowingly possessed a

controlled substance with the intent to distribute it. See 21 U.S.C.A.

§ 841(a)(1). We find that all of the elements were proven by the government. See In re Winship, 397 U.S. 358, 364 (1970).

Barnes stipulated that the substance found in the van was crack

cocaine, a controlled substance. The government presented sufficient

evidence from which the court could find that Barnes intended to distribute the crack. As Detective Riani testified, the quantity of crack

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cocaine discovered in the van by far exceeded the amount that a typical user would possess. Further, the large sum of cash found on

Barnes, the cellular phone, digital pager, electronic scales, and electronic calendar and memo book are all items commonly used by drug

dealers to facilitate distribution and minimize the possibility of detection.

Barnes's knowing possession of the controlled substance is evidenced by the registration of the van in Barnes's name, Barnes's operation of the van in which the crack was located, and Barnes's

comment referring to sixty grams of narcotics at a time when the officers did not and could not know the weight of the crack. Barnes

denied making the statement about the quantity of drugs, denied ownership of the van, and denied knowledge of the contents of the van.

However, the district court expressed its disbelief of Barnes's story

and found the officers' testimony credible. Because this case revolves

on the credibility of the witnesses, we must defer to the district court

and affirm the conviction unless the court's fact finding is clearly

erroneous. Fed. R. Civ. P. 52(a); see Anderson v. Bessemer City, 470

U.S. 564, 573-74 (1985). Finding no clear error in the district court's

determination that Barnes's story was incredible and that the officers

were credible, we defer to the district court's finding that Barnes

knowingly possessed the crack cocaine found in the van.

In his motion for leave to file a supplemental brief, Barnes challenges the district court's admission into evidence of Barnes's statement about the quantity of drugs found in the van. However, Barnes

failed to object to the statement or otherwise raise these issues in the

district court, see United States v. Maxton, 940 F.2d 103, 105 (4th

Cir.), cert. denied, 502 U.S. 949 (1991), and we find no abuse of discretion in the admission of the statement. See United States v. Hassan

El, 5 F.3d 726, 731 (4th Cir. 1993), cert. denied, 62 U.S.L.W. 3640

(U.S. 1994).

Because the government presented sufficient evidence from which

the district court could find Barnes guilty of possession of crack

cocaine with the intent to distribute, we affirm Barnes's conviction.

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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