UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. Alti-
mari, Assistant United States Attorney, Richmond, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 con-
viction arguing that the evidence was insufficient to support his con-
viction. 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 Depart-
ment 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 distribu-
tion 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, deter-
mining 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 distrib-
ute, 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 gov-
ernment. 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 dis-
tribute 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 typi-
cal user would possess. Further, the large sum of cash found on
Barnes, the cellular phone, digital pager, electronic scales, and elec-
tronic calendar and memo book are all items commonly used by drug
dealers to facilitate distribution and minimize the possibility of detec-
tion.

Barnes's knowing possession of the controlled substance is evi-
denced by the registration of the van in Barnes's name, Barnes's oper-
ation of the van in which the crack was located, and Barnes's
comment referring to sixty grams of narcotics at a time when the offi-
cers did not and could not know the weight of the crack. Barnes
denied making the statement about the quantity of drugs, denied own-
ership 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 chal-
lenges the district court's admission into evidence of Barnes's state-
ment 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 dis-
cretion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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