UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5077

RODERICK BLACK, a/k/a Roger,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, District Judge.
(CR-94-15)

Argued: July 19, 1996

Decided: September 18, 1996

Before ERVIN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Senior Judge Butzner and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Wayne James Payne, POWELL & PAYNE, Shallotte,
North Carolina, for Appellant. William Arthur Webb, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Janice McKenzie Cole, United States Attorney, Christine Blaise Ham-
ilton, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

A jury convicted Roderick Winston Black of fourteen counts stem-
ming from a crack cocaine conspiracy. He was sentenced to consecu-
tive terms of life in prison and sixty months. On appeal, Black argues
that the district court interrupted and interrogated the witnesses and
the defendant so frequently and in such a manner to usurp the role of
the prosecutor and to deny him a fair trial. Black also challenges the
district court's admission of certain witness statements at trial. In
addition, Black's attorney raises several issues in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that, in his view,
they are not meritorious. We affirm.

Black was an alleged leader of a crack ring in Ahoskie, North Car-
olina from November 1991 through January 21, 1994. Codefendant
Wayne Shelton Simmons testified that he and Black began the opera-
tion together, and that they eventually supervised sixteen other mem-
bers. Black obtained powder cocaine from New York, cooked it into
crack, and distributed it to dealers or sold it himself. Over the life of
the conspiracy, the Government estimated, members conducted 34
trips to New York, handling approximately 35,252 grams of cocaine
powder and 2 kilograms of crack cocaine. The jury convicted Black
of conspiring to possess with intent to distribute and distributing
cocaine and crack cocaine; engaging in a continuing criminal enter-
prise under 21 U.S.C. § 848; using and carrying a firearm during and
in relation to a drug trafficking crime; possessing crack with intent to
distribute and aiding and abetting; distributing crack and aiding and
abetting; possessing cocaine with intent to distribute and aiding and
abetting; and distributing cocaine.

Black argues that, at trial, the district court interrupted and ques-
tioned the witnesses, including the defendant, to such an extent that
it usurped the role of the prosecutor and denied him a fair trial. Black

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failed to object to any of the questions and comments by the court at
the time that they were made or at the next available opportunity
when the jury was not present, as required by Fed. R. Evid. 614(c).
United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.), cert. denied,
115 S. Ct. 102 (1994). In order to obtain review in the absence of
objection at trial, an appellant must demonstrate that the trial court's
comments fell within the "limited exception" of being "so prejudicial
as to deny [him] an opportunity for a fair and impartial trial." Id. at
589-90 (quotations omitted).

The appellant does not single out specific questions or comments
as inherently prejudicial. Rather, he primarily argues that the fre-
quency of the court's interjections usurped the role of the prosecutor.
Black likens the district court's conduct to that in United States v. De
Sisto, 289 F.2d 833, 834 (2d Cir. 1961), cited in United States v.
Parodi, 703 F.2d 768, 776 (4th Cir. 1983). In De Sisto, the district
court posed 3,115 questions, while the prosecution asked 1,381. 289
F.2d at 834. The Second Circuit found that such excessive participa-
tion by the trial judge appeared to usurp the role of the prosecution
and constituted reversible error. Id. The frequency of the court's ques-
tions in this case, however, does not begin to equal that in De Sisto,
and certainly does not, in itself, amount to error "sufficiently biased
or notorious" to warrant review in the absence of objection at trial.
See Gastiaburo, 16 F.3d at 590 (quoting Miley v. Delta Marine Drill-
ing Company, 473 F.2d 856, 857-58 (5th Cir.), cert. denied, 414 U.S.
871 (1973)).

Having carefully reviewed the record, we conclude that most of the
district court's questions were directed at clarifying specific facts,
such as the locations where events occurred, the weights and mea-
sures of cocaine, and the meaning of slang terms. Questions designed
to clarify confusing or complex witness testimony are a legitimate
exercise of judicial power. Glasser v. United States, 315 U.S. 60, 82
(1942); Parodi, 703 F.2d at 775 (explaining that the trial judge
"`should not hesitate to ask questions for the purpose of developing
the facts; and it is no ground of complaint that the facts so developed
may hurt or help one side or the other.'") (quoting Simon v. United
States, 123 F.2d 80, 83 (4th Cir.), cert. denied, 314 U.S. 694 (1941)).
In two instances, however, the court arguably overstepped the bound-
aries of desirable judicial participation by engaging in extended

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examination of the defendant. Joint Appendix at 535-36, 537-38. As
we have cautioned in the past, "the trial judge must always remember
that he occupies `a position of preeminence and special persuasive-
ness' in the eyes of the jury." Parodi, 703 F.2d at 775 (quoting
Pollard v. Fennell, 400 F.2d 421, 424 (4th Cir. 1968)).

Nevertheless, while the district court's questioning may have fallen
short of the ideal, Black was not entitled to a perfect trial--simply a
fair one. Id. at 776. We must not only examine the challenged ques-
tions, but also the trial judge's demeanor and conduct "throughout the
trial, to search the record for evidence of partiality or bias that might
indicate a belief on the judge's part that the defendant [ ] [was]
`guilty' or suggest that he had usurped the function of the prosecutor."
Id. The court's questions were neither hostile, nor badgering, nor
incredulous. And any prejudice was mitigated by the court's curative
instruction to the jury that it must draw no inferences from its ques-
tions. Thus, we conclude that Black received a fair trial, particularly
in the context of the overwhelming evidence of his guilt. See United
States v. Lott, 751 F.2d 717, 721 (4th Cir.), cert. denied, 470 U.S.
1087 (1985) (finding that trial judge's remarks, while subject to criti-
cism in isolation, were not prejudicial where defendant's "conviction
seems to have been foreordained with or without the judge's ques-
tions and comments").

Second, Black argues that the court erred in admitting several hear-
say statements under Federal Rule of Evidence 801(d)(2)(E) on the
grounds that they were "made in furtherance of a conspiracy." He
identifies the following statements as objectionable:

          Q:      How did you find out that [the crack] got sold?

          Simmons: Some people told me that they had been there
               and bought some.

          ****

          Q:      How did you find out--that he was selling from
                 your house?

          Simmons: Some people told me they had been there and
               bought some.

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         ****

         Q:      And when you and Preston talked about it, why
                were you talking to Preston about the drug busi-
                ness?

         Harrell: Main thing we would always talk about is the--
                is the money that Roger and Wayne Simmons'
                organization is making, and we would talk about
                they were selling a key to two keys in two weeks
                time going back and forth to New York.

Black argues that the prosecution established neither that the fore-
going statements were made in furtherance of the conspiracy, nor that
the first two statements were made by conspirators.

Black also objects to the admission of certain other statements,
which he contends were speculative and beyond the witnesses' per-
sonal knowledge in violation of Federal Rule of Evidence 602. On
one occasion, the prosecution asked a witness why the conspirators
customarily cooked only enough powder for immediate use. Steven-
son answered, "I reckon they never had time to cook it all at one
time." (J.A. at 237). On another occasion, the prosecution asked the
same witness why a rifle was kept inside the crack house. The witness
responded, "maybe so nobody wouldn't rob them."

Black's evidentiary claims fail because, even if the testimony were
inadmissible, its admission was harmless because it could not have
substantially affected the judgment. See United States v. Sanders, 964
F.2d 295, 299-300 (4th Cir. 1992). Among the "`decisive factors'" in
harmless error analysis is the closeness of the case. United States v.
Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980) (quoting Gaither v.
United States, 413 F.2d 1061 (D.C. Cir. 1969)). The record demon-
strates that this case was not at all close. Witness Harrell's hearsay
statement concerning the overall nature and success of the conspiracy
was one among many statements by multiple witnesses describing
Black as a leader of a highly successful conspiracy involving numer-
ous trips to New York and producing a substantial flow of cash and
drugs. Witness Simmons's statements pertaining to whether Black
himself sold cocaine were but part of extensive testimony that Black

                    5
distributed crack from various locations. Similarly, the statements
regarding the reasoning underlying crack cooking methods and the
possession of a rifle--statements that, at best, were marginally
relevant--were drops in a bucket of evidence demonstrating that
Black cooked powder cocaine into crack, possessed a firearm, and
purchased cocaine with the intent to distribute it. Because the evi-
dence against Black was overwhelming, we find that any error in
admitting the statements was harmless.

Black's counsel on appeal raises several additional issues pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that, in his view,
the arguments are meritless. First, Black contends that the assistance
of his counsel at trial was ineffective. Second, Black contends that the
evidence was insufficient as a matter of law to support his conviction.
He further argues that the court unconstitutionally abridged his Fifth
Amendment right to a fair trial by restricting his testimony to the facts
relevant to the charges. Finally, Black contends that, by applying the
cocaine base provision of U.S.S.G. § 2D1.1, the district court violated
his Fifth Amendment due process rights, his Fourteenth Amendment
equal protection rights, and his Eighth Amendment right to be free
from cruel and unusual punishment. In accordance with Anders, we
have carefully examined the record, and find no merit in those argu-
ments. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

For the foregoing reasons, the judgments of the district court are

AFFIRMED.

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