                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4666



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


GREGORY L. BILLUPS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cr-00042-RLW)


Submitted:   February 22, 2007            Decided:    March 16, 2007


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John B. Mann, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Michael C. Wallace, Sr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Gregory L. Billups seeks appellate relief from his convictions

by a jury in the Eastern District of Virginia on three drug and

firearms related offenses:        possession with intent to distribute

cocaine base (“Count One”), in violation of 21 U.S.C. § 841(a)(1);

possession of a firearm in furtherance of a drug trafficking crime

(“Count Three”), in contravention of 18 U.S.C. § 924(c); and

possession of a firearm by a convicted felon (“Count Four”), in

violation of 18 U.S.C. § 922(g).         Billups maintains on appeal that

the evidence before the jury was not sufficient to warrant his

convictions, and that the district court denied him a fair trial by

committing multiple errors in the conduct of his trial.                   As

explained below, we affirm.



                                    I.

     In   the   early   morning   hours   of   December   6,   2004,   police

officers in Richmond, Virginia, responded to a report that gunshots

had been fired in the vicinity of Apartment No. 6 at 5300 Hull

Street, and that someone may have been shot.1             The police were

advised that a bald black male, wearing blue jeans, a white T-

shirt, and a fur coat, was involved in the shooting incident.           When



     1
      The factual predicate for Billups’s convictions is drawn from
the trial record, and is spelled out in the light most favorable to
the prosecution. See United States v. Pasquantino, 336 F.3d 321,
332 (4th Cir. 2003) (en banc).

                                     2
the police arrived at the scene, they discovered a multiple-

building apartment complex, called Pine Brook Village Apartments,

located in the 5300 block of Hull Street, but did not locate an

actual 5300 building.         As a result, four police officers split up

to   check     each   “Apartment   No.   6”   in   the   Pine   Brook   complex.

Officers Hatchett and Urban checked on Apartment No. 6 in building

5312 and were informed by a neighbor that it was vacant.2                    The

officers noticed, however, that the door to this Apartment No. 6

was ajar by two to three feet, and that it appeared to have been

forcibly opened.         Looking into the apartment, they observed a bald

black male, later identified as defendant Billups, wearing a T-

shirt and appearing to be asleep on the sofa.             The officers called

out to Billups to ensure that he was not hurt and received no

response.       They entered the apartment, and noticed that it was

partially furnished and that clothes were strewn on the floor.

Billups then awoke, and Officer Urban observed him slide his foot

(apparently in a deliberate manner) over what looked to be a bag of

crack cocaine.

       The officers asked Billups for identification, which revealed

that his address was on Wentbridge Road in Richmond. After running

a    records    check,    they   discovered   an   outstanding    warrant   for

Billups, and he was arrested, searched, and taken into custody on


       2
      As used hereinafter, “Apartment No. 6” refers to the
apartment in the 5312 building of the Pine Brook Village Apartments
where Billups was found and arrested.

                                         3
the warrant.   After securing Billups, the officers recovered the

item he had covered with his foot, which was later confirmed to be

.11 grams of cocaine base, more commonly known as crack cocaine.

The officers found $1,840 in cash in Billups’s pockets.3

     The officers proceeded to search Apartment No. 6, and Officer

Hatchett discovered, in the apartment’s kitchen, a loaded 9mm

semiautomatic pistol, a cell phone, measuring scales, a used crack

pipe, and an unopened box of sandwich baggies.       These items were

located in a single-shelf, double-door cabinet over the kitchen

sink, directly above an opening that looked into the living room

where Billups had been sleeping.       The firearm and cell phone were

immediately beside one another at eye level in the cabinet, and the

scales and sandwich baggies were within a foot of them.       Officer

Hatchett, while looking into the living room through the opening

over the kitchen sink, asked Billups if the cell phone belonged to

him, and Billups acknowledged that it was his.           Before being

removed from Apartment No. 6, Billups requested that the officers

retrieve his fur coat from an apartment closet.          The officers

failed to locate any other contraband or persons in the apartment.

     On October 24, 2004, six weeks before Billups’s arrest, the

Richmond police had executed a drug-related search warrant at


     3
      At trial, defense witness Tanya Ward provided an explanation
for Billups’s possession of the cash. She testified that she lived
with Billups on Burtwood Lane in Richmond and that, just before his
arrest, she had given him $1,800 in cash to make a mortgage
payment. This evidence was apparently not credited by the jury.

                                   4
Apartment    No.    6.     At     that   time,   it    was   occupied    by   Rashia

Blackwell,    and    the    officers       seized      firearms,      cocaine,      and

marijuana.     That search also led to the discovery of sandwich

baggies and what appeared to be cocaine in a kitchen cabinet.                        At

Billups’s trial, Blackwell testified that she did not know him, but

that she had seen him at a friend’s house.                   Blackwell testified

that she had lived in Apartment No. 6 for two years and vacated it

in early November of 2004.          Prior to vacating Apartment No. 6, she

gave most of her furnishings to friends and neighbors.

     Georgette Kirvin, the property manager of the Pine Brook

complex,    testified      that    Blackwell     had    turned   in    her    key    to

Apartment No. 6 on December 1, 2004.4               When Kirvin walked through

the apartment that day, she observed furniture, clothing, pots,

pans, dishes, and other items, and it appeared that Blackwell had

moved in a hurry.        Kirvin testified that, at the time of her walk-

through, the lock on the front door was broken and she left it

unrepaired.    She did not recognize Billups and had never seen him

at Pine Brook.

     On January 19, 2005, the grand jury indicted Billups, and he

was tried on January 20, 2006.           At trial, the Government called DEA

Agent John Scherbenske as an expert witness in drug trafficking.

Scherbenske testified that the totality of the evidence found in


     4
      Georgette Kirvin was not available to testify at Billups’s
trial, but her testimony from a pretrial hearing was read to the
jury without objection.

                                          5
Apartment No. 6 on the occasion of Billups’s arrest was consistent

with       an   intent    to   distribute       drugs.     On    cross-examination,

Billups’s lawyer sought to ask Scherbenske about the significance

of the scales and baggies to his opinion that Billups had intended

to     distribute        cocaine    base.         Sustaining     the   prosecution’s

objection,        the     court     ruled       the   question     speculative     and

hypothetical.5           When Billups’s lawyer clarified his question,

Scherbenske        responded       that   the    baggies   in    themselves   do   not

indicate distribution of drugs, in that the baggies have legal

purposes.         Billups’s lawyer then asked about the cocaine base

seized from under Billups’s foot when he was arrested, and its

proximity in the apartment to the baggies.                  In sustaining another

objection, the court commented to the jury regarding where the

cocaine base had been found and the jury’s obligation to assess the

significance thereof, as follows:

       The record shows that they were not in the same proximity
       . . . . And you all have heard where these baggies were
       located, allegedly under the foot of the defendant, and
       where the scales were and things of that nature, so you
       have already heard that.     And it will be up to you
       factually to determine the significance of it.

J.A. 137.        Billups’s lawyer also questioned Scherbenske regarding

the significance the evidence found in the kitchen cabinet may have


       5
      Billups’s question to Scherbenske was framed as follows:
“[i]f the baggies, if there was no evidence baggies did not belong
to Mr. Billups, or the scale, that would be an indication, one,
that any drugs he even possessed were not for distribution.” J.A.
136. (Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)

                                            6
had if drugs had not been found in the apartment.       Before being

interrupted, Scherbenske responded that, based on the time of

arrest and the amount of cash Billups had in his pocket, he could

be “conceived as selling throughout the evening.”          J.A. 140.

Billups’s lawyer then interrupted Scherbenske, stating that “[y]ou

have no evidence.”   Id.   In response to the interruption, the court

asked the witness if “the assumption was that he sold out?”      Id.

Scherbenske replied, “[t]hat’s correct.”6     Id.

     Billups was found guilty by the jury on all four counts of the

indictment.   That same day, he was sentenced to 240 months in

prison on Count One; 120 months on Count Four (60 months concurrent

with the Count One sentence, and 60 months consecutive thereto);

plus 60 months on Count Three, consecutive to the sentences imposed

on Counts One and Four.7




     6
      As a part of its case, the prosecution published a
stipulation between the parties establishing, most notably, (1)
that Billups had been previously convicted of a felony, and (2)
that the substance seized from Apartment No. 6 was cocaine base.
J.A. 69-72.
     7
      Billups was also charged and tried for simple possession of
cocaine base (“Count Two”), in violation of 21 U.S.C. § 844(a).
Judgment was never entered on Count Two, however, and it was
dismissed by the Judgment Order as a lesser included offense of
Count One.     Although the Judgment Order reflects that “FOR
SENTENCING PURPOSES, COUNT TWO HAS BEEN MERGED INTO COUNT ONE,”
this language appears to be surplusage, in that Billups was never
adjudged guilty or convicted on Count Two.

                                   7
                                II.

     First, in assessing a sufficiency of the evidence issue, the

appropriate inquiry is whether, viewing the evidence in the light

most favorable to the Government, a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt. Glasser

v. United States, 315 U.S. 60, 80 (1942).          We “must consider

circumstantial as well as direct evidence, and allow the Government

the benefit of all reasonable inferences from the facts proven to

those sought to be established.”       United States v. Tresvant, 677

F.2d 1018, 1021 (4th Cir. 1982).

     Second, we review for plain error an appellate contention not

properly preserved in the trial court. United States v. Olano, 507

U.S. 725, 731-32 (1993).   Under the plain error standard, a court

of appeals may correct an error that is plain and that affects a

defendant’s substantial rights, but only if the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.   Id. at 732.   On plain error review, an appellant

bears the burden of persuasion with respect to prejudice.      United

States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).



                               III.

     On appeal, Billups makes two contentions of error.     First, he

asserts that there was insufficient evidence to support any of his

convictions.   Second, he contends that he did not receive a fair


                                   8
trial because the district court committed multiple errors in the

conduct of his trial.         We address these contentions in turn.



                                        A.

       Billups first contends that there was insufficient evidence to

prove the three convictions that he has appealed.               His contentions

on lack of proof are, in substance, as follows:             on Count One, that

the prosecution failed to present sufficient evidence that Billups

knowingly possessed with an intent to distribute cocaine base; on

Count Three, that the prosecution failed to prove that Billups

knowingly possessed a firearm in furtherance of a drug trafficking

crime; and, on Count Four, that the prosecution failed to prove

that Billups knowingly possessed a firearm as a convicted felon.

                                        1.

       Each of the three foregoing aspects of Billups’s sufficiency

of the evidence contention required the jury to find beyond a

reasonable doubt that Billups had knowingly possessed a contraband

item       underlying   his   convictions.    More      specifically,   Billups

contends that the proof was insufficient on whether he knowingly

possessed       cocaine   base,   the   firearm,   or    drug   paraphernalia.8



       8
      The phrase “drug paraphernalia,” as used herein, collectively
refers to the crack pipe, the scales, and the baggies seized from
the kitchen cabinet of Apartment No. 6 when Billups was arrested.
Although possession of these items is not an element of any of
Billups’s offenses of conviction, their possession is pertinent to
our assessment of the proof of Counts One and Three.

                                        9
Possession of such contraband may, of course, be either actual or

constructive.      United States v. Laughman, 618 F.2d 1067, 1076-77

(4th Cir. 1980).         Constructive possession can be established by

showing    “that   the    defendant   exercised,    or   had   the   power   to

exercise, dominion and control over [an] item.”                Id. at 1077.

However, mere presence at a place where contraband is found is

insufficient,      in    and   of   itself,   to   establish    constructive

possession.    United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.

1984).

      The trial evidence revealed that the cocaine base underlying

Count One was found under Billups’s foot next to the sofa where the

officers discovered him, and that he had placed his foot on the bag

of cocaine in an effort to conceal it.        Under this evidence, it was

entirely reasonable for the jury to conclude that Billups was

attempting to conceal the contraband and that it was under his

control.    Second, Billups acknowledged to the officers that he

owned the cell phone found in the kitchen cabinet containing the

9mm pistol and the other drug paraphernalia.             Given the fact that

Billups was alone in Apartment No. 6, and that his cell phone was

next to the firearm and other drug paraphernalia in the kitchen

cabinet, the evidence sufficiently established that he had a stake

in the cabinet’s contents and exercised dominion and control over

it.   See United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.

1980) (explaining that proximity to contraband is not enough to


                                      10
constitute    constructive        possession,     but       that     where     other

circumstantial evidence is sufficiently probative, proximity to

contraband coupled with inferred knowledge of its presence will

support finding of guilt). Thus, there was sufficient evidence for

the jury to conclude that Billups possessed the cocaine base, the

firearm, and the drug paraphernalia found in Apartment No. 6 on

December 6, 2004.

     Billups maintains on appeal, however, that our decision in

Goldsmith    v.   Witkowski,     981    F.2d   697,   701    (4th    Cir.     1992),

recognizing that “even presence coupled with knowledge . . . is

insufficient to sustain a possession conviction,” undermines the

jury’s   verdict     against     him.     In   Goldsmith,      the    prosecution

presented evidence that Goldsmith was found sitting at a table

surrounded by narcotics in an unknown person’s apartment.                        The

search in Goldsmith yielded additional contraband from other areas

of the house and resulted in the arrest of other persons who were

present.     There    was   no    evidence     that   Goldsmith      himself     had

exercised dominion and control over the narcotics or, more broadly,

that he controlled the apartment where he was found.                         In this

situation, on the other hand, Billups was the only person found in

Apartment No. 6 on December 6, 2004; he actively sought to conceal

the bag of cocaine base with his foot; and his cell phone was found

in the kitchen cabinet next to the 9mm handgun and the other drug

paraphernalia. This evidence was more than sufficient to establish


                                        11
Billups’s dominion and control over the cocaine base and the

cabinet’s contraband contents. Thus, there was sufficient evidence

for a reasonable jury to conclude that Billups was in possession of

each of the contraband items underlying his convictions.9

                                       2.

     On Count One, in addition to claiming that he did not possess

the cocaine base, Billups contends that there was insufficient

evidence to establish that he intended to distribute cocaine base.

We must disagree, however, because the proof was otherwise.               Under

the evidence, Billups was shown to possess cocaine base, the 9mm

handgun, other drug paraphernalia, and more than $1800 in cash. In

light of Agent Scherbenske’s testimony that these items were

consistent   with     an   intention   to   distribute   drugs,   there    was

sufficient evidence for a reasonable jury to conclude that Billups

intended to distribute cocaine base.

                                       3.

     On Count Three, in addition to maintaining that he did not

possess   the   9mm    handgun,    Billups    contends    that    there    was

insufficient evidence to prove that he possessed the firearm in

furtherance of a drug trafficking crime. The 9mm handgun, however,

was found in the kitchen cabinet with the other drug paraphernalia,



     9
      On Count Four, Billups’s possession of the 9mm handgun is
conclusive on his insufficiency of the evidence contention, because
he stipulated to the other element of that charge, that is, being
a convicted felon.

                                       12
and it was next to the cell phone.      We have, of course, recognized

that firearms, such as a semiautomatic 9mm pistol, are often used

by drug traffickers to protect their businesses. See United States

v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (recognizing potential

use of 9mm semiautomatic pistol to protect drug distribution scheme

through preventing robberies, ensuring collections, or providing

self defense).   These facts are entirely consistent with the 9mm

handgun being used by Billups for protection in furtherance of the

distribution of drugs. Id. (explaining that, in order to establish

“furtherance,”   prosecution   must    present   evidence   that   firearm

furthered, advanced, or helped forward drug trafficking crime,

which may include its use in protecting distribution scheme).

Although the proof as to Count Three is arguably the weakest aspect

of the prosecution’s case against Billups, we are obliged to view

the evidence in the light most favorable to the Government.            In

that light, there was sufficient evidence to submit Count Three to

the jury, and a reasonable jury was entitled to conclude that the

loaded 9mm semiautomatic pistol found in the kitchen cabinet was

being used by Billups to further a drug trafficking crime.



                                  B.

     Billups contends that the district court made multiple errors

in the conduct of his trial, which, taken cumulatively, denied him

a fair trial.    He asserts that the court erred in four specific


                                  13
respects:      (1) by not according him an opportunity to voir dire

Agent Scherbenske prior to qualifying him as an expert; (2) by

improperly limiting his cross-examination of Scherbenske; (3) by

misstating relevant facts to the jury when the court sustained the

prosecution’s objection to his cross-examination of Scherbenske;

and (4) by making improper statements before the jury regarding the

trial evidence.      Billups failed to object at trial on any of these

points, and we thus review them for plain error only.

      Billups contends that the court first erred by not permitting

him   to   voir   dire   Scherbenske’s    qualifications   before   he    was

qualified as an expert witness.            Billups provides us with no

authority, however, for the proposition that a trial court’s

failure to accord counsel an opportunity to voir dire a proposed

expert witness, in and of itself, constitutes error, plain or

otherwise.      Moreover, there has been no showing that Billups had

any   basis    for   challenging   Scherbenske’s   qualifications    as    an

expert.       Absent some showing that Scherbenske was not in fact

qualified, we are unable to conclude that the admission of his

testimony was error, much less plain error.         Cf. United States v.

Nobles, 69 F.3d 172, 183 (7th Cir. 1995) (recognizing that law

enforcement expert testimony regarding drug trafficking aids jury’s

ability to understand nature of drug trafficking crimes).

      Billups next asserts that the trial court erred when it

improperly limited his examination of Scherbenske regarding the


                                     14
location of the evidence found in Apartment No. 6.                We have

carefully considered that contention and reject it, because the

court acted within its discretion in sustaining the objection and

commenting on the location of the seized evidence.            See United

States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979) (observing that

“trial judge has broad discretion to control the scope and extent

of cross-examination”).    Billups further asserts, however, that in

sustaining the prosecution’s objection, the court made a material

misstatement before the jury regarding the location of the baggies

found in the kitchen cabinet.       Indeed, the prosecution concedes

that the court was incorrect when it indicated that the baggies

were under Billups’s foot.    The transcript reveals, however, that

the court also observed that the cocaine base and the baggies were

“not in the same proximity.”        J.A. 137.     When this colloquy is

examined in the proper context, the separate locations of the

cocaine base (under Billups’s foot) and the baggies (in the kitchen

cabinet) are clear, and any misstatement by the court in that

regard does not constitute plain error.           See United States v.

Flores, 454 F.3d 149, 158-59 (3d Cir. 2006) (concluding that

court’s misstatement in instruction did not amount to plain error

when viewed in context).

     Finally,   Billups   asserts    that   the   court   erred   when   it

commented before the jury that Scherbenske’s testimony was based on

the “assumption . . . that [Billups had] sold out” of drugs at the


                                    15
time of his arrest.   Scherbenske himself, however, confirmed the

court’s assessment by replying “[t]hat’s correct.”       Thus, the

court’s statement was not erroneous, and not plain error.      See

United States v. Bates, 512 F.2d 56, 58 (5th Cir. 1975) (on plain

error review, assertedly prejudicial comments must be viewed in

context).

     Because the trial court did not plainly err in any of the

instances complained of by Billups, there was also no cumulative

error arising from the court’s conduct of the trial, and this

appellate contention must also be rejected.



                               IV.

     Pursuant to the foregoing, we reject Billups’s contentions of

error and affirm his convictions on Counts One, Three, and Four.10



                                                          AFFIRMED




     10
      We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.

                                16
