UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 94-5438
RANKING SMITH, a/k/a Rockhead,
a/k/a Rakeem, a/k/a Raking, a/k/a
Kevin Smith,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 94-5439

WILLIAM DANIELS, a/k/a Lord,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-93-130)

Argued: December 4, 1995

Decided: February 9, 1996

Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ray Colton Vallery, Fayetteville, North Carolina, for
Appellant Smith; James B. Craven, III, Durham, North Carolina, for
Appellant Daniels. Christine Blaise Hamilton, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice
McKenzie Cole, United States Attorney, Raleigh, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury returned verdicts of guilty against Ranking Smith and Wil-
liam Daniels, convicting them of conspiracy to possess with the intent
to distribute and to distribute cocaine and cocaine base in violation of
21 U.S.C.A. § 846 (West Supp. 1995). Smith was also convicted for
using or carrying a firearm in relation to a drug trafficking crime in
violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 1995); murder in
furtherance of a continuing criminal enterprise in violation of 21
U.S.C.A. § 848(e)(1)(A) (West Supp. 1995); aiding and abetting the
murder in violation of 18 U.S.C.A. § 2 (West 1969); and four counts
of distribution of cocaine base in violation of 21 U.S.C.A. § 841(a)(1)
(West 1981). Smith and Daniels appeal their convictions, arguing that
the district judge improperly questioned witnesses during the trial and
that the evidence was insufficient to support their convictions. In
addition, Daniels maintains that his sentence was enhanced improp-
erly for possession of a firearm pursuant to United States Sentencing
Commission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1993). We
affirm.

I.

A homicide investigation in Raleigh, North Carolina led to the
indictment of Smith and Daniels in October 1993 for murder and

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related drug and firearm charges. Before and during the resulting trial,
death threats were received by Government witnesses and their fami-
lies. A number of witnesses stated that they were reluctant to testify
because they were afraid of what might happen to them. The district
judge prompted these witnesses to answer questions, examining one
witness at length. During the course of the trial, the district judge also
prompted witnesses to clarify or explain their answers. At the close
of the trial, the following instruction was given to the jury:

            You are to be the sole judge of the evidence and the facts
            in the case. Nothing I have said or done throughout the
            course of the trial should influence you with respect to your
            verdict. I don't have any position regarding the outcome of
            the case. If I asked questions or made any comments or rul-
            ings, those have simply been in order to move the case along
            and try to present it to you in an efficient and effective way.

J.A. 605.

Following their convictions, Smith was sentenced to life imprison-
ment plus 25 years and Daniels was sentenced to life imprisonment.
In calculating Daniels' guideline range, the district court applied a
two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), having
found by a preponderance of the evidence that Daniels had possessed
a firearm during the commission of a drug offense.

II.

Smith and Daniels argue that the district judge abandoned his judi-
cial role and adopted the role of a prosecutor in questioning the wit-
nesses. During a criminal trial, a district judge"may ask questions of
witnesses to bring out needed facts or clarify the presentation of
issues." United States v. Seeright, 978 F.2d 842, 847 (4th Cir. 1992);
see also Fed. R. Evid. 614(b). It is the responsibility of the trial judge
to ensure that the facts are properly developed and understood by the
jury. See Simon v. United States, 123 F.2d 80, 83 (4th Cir.), cert.
denied, 314 U.S. 694 (1941). And, when confronted with witnesses
who are reluctant to testify, it is often necessary for the trial judge to
ask questions in order to draw information from them. See United
States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983).

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Although Smith and Daniels failed to object to the questions asked
by the district judge "at the time [of the questions] or at the next avail-
able opportunity when the jury [was] not present," Fed. R. Evid.
614(c), they maintain on appeal that the questioning was "`so prejudi-
cial as to deny [them] an opportunity for a fair and impartial trial.'"
United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.) (quoting
Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987)),
cert. denied, 115 S. Ct. 102 (1994); see also Fed. R. Crim. P. 52(b).
Viewing the record as a whole, we do not agree. Many of the ques-
tions were asked simply to clarify testimony that was either unclear
or unintelligible. Moreover, it is undisputed that this trial was marked
by tension throughout its course and that several witnesses expressed
reluctance to testify because of death threats. It is apparent from the
record that the district judge was attempting to encourage these wit-
nesses to testify despite their fear. And, at the close of the trial, a cau-
tionary instruction was given, which charged the jurors that nothing
the district judge had done during the course of the trial should influ-
ence their verdicts and that any questions asked or rulings made were
simply for the purpose of facilitating the presentation of the evidence.
Accordingly, we conclude that the questions asked by the district
judge did not unfairly prejudice Defendants. See United States v.
Olano, 507 U.S. 725 (1993).

III.

Smith and Daniels contend that the evidence was insufficient to
support their conspiracy convictions. Smith also argues that the evi-
dence was insufficient to support his separate convictions. In evaluat-
ing the sufficiency of the evidence, we review the evidence in the
light most favorable to the Government to determine whether "any
rational trier of facts could have found the defendant[s] guilty beyond
a reasonable doubt." United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). Witnesses for the Government testified that Smith
murdered the victim for not satisfying a debt owed for drugs by beat-
ing and shooting him1 and that both Defendants had been involved in
_________________________________________________________________
1 With respect to 18 U.S.C.A.§ 924(c), the jury was charged that "[a]
firearm can be used in relation to any drug trafficking crime if the fire-
arm was available to a defendant and was intended to be used if [a] con-

                     4
an extensive drug distribution network which included many individ-
uals. See United States v. Arrington, 719 F.2d 701, 704 (4th Cir.
1983) (determining the credibility of witnesses is a question for the
jury), cert. denied, 465 U.S. 1028 (1984). In short, the evidence pro-
duced at trial clearly was sufficient to support the verdicts.

IV.

Daniels2 contends that because the jury acquitted him of all charges
in the indictment that involved using or carrying a firearm, the district
court improperly enhanced his offense level by two levels for posses-
sion of a firearm during the commission of a drug offense. See
U.S.S.G. § 2D1.1(b)(1). It is well settled that if an appropriate finding
is made, acquitted conduct properly may serve as the basis for an
enhancement under the guidelines. United States v. Romulus, 949
F.2d 713, 716-17 (4th Cir. 1991), cert. denied , 503 U.S. 992 (1992).
The district court found by a preponderance of the evidence that Dan-
iels possessed a firearm during a conspiracy to distribute cocaine and
cocaine base, and this finding is not clearly erroneous.

V.

We have reviewed all of Defendants' remaining arguments and
conclude that they are without merit. Accordingly, we affirm the
judgments entered against Smith and Daniels.

AFFIRMED
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tingency arose." J.A. 600. In Bailey v. United States, 116 S. Ct. 501, 505
(1995), however, the Supreme Court rejected this standard, stating that
"§ 924(c)(1) requires evidence sufficient to show an active employment
of the firearm by the defendant." Because the jury also convicted Smith
of a drug-related murder involving a handgun, we conclude that any error
is harmless.

2 Although Daniels argued in his initial brief that the district court erred
in computing the quantity of drugs attributable to him, he conceded at
oral argument that the Government met its burden of proof on this issue.

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