UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 96-4933
EUGENE SMALLS, a/k/a Gene Smalls,
a/k/a Kishawnie Henry, a/k/a
Quickness,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 96-4954
MITCHELL SMALLS, a/k/a Gary
Richardson, a/k/a Cebo, a/k/a Kilo,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-96-131)

Submitted: August 19, 1997

Decided: October 10, 1997

Before WILKINS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Charles R. Burke, Virginia Beach, Virginia; Anthony S. Mulford,
Chesapeake, Virginia, for Appellants. Helen F. Fahey, United States
Attorney, Robert E. Bradenham, II, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In these consolidated appeals, Appellants Eugene Smalls (No. 96-
4933) and his brother Mitchell Smalls (No. 96-4954) appeal from
their jury convictions and resulting life sentences for drug trafficking
offenses. Finding no error in the conduct of the jury trial or sentenc-
ing, we affirm the convictions and sentences.

The Government maintained at trial that the Smalls were at the
center of a cocaine smuggling operation that imported cocaine into
the United States from the Virgin Islands. The Government based its
case on recorded telephone conversations between Eugene and a con-
fidential informant; videotapes depicting Eugene's involvement in
drug transactions; photographs of both brothers posing with firearms
and large amounts of cash; evidence of both brothers wiring large
sums of money to the Virgin Islands; and testimony from co-
conspirators concerning the involvement of both brothers in the drug
trafficking conspiracy.

Appellants assert that there was insufficient probable cause to sup-
port the issuance of search warrants to search Eugene's Virginia
Beach home. When reviewing a magistrate's assessment of probable
cause, this Court must give great deference to the magistrate's assess-
ment of the facts presented to him. United States v. Blackwood, 913

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F.2d 139, 142 (4th Cir. 1990). We ask only whether the magistrate
had a substantial basis for concluding probable cause existed, and the
magistrate is required only to make a "practical, commonsense deci-
sion whether, given all the circumstances in the affidavit before him,
including the `veracity' and the `basis of knowledge' of persons sup-
plying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place." Id. (quot-
ing Illinois v. Gates, 462 U.S. 213, 238 (1983)). With these standards
in mind, we conclude that both magistrates clearly had substantial
basis for finding probable cause to issue both warrants.

Appellants next assert that there is insufficient evidence to sustain
their jury convictions. Contrary to their assertions, we find ample evi-
dence presented at trial that the Smalls brothers engaged in a conspir-
acy to illegally import cocaine into the United States from the Virgin
Islands. The trial transcripts disclose that numerous people worked
with the Smalls organization in planting drugs in airplanes flying to
this country from the Virgin Islands, receiving packages from the Vir-
gin Islands containing drugs, processing and distributing the drugs in
the United States, and wiring proceeds to and from the Virgin Islands.
The Government verified this activity with recorded telephone con-
versations, video tapes of drug transactions, and testimony from co-
conspirators who implicated both brothers in the drug trafficking
operation. We must sustain a jury's verdict if there is substantial evi-
dence, taking the view most favorable to the Government to support
it. Glasser v. United States, 215 U.S. 60, 80 (1942). Construing the
evidence presented at trial in the light most favorable to the Govern-
ment, it is sufficient to support the jury's verdicts.

Eugene asserts that his federal conviction and sentence violates
principles of Double Jeopardy because he was convicted in Virginia
state courts as well. This claim is meritless. See United States v.
Iaquinta, 674 F.2d 260, 264 (4th Cir. 1982).

Eugene also asserts in conclusory fashion that evidence was mis-
handled and mislabelled at trial. Since no such objections were raised
below, this issue is forfeited absent plain error. United States v.
Olano, 507 U.S. 725, 731 (1993); Fed. R. Crim. P. 52(b). Though
there was some discussion at trial about a heat seal on a package of
cocaine coming unglued and about a small amount of cocaine in a

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ziploc bag, those issues were resolved by the trial court without objec-
tion. We find no plain error here.

Appellants next complain about the admission into evidence of
photographs of each of them with weapons and large amounts of cash.
The pictures were developed from negatives seized from Eugene's
home. The pictures were shown to prosecution witnesses for identifi-
cation and to at least two defense witnesses on cross examination.
Appellants objected to use of the photos with only two prosecution
witnesses. Therefore, this issue is waived in each instance but the
occasions to which defense counsel objected but for plain error. As
to the instances preserved for our review, we accord the district
court's ruling substantial deference and we review the court's ruling
for abuse of discretion. United States v. Moore , 27 F.3d 969, 974 (4th
Cir. 1994). We find no abuse of discretion in the district court's rul-
ings. As for the occasions when the photos were admitted or used
without objection, we find no plain error.

Mitchell asserts that the trial court erred in denying his Fed. R.
Crim. P. 29 motion for judgment of acquittal. We review denial of
such a motion under a sufficiency of the evidence standard of review.
See United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). The
jury convicted Mitchell of one count of conspiracy to import cocaine.
As we have already discussed, we find ample evidence was presented
to support the jury's verdict when construed in the light most favor-
able to the Government. Therefore, the court properly denied the
motion for judgment of acquittal.

Mitchell next asserts that the court improperly held him account-
able at sentencing for 2.32 kilograms of crack cocaine. The sentenc-
ing court heard testimony from a United States Customs Agent and
then Mitchell himself at the sentencing hearing. After argument on
the issue, the court concluded that Mitchell was responsible for 2.32
kilograms of crack cocaine. In so doing, the court approved the find-
ings of Mitchell's pre-sentence report and concluded that the findings
were supported by a preponderance of the evidence.

The Government bears the burden of proving quantity of drugs for
which a defendant is to be held responsible at sentencing by a prepon-
derance of the evidence. United States v. Gilliam, 987 F.2d 1009,

                    4
1013 (4th Cir. 1993). Drug quantities distributed by co-conspirators
are attributable to a defendant if the conduct was within the defen-
dant's agreement, foreseeable by him, and in furtherance of jointly
undertaken criminal activity. United States v. Banks, 10 F.3d 1044,
1057 (4th Cir. 1993). Whether the entire amount of drugs involved in
an overall conspiracy was foreseeable to the defendant is a question
of fact, and we review the district court's determination under a
clearly erroneous standard. United States v. Brooks, 957 F.2d 1138,
1148 (4th Cir. 1992). From the materials before us, we conclude that
a preponderance of the evidence supports the drug quantity attribut-
able to Mitchell and that the district court's factual findings are not
clearly erroneous.

Mitchell asserts that the trial court's questioning of witnesses was
an abuse of discretion, indicated that the court was not impartial, and
deprived him of a fair trial. While a district court must maintain "`a
general atmosphere of impartiality'" during the course of a trial, it
nevertheless may interrogate witnesses as necessary to ensure the
proper development of the facts. United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995) (quoting United States v. Cassiagnol, 420
F.2d 868, 878 (4th Cir. 1970)). Again, there was no objection at trial
to any of the court's questions, so we review for plain error. We find
none.

Finally, Mitchell complains about a portion of the trial court's jury
instructions on conspiracy. Again, there was no objection to the
instructions at trial, so we review for plain error. Mitchell has failed
to demonstrate plain error in regard to the jury instructions.

For these reasons, we affirm the convictions and sentences of both
Appellants. 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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