UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4830
LINWOOD LEE RUFFIN, a/k/a Lenny,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-99-24-A)
Submitted: November 20, 2000
Decided: August 1, 2001
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark J. Rochon, Jr., ROCHON & ROBERTS, Washington, D.C., for
Appellant. Helen F. Fahey, United States Attorney, Sonya Sacks, Spe-
cial Assistant United States Attorney, Alessandra DeBlasio, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. RUFFIN
OPINION
PER CURIAM:
Linwood Lee Ruffin appeals his conviction and sentence for one
count of conspiracy to possess with intent to distribute and to distrib-
ute cocaine base in violation of 21 U.S.C. § 846 (1994). Ruffin con-
tends: (1) he was denied due process as a result of the district court
asking questions to Government witnesses; (2) the evidence was
insufficient to sustain the conviction; (3) the district court erred in its
response to a note from the jury; and (4) the district court erred by
making for sentencing purposes certain factual findings by a prepon-
derance of the evidence. We affirm the conviction and sentence.
Ruffin contends the district court erred by questioning government
witnesses. According to Ruffin, the court’s questioning rehabilitated
impeached government witnesses, elicited damaging testimony, and
provided a significant part of direct examination. Rule 614(b) of the
Federal Rules of Evidence permits a district court to interrogate wit-
nesses. A court’s conduct in questioning witnesses is reviewed for
abuse of discretion. See United States v. Seeright, 978 F.2d 842, 846-
47 (4th Cir. 1992). A district court may question witnesses in order
to "bring out needed facts or clarify the presentation of issues." Id.
(citing Glasser v. United States, 315 U.S. 60, 82 (1942)). However,
the court should not give the appearance of partiality, nor impose its
views on the jury, and should not undermine the legitimate efforts of
any of the parties to present their case. See United States v. Wilson,
118 F.3d 228, 237 (4th Cir. 1997). A new trial is required only if the
court’s conduct "whether in commenting or in interrogating witnesses
during trial reaches such a level of prejudice that it denied any or all
the appellants a fair, as distinguished from a perfect, trial." United
States v. Parodi, 703 F.2d 768, 776 (4th Cir. 1983) (internal quotation
marks omitted). We find the court did not abuse its discretion by
interrogating witnesses. The court was developing and clarifying
facts. Furthermore, this court presumes the jury followed the court’s
instruction not to assume the court had an opinion regarding the case.
See United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994). The
court’s interrogation did not rehabilitate impeached witnesses, elicit
damaging testimony, or provide a significant portion of the direct
examination.
UNITED STATES v. RUFFIN 3
Ruffin contends the evidence did not establish a conspiracy, but
only a collection of buyer-seller relationships. In addition, Ruffin con-
tends that if the court were to find the evidence did establish a con-
spiracy, it was a series of independent conspiracies and not the
conspiracy alleged in the indictment. Ruffin moved for a directed
judgment on the issue of the insufficiency of the evidence. When a
motion for a directed judgment is based on the claim that the evidence
was insufficient, this court reviews the denial under the sufficiency of
the evidence standard. See United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998). A jury verdict must be upheld if there exists substan-
tial evidence to support it, viewing the evidence in the light most
favorable to the government. See Glasser, 315 U.S. at 80.
"[S]ubstantial evidence is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt." United States v. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). The evidence does
not need to eliminate every possibility of innocence. See United
States v. McFarland, 116 F.3d 316, 317 (8th Cir. 1997). We find there
was substantial evidence that Ruffin was engaged in a conspiracy to
distribute crack cocaine in the Del Ray area with those persons for
whom he provided drugs. "[E]vidence of a buy-sell transaction, when
coupled with a substantial quantity of drugs, would support a reason-
able inference that the parties were coconspirators." United States v.
Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993). We further find the evi-
dence established a single conspiracy with "the same objective, [ ] the
same goal, the same nature, the same geographic spread, the same
results, and the same product." United States v. Crockett, 813 F.2d
1310, 1317 (4th Cir. 1987).
During the course of deliberations, the jury requested clarification
regarding the difference between a single conspiracy as charged in the
indictment and separate, independent conspiracies. The district court
responded by reiterating and expanding upon its initial jury charge.
"In examining a district court’s response to a jury’s request for clarifi-
cation on a charge, the inquiry is whether the court addressed the
jury’s inquiry fairly and accurately without creating prejudice."
United States v. Martinez, 136 F.3d 972, 977 (4th Cir. 1998). We find
the court’s supplemental instructions were an accurate and fair state-
ment of the law.
4 UNITED STATES v. RUFFIN
At sentencing, the district court determined by a preponderance of
the evidence that Ruffin was responsible for in excess of 1.5 kilo-
grams of crack cocaine. Accordingly, Ruffin was sentenced pursuant
to 21 U.S.C.A. § 841(b)(1)(A) (West 1999), which authorizes a maxi-
mum sentence of life imprisonment. In addition, the court enhanced
Ruffin’s offense level three levels for being a leader or organizer of
a conspiracy with five or more people. Ruffin was sentenced to 324
months’ imprisonment and five years supervised release. Ruffin con-
tends the court erred by not submitting the drug amount or his role
in the offense to a jury.
While this appeal was pending, the Supreme Court, in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), held as a principle of constitu-
tional law that, except for "the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt." In the instant appeal, the indictment charged Ruffin with con-
spiring to distribute and possess with intent to distribute fifty grams
or more of cocaine base. However, drug quantity was not submitted
to the jury as an element of the offense. In United States v. Promise,
___ F.3d ___, 2001 WL 732389, at *5 (4th Cir. June 29, 2001) (en
banc), we held that:
in order to authorize the imposition of a sentence exceeding
the maximum allowable without a jury finding of a specific
threshold drug quantity, the specific threshold quantity must
be treated as an element of an aggravated drug trafficking
offense, i.e., charged in the indictment and proved to the
jury beyond a reasonable doubt.
In Promise, we found that to base a sentence on a drug quantity not
charged in the indictment and not found by a jury beyond a reason-
able doubt was plain error.
The plain error analysis is appropriate in this appeal because Ruffin
did not raise this issue before the district court. Under the plain error
standard, in order to vacate the sentence, Ruffin must show: (1) there
was error; (2) the error was plain; and (3) the error affected substan-
tial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If these
conditions are met, we may exercise our discretion to notice the error
UNITED STATES v. RUFFIN 5
only if the error "seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Id. (internal quotation marks
omitted).
Because Ruffin’s sentence is above the statutory maximum under
21 U.S.C.A. § 841(b)(1)(C) and drug quantity was not submitted to
a jury, we find plain error. Because the evidence was overwhelming,
and Ruffin had notice in the indictment that the government intended
to hold him accountable for at least fifty grams of cocaine base, and
he conceded at sentencing that 150 to 500 grams of cocaine base was
a reasonable amount to be held accountable for, we find his substan-
tial rights were not violated.* See United States v. Stewart, ___ F.3d
___, 2001 WL 760262, at *17 (4th Cir. July 6, 2001); Promise, 2001
WL 732389, at **8-10.
Accordingly, we affirm the conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
*With regard to Ruffin’s role in the offense, the district court’s finding
in this instance did not increase the statutory maximum sentence. Thus,
there was no error under Apprendi.