UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4353
DWIGHT KNIBBS, a/k/a Paul Bougle,
a/k/a Jamaican Paul,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-90-122)
Submitted: October 28, 1997
Decided: November 24, 1997
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Paul M. McKay, MCKAY & MCKAY, Wheeling, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Lisa Grimes
Johnston, Assistant United States Attorney, Wheeling, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, Dwight Knibbs was convicted of engaging
in a continuing criminal enterprise, see 21 U.S.C. § 848 (1994); two
counts of aiding and abetting the possession with intent to distribute
cocaine base, see 21 U.S.C. § 841(a)(1) (1994), 18 U.S.C. § 2 (1994);
three counts of distributing cocaine base, see 21 U.S.C. § 841(a)(1)
(1994); three counts of distributing cocaine base to a person under the
age of twenty-one, see 21 U.S.C. § 845(a) (renumbered to § 859(a) by
the Crime Control Act of 1990, Pub. L. No. 101-647,§ 1002 (1990));
and possession of a firearm during and in relation to a drug trafficking
crime, see 18 U.S.C. § 924(c)(1) (1994). On appeal, Knibbs contends
that (1) his cross-examination violated his Fifth Amendment right to
remain silent, (2) he received ineffective assistance of counsel based
upon counsel's own conduct and two rulings made by the district
court, (3) the prejudicial value of a photograph of plastic sandwich
bags substantially outweighed its probative value, (4) the Government
suborned perjury, and (5) the district court erred by enhancing his
sentence for obstruction of justice. For the reasons stated below, we
affirm his convictions and resulting life sentence.
Knibbs organized a crack distribution ring in the Wheeling, West
Virginia, area in 1989. Knibbs employed numerous persons, including
juveniles, many of whom testified at trial, to sell $100 packages of
crack cocaine. Witnesses testified that sales ranged from $1000 to
$10,000 per day. In addition, the organization possessed several fire-
arms. Knibbs was known to use a firearm to keep his runners in line.
Knibbs was indicted for numerous narcotics offenses in 1990, but he
had already fled the area and was not apprehended until 1995.
Knibbs voluntarily testified on his own behalf. He now contends
that some of the Government's questions on cross-examination,
which were asked without objection, violated his Fifth Amendment
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right to remain silent. Knibbs correctly asserts that a defendant's deci-
sion to testify does not operate as a waiver of the privilege. See Fed.
R. Evid. 608. However, the Fifth Amendment protects against com-
pelled testimony. If a witness desires the protection of the Fifth
Amendment, "he must claim it or he will not be considered to have
been `compelled' within the meaning of the Fifth Amendment." See
United States v. Monia, 317 U.S. 424, 427 (1943). Because Knibbs
voluntarily testified and answered the Government's questions with-
out asserting the protection of the Fifth Amendment, he was not com-
pelled to answer the Government's questions. See Minnesota v.
Murphy, 465 U.S. 420, 427 (1984).
Knibbs also contends that he received ineffective assistance of
counsel. He points to his counsel's failure to object to the cross-
examination discussed above, the district court's failure to grant a
longer continuance, and the denial of a motion for appointment of co-
counsel. As for the latter two assertions, it is Knibbs's contention that
the court's rulings resulted in his having a counsel who was not suffi-
ciently prepared to go to trial. Claims regarding the effectiveness of
counsel are considered on direct appeal only if"it `conclusively
appears' from the record that defense counsel did not provide effec-
tive assistance." United States v. Gastiaburo , 16 F.3d 582, 590 (4th
Cir. 1994) (quoting United States v. Fisher, 477 F.3d 300, 302 (4th
Cir. 1973)). We have held that these claims are better left to a motion
under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). See United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Because the
record does not conclusively demonstrate that Knibbs received inef-
fective assistance of counsel, we will not review the claims.
Knibbs, citing Fed. R. Evid. 403, contends that the prejudicial
impact of the admission of a photograph of plastic sandwich bags
with the corners removed outweighed its probative value. The Gov-
ernment contended that the sandwich bags were evidence of drug par-
aphernalia. A district court's evidentiary rulings are entitled to
substantial deference and will not be reversed absent a clear abuse of
discretion. That discretion is abused only when the district court acted
arbitrarily or irrationally. See United States v. Moore, 27 F.3d 969,
974 (4th Cir. 1994). A photograph of sandwich bags is unlikely to
elicit an emotional response from the jury, see Fed. R. Evid. 403 advi-
sory committee note, and the photograph did not dominate the evi-
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dence or mislead the jury. Accordingly, we conclude that the district
court did not abuse its discretion in admitting the photograph as evi-
dence.
Knibbs further contends that the Government knowingly presented
false testimony. The testimony at issue was not objected to at trial
and, thus, is reviewed for plain error. See United States v. Cedelle, 89
F.3d 181, 184 (4th Cir. 1996). Knibbs fails to show that the wit-
ness's testimony was false. At best, the testimony merely contradicted
Knibbs's own testimony. Thus, we find no plain error.
Finally, Knibbs asserts that the court erred in increasing his offense
level by two levels for obstruction of justice under U.S. Sentencing
Guidelines Manual § 3C1.1 (1995). Whether Knibbs's conduct
amounted to obstruction of justice is a legal question which is
reviewed de novo. See United States v. Saintil , 910 F.2d 1231, 1232
(4th Cir. 1990). The underlying factual findings are reviewed for clear
error. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). The district court clearly stated that, among other reasons, the
two-level enhancement was due to Knibbs's perjury at trial. The court
examined the record and made all the appropriate findings. See
United States v. Dunnigan, 507 U.S. 87, 95 (1993). Accordingly, the
district court did not err in imposing the enhancement.
We therefore affirm Knibbs's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED
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