UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________________

No. 92-8276

_________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TYLOR LEON DAVIS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ (May 28, 1993)

Before POLITZ, Chief Judge, REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Contending primarily that he was denied closing ar gument in

violation of his Sixth Amendment right to counsel, Tylor Leon Davis

appeals his conviction for possession w ith intent to distribute

cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1).

Because th e record clearly reflects that his counsel opted to

forego argument, Davis' right to it was waived. We AFFIRM

.

I.

During a routine i mmigration check at the Sierra Blanca

checkpoint in Texas, a border patrol agent boarded a bus on which

Davis was a passenger and questioned passengers about their

citizenship. After completing his immigration inquiries, the agent2

began to inspect items in the overhead luggage bins. On squeezing

a tweed suitcase situated directly across the aisle from Davis, he

detected hard, brick-like objects. The luggage tag was blank; none

of the passengers claimed the bag.

Accordingly, the agent removed the bag from the bus and

searched it, discovering eight brick-shaped packages containing

over two kilograms of crack cocaine. Some of the packages were

concealed in trousers bearing the name "Tylor Davis"; likewise, an

airline ticket bearing the same name was found in an outside pocket

of the suitcase. The suitcase also contained clothing bearing the

name "Gerald" and "G. Bow".

The agents reboarded the bus and asked each passenger for

identific ation. As the agents approached, Davis appeared

apprehensive; he was arrested upon providing his driver's license.

After a very brief bench trial, the district court found Davis

guilty of possession with intent to distribute more than 50 grams

of cocaine base. He was sentenced, i nter alia , to 210 months

imprisonment.

II.

Davis contends that he was denied the opportunity to present

closing argument, and that the evidence was insufficient to support

his conviction.

A.

The Sixth Amendment guarantees a defendant in a criminal

trial, wh ether before a jury or the bench, the right to present

closing argument, regardless of the complexity or the strength of3

the case. H

erring v. New York

, 422 U.S. 853 (1975); see also Fed.

R. Crim. P. 29.1. The H erring Court reasoned that "a total denial

of the opportunity for final argument in a

... criminal trial is a

denial of the basic right of the accused to make his defense ....

[C]losing argument is the last clear chance to persuade the trier

of fact that there may be reasonable doubt of the defendant's

guilt". I d. at 859, 862. Given the difficulty of determining the

prejudicial impact of the failure to afford summation, the denial

o f a request for it is reversible error per se

. I d. at 864.

Likewise, absent waiver, "the failure to allow a closing argument

constitutes plain error". U nited States v. Martinez

, 974 F.2d 589,

591 (5th Cir. 1992).

A precise standard for identifying waivers of closing argument

remained undefined in this circuit until ou r recent decision in

Martinez

. There we adopted the standard set forth in Johnson v.

Zerbst

, 304 U.S. 458 (1938), and held that "[a]s a general

proposition, before a waiver of the right to present closing

argument will be found the record must clearly demonstrate its

`intentional relinquishment or abandonment'". Martinez , 974 F.2d

at 591 (quoting Johnson

, 304 U.S at 464). We emphasized that "[a]n

affirmative waiver on the record is not required"; rather, waiver

may be inferred from a r eview of the entire record. I d. at 591

n.7.

It is fundamental that there is a presumption against waiver

of a constitutional right, Johnson

, 304 U.S. at 464; however, "some

rights are more likely to be foregone as a matter of strategy than4

others". U

ni ted States v. Spears , 671 F.2d 991, 993 (7th Cir.

1982). Where a defendant is represented by counsel, the decision

to waive summation is a matter of trial strategy within the

discretion of counsel. M artinez

, 974 F.2d at 591. If the evidence

is strong, counsel may conclude that a summation would damage the

client's interests, especially when considering the likely response

of the prosecutor

. See U nited States ex rel. Spears v. Johnson

,

463 F.2d 1024, 1026 (3d Cir. 1972). As we noted in M artinez

,

"[t]he strategic choice may be even more acute in a bench trial as

counsel assesses the judge's reaction to the evidence". 974 F.2d

at 591. Accordingly, in reviewing the record for waiver, we must

be scrutinizing yet cogni z ant of the strategic considerations

involved.

We now turn to apply the foregoing principles to the case at

bar. The court held a bench trial several months prior to our

decision in Martinez . The trial, according to Davis, lasted less

than an hour (the transcript contains only 43 pages); there were no

opening statements. The government called only three witnesses;

Davis, only one. After that one defense witness, who was asked

only seven questions on direct and for whom there was no redirect

examination, the following exchange occurred:

Mr. Barclay [defense counsel]: We'll rest on that.

Ms. Hartung: The Government closes.

Mr. Barclay: Do you got [ sic ] a rebuttal?

Ms. Hartung: I thought about it, but no.5 The Court: All right, if you would please Mr.

Davis, you and your att orney [Mr. Barclay] would

approach the lectern.

Mr. Barclay: You don't need a two and a half hour

closing argument?

The Court: Yeah, I need it, but I'm not going

to take it.

Mr. Davis, the Court having heard the

testimony in this case or part of it is certainly

circumstantial. It is the judgment of the Court

that you're guilty of the offense charged in the

indictment ....

(Emphasis added.) Aside from the above quoted language, counsel

did not otherwise refer to the issue of closing argument, either at

trial or by a post-trial motion.

Davis contends that his case squarely falls within the holding

of Herring because his counsel's statement, "[y]ou don't need a two

and a half hour closing argument" constitutes a request, which the

court subsequently denied by stating "[y]eah, I need it, but I'm

not going to take it". Alternatively, Davis maintains that the

case is controlled by Martinez

, discussed infra

, because the court

rendered judgment immediately upon the close of the evidence. The

government counters that counsel's stat ement, taken in context,

should be construed as a waiver stateme nt in which counsel

acknowledged the fact that the court had listened carefully to the

testimony and did not need summation.

O ur review of the entire record compels the conclusion that

counsel's statement was not a request, but a manifestation of both

his awareness of the right to present summation, and his decision

not to do so. In the context of a trial that lasted less than an1 See United States v. King , 650 F.2d 534, 537 (5th Cir. 1981)

(no waiver where magistrate unequivocally stated t hat a closing

argument would not change his mind, and counsel responded, "I would

have preferred to argue, but if i t's not going to change the

Court's mind, I don't see any reason

... to do it"); United States

v. Wall

, 443 F.2d 1220, 1223 (6th Cir. 1971) (no waiver where court

stated finding of guilt; counsel called the omission of argument to

the court's attention; and the court responded that argument would

be futile); Grigsby v. State

, 333 So. 2d 891 (Ala. Cr. App.), cert.

denied

, 3 33 So. 2d 894 (Ala. 1976) (no waiver where court found

defendant g uilty; counsel responded, "[w]ould Your Honor care to

hear from me on this case, or have you made up your mind?"; and

court repeated guilty verdict).

6 hour, with no opening statements and only four witnesses, we view

counsel's statement, "[y]ou don't need a two and a half hour

closing argume nt?" as rhetorical. The statement was consistent

with the repartee and obvious familiarity between t he court and

counsel for both Davis and the government. Although phrased in the

form of a qu estion, the statement clearly conveys counsel's

strategic decision, upon taking into account the court's reaction

to the evidence and the length of t he trial, that a closing

statement was unnecessary , or otherwise not in his client's best

interests. Our reading of the record is buttressed by counsel's

failure to object at the time the court rendered judgment, or

subsequently, in a motion for a new trial. Moreover, the statement

was made prior to the court's rendering judgment; accordingly, it

is unlikely t hat counsel was unduly coerced into concluding that

further argument would be futile. 1 We agree with the government

that counsel waived Davis' right to summation.

This case is distinguishable from Herring and Yopps v. State

,

228 Md. 204, 178 A.2d 879 (1962), cited with approval in Herring

.

In Herring

, the court denied counsel's request to "be heard7

somewhat on the facts". 422 U.S. at 856. Similarly, in Y opps

, the

court rendered a verdict without affording defense counsel the

opportunity to present closing argument. Defense counsel promptly

objected, stating, "You didn't even ask me for argument in this

case ..."; the judge responded, "Wouldn't change my mind about it".

228 Md. at 206, 178 A.2d at 881. In both cases, counsel expressed

a desire to prese nt summation, which the court denied. Here, as

stated supra

, the plain meaning of counsel's statement was that he

viewed summation as unnecessary and inten ded to forego it.

Accordingly, the cour t's response was not a denial of counsel's

request, as in Herring and Yopps , but merely a jocular expression

of agreement with counsel.

Likewise, our decision in Martinez is distinguishable. At

issue in Martinez was whether waiver could be inferred from

silence

. Upon reviewing various state and federal decisions, we

reasoned that "the critical factor in deciding whether the silence

of counsel constitutes a waiver is whether there was a meaningful

opportunity for counsel to request argument or object, considering

all the attendant circumstances." I d. at 591-92 (emphasis added).

Applying that standard, we concluded that because the court did not

immediately announce its ruling from the bench; but, rather,

ordered a recess and thus enabled counsel to determine his course

on closing argume nt, counsel's failure to respond to the court's

"argument not needed" announcement constituted a waiver. Id.

Our decision in M artinez reflects our reluctance to infer

waiver of a constitutional right from a silent record. Here,8

however, the record is not silent

-- far from it. Because counsel

expressly manifested his intent to foreg o argument prior to the

c ourt's rendering judgment, we need not consider whether counsel

had a "meaningful opportunity" to request argument.

In closing, we stress that Davis' trial occurred several

months before our decision in Martinez

. There we expressed

confidence that, in the future, courts would request that counsel

"state for the record any objections to the court proceeding to

judgment without closing argument, or to formally waive same on the

record". I d. (emphasis added). Accordingly, we expect that in

subsequent cases, unlike here, we will not be required to review

the entire record to determine counsel's intent. Here, although we

cannot say that Davis' counsel formally waived summation, counsel's

statement, in the context of the entire trial, clearly expressed

his intent to waive it. We therefore hold that Davis was not

denied his Sixth Amendment right to counsel.

B.

Davis maintains that the evidence was insufficient to support

h is conviction. For review of a bench trial, as here, "the test

for evidential sufficiency is whether any substantial evidence

supports the finding of guilty and whether the evidence is

sufficient to justify the trial judge, as tri er of the facts, in

c oncluding beyond a reasonable doubt that the defendant was

guilty". U

nited States v. Richardson

, 848 F.2d 509, 511 (5th Cir.

1988) (internal quotations and citations omitted). We defer to the

court's reasonable inferences. Id.9

To establish violation of 21 U.S.C. § 841(a)(1), the

government must prove that Davis knowingly possessed cocaine with

the intent to distribute it. United States v. Molina-Iguado , 894

F.2d 1452, 1457 (5th Cir.), cert. denied

, 498 U.S. 831 (1990).

Davis contends that the government failed to establish knowing

possession, primarily asserting that the pres ence of clothing in

the name of another person ("G. Bow") precludes a finding of

custody and control over the luggage. According to Davis, because

the agents did not inquire whether a passenger named "G. Bow" was

on the bus, it is equally likely that the luggage belonged to a

travelling companion who had access to his clothing. We disagree

that Davis' alternative hypothesis precludes a finding of guilt.

Needless to say, possession may be actual or constructive and

may be proved by either direct or circumstantial evidence. E.g.

,

United States v. Ros as-Fuentes , 970 F.2d 1379, 1382 (5th Cir.

1992). Constructive possession turns on a showing of control or

the power to control. I d. "Circumstances altogether inconclusive,

if separately considered, may, by their number and joint operation,

especially when corroborated by moral coincidences, be sufficient

to constitute conclusive proof". United States v. Ivey , 949 F.2d

759, 766 (5th Cir. 1991), cert. denied

, Wallace v. United States

,

113 S. Ct. 64 (1992) (citations omitted).

The drugs were found in an unmarked suitcase directly across

the aisle from Davis. Although proximity alone is insufficient to

establish possession, Rosas-Fuentes

, 970 F.2d at 1382, the suitcase2 Although the ticket was not introduced i nto evidence, the

trial testimony included this fact.

3 As for Davis' alternative theory, "[i]t is not necessary that

the evidence exclude every reasonable hypothesis of innocence or be

wholly inco nsistent with every conclusion except that of guilt".

United States v. Ayala

, 887 F.2d 62, 67 (5th Cir. 1989) (quotations

and citations omitted).

10 contained clothing and an airline ticket marked with Davis' name 2

,

thus indicating his control over the luggage. That the drugs had

been wrapped in clothing bearing Davis' name, supports the finding

that he had knowledge that the drugs were in the suitcase, as does

his reluctance to both claim the luggage and present

identification. Moreover, the quantity of cocaine contained in the

suitcase supports the inference that Davis intended to distribute

it. See Rosas-Fuentes , 970 F.2d at 1382. Accordingly, there was

sufficient evidence for the district court to conclude that Davis

possessed cocaine with intent to distribute. 3

III.

For the foregoing reasons, the judgment is

AFFIRMED

.