_____________ No. 96-1061SI

_____________ United States of America, * * Appellee, * Appeal from the United States * District Court for the Southern v. * District of Iowa. * Robert Lee Hunter, * * Appellant. *

_____________ Submitted: July 11, 1996 Filed: September 10, 1996

_____________ Before FAGG, LAY, and HEANEY, Circuit Judges.

_____________ FAGG, Circuit Judge.

After stopping a car driven by Robert Lee Hunter for a seatbel t violation, police found cocaine base concealed b etween the two front seats and arrested Hunter and his passenger, Anthony R obinson. Robinson pleaded guilty to possession with intent to distribute cocaine base. At trial on charge s of possession with intent to distribute and conspiracy t o distribute cocaine base, Hunter moved for a judgment of acquittal at the close of the Government's case. The district court reserved ruling o n Hunter's motion. Despite Robinson's testimony that the drugs were hi s alone, the jury found Hunter guilty on both charges. The district court then granted Hunter's motion for judgment of acquittal on the conspiracy cha rge. Hunter appeals his conviction and sentence for possession wit h intent to distribute cocaine base. We affirm.

Hunter contends the district court improperly failed to grant hi s motion for judgment of acquittal on the conspiracy charge at

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the close of the Gove rnment's evidence. Although the court later granted Hunter's motion, Hunt er claims the delay prejudiced him on the possession charge. Rule 29(b) o f the Federal Rules of Criminal Procedure authorizes the court to reserve ruling on a motion for judgment of acquittal, and it says nothing about timing. Fed. R. Crim. P. 29(b). Timing used to matter
. See Uni ted States v. House , 551 F.2d 756, 758 (8th Cir.) (court may no t reserve ruling on motion to acquit when motion made at close o f Government's evidence), cert. denied , 434 U.S. 850 (1977) . But it matter s no longer. See Fed. R. Crim. P. 29 advisory committee notes to 199 4 amendments (Rule 29(b) now permits reserved ruling on motion to acquit mad e at either close of Government's case or close of all evidence). Thus, the distr ict court had authority to postpone its decision when it did, an d Hunt er does not explain what prejudice he suffered from the ruling' s postponement. We conclude the district court ac ted within its discretion. See United States v. Hatchett , 31 F.3d 1411, 1424 (7th Cir. 1994) (ruling on motion for acquittal rests within sound discretion of trial court).

Next, Hunter contends the evidence was insufficient to support hi s convict ion for possession with intent to distribute cocaine base. O f
course , we must view the evidence in the light most favorable to th e Governm ent and accept all reasonable inferences supporting the jury' s verdict. United States v. Scott , 64 F.3d 377, 380 (8th Cir. 1995).
Viewed in this light, the Government 's evidence showed the following facts. When Des Moin es police officers drove past a suspected drug house shortly after midnight, they saw several people scatter and run when their marked patrol car approached. Then they saw a v ehicle with its lights off pull o ut from behind the closed liquor store next door to the house
. Swinging behind this vehicle, the officers noticed a seatbelt violation an d turned on their flashing red lights. Hunter, the driver, slowed but did not stop. Robinson, his passenger, began reaching under the seats

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and into the back sea t. One of the officers activated his public-address system and ordered the suspects to stop and put their hands up. Hunte r still did not stop, a nd Robinson kept reaching into the back seat. Again the officer ordered t he driver to stop, but Hunter rolled the car another ten or fifteen feet before complying. On being ordered a third time t o raise his hands, Hunter raised his left hand, and about thirty second s later his right as well.

After ord ering the suspects out of the car, one of the officers saw a small plastic bag wedged in a space near the f loor-mounted shifter. The bag contained 14.76 grams of cocaine base--an amount an FBI agent testifie d "would definitely be involved in distribution versus personal use." When searched, Hunter was found to have $804 cash, and Robinson, $724. In his defense, Hunter calle d Robinson, who testified the cocaine was his alone. According to Robinson, Hunter first learned Robi nson possessed the cocaine when the police officers pulled up behind them and turned on their flashin g lights.
To make its case, the Government had to prove Hunter knowingl y possessed cocaine with intent to distribute. Un ited States v. Johnson , 18 F.3d 641, 647 (8th Cir. 1994). Knowing possession of contraband may b e either actual or constructive. United States v. Willis , Nos. 95-2261, 95- 265 4, 1996 WL 406672, at *5 (8th Cir. July 22, 1996). Hunte r constructively posses sed the cocaine if he "had knowledge of, and control over, the drugs." Id. "[M]ere physical proximity to the contraband" is not e nough. Johnson , 18 F.3d at 647. Notwithstanding Robinson' s testim ony, a reasonable jury could infer knowledge and control fro m Hunter's refusal to stop when ordered, his delay in raising his right hand , and the location of t he drugs immediately to Hunter's right. See Willis , 1996 WL 406672, at *5 (sufficient evidence of constructive possession when , among other incrimina ting facts, one defendant was driver of car in which police found cocaine and second defendant was within arm's reach of th e drugs). We cannot say a reasonably

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minded jury must have entertained a reasonable doubt that Hunte r constructively possessed the drugs. United States v. Adkins , 842 F.2d 210 , 212 (8th Cir. 1988).

Hunter al so contends he was denied effective assistance of counsel. Genera lly, we do not consider ineffective assistance claims on direc t appeal because the factual record is inadequate. United States v. Taylor , 82 F.3d 200, 201 (8th Cir. 1996). We make an ex ception, however, when, as here, the record suff ices and the Government does not object. See United States v. Ford , 918 F.2d 1343, 1350 (8th Cir. 1990) (ineffective assistanc e claim heard on direct appeal when all relevant f acts known); United States
v. Logan , 49 F.3d 352, 361 (8th Cir. 1995) (ineffective assistance claim not addressed on direct appeal because Government objected). To sustain his argument, Hunter must show his counsel's performance was deficient, an d counsel's "errors were so serious as to deprive [Hunter] of a fair trial." Strickland v. Washington , 466 U.S. 668, 687 (1984).

Hunter complains counsel did not object to, or move to strike, th e FBI agent's testimony that the amount of cocaine base found in the vehicle
was consistent with distribution rather than use. Hunter argues th e testimony was inadmissible because it went to the ultimate issue of intent
. We disagree. Expert testimony that a certain quantity of drugs suggests distribution is admissible. United States v. Wilson , 964 F.2d 807, 81 0 (8th Ci r. 1992) (applying Federal Rule of Evidence 704(b)). Hunter' s counsel reasonably chose not to object to admissible evidence.

Hunter a lso faults counsel for not calling witnesses to testify t o Robinson's statements to them exonerating Hunter. Robinson testified in person at Hunter's trial, however, saying the dr ugs were his. Counsel had
no reason to present duplicative, hearsay testimony when Robinson spoke fo r himself. Hunter has failed to prove deficient performance, and that ends our analysis.

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United States v. Flynn , 87 F.3d 996, 1000 (8th Cir. 1996).
Finally, Hunter asks us to hold 21 U.S.C. § 841(b)(1)(B) void fo r vagueness or inapplicable by operation of the rule of lenity. Our cases foreclose these reque sts. United States v. House , 939 F.2d 659, 664 (8th Cir. 1 991) (rejecting vagueness argument); United States v. Jackson , 6 4 F.3 d 1213, 1219-20 (8th Cir. 1995) (rejecting rule of lenity argument) , cert. denied , 116 S. Ct. 966 (1996).
We affirm Hunter's conviction and sentence.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.