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No. 96-1061SI

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Southern

v. * District of Iowa.

*

Robert Lee Hunter, *

*

Appellant. *

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Submitted: July 11, 1996

 Filed: September 10, 1996

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Before FAGG, LAY, and HEANEY, Circuit Judges.

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FAGG, Circuit Judge.

After stopping a car driven by Robert Lee Hunter for a seatbelt

violation, police found cocaine base concealed between the two front seats

and arrested Hunter and his passenger, Anthony Robinson. Robinson pleaded

guilty to possession with intent to distribute cocaine base. At trial on

charges of possession with intent to distribute and conspiracy to

distribute cocaine base, Hunter moved for a judgment of acquittal at the

close of the Government's case. The district court reserved ruling on

Hunter's motion. Despite Robinson's testimony that the drugs were his

alone, the jury found Hunter guilty on both charges. The district court

then granted Hunter's motion for judgment of acquittal on the conspiracy

charge. Hunter appeals his conviction and sentence for possession with

intent to distribute cocaine base. We affirm.

Hunter contends the district court improperly failed to grant his

motion for judgment of acquittal on the conspiracy charge at
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the close of the Government's evidence. Although the court later granted

Hunter's motion, Hunter claims the delay prejudiced him on the possession

charge. Rule 29(b) of 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 United States v. House, 551 F.2d 756, 758 (8th Cir.) (court may not

reserve ruling on motion to acquit when motion made at close of

Government's evidence), cert. denied, 434 U.S. 850 (1977) . But it matters

no longer. See Fed. R. Crim. P. 29 advisory committee notes to 1994

amendments (Rule 29(b) now permits reserved ruling on motion to acquit made

at either close of Government's case or close of all evidence). Thus, the

district court had authority to postpone its decision when it did, and

Hunter does not explain what prejudice he suffered from the ruling's

postponement. We conclude the district court acted 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 his

conviction for possession with intent to distribute cocaine base. Of

course, we must view the evidence in the light most favorable to the

Government 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 Moines 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 vehicle with its lights off

pull out from behind the closed liquor store next door to the house.

Swinging behind this vehicle, the officers noticed a seatbelt violation and

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 seat. One of the officers activated his public-address

system and ordered the suspects to stop and put their hands up. Hunter

still did not stop, and Robinson kept reaching into the back seat. Again

the officer ordered the driver to stop, but Hunter rolled the car another

ten or fifteen feet before complying. On being ordered a third time to

raise his hands, Hunter raised his left hand, and about thirty seconds

later his right as well.

 

After ordering the suspects out of the car, one of the officers saw

a small plastic bag wedged in a space near the floor-mounted shifter. The

bag contained 14.76 grams of cocaine base--an amount an FBI agent testified

"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 called Robinson, who testified the cocaine was his alone.

According to Robinson, Hunter first learned Robinson possessed the cocaine

when the police officers pulled up behind them and turned on their flashing

lights.

 To make its case, the Government had to prove Hunter knowingly

possessed cocaine with intent to distribute. United States v. Johnson, 18

F.3d 641, 647 (8th Cir. 1994). Knowing possession of contraband may be

either actual or constructive. United States v. Willis, Nos. 95-2261, 95-

2654, 1996 WL 406672, at *5 (8th Cir. July 22, 1996). Hunter

constructively possessed the cocaine if he "had knowledge of, and control

over, the drugs." Id. "[M]ere physical proximity to the contraband" is

not enough. Johnson, 18 F.3d at 647. Notwithstanding Robinson's

testimony, a reasonable jury could infer knowledge and control from

Hunter's refusal to stop when ordered, his delay in raising his right hand,

and the location of the drugs immediately to Hunter's right. See Willis,

1996 WL 406672, at *5 (sufficient evidence of constructive possession when,

among other incriminating facts, one defendant was driver of car in which

police found cocaine and second defendant was within arm's reach of the

drugs). We cannot say a reasonably
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minded jury must have entertained a reasonable doubt that Hunter

constructively possessed the drugs. United States v. Adkins, 842 F.2d 210,

212 (8th Cir. 1988).

Hunter also contends he was denied effective assistance of counsel.

Generally, we do not consider ineffective assistance claims on direct

appeal because the factual record is inadequate. United States v. Taylor,

82 F.3d 200, 201 (8th Cir. 1996). We make an exception, however, when, as

here, the record suffices and the Government does not object. See United

States v. Ford, 918 F.2d 1343, 1350 (8th Cir. 1990) (ineffective assistance

claim heard on direct appeal when all relevant facts 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, and

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, the

FBI agent's testimony that the amount of cocaine base found in the vehicle

was consistent with distribution rather than use. Hunter argues the

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, 810

(8th Cir. 1992) (applying Federal Rule of Evidence 704(b)). Hunter's

counsel reasonably chose not to object to admissible evidence.

Hunter also faults counsel for not calling witnesses to testify to

Robinson's statements to them exonerating Hunter. Robinson testified in

person at Hunter's trial, however, saying the drugs were his. Counsel had

no reason to present duplicative, hearsay testimony when Robinson spoke for

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 for

vagueness or inapplicable by operation of the rule of lenity. Our cases

foreclose these requests. United States v. House, 939 F.2d 659, 664 (8th

Cir. 1991) (rejecting vagueness argument); United States v. Jackson, 64

F.3d 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.