United States v. Williams ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40613
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHELTON LAMONT WILLIAMS a/k/a Sheldon Williams,
a/k/a Kilo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-96-CR-1-1
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January 8, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges
PER CURIAM:*
Shelton L. Williams appeals from his conviction of
possession with intent to distribute crack cocaine and conspiracy
to possess with intent to distribute crack cocaine. Williams
contends that the evidence was insufficient to support his
conviction; that the district court erred by admitting evidence
of his previous drug convictions and erred by failing to balance
the probative value of the previous convictions against their
prejudicial effect; that he received ineffective assistance of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-40613
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counsel; and that the Government engaged in misconduct during its
rebuttal argument.
Williams’s attorney moved for acquittal at the close of the
government’s case, but did not renew that motion at the close of
all of the evidence. To prevail on Williams’s current
sufficiency of the evidence claim, then, Williams must show that
the record is “devoid of evidence” pointing to his guilt. United
States v. Shannon, 21 F.3d 77, 83 (5th Cir. 1994). The record on
appeal contains ample evidence pointing to Williams’s guilt on
both the charge of possession with intent to distribute cocaine
and the conspiracy charge. The police officers found crack
cocaine, scales, and packaging materials in apartment 3-C of the
Palm Terrace apartments while Williams and others were present.
Officers found Williams’s personal items in a bedroom, suggesting
that Williams was an occupant of the premises along with Stevens.
Williams’s prior cocaine-related convictions provide evidence of
his knowledge and intent to participate in drug activities. This
record is sufficient for the jury to infer that Williams
constructively possessed the cocaine and voluntarily participated
in the conspiracy to distribute cocaine. See United States v.
Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993); United States v.
Alix, 86 F.3d 429, 436 (5th Cir. 1996).
Next, Williams argues that the district court erred in
admitting evidence of his prior drug-related convictions.
Williams did not request an on-the-record balancing of the
probative value and the prejudicial effect of his previous
convictions. The district court need not have conducted an on-
No. 97-40613
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the-record balancing test. United States v. Fox, 69 F.3d 15, 20
(5th Cir. 1995). We find that Williams’s prior convictions were
sufficiently similar to the charges against him in the present
case to be probative of his intent or knowledge. The convictions
were admissible. United States v. Willis, 6 F.3d 257, 262 (5th
Cir. 1993).
Williams also argues that he received ineffective assistance
from his trial counsel. As a general rule, we will not consider
a Sixth Amendment ineffective assistance of counsel claim on
direct appeal when it was not raised in the district court.
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). We
will consider this argument on direct appeal only in the rare
case in which the record is adequately developed so that the
merits of the claim may be fairly considered. United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987). This is not one of
those rare cases. Williams’s claims that counsel failed to
cross-examine witnesses or use evidence adequately are
insufficiently developed on the record for this court to consider
them on direct appeal. United States v. Higdon, 832 F.2d 312,
313-14 (5th Cir. 1987). Williams’s contention that counsel
failed to move for acquittal at the close of the Government’s
case lacks a factual basis; counsel made such a motion.
Williams did not object to the Government’s rebuttal
argument; his contention of prosecutorial misconduct therefore is
reviewed for plain error. United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994), cert. denied, 513 U.S. 1196 (1995).
The prosecutor’s remark that Williams had time to take crack
No. 97-40613
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cocaine and throw it to the floor was a permissible inference
from the evidence and did not cast serious doubt on the jury’s
verdict. United States v. Rocha, 916 F.2d 219, 234 (5th Cir.
1990).
The judgment is AFFIRMED.