United States v. Funchess ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60440
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUBERT C. FUNCHESS,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:93-CR-114WN-3
- - - - - - - - - -
August 5, 1996
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Hubert C. Funchess appeals his convictions of conspiracy to
possess with intent to distribute cocaine and use of a
communication facility in furtherance of a drug crime, in
violation of 21 U.S.C. §§ 843(b), 846. Funchess contends that
the district court erred by allowing the introduction of audio
tapes and testimony regarding other criminal acts, that the jury
verdict was not supported by the evidence, and that he received
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-60440
- 2 -
ineffective assistance of trial counsel. Our review of the
record and the arguments and authorities convince us that no
reversible error was committed. The Government properly
authenticated the audio tapes. See United States v. Polk, 56
F.3d 613, 631 (5th Cir. 1995). The testimony of previous
criminal activity was intrinsic because it was "``inextricably
intertwined' with the evidence used to prove [the] crime[s]
charged." See United States v. Coleman, 78 F.3d 154, 156 (5th
Cir. 1996). The evidence was sufficient to prove the charged
crimes. See Polk, 56 F.3d 613, 628; United States v. Crain, 33
F.3d 480, 487-88 (5th Cir. 1994), cert. denied, 115 S. Ct. 1142(1995); United States v. Gonzales-Rodriguez, 966 F.2d 918, 921
(5th Cir. 1992). This court may "resolve claims of
constitutional ineffective assistance of counsel on direct appeal
only in the rare case where the record permits a fair evaluation
of the merits of the claim." United States v. Crooks, 83 F.3d
103, 108 (5th Cir. 1996). Because the record before us does not
so permit, we decline to reach the merits of this claim.
AFFIRMED.