                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 03 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-30225

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00006-JWS-1

  v.
                                                  MEMORANDUM *
CHARLES RASHID LEE, aka Cheese,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                        Argued and Submitted July 29, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Charles Rashid Lee appeals his conviction for possession with intent to

distribute a controlled substance. As the parties are familiar with the facts,

procedural history, and arguments, we will not recount them here. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Ciruit Rule 36-3.
      There was sufficient evidence from which a rational jury could find Lee

guilty beyond a reasonable doubt of possession with intent to distribute a

controlled substance on an aiding and abetting theory. First, there was sufficient

evidence to convict Montriel Esaw of possession with intent to distribute a

controlled substance. Esaw admitted that he was a drug dealer, possessed and sold

to at least five persons crack cocaine on the night of September 1, 2007, and

intended to continue to distribute crack cocaine had he not been arrested in the

early morning of September 2, 2007. This admission was consistent with and

supported by testimony of multiple police officers of the Anchorage Police

Department and an expert witness.

      Second, the government was required to prove that Lee “‘in some sort

associate[d] himself with the venture, that he participate[d] in it as in something

that he wishes to bring about, that he [sought] by his action to make it succeed.’”

United States v. Tran, 568 F.3d 1156, 1167 (9th Cir. 2009) (quoting Nye v. Nissen,

336 U.S. 613, 619 (1949)). Esaw testified that Lee drove him specifically for the

purpose of making drug deals on the night of September 1, 2007, saw Esaw

measuring and selling crack cocaine, and heard Esaw arranging drug sales on the

phone. This testimony was supplemented by further police testimony pointing at

Lee’s guilt. Furthermore, 19.5 grams of crack cocaine and items associated with


                                           2
drug distribution were found in Lee’s vehicle. This evidence, viewed in the light

most favorable to the prosecution, is sufficient for any rational jury to find Lee

guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319

(1979); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc).

      The actions by the prosecutor alleged by Lee to have constituted misconduct

were not objected to at trial, so they are reviewed for plain error, which requires

that they affected Lee’s substantial rights. United States v. Olano, 507 U.S. 725,

730-32 (1993). As the government acknowledges, the prosecutor’s closing

argument cited purported testimony that had not been presented at trial, and the

cross-examination of Lee included improper questions regarding the accuracy of

the testimony and the truthfulness of other witnesses. Though the errors do not

appear to us to have be the product of deliberate misconduct, they were errors,

nonetheless. We conclude, however, that these errors did not affect Lee’s

substantial rights in light of the overwhelming evidence of Lee’s guilt. Compare

United States v. Ramirez, 537 F.3d 1075, 1084-87 (9th Cir. 2008), with United

States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004).

      We decline to address Lee’s claim of ineffective assistance of counsel on

direct appeal as the record is insufficiently developed and his legal representation

was not so inadequate that it can be concluded at this point that it obviously denied


                                           3
him of his Sixth Amendment right to counsel. See United States v. Ross, 206 F.3d

896, 900 (9th Cir. 2000); see also Strickland v. Washington, 466 U.S. 668, 688

(1984).

      AFFIRMED.




                                         4
