                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

               _________________________________________

                              No. 92-8276
               _________________________________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                    VERSUS


                              TYLOR LEON DAVIS,

                                                     Defendant-Appellant.

_________________________________________________________________

              Appeal from the United States District Court
                    for the Western District of Texas

_________________________________________________________________
                          (May 28, 1993)

Before POLITZ, Chief Judge, REAVLEY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:


     Contending primarily that he was denied closing argument in

violation of his Sixth Amendment right to counsel, Tylor Leon Davis

appeals his conviction for possession with intent to distribute

cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1).

Because the record clearly reflects that his counsel opted to

forego argument, Davis' right to it was waived.          We AFFIRM.

                                      I.

     During a routine immigration check at the Sierra Blanca

checkpoint in Texas, a border patrol agent boarded a bus on which

Davis   was   a   passenger   and   questioned    passengers   about   their

citizenship. After completing his immigration inquiries, the agent
began to inspect items in the overhead luggage bins.     On squeezing

a tweed suitcase situated directly across the aisle from Davis, he

detected hard, brick-like objects. The luggage tag was blank; none

of the passengers claimed the bag.

     Accordingly, the agent removed the bag from the bus and

searched it, discovering eight brick-shaped packages containing

over two kilograms of crack cocaine.      Some of the packages were

concealed in trousers bearing the name "Tylor Davis"; likewise, an

airline ticket bearing the same name was found in an outside pocket

of the suitcase.   The suitcase also contained clothing bearing the

name "Gerald" and "G. Bow".

      The agents reboarded the bus and asked each passenger for

identification.     As   the   agents   approached,   Davis   appeared

apprehensive; he was arrested upon providing his driver's license.

     After a very brief bench trial, the district court found Davis

guilty of possession with intent to distribute more than 50 grams

of cocaine base.    He was sentenced, inter alia, to 210 months

imprisonment.

                                 II.

     Davis contends that he was denied the opportunity to present

closing argument, and that the evidence was insufficient to support

his conviction.

                                 A.

     The Sixth Amendment guarantees a defendant in a criminal

trial, whether before a jury or the bench, the right to present

closing argument, regardless of the complexity or the strength of


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the case.   Herring v. New York, 422 U.S. 853 (1975); see also Fed.

R. Crim. P. 29.1.      The Herring Court reasoned that "a total denial

of the opportunity for final argument in a ... criminal trial is a

denial of the basic right of the accused to make his defense ....

[C]losing argument is the last clear chance to persuade the trier

of fact that there may be reasonable doubt of the defendant's

guilt".   Id. at 859, 862.     Given the difficulty of determining the

prejudicial impact of the failure to afford summation, the denial

of a request for it is reversible error per se.                   Id. at 864.

Likewise, absent waiver, "the failure to allow a closing argument

constitutes plain error". United States v. Martinez, 974 F.2d 589,

591 (5th Cir. 1992).

       A precise standard for identifying waivers of closing argument

remained undefined in this circuit until our recent decision in

Martinez.    There we adopted the standard set forth in Johnson v.

Zerbst,   304   U.S.   458   (1938),   and   held    that    "[a]s   a   general

proposition, before a waiver of the right to present closing

argument will be found the record must clearly demonstrate its

`intentional relinquishment or abandonment'".               Martinez, 974 F.2d

at 591 (quoting Johnson, 304 U.S at 464).           We emphasized that "[a]n

affirmative waiver on the record is not required"; rather, waiver

may be inferred from a review of the entire record.                  Id. at 591

n.7.

       It is fundamental that there is a presumption against waiver

of a constitutional right, Johnson, 304 U.S. at 464; however, "some

rights are more likely to be foregone as a matter of strategy than


                                       3
others".    United States v. Spears, 671 F.2d 991, 993 (7th Cir.

1982).    Where a defendant is represented by counsel, the decision

to waive summation is a matter of trial strategy within the

discretion of counsel.     Martinez, 974 F.2d at 591.   If the evidence

is strong, counsel may conclude that a summation would damage the

client's interests, especially when considering the likely response

of the prosecutor.    See United States ex rel. Spears v. Johnson,

463 F.2d 1024, 1026 (3d Cir. 1972).          As we noted in Martinez,

"[t]he strategic choice may be even more acute in a bench trial as

counsel assesses the judge's reaction to the evidence".       974 F.2d

at 591.    Accordingly, in reviewing the record for waiver, we must

be scrutinizing yet cognizant of the strategic considerations

involved.

       We now turn to apply the foregoing principles to the case at

bar.     The court held a bench trial several months prior to our

decision in Martinez.      The trial, according to Davis, lasted less

than an hour (the transcript contains only 43 pages); there were no

opening statements.     The government called only three witnesses;

Davis, only one.     After that one defense witness, who was asked

only seven questions on direct and for whom there was no redirect

examination, the following exchange occurred:

            Mr. Barclay [defense counsel]:    We'll rest on that.

            Ms. Hartung:     The Government closes.

            Mr. Barclay:     Do you got [sic] a rebuttal?

            Ms. Hartung:     I thought about it, but no.




                                    4
              The Court:     All right, if you would please Mr.
              Davis, you and your attorney [Mr. Barclay] would
              approach the lectern.

              Mr. Barclay:   You don't need a two and a half hour
              closing argument?

              The Court:         Yeah, I need it, but I'm not going
              to take it.

                   Mr. Davis, the Court having heard the
              testimony in this case or part of it is certainly
              circumstantial. It is the judgment of the Court
              that you're guilty of the offense charged in the
              indictment ....

(Emphasis added.)      Aside from the above quoted language, counsel

did not otherwise refer to the issue of closing argument, either at

trial or by a post-trial motion.

     Davis contends that his case squarely falls within the holding

of Herring because his counsel's statement, "[y]ou don't need a two

and a half hour closing argument" constitutes a request, which the

court subsequently denied by stating "[y]eah, I need it, but I'm

not going to take it".           Alternatively, Davis maintains that the

case is controlled by Martinez, discussed infra, because the court

rendered judgment immediately upon the close of the evidence.               The

government counters that counsel's statement, taken in context,

should   be    construed    as    a   waiver   statement   in   which   counsel

acknowledged the fact that the court had listened carefully to the

testimony and did not need summation.

     Our review of the entire record compels the conclusion that

counsel's statement was not a request, but a manifestation of both

his awareness of the right to present summation, and his decision

not to do so.      In the context of a trial that lasted less than an


                                         5
hour, with no opening statements and only four witnesses, we view

counsel's statement, "[y]ou don't need a two and a half hour

closing argument?" as rhetorical.           The statement was consistent

with the repartee and obvious familiarity between the court and

counsel for both Davis and the government. Although phrased in the

form   of   a   question,   the   statement   clearly   conveys    counsel's

strategic decision, upon taking into account the court's reaction

to the evidence and the length of the trial, that a closing

statement was unnecessary, or otherwise not in his client's best

interests.      Our reading of the record is buttressed by counsel's

failure to object at the time the court rendered judgment, or

subsequently, in a motion for a new trial. Moreover, the statement

was made prior to the court's rendering judgment; accordingly, it

is unlikely that counsel was unduly coerced into concluding that

further argument would be futile.1          We agree with the government

that counsel waived Davis' right to summation.

       This case is distinguishable from Herring and Yopps v. State,

228 Md. 204, 178 A.2d 879 (1962), cited with approval in Herring.

In   Herring,    the   court   denied   counsel's   request   to   "be   heard

1
     See United States v. King, 650 F.2d 534, 537 (5th Cir. 1981)
(no waiver where magistrate unequivocally stated that a closing
argument would not change his mind, and counsel responded, "I would
have preferred to argue, but if it's not going to change the
Court's mind, I don't see any reason ... to do it"); United States
v. Wall, 443 F.2d 1220, 1223 (6th Cir. 1971) (no waiver where court
stated finding of guilt; counsel called the omission of argument to
the court's attention; and the court responded that argument would
be futile); Grigsby v. State, 333 So. 2d 891 (Ala. Cr. App.), cert.
denied, 333 So. 2d 894 (Ala. 1976) (no waiver where court found
defendant guilty; counsel responded, "[w]ould Your Honor care to
hear from me on this case, or have you made up your mind?"; and
court repeated guilty verdict).

                                        6
somewhat on the facts".      422 U.S. at 856.        Similarly, in Yopps, the

court rendered a verdict without affording defense counsel the

opportunity to present closing argument.            Defense counsel promptly

objected, stating, "You didn't even ask me for argument in this

case ..."; the judge responded, "Wouldn't change my mind about it".

228 Md. at 206, 178 A.2d at 881.           In both cases, counsel expressed

a desire to present summation, which the court denied.                  Here, as

stated supra, the plain meaning of counsel's statement was that he

viewed   summation    as   unnecessary       and    intended     to   forego   it.

Accordingly, the court's response was not a denial of counsel's

request, as in Herring and Yopps, but merely a jocular expression

of agreement with counsel.

     Likewise, our decision in Martinez is distinguishable.                     At

issue in   Martinez    was   whether       waiver   could   be    inferred     from

silence.   Upon reviewing various state and federal decisions, we

reasoned that "the critical factor in deciding whether the silence

of counsel constitutes a waiver is whether there was a meaningful

opportunity for counsel to request argument or object, considering

all the attendant circumstances."           Id. at 591-92 (emphasis added).

Applying that standard, we concluded that because the court did not

immediately announce its ruling from the bench; but, rather,

ordered a recess and thus enabled counsel to determine his course

on closing argument, counsel's failure to respond to the court's

"argument not needed" announcement constituted a waiver.                 Id.

     Our decision in Martinez reflects our reluctance to infer

waiver of a constitutional right from a silent record.                       Here,


                                       7
however, the record is not silent -- far from it.                  Because counsel

expressly manifested his intent to forego argument prior to the

court's rendering judgment, we need not consider whether counsel

had a "meaningful opportunity" to request argument.

     In closing, we stress that Davis' trial occurred several

months before     our   decision    in       Martinez.       There    we   expressed

confidence that, in the future, courts would request that counsel

"state for the record any objections to the court proceeding to

judgment without closing argument, or to formally waive same on the

record".     Id. (emphasis added).           Accordingly, we expect that in

subsequent cases, unlike here, we will not be required to review

the entire record to determine counsel's intent. Here, although we

cannot say that Davis' counsel formally waived summation, counsel's

statement, in the context of the entire trial, clearly expressed

his intent to waive it.           We therefore hold that Davis was not

denied his Sixth Amendment right to counsel.

                                      B.

     Davis maintains that the evidence was insufficient to support

his conviction.    For review of a bench trial, as here, "the test

for evidential sufficiency is whether any substantial evidence

supports   the   finding     of   guilty      and    whether   the    evidence   is

sufficient to justify the trial judge, as trier of the facts, in

concluding    beyond    a   reasonable       doubt    that   the     defendant   was

guilty".   United States v. Richardson, 848 F.2d 509, 511 (5th Cir.

1988) (internal quotations and citations omitted). We defer to the

court's reasonable inferences.           Id.


                                         8
     To   establish   violation   of   21   U.S.C.   §   841(a)(1),    the

government must prove that Davis knowingly possessed cocaine with

the intent to distribute it.      United States v. Molina-Iguado, 894

F.2d 1452, 1457 (5th Cir.), cert. denied, 498 U.S. 831 (1990).

Davis contends that the government failed to establish knowing

possession, primarily asserting that the presence of clothing in

the name of another person ("G. Bow") precludes a finding of

custody and control over the luggage.       According to Davis, because

the agents did not inquire whether a passenger named "G. Bow" was

on the bus, it is equally likely that the luggage belonged to a

travelling companion who had access to his clothing.        We disagree

that Davis' alternative hypothesis precludes a finding of guilt.

     Needless to say, possession may be actual or constructive and

may be proved by either direct or circumstantial evidence.            E.g.,

United States v. Rosas-Fuentes, 970 F.2d 1379, 1382 (5th Cir.

1992).    Constructive possession turns on a showing of control or

the power to control. Id. "Circumstances altogether inconclusive,

if separately considered, may, by their number and joint operation,

especially when corroborated by moral coincidences, be sufficient

to constitute conclusive proof".       United States v. Ivey, 949 F.2d

759, 766 (5th Cir. 1991), cert. denied, Wallace v. United States,

113 S. Ct. 64 (1992) (citations omitted).

     The drugs were found in an unmarked suitcase directly across

the aisle from Davis.   Although proximity alone is insufficient to

establish possession, Rosas-Fuentes, 970 F.2d at 1382, the suitcase




                                   9
contained clothing and an airline ticket marked with Davis' name2,

thus indicating his control over the luggage.    That the drugs had

been wrapped in clothing bearing Davis' name, supports the finding

that he had knowledge that the drugs were in the suitcase, as does

his   reluctance   to   both   claim   the   luggage   and   present

identification. Moreover, the quantity of cocaine contained in the

suitcase supports the inference that Davis intended to distribute

it.   See Rosas-Fuentes, 970 F.2d at 1382.   Accordingly, there was

sufficient evidence for the district court to conclude that Davis

possessed cocaine with intent to distribute.3

                                III.

      For the foregoing reasons, the judgment is

                          AFFIRMED.




2
     Although the ticket was not introduced into evidence, the
trial testimony included this fact.
3
     As for Davis' alternative theory, "[i]t is not necessary that
the evidence exclude every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion except that of guilt".
United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (quotations
and citations omitted).

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