                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAR 10, 2009
                               No. 08-12570                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 07-00060-CR-4-RH-WCS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TARIAN GREGORY LEE,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                               (March 10, 2009)

Before DUBINA, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Tarian Lee appeals his convictions for possession with intent to
distribute cocaine, marijuana, and 3,4-methylenedioxymethamphetamine

(“MDMA” or “ecstasy”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and

(b)(1)(D), and 851; and possession of a firearm by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Lee argues that (1) the

evidence was insufficient to support his convictions, (2) he was deprived of his due

process right to a fair trial because the government questioned him about his prior

convictions after he had stipulated to them, and (3) he received ineffective

assistance of counsel.

      Sufficiency of the evidence

      With regard to the drug charge, Lee argues that the evidence was insufficient

to prove knowledge and possession because (1) the government did not disprove

that someone else owned the drugs, (2) there was no testimony that anyone bought

drugs from him, and (3) he did not have exclusive possession of the apartment

where the drugs were found. With regard to the firearm charge, Lee argues that

there was insufficient evidence that a certain firearm belonged to him.

      When the defendant fails to move for judgment of acquittal at the close of

evidence, as in this case, we review the sufficiency of the evidence for a manifest

injustice, which requires a finding that “the evidence on a key element of the

offense is so tenuous that a conviction would be shocking.” United States v. Tapia,



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761 F.2d 1488, 1491-92 (11th Cir. 1985) (quotation omitted).

      Generally, in considering whether evidence is sufficient to support a

conviction, “[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 as a jury is free to choose among reasonable constructions of the

evidence.” United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993)

(quotation, alteration, and ellipsis omitted). We consider all of the evidence

produced at trial against the defendant in evaluating a claim that the evidence was

insufficient to convict. Id. at 1558 n. 12. In reviewing witness testimony, “[t]he

jury gets to make any credibility choices, and we will assume that they made them

all in the way that supports the verdict.” United States v. Thompson, 473 F.3d

1137, 1142 (11th Cir. 2006). “[A] statement by a defendant, if disbelieved by the

jury, may be considered as substantive evidence of the defendant’s guilt.” United

States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). Specifically, “when a

defendant chooses to testify, he runs the risk that if disbelieved the jury might

conclude the opposite of his testimony is true.” Id. (quotation omitted).

      Under 21 U.S.C. § 841, it is unlawful to possess a controlled substance with

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

government must prove knowledge, possession, and intent by direct or



                                           3
circumstantial evidence. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir.

1989). “To establish a violation of § 922(g)(1), the government must prove beyond

a reasonable doubt three elements: (1) that the defendant was a convicted felon,

(2) that the defendant was in knowing possession of a firearm, and (3) that the

firearm was in or affecting interstate commerce.” United States v. Deleveaux, 205

F.3d 1292, 1296-97 (11th Cir. 2000).

      With regard to both the drug and gun charges, the jury was entitled to

disbelieve Lee’s testimony and his alternative explanations. See United States v.

Brown, 53 F.3d at 314. In addition, the evidence as to each element of the offense

was not “so tenuous that a conviction would be shocking.” Tapia, 761 F.2d at

1491-92. Accordingly, Lee’s convictions do not constitute a manifest injustice,

and we hold that the evidence was sufficient to support Lee’s convictions.

      Right to a fair trial

      Lee argues that the government’s questions about the details of his felony

conviction for aggravated assault with a deadly weapon violated his due process

right to a fair trial because the questions were overly prejudicial under Federal

Rule of Evidence 403 and violated a stipulation agreement. The government

concedes in its brief that the questions were improper, but argues that any

impropriety was harmless.



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      “[W]here a prior conviction is part of an offense and the defendant offers to

stipulate to the prior conviction,” we review for an abuse of discretion a district

court’s decision “to allow the nature of the offense to be admitted.” United States

v. O’Shea, 724 F.2d 1514, 1516 (11th Cir. 1984).

      We will not reverse a conviction due to prosecutorial misconduct unless a

prosecutor’s improper remarks prejudiced the defendant’s substantial rights.

United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998). “A defendant’s

substantial rights are prejudicially affected when a reasonable probability arises

that, but for the remarks, the outcome of the trial would be different.” Id.

(quotation and alteration omitted). Prejudice is evaluated “ in the context of the

entire trial and in light of any curative instruction.” Id. (internal quotations and

citation omitted). “[E]rroneous admission of evidence does not warrant reversal if

the error had no substantial influence on the outcome and sufficient evidence

uninfected by error supports the verdict.” United States v. Harriston, 329 F.3d

779, 789 (11th Cir. 2003) (quotation omitted).

      The record shows that Lee objected to the government’s questions, and the

district court both sustained the objection and instructed the jury about the limited

purposes for considering a prior felony conviction. Upon review of the record, we

conclude that the district court did not abuse its discretion, and that, in the context



                                            5
of the entire trial, the government’s questions “had no substantial influence on the

outcome and sufficient evidence uninfected by error supports the verdict.” Id.

Accordingly, the questions did not violate Lee’s right to a fair trial.

      Ineffective assistance of counsel

      Lee argues that he received ineffective assistance of counsel because trial

counsel failed to (1) object to inadmissible hearsay that a confidential informant

bought ecstasy during two controlled buys, (2) move for judgment of acquittal, and

(3) move for a mistrial when the government improperly questioned Lee about a

prior felony conviction.

      The Supreme Court has held that appellate courts generally should not

review ineffective-assistance-of-counsel claims on direct appeal. Massaro v.

United States, 538 U.S. 500, 504-505, 123 S.Ct. 1690, 1693-94, 155 L.Ed.2d 714

(2003). The Supreme Court reasoned that the record on direct appeal usually has

not been sufficiently developed regarding counsel’s performance and concluded

that the proper arena for such claims is collateral review. Id. We have also held

that we generally will not “consider claims of ineffective assistance of counsel on

direct appeal where the district court did not entertain the claim nor develop a

factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).

      We decline to consider Lee’s claim of ineffective assistance of counsel



                                            6
because the record is insufficiently developed.

      Conclusion

      The evidence was sufficient to support Lee’s convictions, and the

government’s questions regarding his prior conviction did not violate Lee’s due

process right to a fair trial. Accordingly, we affirm Lee’s convictions. We decline

to consider Lee’s claim of ineffective assistance of counsel.

      AFFIRMED.




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