United States v. Robertson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 1999
• Docket: 98-40803
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40803 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURTIS RAY ROBERTSON,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas (9:97-CR-35-ALL)

June 17, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

A jury convicted Curtis Ray Robertson of possession with

intent to distribute cocaine base, in violation of 21 U.S.C. §

841(a)(1). The district court sentenced Robertson to a 168-month

term of imprisonment and a five-year term of supervised release.

Robertson timely filed this appeal. We affirm.

Robertson first argues that the evidence was not sufficient to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. prove that he possessed the cocaine. This argument is unavailing.

With an insufficient evidence claim, we consider the evidence in

the light most favorable to the verdict and will affirm the

conviction if a reasonable trier of fact could have found that the

evidence established guilt beyond a reasonable doubt.1 The jury

alone is responsible for determining the weight and credibility of

the evidence.2 To establish Robertson’s guilt, the government had

to prove beyond a reasonable doubt that Robertson knowingly

possessed cocaine base with an intent to distribute it.3

Possession “may be actual or constructive, may be proven by

circumstantial or direct evidence.”4 Our review of the

circumstantial and direct evidence, viewed in the light most

favorable to the jury’s verdict, convinces us that the evidence was

sufficient to sustain a conviction for possession with intent to

distribute cocaine base.5

Robertson next contends that the district court erred by

failing to suppress evidence seized after his flight from the

police because it was tainted by a constitutionally unreasonable

search and seizure. Because, however, Robertson did not make a

1 See United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). 2 Id. at 161. 3 United States v. Brown, 29 F.3d 953, 958 (5th Cir. 1994). 4 Id. 5 See Martinez, 975 F.2d at 160-61; United States v. DeLeon, 641 F.2d 330, 335-36 (5th Cir. 1981).

2 timely suppression motion in the district court, he has waived this

issue on appeal.6

Finally, Robertson argues that the district court abused its

discretion by denying his motion, made following jury voir dire,

for substitution of counsel. This contention is also without

merit. Substitution of counsel during trial is warranted if the

defendant shows “good cause, such as a conflict of interest, a

complete breakdown in communication or an irreconcilable conflict

which leads to an apparently unjust verdict.”7 Robertson’s

assertion that the district court did not inquire sufficiently

regarding the reasons for his motion to substitute counsel is

refuted by the record. Robertson made only a vague reference to

misrepresentation and allowed his attorney to explain that

Robertson’s dissatisfaction concerned the lack of an independent

fingerprint analysis. Robertson has not expressed any other reason

supporting his motion for substitution of counsel. Accordingly,

the district court did not abuse its discretion.

AFFIRMED.

6 See United States v. Chavez-Valencia, 116 F.3d 127, 130-33 (5th Cir. 1997), cert. denied, 118 S.Ct. 325 (1997). 7 United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (citations omitted).