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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
2

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).
10