United States v. Neally Cunningham , 227 F. App'x 818 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 19, 2007
No. 06-14864 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00032-CR-ORL-18-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEALLY CUNNINGHAM,
a.k.a. Neally Cunningham, Jr.,
a.k.a. Nealey Cunningham, III,
a.k.a. Nealy Cunningham, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 19, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Neally Cunningham appeals his convictions for possession with intent to
distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C). Cunningham also
argues that his trial counsel was constitutionally ineffective. We decline to review
the ineffective assistance claim, and we affirm Cunningham’s convictions.
At trial, the government presented police testimony that, on February 25 and
26, 2006, police conducted two controlled buys of crack cocaine from
Cunningham. On both occasions, a confidential informant called Cunningham to
arrange for the transaction, and police watched while the informant gave
Cunningham money and Cunningham gave something to the informant. The
informant later gave the police a quantity of crack cocaine. Police testified that
they searched the informant’s car before each transaction and followed the
informant to ensure that the informant did not make contact with anyone else.
Although both times the informant wore an audio transmitting device, the
transactions were not recorded, and the confidential informant did not testify. The
district court denied Cunningham’s motion for a judgment of acquittal, and the jury
convicted Cunningham of two counts of possession with intent to distribute crack
cocaine.
We review de novo the sufficiency of the evidence, and view the evidence in
the light most favorable to the government to determine whether a reasonable jury
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could conclude that the evidence establishes guilt beyond a reasonable doubt.
United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006), petition for cert.
filed (U.S. Mar. 27, 2007) (No. 06-10433). We review de novo a claim that
counsel was constitutionally ineffective. Jones v. Campbell, 436 F.3d 1285, 1292
(11th Cir.), cert. denied, 127 S. Ct. 619 (2006).
Cunningham argues that the lack of audio recordings of the controlled buys
and the confidential informant’s failure to testify establish that a reasonable jury
could not have convicted him. We disagree. Our review requires us to make all
credibility determinations in favor of the verdict, so we must credit the police
testimony about the controlled buys, including the testimony that police searched
the informant’s car before the transactions and that the informant had no contact
with anyone else. The jury could reasonably conclude from that testimony that
each of the elements of the offense were present: knowledge from Cunningham’s
participation in the transaction, possession from the observation of the police that
Cunningham gave something to the informant, and intent from Cunningham’s
actual distribution of the drugs. See United States v. Gamboa, 166 F.3d 1327,
1331 (11th Cir. 1999) (stating the three elements of the offense).
We decline to review Cunningham’s claim that his trial counsel was
constitutionally ineffective for failing to request a “missing witness” jury
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instruction. “Except in the rare instance when the record is sufficiently developed,
we will not address claims for ineffective assistance of counsel on direct appeal.”
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005), cert. denied,
126 S. Ct. 1095 (2006). Because Cunningham did not raise this issue in the district
court, the record is not complete enough for us to rule on this claim at this time.
Cunningham’s convictions are
AFFIRMED.
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