     Case: 10-31029     Document: 00511943541         Page: 1     Date Filed: 08/02/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 2, 2012
                                     No. 10-31029
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PERLA CECILIA GUEL; WALTER JOSE MIRANDA,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:09-CR-109


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Walter Jose Miranda appeals his jury trial conviction for two counts of
possession of a prohibited object in a federal prison. He argues that the evidence
presented at trial was insufficient to support his conviction. He maintains that
the district court abused its discretion by admitting into evidence the heroin and
marijuana filled balloons that were found in his feces because the Government
did not sufficiently authenticate the evidence. Miranda also argues that the
district court’s jury instruction on constructive possession was plainly erroneous.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 10-31029

      Miranda did not move for a judgment of acquittal at the close of the
Government’s case or the close of the evidence. He did, however, file a pretrial
motion to suppress the drug evidence and he objected to the introduction of the
drug evidence during trial. On appeal, Miranda makes separate arguments
regarding the sufficiency of the evidence and the district court’s admitting the
drugs into evidence. Thus, Miranda properly preserved his challenge to the
admission of the drug evidence, but he failed to preserve his challenge to the
sufficiency of the evidence. See United States v. Aguilar, 503 F.3d 431, 435 (5th
Cir. 2007). As Miranda did not object to the jury instructions in the district
court, he failed to properly preserve that claim. See United States v. Hickman,
331 F.3d 439, 443 (5th Cir. 2003); FED. R. CRIM. P. 30(d). Accordingly, we review
Miranda’s challenges to the sufficiency of the evidence and the jury instructions
for plain error and his challenge to the admission of the drug evidence for abuse
of discretion. See United States v. Delgado, 672 F.3d 320, 331-32 (5th Cir. 2012)
(en banc); United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011); Hickman,
331 F.3d at 443. To show plain error, Miranda must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error, but will do so only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. For the
insufficiency of the evidence to be clear or obvious error, the conviction must be
a manifest miscarriage of justice. Delgado, 672 F.3d at 331. A manifest
miscarriage of justice “occurs only where the record is devoid of evidence
pointing to guilt or contains evidence on a key element of the offense that is so
tenuous that a conviction would be shocking.” United States v. Rodriguez-
Martinez, 480 F.3d 303, 307 (5th Cir. 2007) (internal quotation marks, brackets,
and citation omitted).
      The evidence presented at trial showed that Miranda, a prisoner at United
States Penitentiary Pollock, was placed into a dry cell with no running water

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                                  No. 10-31029

after he was observed kissing co-defendant Perla Cecilia Guel in a strange
manner and immediately taking a drink after each kiss. While locked in the dry
cell, Miranda defecated three times, and prison officers found balloons in the
feces and opened balloons hidden in the holes in the walls of the dry cell. The
contents of the balloons tested positive for heroin and marijuana. Based upon
this evidence, the record is not devoid of evidence of Miranda’s guilt, and
Miranda’s conviction is not a manifest miscarriage of justice. See Delgado, 672
F.3d at 331; United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995)
(“Juries are free to use their common sense and apply common knowledge,
observation, and experience gained in the ordinary affairs of life when giving
effect to the inferences that may reasonably be drawn from the evidence.”).
      There was an admitted break in the chain of custody of the drug evidence.
However, “[a]ny break in the chain of custody goes to the weight of the evidence,
not its admissibility.” United States v. Smith, 481 F.3d 259, 265 (5th Cir. 2007).
While the number of balloons collected by prison officials did not match the
number introduced into evidence, testimony presented by the Government
explained the reason for the discrepancy. Even though the dry cell was not
thoroughly searched before Miranda was placed in it, there was sufficient
evidence from which an inference could be drawn that the drug filled balloons
recovered from Miranda’s dry cell had been ingested by Miranda. Accordingly,
the Government made the necessary showing of competent information to
support authenticity, and the district court did not abuse its discretion by
admitting the drug evidence. See id.
      The district court instructed the jury that a person is in constructive
possession of a thing if he “knowingly has the power -- both the power and the
intention at a given time to exercise dominion or control over a thing, either
directly or through another person or persons.” That instruction was part of a
larger instruction on possession that was a verbatim copy of the pattern jury
instruction on possession. See Fifth Circuit Pattern Jury Instruction 1.31 (2001).

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                                  No. 10-31029

The district court did not commit error, plain or otherwise, in its jury instruction
on constructive possession. See United States v. Cano-Guel, 167 F.3d 900, 906
(5th Cir. 1999). The judgment of the district court is AFFIRMED as to Miranda.
      The attorney appointed to represent Guel has moved for leave to withdraw
and has filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Guel has filed
a response. We have reviewed counsel’s brief and the relevant portions of the
record reflected therein, as well as Guel’s response. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused
from further responsibilities herein, and the APPEAL IS DISMISSED as to
Guel. See 5TH CIR. R. 42.2.




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