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

                                                                   FILED
                                                                 August 19, 2008
                                 No. 07-30881
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSEPH T PAYNE

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:06-CR-323-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Joseph T. Payne appeals from his conviction of being a felon in possession
of a firearm. He contends that the evidence was insufficient to prove that he
knowingly possessed a firearm. Because Payne failed to renew his motion for a
judgment of acquittal at the close of evidence, our review is for a “manifest
miscarriage of justice,” which “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



      *
      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should not be published and is not precedent except under the limited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.
                                 No. 07-30881

tenuous that a conviction would be shocking.” United States v. Burton, 324 F.3d
768, 770 (5th Cir. 2003) (internal quotation marks and citations omitted;
brackets in original).
      The evidence in Payne’s case was not so lacking as to make his conviction
shocking. He does not dispute that a .357 revolver was found underneath the
vehicle in which he was riding. The evidence at trial indicated that the revolver
was positioned in such a way that it appeared as if the occupant of Payne’s seat
had placed it there. A police detective observed Payne bend down as police
moved in on the vehicle. The same detective had observed the driver and
another passenger of the vehicle with automatic pistols on their persons before
they entered the vehicle with Payne; those same two people were arrested with
automatic pistols on their persons. The driver of the vehicle testified that he
possessed the firearm and placed it underneath the driver’s seat as police
approached the vehicle.     However, the owner of the vehicle--the driver’s
girlfriend--testified that he never told her about having a .357 revolver or that
he had placed such a weapon underneath the seat of her vehicle, a vehicle to
which she controlled access. The driver’s explanation that the revolver must
have slid from underneath his seat to underneath Payne’s seat was doubtful, as
the vehicle came down from a highway off ramp before it was stopped.
Moreover, the driver offered conflicting testimony as to whether he left the
revolver inside the vehicle or was arrested with it on his person, and he never
claimed ownership of the revolver during interviews with police. The evidence
of Payne’s possession of the firearm went beyond his mere occupancy of the seat
underneath which the revolver was found, and beyond the observation that he
bent over as police approached the vehicle. See United States v. Mergerson, 4
F.3d 337, 349 (5th Cir. 1993).
      AFFIRMED.




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