United States v. Daniels

*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this opinion should not be published and is not precedent except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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10434
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY LYNN DANIELS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:00-CR-100-1-C)
_________________________________________________________________
October 23, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Timothy Lynn Daniels challenges the sufficiency of the
evidence to support his conviction, after a jury trial, of being a
felon in possession of a firearm. Daniels asserts: the Government
failed to prove he had actual possession of the firearm because it
did not prove that he owned the firearm; and failed to prove he had
constructive possession of the firearm because Daniels was a joint
occupant of the residence where the firearm was found. Daniels
also challenges the sufficiency of the evidence that he possessed
the firearm on the date charged in the indictment, 25 August 2000.
Because Daniels failed to move for a judgment of acquittal at

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the close of the Government's case, and offered no evidence, our
review is limited to “‘whether there was a manifest miscarriage of
justice’”. United States v. Delgado, 256 F.3d 264, 274 (5th Cir.
2001)(quoting United States v. Daniel, 957 F.2d 162, 164 (5th Cir.
1992)); see United States v. Smith, 203 F.3d 884, 887 (5th Cir.
2000); United States v. Inocencio, 40 F.3d 716, 724 (5th Cir.
1994). A manifest miscarriage of justice occurs only where “‘the
record is devoid of evidence pointing to guilt, or ... [if] the
evidence on a key element of the offense was so tenuous that a
conviction would be shocking’”. United States v. Thomas, 12 F.3d
1350, 1358 (5th Cir.)(quoting United States v. Galvan, 949 F.2d
777, 783 (5th Cir. 1991)), cert. denied, 511 U.S. 1095 (1994).
There was no manifest miscarriage of justice as the record is
not devoid of evidence, nor is the evidence tenuous, that, on 25
August 2000, Daniels constructively possessed the firearm. For
example, on that date, the firearm was found in a bedroom where
Daniels’ wallet and clothes were located, and he pointed out the
location of the firearm to Officers executing a search warrant.
AFFIRMED

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