* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50632

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD G. KIPP, 

also known as Mark Perez, 

also known as Ronald Kipp,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-01-CR-249-01-H

--------------------

January 29, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Ronald G. Kipp appeals his conviction after a jury trial for

possession with intent to distribute 50 or more grams of a

substance containing methamphetamine, in violation of 21 U.S.C.

§ 841, and being a felon in possession of firearms, in violation of

18 U.S.C. § 922.

Kipp argues that the district court abused its discretion

under FED. R. EVID. 403 when it admitted into evidence, over his

objection, a portion of his videotaped interview with authorities.
No. 02-50632

-2-

The videotape was relevant evidence, and in light of the entire

proceedings, including the district court’s limiting instruction,

the challenged portion of the tape was not unfairly prejudicial.

See United States v. Sprick, 233 F.3d 845, 856 (5th Cir. 2002);

United States v. Torres, 114 F.3d 520, 526 (5th Cir. 1997); United

States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989). Accordingly,

there was no abuse of discretion.

Kipp also argues that the district court erred when it refused

to give the jury his proposed instruction on possession. The

instruction that the district court gave closely tracks the Fifth

Circuit’s pattern jury instruction on possession. See Fifth

Circuit Pattern Jury Instructions Criminal No. 1.31 (2001). Kipp’s

proposed instruction is applicable in cases where drugs are hidden

in a vehicle and the defense is that the drugs were planted without

the defendant’s knowledge. See United States v. Pennington, 20

F.3d 593, 600 (5th Cir. 1994). The evidence does not indicate that

the proposed instruction was warranted in Kipp’s case.

Additionally, the actual charge substantially covered the content

of the proposed instruction, and the omission of the requested

charge did not impair Kipp’s ability to present his defense. See

United States v. Jensen, 41 F.3d 946, 953 (5th Cir. 1994).

Therefore, the district court’s refusal to include the requested

instruction was not an abuse of discretion. See United States v.

Storm, 36 F.3d 1289, 1294 (5th Cir. 1994).
No. 02-50632

-3-

Kipp argues also that there was insufficient evidence to

support his conviction. Because Kipp failed to move for a judgment

of acquittal at the close of the evidence, our review is limited to

determining whether the record is devoid of evidence pointing to

guilt. See United States v. Herrera, _ F.3d _, (5th Cir. Nov. 26,

2002, No. 00-51177), 2002 WL 3165271 at *2. Kipp personally rented

the storage facility and selected the access code. Without the

code personally selected by Kipp, no one could enter Kipp’s unit.

Kipp told authorities that he was a sergeant at arms in the Mexican

Mafia, that it was his job to store weapons and drugs and

distribute both to other mafia members, and that he could lead them

to drugs and weapons in Texas. The amount of methamphetamine that

was found in the storage unit was approximately the same amount

that Kipp indicated he could provide authorities. Thus,

consideration of the evidence, and reasonable inference drawn

therefrom, in the light most favorable to the Government, see

United States v. Johnson, 87 F.3d 133, 136 (5th Cir. 1996),

indicates that there was sufficient evidence to support Kipp’s

conviction.

Kipp has filed a motion requesting that this court allow his

court-appointed counsel to withdraw, and Kipp seeks the appointment

of new counsel. Kipp’s motion is denied as untimely. See United

States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).

The judgment of the district court is AFFIRMED; MOTION DENIED.