IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31029

Summary Calendar

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. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 2, 2012

Lyle W. Cayce

Clerk

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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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. RodriguezMartinez, 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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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. SeeFifth CircuitPattern Jury Instruction 1.31 (2001). 

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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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