United States v. Yantis ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10305
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL KENT YANTIS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 4:99-CR-44-1-T
_________________________________________________________________
February 2, 2001
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Daniel Yantis appeals his convictions for manufacturing and
possessing counterfeit United States currency. Yantis asserts that
the district court erred in denying his motion for a change of
venue and in failing to instruct the jury on venue for the
manufacturing count. Yantis’s failure to raise a challenge to
venue in the district court on the grounds asserted on appeal
constitutes a waiver of the issue. United States v. Solomon, 29
F.3d 961, 964 (5th Cir. 1994); United States v. Parrish, 736 F.2d
*
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this opinion should not be published and is not precedent except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.
152, 158 (5th Cir. 1984). Further, there is the longstanding
presumption that altered or forged instruments were manufactured
where they are found. See United States v. Owens, 460 F.2d 467,
469 (5th Cir. 1972).
Yantis asserts that the district court erred in denying his
motion to suppress the evidence seized in the warrantless search at
the time of his arrest. As Yantis disavowed ownership or any
privacy interest in that property, he has no standing to challenge
the search. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.
1994).
Yantis argues that the district court erred in denying his
motion to suppress his statements. Yantis, without support,
contends that the district court was clearly erroneous in crediting
the testimony of the law enforcement officials over his own.
Yantis has presented no evidence to show that the district court
was clearly erroneous in finding that he was not a credible
witness. See United States v. Cherna, 184 F.3d 403, 406 (5th Cir.
1999), cert. denied, 120 S.Ct. 1669 (2000).
Yantis argues that the district court erred in allowing, over
his objection, testimony regarding the existence of an inculpatory
police report that had not been furnished to the defense prior to
trial. A failure to comply literally with Rule 16 is reversible
error only upon "a showing that the error was prejudicial to the
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substantial rights of the defendant." United States v. Arcentales,
532 F.2d 1046, 1050 (5th Cir. 1976); see also United States v.
Doucette, 979 F.2d 1042, 1044-45 (5th Cir. 1992). The district
court instructed the jury that the report could not be used as
evidence of the truth of the substance of the report, but could be
used only to show that such a report had been made early in the
investigation of the matter. Juries are presumed to follow the
instructions of the court. Zafiro v. United States, 506 U.S. 534,
540-41 (1993). Yantis has shown no error that was prejudicial to
his substantial rights.
Yantis argues that there was insufficient evidence to support
his two counts of counterfeiting because there was no evidence to
show that he had the intent to defraud. The jury could infer from
Yantis’s implausible testimony concerning play money for a poker
game that he intended to use the ersatz currency to make a
fraudulent purchase. We will not substitute our factual
determination for that of the jury. United States v. Martinez, 975
F.2d 159, 160-61 (5th Cir. 1992); United States v. Bell, 678 F.2d
547, 549 (5th Cir. 1982)(en banc), aff'd, 462 U.S. 356 (1983).
Yantis argues, for the first time on appeal, that there were
two fatal variances between the indictment and the proof at trial.
A material variance occurs when there is a variation between proof
and indictment modifying an essential element of the offense
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charged. United States v. Puig-Infante, 19 F.3d 929, 935 (5th Cir.
1994). There were no such variances in this case.
Yantis argues that the district court erred by answering notes
from the jury out of his presence. As this issue was not raised in
the district court, our review is for plain error. See Fed. R.
Crim. P. 52(b); United States v. Calverly, 37 F.3d 160, 162 (5th
Cir. 1994) (en banc). Yantis has not suggested how his presence
would have contributed to the fairness of the procedure and has
shown no error affecting his substantial rights. United States v.
Sylvester, 143 F.3d 923 (5th Cir. 1998).
Yantis asserts that his counsel was ineffective related to
most of the substantive claims discussed above. As there is
insufficient evidence in the record, we decline to review this
claim of ineffective assistance of counsel on direct appeal.
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995); United
States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991).
A F F I R M E D.
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