487 F2d 340 United States v. Robinson

487 F.2d 340

UNITED STATES of America, Plaintiff-Appellee,
v.
Kary ROBINSON, Defendant-Appellant.

No. 73-2263 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 21, 1973.

W. Howard Donovan, III, Mobile, Ala. (Court-appointed), for defendant-appellant.

Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM.

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1

Robinson raises two issues in this appeal from his conviction for possession and distribution of heroin in violation of 21 U.S.C.A. Sec. 841(a)(1). He contends that the evidence was insufficient to prove constructive possession of narcotics and he claims that the district court erred in denying his motion for a change of venue or a continuance of the trial date due to prejudicial publicity. Finding no error in the judgment below we affirm.

2

Robinson's failure to move for a judgment of acquittal at the close of all the evidence restricts our review concerning the sufficiency of the evidence to a determination whether there was a manifest miscarriage of justice or plain error in the judgment below. United States v. Pitts, 5 Cir. 1970, 428 F.2d 534. We find neither.

3

Robinson's claim of prejudicial pretrial publicity is without merit. The facts in the case before us simply do not show any prejudice to Robinson which would necessitate a reversal of the district court's exercise of sound discretion. Hale v. United States, 435 F.2d 737, 5 Cir. 1970, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed. 142.

4

The judgment of the district court is affirmed.

*

Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I