IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20072
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLYNN MICHAEL KIRKLAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-256-1
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December 9, 1999
Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Glynn Michael Kirkland appeals his
conviction following a jury trial on two counts of possession of a
firearm by a convicted felon arising out of the purchase of a
shotgun while he was employed as a sales manager at a used car
dealership. Kirkland concedes that his counsel failed to renew his
motion for judgment of acquittal, and thus, our review is limited
to determining whether there was a manifest miscarriage of justice.
See United States v. Galvan, 949 F.2d 777, 783 (5th Cir. 1991).
Such a miscarriage occurs only when the record is devoid of
*
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that this opinion should not be published and is not precedent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.
evidence to support the verdict or when the evidence is so tenuous
with respect to a key element of the offense that a conviction
would be shocking. See id.
With respect to the first count, the evidence was
uncontradicted that Kirkland decided to purchase the shotgun,
provided the funds for it, transported it in his vehicle, and had
access to it. Viewing the evidence in the light most favorable to
the Government, see id. at 782-83, we cannot say that the record is
devoid of evidence of Kirkland’s intent or that the evidence of
guilt was so tenuous as to render a guilty verdict shocking.
We also reject Kirkland’s contention that the variance between
the date alleged in the indictment and the evidence adduced at
trial is fatal to his conviction. The time an offense is committed
is not an essential element of the offense, and the Government need
not prove the exact date. See United States v. Bowman, 783 F.2d
1192, 1197 (5th Cir. 1986). The record is not devoid of evidence
that the offense occurred in October as alleged in the indictment.
Further, a four or five month discrepancy is not unreasonable. See
id. Any confusion regarding the precise date does not alter the
fact that both the Donaldsons testified that Kirkland retrieved the
shotgun and Mrs. Donaldson saw him drive away with it in his car.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.
2