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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-2019
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVEN DONALD KNEZEK,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________________
( June 16, 1992)
Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Steven Donald Knezek appeals his convictions for illegal
firearms possession, challenging primarily the district court's
refusal to hold a suppression hearing and the concomitant admission
of inculpatory statements. Review of this, and the other issues,
is narrowed by his failure to preserve them in district court. We
AFFIRM.
I.
In early May 1990, Knezek and Milton Huff drove into the
United States from Mexico at the Lincoln-Juarez Bridge Port-of-
Entry, near Laredo, Texas. Knezek was driving. The vehicle was
1
Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

referred to the secondary inspection station, where customs
inspector Cantu asked the men to exit the car, produce
identification, and "unload anything that they had". Knezek and
Huff placed their luggage on an examining table.
In a bag that Huff identified as his, Cantu found several
syringes.2 Believing that he might discover narcotics, Cantu
inspected the remaining luggage. After discovering ammunition of
various caliber in a suitcase, Cantu asked Knezek and Huff: "Where
are the guns?" Knezek responded: "They're in there." Cantu
continued to search the suitcase and found, wrapped in clothing, a
Smith and Wesson .44 magnum revolver and a Colt Trooper .357 magnum
revolver. Both weapons were loaded; the Smith and Wesson's serial
number had been obliterated.
Following discovery of the weapons, another inspector informed
Cantu that marijuana residue had been found in the car. Cantu
advised him of the weapons, and they frisked Knezek and Huff and
placed them in separate "search rooms". In the room, Cantu
instructed Knezek to empty his pockets and place his hands on the
wall; a "complete personal search" was then performed. After
leaving to search Huff, Cantu returned to Knezek's room and asked:
"Who's the owner of the guns?" Knezek replied: "They're mine. I
bought them at a gun place."
Customs special agent Salinas was called in by the inspectors.
Salinas identified himself, informed Knezek that he was there
2
When Cantu asked Huff their purpose, Knezek interrupted and
stated that Huff was a diabetic and needed them for daily
injections.
- 2 -

because of discovery of the revolvers, and advised Knezek of his
Miranda rights.3 Knezek stated that he understood them. Salinas
then asked where the guns had been obtained; Knezek stated that "he
had purchased them at a gun shop back home". When asked about the
obliterated serial number, Knezek responded: "Yeah, I know."
Refusing to answer further questions, he stated: "Well, just take
me to jail."
Knezek was arraigned and appointed counsel from the Federal
Public Defender's office. Pursuant to the district court's local
rules, June 11, 1990, was designated as the deadline for pretrial
motions; and trial was set for the July 1990 term.4 In a five-
count indictment filed against Knezek and Huff, Knezek was charged
in three: knowing transportation in interstate and foreign
commerce of a revolver with an obliterated serial number, in
violation of 18 U.S.C. �� 922(k), 924(a)(1)(B), and 2 (count 1);
and, being a felon in possession of the Smith and Wesson revolver
(count 2) and the Colt Trooper revolver (count 3), in violation of
18 U.S.C. � 922(g)(1).
Several pretrial hearings were held. But, as discussed in
part II.A., Knezek did not move prior to trial to suppress his
statements at the port of entry. Moreover, during the one-day
trial on July 23, 1990, Knezek did not object to the introduction
(through testimony of Cantu and Salinas) of those statements, nor
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
See S.D. Tex. Loc. R. 7(E) (West 1990) ("At the time of
arraignment, the judicial officer shall set the time for pretrial
motions.").
- 3 -

did he cross-examine government witnesses on alleged coercion.
Knezek did not testify, but Huff (who pleaded guilty prior to
Knezek's trial) testified on his behalf and stated that he (Huff)
had borrowed the weapons from a friend and that Knezek did not know
anything about them. Although Knezek moved, unsuccessfully, for
judgment of acquittal at the close of the government's case, he did
not renew that motion after presentation of all the evidence. The
jury returned a guilty verdict on all three counts.
A sentencing hearing was held that December; and Knezek was
sentenced, inter alia, to 15 years' imprisonment on count 3.5
II.
Knezek contends that (1) the district court erred in both
refusing to hold a suppression hearing and admitting in evidence
his statements at the port of entry; (2) extrinsic offense evidence
was improperly admitted; (3) there was insufficient evidence to
prove knowing possession of the firearms; and (4) the government's
closing argument constituted prosecutorial misconduct.6
5
Knezek was sentenced to 42 months' imprisonment on count 1
(transportation). Because he had at least three previous
convictions for serious felony offenses (burglary), Knezek was
subject to an enhanced sentence under 18 U.S.C. � 924(e)(1) for his
� 922(g)(1) convictions (felon in possession). Accordingly, the
district court vacated the conviction on count 2, and sentenced him
to 15 years' imprisonment on count 3, to run concurrent with the
sentence on count 1.
6
In a pro se brief filed after appointed counsel filed Knezek's
affirmative brief, Knezek raises ineffective assistance of counsel
at trial. This contention was not presented in the district court.
We decline generally to consider ineffective assistance claims not
so raised, because a record has not been developed on the merits of
the allegations. E.g., United States v. Gaitan, 954 F.2d 1005,
1007 n.4 (5th Cir. 1992). We will, however, consider such a claim
in those rare instances where its merits may be fairly evaluated
- 4 -

A.
Knezek maintains that the district court erred in denying his
"numerous requests" for a suppression hearing regarding
incriminating statements he made to law enforcement agents, and
that, thereafter, those statements were admitted in evidence
erroneously, including because of coercion and his not having been
advised of his Miranda rights. Knezek, however, failed to timely
and properly move to suppress, as required by the local rules and
Federal Rule of Criminal Procedure 12.7 Pursuant to the latter,
from the record. Id. We do not find this to be such a case.
Accordingly, we do not address this claim, but without prejudice to
it being raised under 28 U.S.C. � 2255. Id. at 1008 n.4.
7
Southern District of Texas Local Rule 7 provides in part:
A.
Implementation. Federal Rule of Criminal
Procedure 12 and this rule are to be followed to
ensure consistent and efficient practice before
this court. Motions and responses that do not
comply with these rules are waived.
B.
Form. Pretrial motions shall be in writing
and specifically state the basis for the motion.
....
* * * *
E.
Submission. At the time of arraignment, the
judicial officer shall set the time for pretrial
motions. ....
S.D. Tex. Loc. R. 7(A), (B) & (E) (West 1990) (emphasis added).
Federal Rule of Criminal Procedure 12 states in part:
(b)
Pretrial Motions. Any defense, objection
or request which is capable of determination
without the trial of the general issue may be
raised before trial by motion. Motions may be
written or oral at the discretion of the judge.
The following must be raised prior to trial:
* * * *
- 5 -

motions to suppress "must be raised prior to trial". Fed. R. Crim.
P. 12(b)(3). Failure to do so constitutes a waiver, "but the court
for cause shown may grant relief from the waiver." Fed. R. Crim.
P. 12(f).
When Knezek finally, orally, moved to suppress, at the start
of trial, the district court ruled that, for several reasons, the
matter had been waived.8 We review that ruling for abuse of
discretion. United States v. Marx, 635 F.2d 436, 441 (5th Cir.
Unit B 1981); United States v. Bullock, 590 F.2d 117, 120 (5th Cir.
1979).
A district court does not abuse its discretion under Rule
12(f) in denying a suppression motion solely on the ground that the
defendant failed to comply with pretrial procedures. Marx, 635
F.2d at 440-41; Bullock, 590 F.2d at 120. Knezek unquestionably
failed to comply with Rule 12 and the local rules. Nor, pursuant
to Rule 12(f), did he seek to show cause for relief from the
finding of waiver. But, even assuming arguendo that the motion to
(3)
Motions to suppress evidence ....
* * * *
(f)
Effect of Failure To Raise Defenses or
Objections. Failure by a party to raise defenses
or objections or to make requests which must be
made prior to trial ... shall constitute waiver
thereof, but the court for cause shown may grant
relief from the waiver.
Fed. R. Crim. P. 12(b),(f) (emphasis added).
8
The motion was not made until after it had been announced that
the jury was ready to be brought in and the rule to exclude
witnesses, Fed. R. Evid. 615, had been invoked by Knezek.
- 6 -

suppress was made "prior to trial", other factors support there not
being an abuse of discretion in this case; waiver is firmly
grounded in those bases as well.
The deadline for pretrial motions was June 11, 1990. A motion
to suppress was never filed, either before or after that date. On
June 26, Knezek's lawyer filed a motion to withdraw, stating that
Knezek was dissatisfied, because, among other things, Knezek
"seem[ed] to think that Counsel should have filed some kind of pre-
trial motion in his case." Knezek's first informal request for a
suppression hearing occurred two days later, well past the pretrial
motion deadline. Moreover, his stated reason for wanting an
unidentified statement suppressed was his claim that he had not
made it; but the court noted that the issue, as framed by Knezek,
was one to be determined by the jury, not in a suppression
hearing.9
9
The following colloquy took place:
THE COURT: What is it you would like [your
counsel] to do at this point?
DEFENDANT KNEZEK: Well, at this point I'd
like ... to suppress a[n] oral statement they're
saying I made. And [my lawyer's] saying I made it
too. I'm saying I didn't make it.
THE COURT: Well, but that's not grounds for
suppression.
* * * *
DEFENDANT KNEZEK: .... It's just that I
can't get anything done.
THE COURT: Well, maybe there's nothing to do.
You know. In other words, to be perfectly blunt
about it, if the facts are what your lawyer says
- 7 -

The motion to withdraw was granted on July 2; new counsel was
appointed that day. When Knezek moved on July 6 to extend the
pretrial motion deadline, as well as in the July 10 hearing on it,
he did not state that he wanted to move to suppress any evidence.
And, the motion was withdrawn at a hearing the next day, even
though the district court had stated it would be granted, but would
delay trial, and had warned, after being advised of the withdrawal,
against trying later to file such motions.10
there's nothing to do anyway. When you drive up to
the bridge they're entitled to ask you questions.
There's nothing to suppress. Now if you didn't say
those statements that's not a question of
suppression. I wouldn't pass on that anyway. If
the agent gets up and says he said this, and you
say, I didn't say it. That's not for me to decide;
it's for the jury.
(Emphasis added.)
10
When Knezek's new lawyer moved on July 6 to extend the
pretrial motion deadline, he did not identify any motion to be
filed. At the July 10 hearing on the motion, the court stated that
it would be willing to grant the motion, but that, because of the
closeness of trial, this would cause Knezek's trial to be postponed
from July to August or September. Knezek's lawyer stated that he
would discuss this with Knezek and advise the court. The next day,
Knezek announced ready for trial in July. The district court
stated:
Okay. And I want you to understand this. I don't
want to hear later about how [Knezek] missed out in
filing this, that, and the other, motions or
discovery and all that. Are you ready?
(Emphasis added.) Knezek's lawyer responded: "Well, I looked at
the file and the only thing I have a question on would be the
alleged confession that [Knezek] made to the agents." But, he then
confirmed that he was ready for trial.
- 8 -

At a hearing on Friday, July 20, three days prior to trial on
Monday, Knezek, for the first time, raised the issue of coercion
and an alleged lengthy interrogation. However, his lawyer was
uncertain as to which interrogation these concerns related.11 In
any event, this led to the government's announcement, at the start
of trial, that any statements taken at the jail (several days after
the statements were made at the port of entry) would not be
introduced. Knezek's counsel then requested a suppression hearing
concerning possible coercion and duress as to the statements made
at the port of entry. (As noted, no motion was ever filed.) The
district judge refused to grant a hearing, noting the delay, the
prior proceedings, and that no motion had been filed, and ruling
that the matter had been waived; but, he ruled that if Knezek's
counsel wanted to develop those issues at trial, he would possibly
grant a mistrial if coercion was proven.12
11
During the July 20 hearing, Knezek's lawyer stated that Knezek
claimed he had been interrogated for an "extensive period of time
..., and I know that the court would probably not be too receptive
to entertain something to suppress those confessions, in that they
were coerced". The district court responded, "[n]ot at this late
stage", but informed counsel that he could cross-examine the
government's witnesses on that aspect if he wished. The
government's lawyer then asked Knezek's lawyer which interrogation
was being referred to, and related that Knezek had been questioned
twice on the day of the arrest and again six days later in jail.
Because of concern that the interrogation in jail may have taken
place after Knezek had been appointed counsel, the district court
instructed the government's counsel to investigate.
12
As noted, at the start of trial, the government announced that
it would not introduce any statements taken at the jail. With
respect to the earlier statements, however, Knezek's lawyer stated:
MR. JAIME: Well, for the record, I'd just
like to put that on. We feel that it was coerced
- 9 -

Nevertheless, Knezek's counsel did not do so. And, when the
statements were admitted at trial, he did not object to their
admission. Moreover, Knezek's defense at trial was not that he
made the statements under duress or while unaware of his rights,
but that he had simply not made them. As noted, Knezek relied also
on Huff's testimony that Huff had borrowed the weapons and Knezek
was not aware of them. Furthermore, Knezek never raised in
district court the point he primarily relies upon here -- that he
had not been advised of his Miranda rights.

The district judge did not abuse his discretion in ruling that
a waiver occurred; accordingly, we do not reach the application of
and under duress in that he was detained seven
hours and questioned several times by several
people.
THE COURT: Well, let me say this to you
[Knezek's lawyer]. There was no motion filed on
either of these points and I think the matter is
waived. I brought up the other day [July 20] this
question of talking to him after he had a lawyer
and ... it's just as well the government concedes
that. I'm not going to stop at this point and
conduct a suppression hearing on the other.
Now, I'll listen to the evidence. ... I
presume the government is going to put on witnesses
and I guess you're going to cross-examine them
about what they said or did to him or whatever, and
if I think there's something in there that's really
egregious, if I think that they really did coerce a
statement out of him, then I can always say so and
if we have to, we'll declare a mistrial. ... As I
say, I'm reluctant to start all over again, and
certainly at this late stage, to bring up a whole
hearing on that issue.
(Emphasis added.)
- 10 -

Miranda or the other bases raised here for suppressing the
statements.
B.
Knezek maintains that, under Rule 404(b), the district court
erred in admitting evidence that Knezek and Huff had purchased the
guns in exchange for marijuana, and that syringes, ammunition, and
marijuana residue were found in the search of the car.13 However,
Knezek did not object at trial to the admission of this evidence.
Therefore, we review only for plain error. See Fed. R. Evid. 103.
"[P]lain error is an error `so obvious that our failure to notice
it would seriously affect the fairness, integrity, or public
reputation of [the] judicial proceedings and result in a
miscarriage of justice.'" United States v. Fortenberry, 914 F.2d
671, 673 (5th Cir. 1990) (quoting United States v. Graves, 669 F.2d
964, 971 (5th Cir. 1982)), cert. denied, __ U.S. __, 111 S. Ct.
1333 (1991).
For several obvious reasons, there is no plain error. For
example, evidence that marijuana residue and ammunition were found
in the search of the car was also elicited through the direct
testimony of Huff, Knezek's witness. And, on cross-examination,
13
Fed. R. Evid. 404(b) states:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident.
(Version in effect prior to December 1, 1991).
- 11 -

Huff stated that he "might've given my friend a little marijuana to
borrow the guns."
C.
Knezek next maintains that the evidence was insufficient to
establish that he knowingly possessed the firearms. But, as noted,
he failed to renew his motion for judgment of acquittal at the
close of the evidence. This failure constitutes a waiver of any
objection to the motion's denial, restricting review to whether
there has been a manifest miscarriage of justice. United States v.
Munoz-Romo, 947 F.2d 170, 176-77 (5th Cir. 1991), petition for
cert. filed, 60 U.S.L.W. 3719 (U.S. Jan. 7, 1992) (No. 91-1593).14
Illegal possession of firearms may be either actual or
constructive. Id. "`Constructive possession' has been defined as
ownership, dominion, or control over the contraband". United
States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991). Cantu
testified that Knezek stated that the guns were hidden in the
14
Consequently, this Court's review is not under
the usual standard of review for claims of
insufficiency of evidence but rather under a much
stricter standard. We are limited to the
determination of "whether there was a manifest
miscarriage of justice." Such a miscarriage would
exist only if the record is "devoid of evidence
pointing to guilt," or ... "because the evidence on
a key element of the offense was so tenuous that a
conviction would be shocking." In making this
determination, the evidence, as with the regular
standard [of] review for sufficiency of evidence
claims, must be considered "in the light most
favorable to the government, giving the government
the benefit of all reasonable inferences and
credibility choices."
United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) (citations
omitted).
- 12 -

suitcase before they were discovered. Cantu and Salinas testified
that Knezek admitted ownership of the guns; Salinas, that Knezek
stated that he knew that the serial number had been obliterated
from one.
Moreover, constructive possession may also be inferred from
the exercise of dominion or control over the vehicle in which
contraband is found. E.g., United States v. Perez, 897 F.2d 751,
754 (5th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 177 (1990).
Cantu testified, as did Huff, that Knezek was driving the vehicle
when it was referred to secondary inspection. There was no
manifest miscarriage of justice.
D.
Knezek asserts that, during closing argument, the government's
lawyer misstated the law on constructive possession and
impermissibly injected his personal beliefs into the proceedings by
commenting on Knezek's guilt and the credibility of witnesses.
However, once again, Knezek did not timely object at trial. This
failure requires us to, again, review for plain error. United
States v. Hatch, 926 F.2d 387, 394 (5th Cir.), cert. denied, __
U.S. __, 111 S. Ct. 2239 (1991). "We can reverse only if the
government's closing arguments seriously affected the fairness or
integrity of the proceedings and resulted in a miscarriage of
justice." Id. In considering this question, the prosecutor's
comments must be considered in the context of the entire trial.
Id. Based on our review of the record, there is no plain error.
III.
- 13 -

For the foregoing reasons, the judgment is
AFFIRMED.
- 14 -