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,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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,

(5th Cir.

1999), cert. denied,

(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

2 substantial rights of the defendant." United States v. Arcentales,

(5th Cir. 1976); see also United States v.

Doucette,

(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,

(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,

(5th Cir. 1992); United States v. Bell,

(5th Cir. 1982)(en banc), aff'd,

(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

3 charged. United States v. Puig-Infante,

(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,

, 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,

(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,

(5th Cir. 1995); United

States v. Bounds,

(5th Cir. 1991).

A F F I R M E D.

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