United States v. Schreiber ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50572
Consolidated with
No. 00-50573
No. 00-50679
No. 01-50080
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY SCHREIBER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-130-1-JN
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April 26, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, Harry Schreiber, federal
inmate #40454-002, appeals the denial of his postjudgment motion
for the production of witness statements (No. 00-50572), the
denial of his three motions for grand jury materials (No. 00-
50573), the denial of his FED. R. CRIM. P. 33 motion for a new
trial based on newly discovered evidence (No. 00-50679), and the
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction 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that this opinion should not be published and is not precedent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.
Nos. 00-50572, 00-50573,
00-50679, & 01-50080
-2-
sentence. Schreiber moves for sanctions against the Assistant
U.S. Attorney, to have the Government’s brief stricken, and for
release pending appeal. The Government moves for the dismissal
as frivolous of Schreiber’s appeal from the denial of the 18
U.S.C. § 3582(c)(2) motion. IT IS ORDERED that Schreiber’s
motions are DENIED.
In challenging the district court’s denial of the motion
seeking the production of witness statements, Schreiber fails to
provide this court with a compliant initial brief. See FED.
R. APP. P. 28(a). Although Schreiber filed a reply brief, issues
raised in a reply brief but not in the initial appellate brief
are deemed abandoned. United States v. Bullock, 71 F.3d 171,
178-79 (5th Cir. 1995). No argument is presented for our
consideration. Consequently, appeal No. 00-50572 is DISMISSED
for want of prosecution. See Grant v. Cuellar, 59 F.3d 523, 525
(5th Cir. 1995); see 5TH CIR. R. 42.3.3.
In challenging the district court’s denial of his motions
seeking grand jury materials (No. 00-50573), Schreiber presents
this court with conclusional assertions of massive fraud and
false testimony in an effort to conduct a fishing expedition into
grand jury materials. Policy interests in the need for grand
jury secrecy do not end with the completion of a criminal
prosecution. In re Grand Jury Testimony, 832 F.2d 60, 64 (5th
Cir. 1987).
Schreiber raises in his pro se reply brief issues concerning
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and the propriety
of the jury instructions. Issues raised for the first time in a
Nos. 00-50572, 00-50573,
00-50679, & 01-50080
-3-
reply brief are not properly before this court. United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). No abuse of
discretion is demonstrated by Schreiber in the district court’s
denial of his motions seeking grand jury materials. See United
States v. Miramontez, 995 F.2d 56, 60 (5th Cir. 1993).
This appeal is without arguable merit and thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Appeal
No. 00-50573 is DISMISSED. See 5TH CIR. R. 42.2.
Represented by counsel, Schreiber challenges the denial of
his FED. R. CRIM. P. 33 motion seeking a new trial based on newly
discovered evidence (No. 00-50679). Schreiber does not raise
arguments concerning his alleged newly discovered evidence, and
therefore, the issue is deemed abandoned. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Counsel relies on Apprendi
to support the argument that Schreiber’s sentence violates due
process because certain sentencing factors should have been
alleged in the indictment but were not, and therefore, these
factors were not proved beyond a reasonable doubt to the jury.
Apprendi does not constitute newly discovered evidence. “A
motion for new trial based on any other grounds than newly
discovered evidence must be made within seven days after verdict
or finding of guilty.” United States v. Scott, 159 F.3d 916, 925
(5th Cir. 1998). Schreiber’s Apprendi issue is not properly
before this court on the appeal from the denial of his Rule 33
motion premised on newly discovered evidence. See id. at 925.
 Nos. 00-50572, 00-50573,
00-50679, & 01-50080
-4-
Appeal No. 00-50679 is without arguable merit and thus is
frivolous. See Howard, 707 F.2d at 219-20. Consequently, it is
DISMISSED. See 5TH CIR. R. 42.2.
Proceeding pro se, Schreiber argues that the district court
abused its discretion in denying his 18 U.S.C. § 3582(c)(2)
motion. He asserts that Apprendi is a retroactive, clarifying
amendment to the sentencing guidelines and that, under Apprendi,
his sentence should be reduced. He also contends that the direct
appeal is still pending -- thus he is entitled to the benefit of
Apprendi’s holding -- and that this court should remand this case
to another district court judge.
No abuse of discretion in the district court’s ruling is
demonstrated. See United States v. Mueller, 168 F.3d 186, 188
(5th Cir. 1999). “Section 3582(c)(2) permits a district court to
reduce a term of imprisonment when it is based upon a sentencing
range that has subsequently been lowered by an amendment to the
Sentencing Guidelines, if such a reduction is consistent with the
policy statements issued by the Sentencing Commission.” United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). As noted by
the Government in its motion to dismiss, Apprendi is not an
amendment to the guidelines, and U.S.S.G. § 1.B1.10(c) does not
list an amendment to U.S.S.G. § 6A1.3 like an amendment suggested
by Schreiber. Apprendi held, in addressing a state criminal
statute, that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.
Nos. 00-50572, 00-50573,
00-50679, & 01-50080
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Ct. at 2362-63. As for Schreiber’s contention that his direct
criminal appeal is still pending, mandate issued June 16, 2000.
Because appeal No. 01-50080 is without arguable merit, the
Government’s motion to dismiss is GRANTED and the appeal is
DISMISSED as frivolous. See 5TH CIR. R. 42.2.
We caution Schreiber that any additional frivolous appeals
filed by him or on his behalf will invite the imposition of
sanctions. To avoid sanctions, Schreiber is further cautioned to
review any pending appeals to ensure that they do not raise
arguments that are frivolous.
MOTION TO DISMISS GRANTED. REMAINING MOTIONS DENIED.
APPEALS DISMISSED. SANCTION WARNING ISSUED.