United States v. Dolenz ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10032
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD JOSEPH DOLENZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-107-H-ALL
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August 4, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Bernard Joseph Dolenz appeals his
convictions and sentence after being convicted of 12 counts of
mail fraud.1 Dolenz raises 17 issues in his brief, all of which
are either unavailing or waived due to inadequate briefing.2
Dolenz’s argument that the mail-fraud statute requires a
connection with interstate commerce is without merit; it only
*
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that this opinion should not be published and is not precedent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.
1
Dolenz’s “Motion to Bar Appellee’s Brief” is DENIED.
2
Because Dolenz states that he is a licensed attorney, he
is not entitled to liberal construction. See Olivares v. Martin,
555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
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requires the use of the mails. See Neder v. United States, 527
U.S. 1, 20 (1999); Badders v. United States, 240 U.S. 391, 393-94
(1916). Because Congress may regulate the use of the mails, his
argument that his federal conviction violated the Tenth Amendment
by usurping the criminal jurisdiction of the State of Texas also
fails. See United States v. Bailey, 115 F.3d 1222, 1232-33 (5th
Cir. 1997).
Likewise without merit is Dolenz’s contention that there was
no evidence to show that he engaged in a scheme or artifice to
deprive another of the intangible right of honest services.
Because the definition of the phrase “scheme or artifice to
defraud” found in 18 U.S.C. § 1346 is inclusive rather than
exclusive and because Dolenz was not charged under an honest-
services theory, it matters not that there was no evidence to
support such a theory. See United States v. Manges, 110 F.3d
1162, 1171 (5th Cir. 1997).
By failing to object to his indictment prior to trial,
Dolenz waived his claim that his indictment was duplicitous for
charging him with both mail fraud and aiding and abetting. See
Fed. R. Crim. P. 12(b)(2), (f); United States v. Lyons, 703 F.2d
815, 821 (5th Cir. 1983). In any event, his claim is meritless,
see United States v. Masson, 582 F.2d 961, 963 (5th Cir. 1978);
United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971), as
is his claim that his indictment is multiplicitous for charging a
single offense of mail fraud in multiple counts. See United
States v. McClelland, 868 F.2d 704, 706 (5th Cir. 1989)(stating
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that each separate use of the mails to further a scheme to
defraud is a separate offense of mail fraud).
Dolenz’s claim that his daughter’s testimony should have
been suppressed because it was given in exchange for leniency in
the criminal proceedings against her is foreclosed by circuit
precedent. See United States v. Haese, 162 F.3d 359, 366-68 (5th
Cir. 1998), cert. denied, 526 U.S. 1138 (1999). Likewise without
merit is Dolenz’s argument that his daughter was inherently
untrustworthy and that the district court therefore abused its
discretion in admitting business records from his clinic based on
her testimony. See United States v. Parsee, 178 F.3d 374, 380
(5th Cir.), cert. denied, 120 S. Ct. 450, 465 (1999).
Contrary to Dolenz’s assertion, the order prohibiting him
from contacting his daughter during his criminal proceedings did
not rise to the level of a constitutional violation. See United
States v. Soape, 169 F.3d 257, 270-71 (5th Cir.), cert. denied,
527 U.S. 1011 (1999). Moreover, Dolenz has not shown that the
Government knowingly presented materially false evidence to the
jury during its case-in-chief. See United States v.
Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989); see also
United States v. Brown, 634 F.2d 819, 827 (5th Cir. Jan.
1981)(stating that it is not enough that the allegedly false
testimony may have been challenged by another witness).
The district court did not improperly “split” Dolenz’s term
of imprisonment. Because Dolenz was convicted of 12 separate
mail-fraud offenses, the district court was authorized to impose
consecutive sentences. See U.S.S.G. § 5G1.2(d); 18 U.S.C.
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3584(a). Given the discrepancy between Dolenz’s trial testimony
and statements that he made prior to trial, no plain error
occurred when the prosecutors commented during closing arguments
that Dolenz had testified untruthfully. See United States v.
Washington, 44 F.3d 1271, 1279 (5th Cir. 1995); United States v.
Loney, 959 F.2d 1332, 1343 (5th Cir. 1992).
Dolenz cannot rely solely on the composition of the jury
panel at his own trial to show that he was denied his Sixth
Amendment right to a trial by a jury selected from a fair cross-
section of the community. See United States v. Olaniyi-Oke, 199
F.3d 767, 773 (5th Cir. 1999); United States v. Alix, 86 F.3d
429, 434 n.3 (5th Cir. 1996). Although Dolenz alleges in his
fourteenth issue that his attorney was ineffective in 20
different respects, those allegations are not cognizable in his
direct appeal. See United States v. Higdon, 832 F.2d 312, 313-14
(5th Cir. 1987).
The district court did not plainly err in refusing to
instruct the jury on materiality because, given the overwhelming
evidence of materiality in this case, Dolenz has not shown that
the failure to include such an instruction affected either his
substantial rights or the fairness, integrity, or public
reputation of judicial proceedings. See Johnson v. United
States, 520 U.S. 461, 469-70 (1997); United States v. Olano, 507
U.S. 725, 734, 741 (1993). Dolenz’s challenge to the
constitutionality of Federal Rule of Criminal Procedure 52(a),
which discusses harmless error, is misplaced because review of
his claim falls under Rule 52(b), which governs review for plain
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error. See Johnson, 520 U.S. at 465-67; United States v.
Rios-Quintero, 204 F.3d 214, 215 (5th Cir.), petition for cert.
filed, (U.S. June 7, 2000)(No. 99-9905). Because the Supreme
Court’s decision in Neder v. United States, 527 U.S. 1, 25
(1999)(holding that materiality is an element of the federal
mail-fraud statute), was issued after Dolenz was convicted and
sentenced, his trial attorney cannot be said to have been
ineffective for failing to request a jury instruction on
materiality. See Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir.
1997)(stating that counsel has no general duty to anticipate
changes in the law).
The district court did not err in refusing to consider
Dolenz’s pro se postjudgment motions. Because those motions were
filed months after the filing of his notice of appeal and because
those motions--with the possible exception of his motion for bail
pending appeal--were not in aid of his pending appeal, the
district court lacked jurisdiction to consider them. See United
States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979)(en banc).
Even if it could be said that Dolenz’s motions were in aid of his
pending appeal, this court would lack jurisdiction to review the
district court’s orders disposing of those motions because Dolenz
did not file a new notice of appeal or amend his previously-filed
notice of appeal after those orders had been entered. See Fed.
R. App. P. 4(b)(1)(A)(i). Dolenz’s contention that the district
court should have sanctioned the prosecutors, their witnesses,
and various personnel at the Bureau of Prisons has no bearing on
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the fairness and propriety of his convictions and, therefore,
does not warrant appellate relief.
Dolenz also argues (1) that the district court erred in
imposing more than $1.6 million in restitution because that
amount exceeded the $4,000 alleged in the indictment, (2) that
the district court erred in denying his motion for judgment of
acquittal because there was insufficient evidence to support his
mail-fraud convictions, and (3) that the Sentencing Reform Act of
1984 is unconstitutional and without legal effect. These issues
are not adequately briefed and are therefore waived. See United
States v. Flores, 63 F.3d 1342, 1374 n.36 (5th Cir. 1995). In
his reply brief, Dolenz also challenges various determinations
used to calculate his sentence. Because these issues are raised
for the first time in his reply brief, they are also waived. See
United States v. Green, 46 F.3d 461, 465 n.3 (5th Cir. 1995).
MOTION DENIED; AFFIRMED.