United States v. Haden

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-10378
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KODJOVI MARSHALL HADEN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-109-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Kodjovi Marshall Haden filed a pro se appeal from his conviction and
sentence for conspiracy to make, utter, and possess counterfeited securities of an
organization; making and possessing a counterfeited security of an organization;
counterfeiting securities of the United States; possession of false identification
documents; and aggravated identity theft. Haden has filed a brief arguing that:
the district court lacked jurisdiction in this case; his due process rights were
violated because he was not present at grand jury proceedings and was not
*
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should not be published and is not precedent except under the limited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.
No. 06-10378
afforded an opportunity to challenge the array of the grand jury; the indictment
was defective in form; the evidence was insufficient to support his convictions on
Counts 3-6; his trial counsel was ineffective; his due process rights were violated
because he was not given fair notice of his trial date; the district court erred by
failing to give a requested jury instruction on jurisdiction; and the district court
was not authorized to sentence him to a term of imprisonment. Haden has also
moved for an order requiring the Government to prove that the lower court was
a district court within the meaning of 28 U.S.C. § 1291 and for an order
reversing his conviction and dismissing the case against him on jurisdictional
grounds. The Government has moved to dismiss the appeal, summarily affirm
or, alternatively, for an extension of time in which to file a brief.
Haden’s jurisdictional arguments are frivolous. The district court had
jurisdiction in the instant case. See 28 U.S.C. § 124; see also United States v.
Jackson, 313 F.3d 231, 233 (5th Cir. 2002); United States v. McDonald, 106 F.3d
1218 (5th Cir. 1997); United States v. Hamilton, 48 F.3d 149 (5th Cir. 1995);
United States v. Chappell, 6 F.3d 1095 (5th Cir. 1993); Downing v. United States,
348 F.2d 594, 598 (5th Cir. 1965). Haden did not have the right to be present or
to offer exculpatory evidence during grand jury proceedings. See FED. R. CRIM.
P. 6(d). His assertion that he was prevented from filing a motion to challenge
the makeup of the grand jury is not supported by the record and does not entitle
him to relief. Haden’s claim that the indictment was defective in form is
likewise without merit.
Haden argues that the evidence is insufficient to support his convictions
under 18 U.S.C. § 471 and 18 U.S.C. § 513(a) because the Government failed to
introduce physical documents as evidence. Haden’s conviction will be upheld on
appellate review if a reasonable trier of fact could conclude from the evidence
that the elements of the offense were established beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Arnold, 467
F.3d 880, 883 (5th Cir. 2006). A review of the sufficiency of the evidence does not
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No. 06-10378
include a review of the weight of the evidence, since such determinations are
within the jury’s sole province. United States v. Myers, 104 F.3d 76, 78-79 (5th
Cir. 1997). Neither 18 U.S.C. § 471 nor 18 U.S.C. § 513(a) requires the
production of any document, much less a particular type of document, in order
to sustain a conviction. Accordingly, this argument is without merit.
The record is not sufficiently developed at this time to allow consideration
of Haden’s ineffective assistance of counsel claim. See United States v. Higdon,
832 F.2d 312, 314 (5th Cir. 1987). Accordingly, we decline to consider that claim
in this direct appeal. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir.
1995).
Haden has not shown that the district court plainly erred by failing to give
him notice of his December trial date. See United States v. Milton, 147 F.3d 414,
420 (5th Cir. 1998). Additionally, Haden has not shown that the district court
abused its discretion by refusing to give a jury instruction regarding jurisdiction
where the requested instruction contained an incorrect statement of the law.
See United States v. Tomblin, 46 F.3d 1369, 1378-79 (5th Cir. 1995). Haden’s
argument regarding the district court’s authority to impose a sentence after a
jury finding of guilt is frivolous.
Haden’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, the
Government’s motion to dismiss is granted and the appeal is dismissed. See 5TH
CIR. R. 42.2. Haden’s outstanding motions are denied.
APPELLEE’S MOTION GRANTED; APPEAL DISMISSED;
APPELLANT’S MOTIONS DENIED.
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