United States v. Mells ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51174
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICKOLAS ANTONIOUS MELLS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CR-127-01
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January 28, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Nickolas Antonious Mells appeals his convictions and
sentences for wire fraud and money laundering. He contends that
the jury was improperly instructed, that the evidence is
insufficient to support his convictions, that the district court
erred in failing to dismiss the indictment because it was based
on perjured testimony, that the Government failed to turn over
Jencks Act materials, and that the district court abused its
discretion by permitting an IRS agent to testify as a summary
witness. Mells also asserts that the district court erred at
*
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that this opinion should not be published and is not precedent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.
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sentencing by not calculating the offense level properly after
making deductions from the loss value, by failing to make
specified findings of fact as required by FED. R. CRIM. P.
32(c)(1), and by overruling his objections to a two-point
enhancement for obstruction of justice.
Mells’s argument regarding the jury instructions is facially
frivolous.
Mells’s argument that the evidence is insufficient to
support his convictions is without merit. Review is for plain
error because the defendant failed to renew his motion for a
judgment of acquittal at the close of all evidence. United
States v. McCarty, 36 F.3d 1349, 1358 (5th Cir. 1994). The
evidence was sufficient for a jury to find beyond a reasonable
doubt that Mells was guilty of both wire fraud and money
laundering, and he has not shown a manifest miscarriage of
justice occurred.
Mells’s argument concerning perjured testimony before the
grand jury is also reviewable for plain error because Mells
failed to challenge the indictment in the district court. United
States v. Greer, 137 F.3d 247, 251-52 (5th Cir.), cert. denied,
118 S. Ct. 2305 (1998). Mells has not shown a substantial effect
on the district court proceedings arising from Agent Lamberth’s
purportedly perjured statements or even that Lamberth’s
statements were untrue. Mells’s subsequent conviction also
rendered any errors occurring before the grand jury harmless.
Wilkerson v. Whitley, 28 F.3d 498, 503 (5th Cir. 1994).
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Mells also did not challenge the failure of the Government
to turn over Jencks Act materials in the district court; this
issue cannot be raised for the first time on appeal.
Mells has not shown that the district court abused its
discretion by permitting Lamberth to testify. It is not apparent
from the record that he was a “summary witness”. The testimony
was brief, and Lamberth did not expressly bolster the credibility
of government witnesses. See United States v. Moore, 997 F.3d
55, 59 (5th Cir. 1993).
The district court did not err in calculating Mells’s
offense level after reducing the loss amount; it did reduce the
offense level by one point. The district court’s specific
adoption of the presentence investigation report (PSR) on other
disputed issues of fact provided Mells with adequate notice of
the district court’s resolution of disputed facts. United States
v. Mora, 994 F.2d 1129, 1141 (5th Cir. 1993). The evidence
presented at sentencing was sufficient for the district court to
find that Mells obstructed justice by threatening and attempting
to intimidate witnesses and by providing false invoices at trial.
In his reply brief, Mells asserted for the first time newly
discovered evidence and sufficiency of the evidence of two of his
wire fraud convictions. Issues raised for the first time in a
reply brief will not be reviewed on appeal. United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
Mells has not shown error on the part of the district court;
his convictions are AFFIRMED. Mells’s motion to supplement the
record and request for the transcript of Lamberth’s grand jury
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testimony are DENIED. The testimony Mells wishes to add to the
record is contained in the trial transcript. Mells had a duty to
request a transcript of the jury instructions from the court
reporter and to ask the district court clerk to make the exhibits
part of the appellate record. FED. R. APP. P. 10(b)(1),
(11)(b)(2). As for the grand jury transcript, Mells has not
shown that it is necessary to the adjudication of his appeal.
See Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).
AFFIRMED; DENY MOTIONS.