United States v. Lewis , 108 F. App'x 983 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 22, 2004
Charles R. Fulbruge III
Clerk
No. 04-10102
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAREN LEWIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-201-ALL-A
--------------------
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Karen Lewis appeals her conviction of laundering monetary
instruments in violation of 18 U.S.C. § 1956(a)(3). We affirm.
Lewis argues that the district court plainly erred in
disallowing the playing of surveillance tapes in favor of
admitting the transcripts. Lewis has not shown that there was
plain error. See United States v. Reyes, 300 F.3d 555, 558 (5th
Cir. 2002).
*
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this opinion should not be published and is not precedent except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. 04-10102
-2-
Lewis complains that the district court plainly erred in
excluding the testimony of a polygraph examiner. There was no
plain error, as the record indicates that Lewis failed to
establish that the examiner’s testimony was relevant and that
polygraph exams were accepted in the scientific community. See
United States v. Posado, 57 F.3d 428, 432 (5th Cir. 1995); FED.
R. EVID. 702.
Lewis next asserts that the district court erred in limiting
the cross-examination of Government witnesses and the time for
closing argument. Lewis has not shown that these rulings
constituted plain error. See United States v. Gray, 105 F.3d
956, 963-64 (5th Cir. 1997).
Lewis asserts that the district court clearly erred in
finding that Lewis participated in the laundering of $520,000 for
sentencing purposes. Lewis has not shown clear error. See
United States v. Gillyard, 261 F.3d 506, 510 (5th Cir. 2001).
For the first time in her reply brief, Lewis relies upon Apprendi
v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124
S. Ct. 2531 (2004) and argues that the jury, not the district
court, must determine whether she was responsible for laundering
$520,000. This court will not address the Apprendi argument, as
Lewis did not raise it in her initial appellate brief. See
Cousin v. Trans Union Corp., 246 F.3d 359, 373 n.22 (5th Cir.
2001). Although Blakely was not decided at the time Lewis filed
her initial brief on appeal, her argument is foreclosed by this
No. 04-10102
-3-
court’s recent opinion in United States v. Pineiro, ___ F.3d ___,
No. 03-30437, 2004 WL 1543170, *1 (5th Cir. July 12, 2004).
Lewis also argues that her trial counsel was ineffective for
failing to raise objections to the district court rulings
admitting transcripts of surveillance tapes, excluding the
testimony of her expert witness, limiting the cross-examination
of Government witnesses, refusing to continue closing argument,
and limiting the time allowed for closing argument. We generally
do not resolve claims of ineffective assistance of counsel on
direct appeal because the record is rarely sufficiently
developed. See United States v. Bounds, 943 F.2d 541, 544 (5th
Cir. 1991). The record is insufficient for us to consider
Lewis’s claims on direct appeal. See id. Accordingly, the
judgment of conviction is AFFIRMED without prejudice to Lewis’s
right to raise her ineffective assistance of counsel claims in a
motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. We express no view on the merits of such a
motion.