IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-60352
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE CLIFTON,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Mississippi
(3:97-CR-006-B-B)
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August 31, 1998
Before REAVLEY, DAVIS and DUHÉ, Circuit Judges.
PER CURIAM:*
The judgment of conviction and sentence by the district
court is affirmed for the following reasons:
1. Because defendant was arrested after indictment,
he was not entitled to a preliminary hearing prior to
transfer from Lake Village to Greenville.
2. Any contention about pre-trial detention was moot
after trial and conviction. The chances of impeachment of
witnesses hardly justify an extra hearing.
*
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this opinion should not be published and is not precedent except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.
3. The district court did not abuse his discretion in
excusing Pearson from the jury panel. She was recovering
from surgery. Defendant made no objection.
4. The court’s charge to the jury was sufficient and
free of error. The court apparently failed inadvertently to
give the express “no-adverse-inference” instruction on
defendant’s failure to testify, because the court had marked
the requested instruction “OK.” When the court concluded
its charge to the jury, the defendant’s counsel was asked if
there was anything to be added and counsel had no request or
objection. Under this record, any omission in the jury
instruction was harmless.
5. The evidence supported the conviction on both
counts. As for the money laundering count, the facts are
materially different from United States v. Heaps, 39 F.3d
479 (4th cir. 1994). There the money wired was the final
payment for a certain sale of drugs. Here the proof was
that the money was sent to the California supplier of
cocaine for defendant. The unlawful activity of defendant
produced the proceeds and its transmission allowed and
promoted that supply to continue. This could be the finding
of the jury, as the charge required of them.
6. There was no flaw in the Count 2 of the
indictment, and there was no variance in the charge or
proof.
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7. There is no showing or sign of exculpatory
evidence denied to defendant. His attorney saw the grand
jury transcript. He had full opportunity to examine special
agent Bostick at sentencing.
8. The evidence and finding of the district court
were to the effect that five or more persons participated in
the cocaine activity of which defendant was the leader.
9. The 50-plus kilogram quantity of cocaine was based
on the reports of Spann and Williams. Whether they
testified to that at trial or told agent Bostick, all
considered credible by the district court, there is no cause
for resentencing.
10. The prosecutor did not comment on Clifton’s
failure to testify by addressing the contentions of the
defense. Defendant’s attorney invited the comment on the
tape by his argument that the jury had not heard the tape.
AFFIRMED.
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