IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50099
c/w No. 02-50152
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNIE RAY HARDEMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CR-261-ALL-JN
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September 19, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bennie Ray Hardeman, proceeding pro se, appeals from his
conviction of conspiracy to possess with intent to distribute
cocaine and cocaine base, distribution of cocaine, possession
with intent to distribute cocaine, and possession with intent to
distribute cocaine base and from the denial of his posttrial
motion to dismiss the superseding indictment against him.
Hardeman moves for grand jury transcripts and for leave to
*
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that this opinion should not be published and is not precedent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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supplement the record. Hardeman’s motions are DENIED. Hardeman
raises several arguments in his consolidated appeals that we
address in turn.
Hardeman contends that the Clerk of the district court was
required to accept and file his pro se motions and that those
motions should have been construed as waivers of his right to
representation by counsel. Hardeman was represented by counsel
in the district court, and he had no right to hybrid
representation. United States v. Daniels, 572 F.2d 535, 540 (5th
Cir. 1978). Hardeman did not explicitly assert his right to
self-representation in the district court, and the motions he
filed pro se did not implicitly assert that right. See Burton v.
Collins, 937 F.2d 131, 133 (5th Cir. 1991). The district court
need not have accepted Hardeman’s pro se motions.
Hardeman contends that his original indictment was
defective. Hardeman was convicted on a superseding indictment
and the original indictment was dismissed, mooting any
contentions about the original indictment.
Hardeman contends that the superseding indictment
impermissibly broadened the original indictment and that the
superseding indictment was defective. He argues that the dates
alleged on the superseding indictment broadened the charges; that
the superseding indictment charged only him with conspiracy and
that the government’s informant could not be a coconspirator; and
that the indictment failed to allege drug amounts or penalty
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statutes, evidently in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000).
Hardeman did not challenge his superseding indictment in the
district court on the grounds he raises on appeal in any motions
filed by counsel. Hardeman’s contentions are reviewed under the
plain-error standard. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994)(en banc).
A defendant has a Fifth Amendment right to be tried solely
on allegations made by the grand jury. Stirone v. United States,
361 U.S. 212, 215-18 (1960). The superseding indictment was
issued by the grand jury, and it replaced the original indictment
instead of amending it or broadening it.
The conspiracy count alleged that Hardeman conspired “with
others known and unknown to the grand jury[.]” The conspiracy
count was not defective for failing to allege any coconspirators.
United States v. Price, 869 F.2d 801, 804 (5th Cir. 1989).
The superseding indictment alleged drug amounts sufficient
to place Hardeman in the statutory sentencing ranges resulting in
the terms of imprisonment to which he was sentenced. The
superseding indictment did not violate Apprendi. See United
States v. Doggett, 230 F.3d 160, 164-66 (5th Cir. 2000), cert.
denied, 531 U.S. 1177 (2001). Hardeman’s prior drug felony
conviction, a fact that increased his sentencing exposure to life
imprisonment, see 21 U.S.C. § 841(b)(1)(A),(b), need not have
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been alleged in the indictment or proven to the jury. See
Apprendi, 530 U.S. at 490.
Hardeman contends that his sentence violated Apprendi
because the superseding indictment alleged no specific drug
amounts and that Apprendi rendered the drug sentencing statutes
unconstitutional. Hardeman does not argue that the Government
failed to prove the amounts alleged in the superseding
indictment; he has abandoned any such argument for appeal. In re
Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 439
n.6 (5th Cir. 1982). In Hardeman’s case, the jury found the drug
amounts alleged in the indictment, amounts that placed him in the
appropriate sentencing ranges. Moreover, Apprendi did not render
the sentencing statutes unconstitutional. United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir.), cert. denied, 532 U.S.
1045 (2001).
Hardeman contends that defense counsel was ineffective for
failing to object to the amount of drugs on which his sentence
was based. To the extent that Hardeman seeks to argue that
counsel was ineffective for failing to raise an Apprendi
objection, Hardeman can demonstrate neither deficient performance
nor prejudice. Strickland v. Washington, 466 U.S. 668, 689-94
(1984). To the extent that Hardeman attempts to argue that
counsel should have raised a non-Apprendi challenge to the drug
quantity on which his sentence was based, defense counsel did
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object to the amount of drugs on which Hardeman’s sentence was
based.
Hardeman contends that the affidavit supporting the search
warrant in his case was defective and that police failed to act
in accordance with the warrant. He argues that the result of the
search somehow was unreliable and that the chain of custody was
broken because there was a large hole in a wall in the residence
in which drugs were found.
Because Hardeman did not move for suppression before trial,
he may not challenge the search or search warrant for the first
time on appeal. United States v. Chavez-Valencia, 116 F.3d 127,
128 (5th Cir. 1997); FED. R. CRIM. P. 12(f). Hardeman does not
indicate how the chain of custody could have been affected by a
hole in the wall. In any event, a break in the chain of custody
is a factor in the weight of the evidence and not to the
admissibility of the evidence. United States v. Dixon, 132 F.3d
192, 197 (5th Cir. 1997).
Hardeman contends that the prosecutor engaged in misconduct
by using a tainted witness and that defense counsel was
ineffective for failing to object to that witness. According to
Hardeman, Enoch Fowler and his family guarded the residence where
drugs were found, and Fowler testified that he had a lengthy
criminal record.
Hardeman does not allege that Fowler perjured himself. Nor
does he cite to any authority for the proposition that use of a
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witness with a lengthy criminal record, without more, constitutes
misconduct, or that failure to object to the testimony of such a
witness constitutes ineffective assistance. Hardeman’s
misconduct and ineffective-assistance contentions are without
merit.
Hardeman contends that the delay between his October 2,
2000, arrest and his September 10-11, 2001, trial violated his
rights under the Speedy Trial Act. Hardeman moved in the
district court for dismissal of the indictment due to the delay
between his arrest and his indictment; he never moved in the
district court for dismissal due to the delay between his arrest
and his trial. Hardeman thus waived his contention that the
pretrial delay violated the Speedy Trial Act, and that contention
may not be considered on appeal. United States v. Westbrook,
119 F.3d 1176, 1185 (5th Cir. 1997).
We finally consider whether the district court erred by
removing Hardeman from the courtroom. Hardeman insisted in front
of the jury that he wished to testify, after the evidence had
been closed. The district court did not err. Hardeman continued
to speak after the district court ruled that Hardeman could not
testify and directed Hardeman to be quiet. Moreover, the
Government had excused its rebuttal witnesses and Hardeman missed
only the reading of the jury instructions. See Illinois v.
Allen, 397 U.S. 337, 343 (1970).
AFFIRMED.