IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31192
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD R. JOHNSON,
also known as Leonard R. Robertson,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CR-126-ALL-A
--------------------
January 27, 2003
Before BARKSDALE, DEMOSS and BENAVIDES, CIRCUIT JUDGES.
PER CURIAM:*
Leonard R. Johnson, also known as Leonard R. Robertson,
appeals from his conviction for felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Johnson raises numerous
issues on appeal. Johnson first argues that his trial counsel
rendered ineffective assistance of counsel, which we decline to
address because we generally do not allow such claims on direct
appeal except in rare cases where the record allows for a fair
*
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that this opinion should not be published and is not precedent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.
evaluation of the merits, and we conclude that this is not such a
rare case. See United States v. Navejar, 963 F.2d 732, 735 (5th
Cir. 1992).
Johnson next argues that his prosecution was a "sham" under
Bartkus v. Illinois, 359 U.S. 121 (1959), because he was previously
acquitted in a state bench trial for the same conduct forming the
basis of the federal indictment. We conclude that Johnson has not
made the requisite showing of a sham prosecution. See United
States v. Harrison, 918 F.2d 469, 474-75 (5th Cir. 1990). Johnson
also argues that the Government violated its own procedures in
obtaining a waiver of its Petite policy. However, a defendant may
not invoke the Government's Petite policy to bar federal
prosecution. Harrison, 918 F.2d at 475.
Johnson argues that he was subject to prosecutorial misconduct
because the prosecutor made false statements and relied on false
evidence in presenting the case to the grand jury, in obtaining the
waiver to the Petite policy, and in trying the case. Johnson's
claim concerning the indictment was not made in a pre-trial motion
to dismiss the indictment and is waived. See FED. R. CRIM. P. 12;
United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979). In
any event, we conclude that Johnson has not shown that the alleged
falsehoods cast any doubt on the jury's verdict. See United States
v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir. 1998); see also
Napue v. Illinois, 360 U.S. 264, 269 (1959). Johnson also argues
that he was subject to vindictive prosecution. This issue is
inadequately briefed and therefore is considered abandoned. See
2
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); FED. R. APP.
P. 28(a)(9)(A). It is also raised for the first time on appeal and
is without merit. See United States v. Johnson, 91 F.3d 695, 697
(5th Cir. 1996); Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1428 (5th Cir. 1996)(en banc).
Johnson next argues that the district judge should have
recused himself, although he did not move in the district court for
recusal. He has not shown that a reasonable person would doubt the
district court's impartiality. United States v. Jordan, 49 F.3d
152, 155 (5th Cir. 1995). He also argues that the district court
erroneously characterized his numerous objections to the
presentence report as frivolous, citing to sentencing guidelines
concerning downward departure. To the extent he argues that the
district court failed to consider his objections, including his
contention that he was subject to a justification defense, as
mitigating circumstances, we lack jurisdiction to consider the
issue because the district judge did not expressly state a belief
that he lacked authority to depart downward. See United States v.
Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000). To the extent he
argues that his objections were improperly denied, Johnson has not
shown that the district court imposed a sentence in violation of
law or incorrectly applied the sentencing guidelines. See United
States v. Cuyler, 298 F.3d 387, 389 (5th Cir. 2002).
Johnson argues that the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), but
he has not shown that the Government suppressed any evidence. He
3
also argues that prosecution under § 18 U.S.C. § 922(g) violates
the Second Amendment in light of unspecified comments from the
Attorney General. This argument, in addition to being inadequately
briefed, is without merit. See United States v. Emerson, 270 F.3d
203, 261 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002).
Finally, Johnson's claim that the evidence was insufficient to
support his conviction is also without merit. See United States v.
Knezek, 964 F.2d 394, 400 (5th Cir. 1992); United States v.
Cavazos, 288 F.3d 706, 712 (5th Cir.), cert. denied, 123 S. Ct. 253
(2002); United States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995);
United States v. Thomas, 810 F.2d 478, 480 (5th Cir. 1987).
AFFIRMED.
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