IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2008
No. 06-10971
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KENNETH REVEN MCCLAIN, also known as Roosevelt Hicks, also known as
Lonnie Smith, also known as Corey Arness, also known as Keith Perry, also
known as Jessie, also known as Paul Linder
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-332-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
A jury convicted Defendant-Appellant Kenneth Reven McClain of
conspiracy to defraud the United States by filing and aiding in the filing of false
claims against an agency of the United States, mail fraud, use of a postal
fictitious name or address in connection with unlawful activities, aggravated
identity theft, and aiding and abetting. McClain was sentenced to an aggregated
*
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should not be published and is not precedent except under the limited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. 06-10971
imprisonment term of 126 months and an aggregated three-year term of
supervised release. McClain is proceeding pro se on appeal.
Suppression hearing
McClain contends that the district court erred in denying his suppression
motion because there was no probable cause to arrest him. Considering the
evidence in the light most favorable to the government, a reasonable person
armed with the facts that Postal Inspector Jeff Terry had gathered could have
concluded that McClain had been using the mail and false names to make
fraudulent claims against the Federal Emergency Management Agency for
disaster relief. The arrest was supported by probable cause. See United States
v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995). The probable cause for the arrest
rendered the subsequent search of McClain’s person and his truck reasonable.
See United States v. Green, 293 F.3d 855, 857 (5th Cir. 2002). The record does
not reveal any obvious error with regard to the standard the district court used
to make its probable-cause determination. Likewise, there is no record support
for McClain’s contention that Terry searched McClain’s mail without a warrant
or that the seizure of a hotel room was unreasonable because the consent given
by Andrew Hamann was coerced.
Preliminary hearing stages
Citing 44 U.S.C. § 2901, McClain asserts that warrants bearing no court
seals were improperly presented to the grand jury as evidence. Assuming that
§ 2901 is applicable in this context, McClain has shown, at best, a technical rule
violation that does not warrant reversal of his convictions. See United States v.
Smith, 424 F.3d 992, 1008 (9th Cir. 2005). McClain also contends that the
indictment returned by the grand jury was based on perjurious statements
contained in Terry’s sworn search warrant application. This factual matter,
raised for the first time on appeal, does not give rise to plain error. See United
States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994). McClain had no right to have
exculpatory evidence presented to the grand jury. United States v. Williams, 504
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U.S. 36, 52 (1992). McClain’s assertion that he received ineffective assistance
of counsel from Tom Cox during the preliminary-hearing stage of his case cannot
be resolved on direct appeal. United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006).
McClain contends that the government should have proceeded against him
civilly under 18 U.S.C. § 1345 rather than prosecuting him criminally for making
fraudulent claims. Section 1345 does not preclude the government from
criminally prosecuting a person. McClain has not met his heavy burden of
showing that he was selectively prosecuted. United States v. Johnson, 577 F.2d
1304, 1308 (5th Cir.1978). The record refutes McClain’s assertion that he was
held incommunicado from November 30, 2005, through December 16, 2005.
Pretrial proceedings
The May 11, 2006, pretrial conference involved only questions of law.
Thus, McClain’s presence was not required at the conference. See FED. R. CRIM.
P. 43(b)(3). McClain insists that the government withheld evidence, in the form
of an audiotaped interview between his own investigator and Hamann, in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act. The
evidence at issue was neither Brady material nor Jencks Act material. The
record refutes McClain’s assertion that the district court did not allow him to
represent himself at trial. McClain has not shown plain error with regard to his
contention that the trial judge should have recused himself or that the trial
judge violated the Establishment Clause by using God’s name before the start
of each court day. See Marsh v. Chambers, 463 U.S. 783, 786-93 (1983).
McClain has not shown that the district court abused its discretion in denying
his motion for a continuance, made on the morning of trial. United States v.
Buchanan, 485 F.3d 274, 283 (5th Cir. 2007). Neither has McClain shown plain
error with regard to his claim that Hamann’s fleeting presence in the courtroom
during the suppression hearing amounted to a suggestive show-up identification.
See United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc); United
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States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), abrogated in
part by Johnson v. United States, 520 U.S. 461 (1997).
Evidentiary errors
Contrary to McClain’s contention, the district court did not abuse its
discretion in admitting Mary Dunseith’s testimony that a female called her,
attempting to retrieve mail that was received as part of the mail fraud scheme.
United States v. Solis, 299 F.3d 420, 443 (5th Cir. 2002). His contention that any
evidence obtained from Hamann was inadmissible because Hamann was coerced
into cooperating with law enforcement officers is refuted by Hamann’s own
testimony. As McClain has failed adequately to brief his insistence that the
district court should not have admitted into evidence items that had not been
listed on a search warrant, he has waived this argument. FED. R. APP. P.
28(a)(9); United States v. Avants, 367 F.3d 433, 442 (5th Cir. 2004); United
States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
Evidentiary sufficiency
McClain unsuccessfully moved for a judgment of acquittal at the close of
the government’s case, which was the close of all the evidence as well. We have
therefore reviewed his sufficiency challenge to determine “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The facts of this case are
far too lengthy to reiterate here; we have, however, reviewed all the evidence
presented at trial in the light most favorable to the government, with all
reasonable inferences made in support of the jury’s verdict. United States v.
Moser, 123 F.3d 813, 819 (5th Cir. 1997). As a result of that review, we conclude
that jury made a rational decision that there was sufficient evidence to prove
each element of each count of conviction. See United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995).
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Procedural trial errors
McClain assails a closing argument by the prosecutor that there was an
unknown female involved in the mail fraud conspiracy. The prosecutor’s
argument was permissible, as it was supported by evidence adduced at trial. See
United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998). McClain argues
that neither he nor his attorney was present in the courtroom when a second
juror note was ruled on. The record does not reflect any discussion on the juror
note. The second “supplemental jury instruction” issued in response to the
second jury note merely served as a cover letter for a transcript of Dunseith’s
testimony submitted to the jury. It did not instruct the jury as to any factual or
legal point. The district court did not abuse its discretion in providing the jury
with the transcript. See Government of the Canal Zone v. Scott, 502 F.2d 566,
570 (5th Cir. 1974). Moreover, McClain has failed to explain any grounds on
which the district court would have sustained any objection to the provision of
the transcript had he been present.
McClain asserts that juror misconduct should have resulted in a mistrial.
McClain has a right to a trial by an impartial jury, and the district court has
broad discretion in making determinations of impartiality. United States v.
Hinojosa, 958 F.2d 624, 631 (5th Cir.1992). A review of the colloquy between the
district court and the three jurors at issue does not reveal any abuse of discretion
in this regard. Id. McClain’s speculative assertion that Bureau of Prisons
officials refused to sell him hair straightening products in an effort to prevent
the jury from realizing that Hamann had misidentified him is frivolous and
unsupported by the record.
Post-trial motions
McClain has waived his challenge to the district court’s denial of his
motion for an arrest of judgment by failing to brief it adequately. Avants, 367
F.3d at 442. The district court did not abuse its inherent power to control its
docket, see In re United Markets Int’l, Inc., 24 F.3d 650, 654 (5th Cir. 1994),
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when it gave McClain only one week following the magistrate judge’s ruling on
counsel’s withdrawal motion in which to file any postjudgment motions. Two
such extensions had already been granted to counsel, and McClain’s motions
were filed within the time allotted by the district court.
Sentencing
McClain advances that the district court erred in determining the loss
amount under U.S.S.G. § 2B1.1. The district court’s determination of the
intended loss amount was supported by the presumptively reliable facts
contained in the PSR. See United States v. Carbajal, 290 F.3d 277, 287 (5th Cir.
2002). McClain has not rebutted those facts and thus has failed to show clear
error. See United States v. Randall, 157 F.3d 328, 330 (5th Cir. 1998). Likewise,
the unrebutted facts contained in the PSR support the district court’s
determination that McClain was a leader or organizer of extensive activity for
purposes of U.S.S.G. § 3B1.1. That same determination militates against any
offense level reduction under § 3B1.2 for a mitigating role in the offense.
McClain has not shown that he should have received a three-level reduction
pursuant to U.S.S.G. § 2X1.1(b)(2) for an incomplete conspiracy. United States
v. Waskom, 179 F.3d 303, 308 (5th Cir. 1999).
The district court did not abuse its discretion in refusing McClain’s request
for a continuance of the sentencing hearing. See United States v. Barnett, 197
F.3d 138, 144 (5th Cir. 1999). With respect to his argument that he did not
receive a copy of the PSR Addendum until after sentencing, McClain has not
shown plain error. See Reyna, 358 F.3d at 350; Calverley, 37 F.3d at 162-64.
McClain’s argument that the imposition of consecutive sentences on more than
one of his 18 U.S.C. § 1028A convictions constituted an upward departure is
misplaced. Neither the statute itself nor either of the sentencing guidelines
applicable to those offenses indicates that such a sentence constitutes an upward
departure. The Confrontation Clause does not apply in the sentencing context.
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No. 06-10971
United States v. Mitchell, 484 F.3d 762, 776 (5th Cir.), cert. denied, 128 S. Ct.
297 (2007).
Conclusion
McClain has not shown error, plain or otherwise, with respect to his
multiple contentions and arguments. The judgment of the district court is, in all
respects, affirmed. McClain has filed a motion to be released on bail pending
appeal and two motions to amend his bail motion. McClain has not made the
showing required for release on bail, and his motions are denied. See 18 U.S.C.
§ 3143(b)(1); United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990). McClain
has also filed a motion to strike the government’s brief, two motions to
supplement the record on appeal, a motion for reconsideration of the order
allowing the government to supplement the record on appeal, and a motion to
correct minor grammatical errors in his reply brief. Those motions are all
denied. Finally, McClain has filed a motion seeking to have an exhibit marked
as the government’s first sentencing exhibit sent to him. To the extent McClain
seeks the original document, his motion is denied. The Clerk is directed,
however, to provide McClain with a copy of that document.
AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.
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