United States v. Franklin

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 99-30915
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30915 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY O’NEAL FRANKLIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CR-19-1-A -------------------- April 12, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Gregory O’Neal Franklin appeals his jury conviction for

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g). Franklin argues that the district court abused

its discretion in denying his motion for a continuance to locate

a witness. Because Franklin failed to demonstrate that he

exercised due diligence in attempting to locate the witness or

that the witness was available and willing to testify, Franklin

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30915 -2-

has not shown that the district court abused its discretion in

denying his motion for a continuance. See United States v.

Scott, 48 F.3d 1389, 1393 (5th Cir. 1995).

Franklin also argues for the first time on appeal that the

district court’s denial of his motion for a continuance violated

his Fifth Amendment right to due process and his Sixth Amendment

right to compulsory process. Because Franklin did not raise

these arguments in the district court, review is limited to plain

error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc). Under Fed. R. Crim. P. 52(b), this court

may correct forfeited errors only when the appellant shows the

following factors: (1) there is an error, (2) that is clear or

obvious, and (3) that affects his substantial rights. Id. at

162-64 (citing United States v. Olano, 507 U.S. 725, 730-36

(1993)). If these factors are established, the decision to

correct the forfeited error is within the sound discretion of the

court, and the court will not exercise that discretion unless the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Olano, 507 U.S. at 736.

Franklin has not shown that he exercised due diligence in

attempting to locate Butler, that there was a reasonable

probability of obtaining Butler’s testimony within a reasonable

time, that he had any information concerning where Butler

currently lives or works, or that he knew any person who might

have had more information concerning Butler. Therefore, the

district court’s denial of the motion for a continuance did not

violate Franklin’s due process rights or his right to compulsory No. 99-30915 -3-

process. See United States v. Khan, 728 F.2d 676, 678 (5th Cir.

1984).

AFFIRMED.