United States v. Pound

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-60210 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLEN MAFFETT POUND,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:95-CV-135 - - - - - - - - - - June 3, 1998 Before DUHE’, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Olen Maffett Pound, federal prisoner # 09064-042, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. Pound argues that

his counsel was ineffective in that: (1) he did not inform Pound

of a plea offer; (2) he failed to object to an allegedly

defective indictment; (3) he failed to object to the violation of

the witness sequestration rule; and (4) he had a conflict of

interest as he represented both Maffett and Barbara Pound until

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-60210 -2-

approximately two weeks before trial and that the district court

erred in not holding a hearing pursuant to Fed. R. Civ. P. 44(c).

Pound also argues that the forfeiture of his assets together with

the imposition of a $25,000 fine and a 20-year sentence was

excessive; that the trial court erred in not striking the

testimony of the two government witnesses who violated Fed.

R. Evid. 615 requiring sequestration of witnesses; that the trial

court erred in not instructing the jury that they must reach a

unanimous verdict concerning which three predicate offenses make

up the continuing criminal enterprise; and that the district

court erred in holding that Pound’s constitutional rights were

not violated by the Government’s failure to file a Fed. R. Crim.

P. 35(b) motion. We have reviewed the record and the parties’

briefs and AFFIRM the district court’s denial of Pound’s § 2255

motion on the above issues for the same reasons set forth by the

district court. United States v. Pound, No. 3:95-CV-135 (N.D.

Miss. March 24, 1997).

Pound argues for the first time on appeal that his counsel

was ineffective in failing to object to the playing of the taped

telephone conversations for the jury. Review is limited to plain

error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428

(5th Cir. 1996)(en banc). Because Pound’s claim involves

questions of fact capable of resolution in the district court, he

has not demonstrated plain error. United States v. Vital, 68

F.3d 114, 119 (5th Cir. 1995). No. 97-60210 -3-

Pound argues for the first time on appeal that his counsel

was ineffective in failing to object to the trial court’s jury

instructions concerning the use of a communication facility to

further the conspiracy. Because Pound’s claim involves questions

of fact capable of resolution in the district court, he has not

demonstrated plain error. See Vital, 68 F.3d at 119.

Pound argues that the Government’s closing argument was so

inflammatory that it prejudiced the outcome of Pound’s trial.

Because Pound raised this argument only in the context of

ineffective assistance of counsel in the district court, review

is limited to plain error. Douglass, 79 F.3d at 1428. Pound has

not shown that the prosecutor’s remarks were persistent or

pronounced or that the evidence of his guilt was so insubstantial

that his conviction would not have occurred but for the improper

remarks. See Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988).

Pound has filed a motion to seal the case and not to publish

the court’s opinion. Pound’s motion is DENIED.

AFFIRMED; MOTION DENIED.