                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                March 6, 2008
                               No. 07-12783                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 06-60351-CR-WPD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

VINCENT MILO, JR.,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (March 6, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Vincent Milo, Jr., proceeding pro se, appeals his convictions on two counts
of knowingly and willfully making a false statement relating to a matter within the

jurisdiction of the U.S. Government, in violation of 18 U.S.C. § 1001(a)(2). Milo

asserts the indictment was fatally defective because it alleged he made false

statements for the purpose of obtaining his pilot’s license, when there is no such

thing as a pilot’s license, only an airman’s certificate, and the court erred by

concluded that the “pilot’s license” language in the indictment was surplusage.

Milo also contends the Government committed prosecutorial misconduct because it

used the incorrect “pilot’s license” language throughout the trial, even after the

language was deemed to be inaccurate.

      We review a district court’s denial of a motion to dismiss an indictment for

an abuse of discretion and the sufficiency of an indictment de novo. United States

v. Bobo, 344 F.3d 1076, 1082-83 (11th Cir. 2003). Certain types of motions must

be made before trial, including “a motion alleging a defect in the indictment.” Fed.

R. Crim. P. 12(b)(3)(B). The motion may be heard while the case is pending only

if there is a claim that the indictment “fails to invoke the court’s jurisdiction or to

state an offense.” Id. “A party waives any Rule 12(b)(3) defense, objection, or

request not raised by the deadline the court sets under Rule 12(c) or by any

extension the court provides. For good cause, the court may grant relief from the

waiver.” Fed. R. Crim. P. 12(e); see also United States v. Ramirez, 324 F.3d 1225,



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1227-28 (11th Cir. 2003). A defendant does not have good cause warranting relief

from waiver when he had all the information necessary to bring a Fed. R. Crim. P.

12(b) motion before the date set for pretrial motions, but failed to file it by that

date. Ramirez, 324 F.3d at 1228 n.8.

      Milo waived his ability to claim the indictment was defective because he did

not raise the issue in a pre-trial motion and he cannot show the indictment failed to

invoke the court’s jurisdiction or to state an offense. See Fed. R. Crim. P.

12(b)(3)(B), (e); Ramirez, 324 F.3d at 1227-28. Milo also failed to show good

cause for relief from the waiver because he had all the information necessary to

challenge the indictment before the trail began but failed to do so. See Ramirez,

324 F.3d at 1228 n.8.

      Milo was also properly convicted of violating 18 U.S.C. § 1001(a)(2). The

district judge instructed the jury on all the elements of an 18 U.S.C. § 1001(a)(2)

violation, stating that Milo could only be found guilty if the jury found beyond a

reasonable doubt that he willfully and knowingly made a materially false statement

in relation to a matter within the jurisdiction of an agency of the United States. See

18 U.S.C. § 1001(a)(2). That the Government erroneously referred to a “license”

or “pilot’s license” at trial had no effect on the outcome of the trial because the

Government never indicated a pilot’s license and a medical certificate were the



                                            3
same document, and testimony provided that an “airman medical certificate is not”

a pilot’s license. Therefore, any error the prosecutor made does not warrant a new

trial. See United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007) (stating

“‘[p]rosecutorial misconduct requires a new trial only if we find the remarks

(1) were improper and (2) prejudiced the defendant’s substantive rights.’” (citation

omitted)). The jury found Milo knowingly and willfully made materially false

statements on the 2002 and 2004 medical certificates, which were in the

jurisdiction of an agency of the United States. Milo was properly charged and

convicted, and we affirm his convictions.

      AFFIRMED.




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