               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-10032
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

BERNARD JOSEPH DOLENZ,

                                         Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:98-CR-107-H-ALL
                       --------------------
                          August 4, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Proceeding pro se, Bernard Joseph Dolenz appeals his

convictions and sentence after being convicted of 12 counts of

mail fraud.1   Dolenz raises 17 issues in his brief, all of which

are either unavailing or waived due to inadequate briefing.2

     Dolenz’s argument that the mail-fraud statute requires a

connection with interstate commerce is without merit; it only


     *
        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that this opinion should not be published and is not precedent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.
     1
         Dolenz’s “Motion to Bar Appellee’s Brief” is DENIED.
     2
        Because Dolenz states that he is a licensed attorney, he
is not entitled to liberal construction. See Olivares v. Martin,
555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
                            No. 99-10032
                                 -2-

requires the use of the mails.    See Neder v. United States, 527

U.S. 1, 20 (1999); Badders v. United States, 240 U.S. 391, 393-94

(1916).    Because Congress may regulate the use of the mails, his

argument that his federal conviction violated the Tenth Amendment

by usurping the criminal jurisdiction of the State of Texas also

fails.    See United States v. Bailey, 115 F.3d 1222, 1232-33 (5th

Cir. 1997).

     Likewise without merit is Dolenz’s contention that there was

no evidence to show that he engaged in a scheme or artifice to

deprive another of the intangible right of honest services.

Because the definition of the phrase “scheme or artifice to

defraud” found in 18 U.S.C. § 1346 is inclusive rather than

exclusive and because Dolenz was not charged under an honest-

services theory, it matters not that there was no evidence to

support such a theory.    See United States v. Manges, 110 F.3d

1162, 1171 (5th Cir. 1997).

     By failing to object to his indictment prior to trial,

Dolenz waived his claim that his indictment was duplicitous for

charging him with both mail fraud and aiding and abetting.       See

Fed. R. Crim. P. 12(b)(2), (f); United States v. Lyons, 703 F.2d

815, 821 (5th Cir. 1983).   In any event, his claim is meritless,

see United States v. Masson, 582 F.2d 961, 963 (5th Cir. 1978);

United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971), as

is his claim that his indictment is multiplicitous for charging a

single offense of mail fraud in multiple counts.    See United

States v. McClelland, 868 F.2d 704, 706 (5th Cir. 1989)(stating
                             No. 99-10032
                                  -3-

that each separate use of the mails to further a scheme to

defraud is a separate offense of mail fraud).

     Dolenz’s claim that his daughter’s testimony should have

been suppressed because it was given in exchange for leniency in

the criminal proceedings against her is foreclosed by circuit

precedent.   See United States v. Haese, 162 F.3d 359, 366-68 (5th

Cir. 1998), cert. denied, 526 U.S. 1138 (1999).     Likewise without

merit is Dolenz’s argument that his daughter was inherently

untrustworthy and that the district court therefore abused its

discretion in admitting business records from his clinic based on

her testimony.     See United States v. Parsee, 178 F.3d 374, 380

(5th Cir.), cert. denied, 120 S. Ct. 450, 465 (1999).

     Contrary to Dolenz’s assertion, the order prohibiting him

from contacting his daughter during his criminal proceedings did

not rise to the level of a constitutional violation.      See United

States v. Soape, 169 F.3d 257, 270-71 (5th Cir.), cert. denied,

527 U.S. 1011 (1999).    Moreover, Dolenz has not shown that the

Government knowingly presented materially false evidence to the

jury during its case-in-chief.     See United States v.

Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989); see also

United States v. Brown, 634 F.2d 819, 827 (5th Cir. Jan.

1981)(stating that it is not enough that the allegedly false

testimony may have been challenged by another witness).

     The district court did not improperly “split” Dolenz’s term

of imprisonment.    Because Dolenz was convicted of 12 separate

mail-fraud offenses, the district court was authorized to impose

consecutive sentences.     See U.S.S.G. § 5G1.2(d); 18 U.S.C.
                             No. 99-10032
                                  -4-

3584(a).   Given the discrepancy between Dolenz’s trial testimony

and statements that he made prior to trial, no plain error

occurred when the prosecutors commented during closing arguments

that Dolenz had testified untruthfully.     See United States v.

Washington, 44 F.3d 1271, 1279 (5th Cir. 1995); United States v.

Loney, 959 F.2d 1332, 1343 (5th Cir. 1992).

     Dolenz cannot rely solely on the composition of the jury

panel at his own trial to show that he was denied his Sixth

Amendment right to a trial by a jury selected from a fair cross-

section of the community.    See United States v. Olaniyi-Oke, 199

F.3d 767, 773 (5th Cir. 1999); United States v. Alix, 86 F.3d

429, 434 n.3 (5th Cir. 1996).    Although Dolenz alleges in his

fourteenth issue that his attorney was ineffective in 20

different respects, those allegations are not cognizable in his

direct appeal.     See United States v. Higdon, 832 F.2d 312, 313-14

(5th Cir. 1987).

     The district court did not plainly err in refusing to

instruct the jury on materiality because, given the overwhelming

evidence of materiality in this case, Dolenz has not shown that

the failure to include such an instruction affected either his

substantial rights or the fairness, integrity, or public

reputation of judicial proceedings.     See Johnson v. United

States, 520 U.S. 461, 469-70 (1997); United States v. Olano, 507

U.S. 725, 734, 741 (1993).    Dolenz’s challenge to the

constitutionality of Federal Rule of Criminal Procedure 52(a),

which discusses harmless error, is misplaced because review of

his claim falls under Rule 52(b), which governs review for plain
                            No. 99-10032
                                 -5-

error.   See Johnson, 520 U.S. at 465-67; United States v.

Rios-Quintero, 204 F.3d 214, 215 (5th Cir.), petition for cert.

filed, (U.S. June 7, 2000)(No. 99-9905).     Because the Supreme

Court’s decision in Neder v. United States, 527 U.S. 1, 25

(1999)(holding that materiality is an element of the federal

mail-fraud statute), was issued after Dolenz was convicted and

sentenced, his trial attorney cannot be said to have been

ineffective for failing to request a jury instruction on

materiality.   See Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir.

1997)(stating that counsel has no general duty to anticipate

changes in the law).

     The district court did not err in refusing to consider

Dolenz’s pro se postjudgment motions.      Because those motions were

filed months after the filing of his notice of appeal and because

those motions--with the possible exception of his motion for bail

pending appeal--were not in aid of his pending appeal, the

district court lacked jurisdiction to consider them.      See United

States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979)(en banc).

Even if it could be said that Dolenz’s motions were in aid of his

pending appeal, this court would lack jurisdiction to review the

district court’s orders disposing of those motions because Dolenz

did not file a new notice of appeal or amend his previously-filed

notice of appeal after those orders had been entered.      See Fed.

R. App. P. 4(b)(1)(A)(i).   Dolenz’s contention that the district

court should have sanctioned the prosecutors, their witnesses,

and various personnel at the Bureau of Prisons has no bearing on
                          No. 99-10032
                               -6-

the fairness and propriety of his convictions and, therefore,

does not warrant appellate relief.

     Dolenz also argues (1) that the district court erred in

imposing more than $1.6 million in restitution because that

amount exceeded the $4,000 alleged in the indictment, (2) that

the district court erred in denying his motion for judgment of

acquittal because there was insufficient evidence to support his

mail-fraud convictions, and (3) that the Sentencing Reform Act of

1984 is unconstitutional and without legal effect.   These issues

are not adequately briefed and are therefore waived.   See United

States v. Flores, 63 F.3d 1342, 1374 n.36 (5th Cir. 1995).     In

his reply brief, Dolenz also challenges various determinations

used to calculate his sentence.   Because these issues are raised

for the first time in his reply brief, they are also waived.        See

United States v. Green, 46 F.3d 461, 465 n.3 (5th Cir. 1995).

     MOTION DENIED; AFFIRMED.
