UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4075

MARK CORRIGAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-96-128-H)

Submitted: June 30, 2000

Decided: July 19, 2000

Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard B. Glazier, H. Gerald Beaver, BEAVER, HOLT, RICHARD-
SON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, William
Flint Boyer, Third-Year Law Student, Raleigh, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Mark Corrigan appeals his convictions and 188-month sentence
imposed after a jury found him guilty of money laundering, conspir-
acy to commit mail fraud, two counts of mail fraud, and two counts
of making false statements. Corrigan challenges his convictions for
making false statements, asserting that the district court erred by not
submitting the materiality element to the jury. Next, he contends that
the district court erred by denying his motion to substitute counsel, as
well as his motion to set aside the verdict and for a new trial. Corrigan
also attacks his sentence, asserting that the district court erred in
applying a nine-level enhancement under U.S. Sentencing Guidelines
Manual § 2S1.1(b)(2)(J) (1997), for laundered funds exceeding
$10,000,000, and a four-level adjustment under USSG§ 3B1.1(a) for
his role as a leader or organizer. Finding no reversible error, we
affirm Corrigan's convictions and sentence.

I.

Corrigan first challenges his convictions for making false state-
ments (18 U.S.C.A. §§ 2, 1001 (West 2000)), arguing that the district
court erred by not submitting the materiality element to the jury. Cor-
rigan asserts that this is a structural error warranting reversing and
remanding for a new trial. In the alternative, Corrigan asserts that
even if a harmless error analysis applies, the error is not harmless.

To prove a violation of 18 U.S.C.A. § 1001, the government must
prove that Corrigan made a false statement to a governmental agency
knowingly or willfully and that the false statement was material to a
matter within the agency's jurisdiction. See United States v. Sarihi-
fard, 155 F.3d 301, 306 (4th Cir. 1998). Although Corrigan correctly
asserts that the district court erred by not submitting the materiality
element to the jury, see United States v. Gaudin , 515 U.S. 506, 522-

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23 (1995), his assertion that the error is a structural defect is incorrect.
In Neder v. United States, 527 U.S. 1 (1999),1 the Supreme Court has
made it clear that harmless error analysis is required even when an
element of an offense has been entirely removed from the jury's con-
sideration. See id. at 4.

To determine whether the removal of an element from the jury's
consideration is harmless error, the Court must determine "whether it
appears `beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.'" Id. at 15 (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)). "[W]here a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error, the erroneous
instruction is properly found to be harmless." Id. at 17. Thus, an error
is harmless "if the element was uncontested and supported by over-
whelming evidence." United States v. Brown , 202 F.3d 691, 700-01
(4th Cir. 2000) (footnote omitted); see also Neder, 527 U.S. at 19 ("In
a case such as this one, where a defendant did not, and apparently
could not, bring forth facts contesting the omitted element, answering
the question whether the jury verdict would have been the same
absent the error does not fundamentally undermine the purposes of
the jury trial guarantee.").

We find, after a thorough review of the record, that Corrigan's
false statements on the documents filed with the governmental agency
charged with regulating the tobacco industry were material. See
Neder, 527 U.S. at 16 (defining "material" and finding that "the fail-
ure to report [over $5,000,000 in] income incontrovertibly establishes
that [defendant's] false statements were material to the determination
of his income tax liability"). Because Corrigan did not contest the
materiality of his statements at trial or on appeal and because the evi-
dence of materiality was overwhelming, we find that the district
court's failure to submit that element to the jury was harmless error.
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1 Neder applies retroactively to Corrigan's case because his case was
pending on direct review when the Supreme Court issued its decision.
See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The Supreme Court
decided Neder eight months before Corrigan filed his brief in this Court.

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See Neder, 527 U.S. at 17. Corrigan therefore is not entitled to a new
trial on this basis.

II.

Corrigan next challenges the district court's denial of his motion to
substitute counsel. Corrigan asserts that the district court erred in
finding that his counsel of choice labored under a conflict of interest
that could not be waived. He also contends that the district court erred
in not allowing his then-current counsel to withdraw.2 We review the
district court's denial for an abuse of discretion. See United States v.
DeTemple, 162 F.3d 279, 288 (4th Cir. 1998), cert. denied, 526 U.S.
1137 (1999).

Corrigan contends that the district court erred in finding that the
attorneys he sought to substitute would have a conflict of interest if
they represented both Corrigan and Cecil Humphries, one of Corri-
gan's co-defendants and a potential government witness. Applying
the principles set forth in Wheat v. United States, 486 U.S. 153
(1988), we find no abuse of discretion in the district court's decision
to disqualify Corrigan's proposed counsel and to decline to accept
Corrigan's waiver of the conflict. See id. at 163-64 (finding that while
"[t]he District Court must recognize a presumption in favor of peti-
tioner's counsel of choice, . . . that presumption may be overcome not
only by a demonstration of actual conflict but by a showing of a seri-
ous potential for conflict"); see also Holloway v. Arkansas, 435 U.S.
475, 490 (1978) (recognizing that "a conflict may also prevent an
attorney . . . from arguing at the sentencing hearing the relative
involvement and culpability of his clients in order to minimize the
culpability of one by emphasizing that of another"); United States v.
Williams, 81 F.3d 1321, 1324-25 (4th Cir. 1996) (upholding district
court's decision to disqualify attorney who represented other mem-
bers of conspiracy, given that dual representation posed threat to
attorney's ability to effectively and fairly cross-examine govern-
ment's potential witness).

Corrigan also asserts that the district court erred in not granting his
_________________________________________________________________

2 Corrigan has different counsel on appeal.

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then-current counsel's motion to withdraw. Under the standards set
forth in United States v. DeTemple, 162 F.3d 279, 288 (4th Cir. 1998),
cert. denied, 526 U.S. 1137 (1999), we find no abuse of discretion in
the district court's denial of counsel's motion to withdraw.

III.

Corrigan next contends on appeal that the district court erred in
denying his motion to set aside the verdict under Fed. R. Crim. P.
29(c), and for a new trial under Fed. R. Crim. P. 33. He asserts that
he is entitled to a new trial because trial counsel labored under an
actual conflict of interest and that counsel provided ineffective assis-
tance.

Although Corrigan mentions the Rule 29 motion to set aside the
verdict in the caption of the appellate brief section discussing the
issue, he provides no argument with regard to that motion in the body
of the brief. We therefore find that Corrigan has abandoned the Rule
29 issue on appeal. See Edwards v. City of Goldsboro, 178 F.3d 231,
241 n.6 (4th Cir. 1999) (noting that issues not briefed or argued on
appeal are deemed abandoned).

With regard to Corrigan's Rule 33 motion, we find that the district
court did not have jurisdiction to consider the motion because it was
filed outside the applicable time period. See Fed. R. Crim. P. 33
(requiring that a motion for new trial based on any ground other than
newly discovered evidence be filed "within 7 days after the verdict or
finding of guilty or within such further time as the court may fix dur-
ing the 7-day period"); see also United States v. Smith, 62 F.3d 641,
648 (4th Cir. 1995) (finding that time period for filing a new trial
motion is jurisdictional). Moreover, Corrigan's Rule 33 motion alleg-
ing numerous instances of ineffective assistance of counsel cannot be
construed as a timely motion alleging "newly discovered evidence."
See Fed. R. Crim. P. 33 ("A motion for new trial based on newly dis-
covered evidence may be made only within three years after the ver-
dict or finding of guilty."); see also Smith , 62 F.3d at 648 (holding
that "information supporting an ineffective assistance claim is not
`evidence' within the meaning of Rule 33 and, therefore, . . . a motion
for a new trial predicated on ineffective assistance of counsel must be
brought, if at all, within seven days of [the verdict]").

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IV.

Finally, Corrigan challenges his sentence, contending that the dis-
trict court clearly erred in enhancing his base offense level by nine
levels under USSG § 2S1.1(b)(2)(J) for laundered funds exceeding
$10,000,000 and by four levels under USSG § 3B1.1(a) for his role
in the offense. Our review of the record leads us to conclude that the
district court did not clearly err in either instance. See United State v.
Hull, 160 F.3d 265, 273 (5th Cir. 1998) (stating standard of review
for § 2S1.1(b) enhancement) cert. denied , 525 U.S. 1169 (1999), and
cert. denied, 526 U.S. 1136 (1999); United States v. Lipford, 203 F.3d
259, 272 (4th Cir. 2000) (stating standard of review for § 3B1.1(a)
adjustment).

Corrigan asserts that the district court overstated the amount of the
laundered funds by attributing transactions not directly conducted by
him, effectively double-counting some sales.3 Contrary to Corrigan's
assertion, the district court appropriately relied on trial testimony
establishing that 12,700,000 pounds of excess tobacco were sold in
the dead card scheme during the 1990 to 1992 tobacco seasons using
dead cards held or controlled by Corrigan and his co-defendants. The
court multiplied the number of pounds by the amount per pound
assessed for quantities above a farmer's quota ($1.25 per pound), for
a total of $15,875,000 in funds laundered. Finally, although Corrigan
contends that he should be held accountable for only the amount he
handled personally--approximately $8,000,000--this approach is
contrary to the relevant conduct provisions in the guidelines. See
USSG § 1B1.3(a). We therefore find no clear error in the district
court's calculation of the amount of the funds laundered by Corrigan.
See Hull, 160 F.3d at 273.

Corrigan also challenges the adjustment for his role in the offense,
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3 To the extent that Corrigan challenges the district court's decision to
group the money laundering and fraud offenses under USSG § 3D1.2(d),
we find no plain error. See Lipford, 203 F.3d at 271 (stating standard of
review); United States v. Walker, 112 F.3d 163, 167 (4th Cir. 1997)
(holding that money laundering counts may be grouped with other
offenses if they are both part of an ongoing or continuous scheme).

                     6
focusing his argument on appeal on the conduct of his co-conspirators.4
A four-level adjustment in the offense level should be made under
§ 3B1.1(a) "[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive." USSG § 3B1.1(a). We find that the four-level adjustment
was proper, given that Corrigan revised the process by which the pro-
ceeds of the sales of excess tobacco were handled, funneling the funds
through his corporate bank account in Virginia and personally trans-
porting large sums in his private plane to expedite the transfers. More-
over, at one point during the scheme, Corrigan controlled over twenty
books in which the government required tobacco sales to be recorded.
We therefore find no clear error in the district court's decision to
adjust Corrigan's offense level by four levels. See Lipford, 203 F.3d
at 272.

V.

Accordingly, we affirm Corrigan's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED
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4 Corrigan also takes issue with the district court's authority to impose
an adjustment greater than the adjustment recommended in the presen-
tence report, when the government did not object to the recommended
adjustment and the court did not provide Corrigan with prior notice of
its intent to impose an additional level. Although parties are entitled to
reasonable notice that the sentencing court contemplates a departure, see
United States v. Burns, 501 U.S. 129, 138 (1991), there is no support for
Corrigan's assertion that this rule also applies to increasing an adjust-
ment by one level. Cf. Walker, 112 F.3d at 166 (finding that notice
requirement does not apply to district court's decision to withhold adjust-
ment for acceptance of responsibility).




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