                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS           December 11, 2003
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                              No. 02-30611
                            Summary Calendar


                     UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                 versus

                          EMMETT SPOONER, JR.,

                                                   Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                for the Middle District of Louisiana
                      USDC No. 00-CR-145-ALL-D
                         --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      A jury convicted Emmett Spooner, Sr., of three counts of wire

fraud and three counts of mail fraud. The district court sentenced

him   to   thirty-three   months’   imprisonment    and   three    years’

supervised release and ordered him to pay $29,198 in restitution.

Spooner’s motion to take judicial notice of Louisiana case law is

DENIED.

      Spooner who is proceeding pro se contends that the evidence

was not sufficient to prove that he used the mail to perpetrate a


      *
        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this opinion should not be published and is not precedent except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.
fraud.     We view the evidence in the light most favorable to the

Government and determine whether “‘a rational trier of fact could

have   found   the   essential   elements   of   the   offense    beyond   a

reasonable doubt.’”     United States v. McCauley, 253 F.3d 815, 818

(5th Cir. 2001).     The Government produced sufficient evidence that

Spooner induced insurance companies to mail or to deliver by

private carrier, checks as settlement for claims in execution of a

scheme to obtain money based on false representations.           See United

States v. Wilson, 249 F.3d 366, 377 (5th Cir. 2001).

       Spooner contends that he was denied his Sixth Amendment right

to counsel.    He asserts that he did not waive his right to counsel

and that he was denied due process because he was forced to proceed

without counsel.     Spooner had a constitutional right to counsel as

well as a constitutional right to waive counsel and represent

himself.     United States v. Kizzee, 150 F.3d 497, 502 (5th Cir.

1998).     The record shows that Spooner executed a voluntary and

knowing waiver of his right to counsel with a full understanding of

the consequences of the waiver.     See id.; United States v. Martin,

790 F.2d 1215, 1218 (5th Cir. 1986).         Accordingly, any lack of

assistance from the legal advisor in matters that occurred prior to

his appointment as counsel of record for Spooner cannot constitute

a Sixth Amendment violation.       United States v. Mikolajczyk, 137

F.3d 237 (5th Cir. 1998).

       We do not consider Spooner’s claims that his legal advisor who

was appointed to represent Spooner following his conviction was

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ineffective for failing to file a motion for new trial and at

sentencing because the arguments were raised for the first time in

a reply brief.   See United States v. Jackson, 50 F.3d 1335, 1340

n.7 (5th Cir. 1995).

     Spooner has not briefed sufficiently the issue concerning

probable cause for his arrest.   See United States v. Trosper, 809

F.2d 1107, 1108 n.2 (5th Cir. 1987).    Spooner argues that even if

the arrest was proper, the Government had no justifiable reason to

enter his parked vehicle without a warrant.      The officer validly

entered the vehicle pursuant to a community caretaking function to

secure it and to prevent damage or theft of Spooner’s property.

See e.g., United States v. Ponce, 8 F.3d 989, 996 (5th Cir. 1993);

United States v. Young, 825 F.2d 60, 61 (5th Cir. 1987).

     Under the plain view exception to the warrant requirement, an

officer may seize an item if there is a “practical, nontechnical

probability that incriminating evidence is involved.”         United

States v. Hill, 19 F.3d 984, 989 (5th Cir. 1994).          Moreover,

Spooner has not challenged the Government’s assertion that any

error resulting from the entry of the vehicle and the seizure of

the legal files was harmless error.   See   United States v. Freeman,

685 F.2d 942, 958 (5th Cir. 1982).    Spooner has not shown that the

district court erred by denying his motion to suppress.

     The district court’s denial of Spooner’s motion for a mistrial

which was asserted because the Assistant United States Attorney’s


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referenced other alleged wrongs committed by Spooner and introduced

evidence of such matters was not an abuse of discretion.              See

United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998) (citing

Fed. R. Evid. 404(b)); United States v. Washington, 44 F.3d 1271,

1278 (5th Cir. 1995).

     Spooner has not shown that the district court erred by denying

his motions for expert witnesses and to dismiss the indictment.

Spooner did not demonstrate more than the mere possibility of

assistance from a requested expert.      Moore v. Johnson, 225 F.3d

495, 503 (5th Cir. 2000).     The indictment sufficiently informed

Spooner of the charges against him.    United States v. Hagmann, 950

F.2d 175, 182 (5th Cir. 1991).        The record refutes Spooner’s

contention that the district court refused to allow him to recall

government witnesses Page and Richards.

     Spooner does not identify the evidence that he alleges was

suppressed by the Government in violation of Brady v. Maryland, 373

U.S. 83 (1963), and 18 U.S.C. § 3500(b).         The record shows that

Spooner could have obtained with reasonable diligence information

regarding the insurance claims files.     United States v. Ramirez,

810 F.2d 1338, 1343 (5th Cir. 1987).    We do not consider Spooner’s

argument raised for the first time in the reply brief that the

Government    suppressed   evidence   relevant     to   the   issue   of

restitution. United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th

Cir. 1995).


                                  4
     Spooner has not shown that the indictment was constructively

amended by the inclusion of language that he was not licensed to

practice law in the State of Louisiana.         United States v. Holley,

23 F.3d 902, 912 (5th Cir. 1994).         Prior to trial, the indictment

was amended to correct Spooner’s name.

     Spooner has not demonstrated that the charge as a whole was

deficient and resulted “in a likelihood of a grave mistake of

justice,” nor has he shown that any omission in the jury charge

affected his substantial rights.        See United States v. Parziale,

947 F.2d 123, 129 (5th Cir. 1991); United States v. Prati, 861 F.2d

82, 86 (5th Cir. 1988). The district court specifically instructed

the jury regarding its consideration of Fed. R. Evid. 404(b)

material.     We do not consider Spooner’s argument raised for the

first time in the reply brief that the district court did not

instruct the jury regarding Spooner’s fiduciary relationship to the

claimants.    Jackson, 50 F.3d at 1340 n.7.

     Spooner has not met his burden regarding his challenge to the

use of his prior state convictions in the calculation of his

criminal history category; accordingly, the district court did not

abuse   its   discretion   by   relying    on   the   information   in   the

presentence report.   United States v. Osborne, 68 F.3d 94, 100 (5th

Cir. 1995).

     Spooner challenges the offense level increase pursuant to

U.S.S.G. § 3C1.1 for obstruction of justice that was imposed

                                    5
because he made material and false statements to the probation

officer during the presentence investigation.                  We review the

district court’s findings on obstruction of justice for clear

error.    United States v. Ahmed, 324 F.3d 368, 371 (5th Cir. 2003).

     Section 3C1.1, U.S.S.G., authorizes a two-level increase if

the defendant willfully obstructed or impeded or attempted to

impede or obstruct the administration of justice during the course

of an investigation, prosecution, or sentencing of an offense of

conviction, and the obstructive conduct related to the offense of

conviction.    The U.S.S.G. § 3C1.1 increase does not apply to all

false    statements;   it   applies   only   in   the   case    of   “material

statements that significantly impede the investigation.”                 Ahmed,

324 F.3d at 373 (emphasis in original).

     There is no evidence in the record that Spooner’s statements

misled the probation officer in a manner that has traditionally

been the basis for the U.S.S.G. § 3C1.1 enhancement.                    See id.

Accordingly,    we   VACATE   Spooner’s   sentence      and    REMAND   to   the

district court for proceedings consistent with this opinion.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION DENIED.




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