               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50099
                         c/w No. 02-50152
                         Summary Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

BENNIE RAY HARDEMAN,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. A-00-CR-261-ALL-JN
                       --------------------
                        September 19, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Bennie Ray Hardeman, proceeding pro se, appeals from his

conviction of conspiracy to possess with intent to distribute

cocaine and cocaine base, distribution of cocaine, possession

with intent to distribute cocaine, and possession with intent to

distribute cocaine base and from the denial of his posttrial

motion to dismiss the superseding indictment against him.

Hardeman moves for grand jury transcripts and for leave to


     *
        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that this opinion should not be published and is not precedent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.
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supplement the record.    Hardeman’s motions are DENIED.   Hardeman

raises several arguments in his consolidated appeals that we

address in turn.

     Hardeman contends that the Clerk of the district court was

required to accept and file his pro se motions and that those

motions should have been construed as waivers of his right to

representation by counsel.    Hardeman was represented by counsel

in the district court, and he had no right to hybrid

representation.    United States v. Daniels, 572 F.2d 535, 540 (5th

Cir. 1978).    Hardeman did not explicitly assert his right to

self-representation in the district court, and the motions he

filed pro se did not implicitly assert that right.     See Burton v.

Collins, 937 F.2d 131, 133 (5th Cir. 1991).    The district court

need not have accepted Hardeman’s pro se motions.

     Hardeman contends that his original indictment was

defective.    Hardeman was convicted on a superseding indictment

and the original indictment was dismissed, mooting any

contentions about the original indictment.

     Hardeman contends that the superseding indictment

impermissibly broadened the original indictment and that the

superseding indictment was defective.    He argues that the dates

alleged on the superseding indictment broadened the charges; that

the superseding indictment charged only him with conspiracy and

that the government’s informant could not be a coconspirator; and

that the indictment failed to allege drug amounts or penalty
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statutes, evidently in violation of Apprendi v. New Jersey,

530 U.S. 466 (2000).

     Hardeman did not challenge his superseding indictment in the

district court on the grounds he raises on appeal in any motions

filed by counsel.   Hardeman’s contentions are reviewed under the

plain-error standard.   United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994)(en banc).

     A defendant has a Fifth Amendment right to be tried solely

on allegations made by the grand jury.     Stirone v. United States,

361 U.S. 212, 215-18 (1960).    The superseding indictment was

issued by the grand jury, and it replaced the original indictment

instead of amending it or broadening it.

     The conspiracy count alleged that Hardeman conspired “with

others known and unknown to the grand jury[.]”    The conspiracy

count was not defective for failing to allege any coconspirators.

United States v. Price, 869 F.2d 801, 804 (5th Cir. 1989).

     The superseding indictment alleged drug amounts sufficient

to place Hardeman in the statutory sentencing ranges resulting in

the terms of imprisonment to which he was sentenced.    The

superseding indictment did not violate Apprendi.     See United

States v. Doggett, 230 F.3d 160, 164-66 (5th Cir. 2000), cert.

denied, 531 U.S. 1177 (2001).    Hardeman’s prior drug felony

conviction, a fact that increased his sentencing exposure to life

imprisonment, see 21 U.S.C. § 841(b)(1)(A),(b), need not have
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been alleged in the indictment or proven to the jury.    See

Apprendi, 530 U.S. at 490.

     Hardeman contends that his sentence violated Apprendi

because the superseding indictment alleged no specific drug

amounts and that Apprendi rendered the drug sentencing statutes

unconstitutional.   Hardeman does not argue that the Government

failed to prove the amounts alleged in the superseding

indictment; he has abandoned any such argument for appeal.      In re

Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 439

n.6 (5th Cir. 1982).   In Hardeman’s case, the jury found the drug

amounts alleged in the indictment, amounts that placed him in the

appropriate sentencing ranges.   Moreover, Apprendi did not render

the sentencing statutes unconstitutional.    United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir.), cert. denied, 532 U.S.

1045 (2001).

     Hardeman contends that defense counsel was ineffective for

failing to object to the amount of drugs on which his sentence

was based.   To the extent that Hardeman seeks to argue that

counsel was ineffective for failing to raise an Apprendi

objection, Hardeman can demonstrate neither deficient performance

nor prejudice.   Strickland v. Washington, 466 U.S. 668, 689-94

(1984).   To the extent that Hardeman attempts to argue that

counsel should have raised a non-Apprendi challenge to the drug

quantity on which his sentence was based, defense counsel did
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object to the amount of drugs on which Hardeman’s sentence was

based.

     Hardeman contends that the affidavit supporting the search

warrant in his case was defective and that police failed to act

in accordance with the warrant.    He argues that the result of the

search somehow was unreliable and that the chain of custody was

broken because there was a large hole in a wall in the residence

in which drugs were found.

     Because Hardeman did not move for suppression before trial,

he may not challenge the search or search warrant for the first

time on appeal.     United States v. Chavez-Valencia, 116 F.3d 127,

128 (5th Cir. 1997); FED. R. CRIM. P. 12(f).   Hardeman does not

indicate how the chain of custody could have been affected by a

hole in the wall.    In any event, a break in the chain of custody

is a factor in the weight of the evidence and not to the

admissibility of the evidence.     United States v. Dixon, 132 F.3d

192, 197 (5th Cir. 1997).

     Hardeman contends that the prosecutor engaged in misconduct

by using a tainted witness and that defense counsel was

ineffective for failing to object to that witness.    According to

Hardeman, Enoch Fowler and his family guarded the residence where

drugs were found, and Fowler testified that he had a lengthy

criminal record.

     Hardeman does not allege that Fowler perjured himself.    Nor

does he cite to any authority for the proposition that use of a
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witness with a lengthy criminal record, without more, constitutes

misconduct, or that failure to object to the testimony of such a

witness constitutes ineffective assistance.     Hardeman’s

misconduct and ineffective-assistance contentions are without

merit.

     Hardeman contends that the delay between his October 2,

2000, arrest and his September 10-11, 2001, trial violated his

rights under the Speedy Trial Act.     Hardeman moved in the

district court for dismissal of the indictment due to the delay

between his arrest and his indictment; he never moved in the

district court for dismissal due to the delay between his arrest

and his trial.     Hardeman thus waived his contention that the

pretrial delay violated the Speedy Trial Act, and that contention

may not be considered on appeal.     United States v. Westbrook,

119 F.3d 1176, 1185 (5th Cir. 1997).

     We finally consider whether the district court erred by

removing Hardeman from the courtroom.     Hardeman insisted in front

of the jury that he wished to testify, after the evidence had

been closed.     The district court did not err.   Hardeman continued

to speak after the district court ruled that Hardeman could not

testify and directed Hardeman to be quiet.     Moreover, the

Government had excused its rebuttal witnesses and Hardeman missed

only the reading of the jury instructions.     See Illinois v.

Allen, 397 U.S. 337, 343 (1970).

     AFFIRMED.
