                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                                        May 9, 2007

                                                                                  Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                                          Clerk



                                    No. 05-51273
                                  Summary Calendar


UNITED STATES OF AMERICA,

                                                                                 Plaintiff-
                                                   Appellee,

                                          versus

BOBBY L. SULLIVAN,

                                                                               Defendant-
                                                   Appellant.



                                  Consolidated with
                                    No. 05-51525
                                  Summary Calendar


UNITED STATES OF AMERICA,

                                                                                 Plaintiff-
                                                   Appellee,

                                          versus

EDWARD A. BROWN,

                                                                               Defendant-
                                                   Appellant.

                ------------------------------------------------------------
                   Appeals from the United States District Court
                           for the Western District of Texas
                                       USDC No. 6:04-CR-113-1
                                        USDC No. 6:03-M-627-2
                                       USDC No. 6:04-CR-113-1
                          ----------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

        In this consolidated appeal, Bobby L. Sullivan and Edward A. Brown appeal their convictions

and sentences for aiding and abetting each other in the violation of the Archaeological Resource

Protection Act (ARPA). The appellants were convicted after a jury trial presided over by a

magistrate judge, and they were sentenced to a year of probation and an order of forfeiture. They

appealed to the district court, but the four issues they raise in their instant appeals are raised for the

first time before this court.

        First, the appellants argue that the attorney who represented them in their appeal to the district

court rendered ineffective assistance by failing to file a copy of the trial transcript. To demonstrate

that they received ineffective assistance of counsel, Sullivan and Brown must show, under the two-

prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), that counsel’s

assistance was deficient and that the deficiency prejudiced their defense. To demonstrate prejudice,

they “must show that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The appellants

have not demonstrated that they would have prevailed on appeal had the transcript been properly




        *
           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.

                                                    -2-
filed. Their conclusory assertions of prejudice do not satisfy the second prong of Strickland. See

Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998).

         Second, the appellants argue that the district court erred under the Double Jeopardy Clause

by convicting and sentencing them when they had already been fined for their conduct. Neither

appellant offered a copy of his prior citation into evidence, and it is impossible to determine whether

the fine each paid was a permissible civil penalty. See Hudson v. United States, 522 U.S. 93, 95-96

(1997). The appellants have therefore not made a prima facie showing of a nonfrivolous double

jeopardy claim and have not demonstrated plain error. See United States v. Olano, 507 U.S. 725,

732 (1993); United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).

         Third, the appellants argue that the magistrate judge plainly erred by not sua sponte dismissing

their case after hearing testimony from an Army Corps of Engineers employee involved in the

investigation of their case. The appellants argue that the Corps employee’s involvement in the

prosecution violates the Posse Comitatus Act, 18 U.S.C. § 1385. The appellants arguably waived

this argument by not raising it prior to trial. See FED. R. CRIM. P. 12(b)(3). Furthermore, the

appellants have not demonstrated that the dismissal of their case would have been an appropriate

remedy if the Act was violated. See United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); United

States v. Walden, 490 F.2d 372, 376-77 (4th Cir. 1974). They have therefore not shown that the

magistrate judge committed plain error. See United States v. Dupre, 117 F.3d 810, 817 (5th Cir.

1997).

         Last, the appellants argue that the prosecutors withheld exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963). They have not demonstrated that “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

                                                  -3-
have been different.” United States v. Moore, 452 F.3d 382, 387 (5th Cir.), cert. denied, 127 S. Ct.

423 (2006). They have thus failed to demonstrate that the evidence was material or that they should

prevail on plain error review. See id.; Olano, 507 U.S. at 732. The judgment of the district court

is AFFIRMED.




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