                          REVISED, March 26, 1998

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT
                              _______________

                                 No. 96-50384
                               _______________



                         UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                    VERSUS

                    CLARENCE RAY MIKOLAJCZYK, et al.,

                                                 Defendants-Appellants.

                         _________________________

             Appeals from the United States District Court
                   for the Western District of Texas
                       _________________________
                             March 11, 1998


Before JONES and SMITH, Circuit Judges, and FITZWATER,* District
Judge.

JERRY E. SMITH, Circuit Judge:



     Appellants, convicted of mail fraud following a jury trial,

raise several issues on appeal.            Finding no reversible error, we

affirm.     In so doing, we find it necessary to discuss only a few

issues and affirm on the remaining issues without discussion.



                                      I.

     Between October 1993 and May 1995, the defendants made several


     *
         District Judge of the Northern District of Texas, sitting by designation.
attempts to pass off fraudulent “Certified Money Orders” (CMO's) as

legitimate money orders.          The scheme was initiated by Billy Mack

O’Neill and his partners in USA First, an alleged non-profit

organization, who put together packets each containing six CMO's

and information on how to use them.            In exchange for the $300 price

of the packet, buyers could write six CMO's, in any amount.                   Buyers

were asked to provide almost no information upon receiving or using

the CMO's, although most were asked for their name, and some gave

their phone numbers.

      The packets contained the following statement:                      “Warning.

Just like the children’s story about the emperor’s new clothes, do

not   mention      that   your    current    credit    money,       the   negotiable

instrument, is pretend money.           Only speak of the bank’s negotiable

instruments as being pretend money.”                It warned that the money

orders   would     not    “work   for   everyone”     and    that    there   was    no

“guarantee of a win against thieves and robbers dressed in bankers’

or even judicial clothing.”

      The scheme apparently was designed to express dissatisfaction

with the banking system and to obtain cash from buyers of the

CMO's.   In addition to the comment about thieves and robbers, the

packet said “In God we trust, in banksters we bust!” and contained

a cartoon about the banking system in which bankers stated, “With

our system, it is easy to rob the people.                   All we have to do is

lend paper credit and charge interest.”

      There   is    no    indication    that   O’Neill,      First    USA,   or    the

fictitious business they created under the name of O.M.B. W.D.


                                         2
McCall ever intended to make payment on any of the CMO's.                The

instructions in the packet and on the CMO's required the individual

who received a CMO as payment to send it to W.D. McCall’s post

office box.    Upon receiving the CMO, First USA would send out a

fake “Certified Banker’s Cheque” (CBC). W.D. McCall never paid any

of the obligations created by the CMO's.

     The indictment named eight individuals:             Billy O’Neill (who

initiated   the    scheme),   Michael   Kearns,   Earl    Forrester,   Wayne

Slater, Vicki Slater, Patricia Koehler, Oliver Paulson and Clarence

Mikolajczyk.      Kearns, Forrester, and Paulson do not appeal their

convictions.      Except for the first count, which referred to the

entire scheme of mailing fraudulent CMO's, each count of the

indictment involved a separate incident in which a CMO was used.

Several defendants used CMO's to purchase motor vehicles from

individuals, using CMO's to pay off existing bank loans on those

vehicles; others used the instruments to pay off credit card

balances at various banks.

     Appellants allege they were not aware that use of the CMO's

was illegal.      They claim they thought the CMO's were a credit-for-

credit exchange.       Their claim lacks support in the evidence,

because they never provided financial information similar to that

generally provided to a lending institution upon establishing a

line of credit.       Nor did they sign or receive any documentation

about this alleged line of credit.       Furthermore, the statements in

the information packet strongly suggested the CMO's were not a

legitimate form of payment.


                                    3
     Appellants’ expert testified that these instruments were not

intended to be used to obtain anything of new or current value, and

that attempts to do so “come pretty close to fraud.”       He stated

that with instruments like these CMO's, there should be full

disclosure by the user of the fact that the CMO is backed by

private money, so that the recipient can make a determination of

its worth.   Yet, none of the appellants disclosed any kind of

credit-for-credit exchange.



                                II.

                                A.

     Wayne Slater, Vicki Slater, and O’Neill (the “represented

defendants”) argue that they were prejudiced by the actions of

their pro se codefendants, Koehler and Kearns, and did not have the

opportunity for a fair trial.    The defendants moved to sever on

numerous occasions, but each request was denied. Their argument is

plausible, but ultimately fails the strict requirements imposed by

abuse-of-discretion review.

     The rule that persons indicted together should be tried

together carries great weight where, as here, persons are charged

with committing the same conspiracy.       United States v. Archer,

733 F.2d 354, 360 (5th Cir. 1984).    Joinder is the rule rather than

the exception, United States v. Chagra, 754 F.2d 1186, 1188 (5th

Cir. 1985), and in fact, the defendants have failed to cite a

single case in which this court reversed a conviction for failure

to sever.


                                 4
      The denial of a motion to sever is reviewed only for abuse of

discretion.      Zafiro v. United States, 506 U.S. 534, 539 (1993);

United States v. Faulkner, 17 F.3d 745, 758 (5th Cir. 1994).

Reversal is warranted only when the defendant demonstrates that the

denial resulted in compelling prejudice against which the trial

court was unable to afford protection.         United States v. Thomas, 12

F.3d 1350, 1363 (5th Cir. 1994).



                                      B.

      The pro se defendants, Kearns and Koehler, argued that their

conduct was not illegal. They asserted that the CBC's were “backed

by liens,” and they offered an expert witness who testified that

this was an appropriate form of negotiable instrument.             This line

of   defense    differed     substantially    from    that   offered   by   the

represented defendants, all of whom conceded that the CMO's were

worthless instruments, but argued that they believed them to be

legal tender.

      In addition to their technical argument about the legality of

CMO's, Kearns and Koehler attempted to justify their conduct by

attacking the monetary system.        Koehler complained in her opening

statement that “I asked the United States Attorney to explain what

he meant by money, and he wouldn’t explain it to me.”                  Kearns

continued      this   line   of   defense    when    cross-examining   Postal

Inspector Butler, taking issue with Butler’s characterization of

the CMO's as “fraudulent” and asking questions about the definition

of money and the value of federal reserve notes.                 Defendants’


                                       5
attorneys     observed   that   the    jury     found    this    line   of   defense

irrelevant and annoying; one juror allegedly rolled her eyes every

time Kearns spoke.

      In addition, the pro se defendants may have alienated the jury

through their hostile attitudes at trial.               Kearns badgered Butler

while he was on the stand, complaining that “it doesn’t appear

[Butler] knows too much,” and “I’m asking you a simple question

about your employer [(whether the Postal Service is a corporation)]

and you don’t even know the status.”              Kearns also accused Norman

Summers, a former employee of USA First, of testifying “out of a

vindictive heart.” He asked Linda Hultgren, an employee of Capital

One   Financial      Corporation,     whether    she    was     “looking     to   [the

prosecutor] for him to answer the question for you.” Objections to

the argumentative nature of Kearns’ questioning were made and

sustained frequently during the part of the trial he attended.

      Kearns did not limit his attacks to witnesses.                         He also

interrupted the prosecutor’s direct examination to tell the judge

that a particular juror was asleep, an assertion the juror denied.



                                        C.

      After    six     days   of    disruptive         trial    tactics,      Kearns

disappeared.      Given his active participation in the early days of

the trial, his absence was conspicuous. He was tried and convicted

in absentia.

      The Sixth Circuit has held that severance is particularly

appropriate when the evidence against an absent codefendant is much


                                        6
greater than that against a present defendant.           See United States

v. Davidson, 936 F.2d 856, 861 (6th Cir. 1991).                We need not

consider adopting that reasoning, however, because Davidson is

distinguishable.       There, the defendant tried in absentia was

charged with ten counts, while his present codefendant was charged

with only one.    The court believed that Davidson was prejudiced by

the     introduction   of   an   overwhelming   amount    of   uncontested

incriminating evidence, even if that flood of evidence pertained to

his codefendant and not to himself.

      Here, in contrast, while Kearns was named in more counts than

were the other defendants, and the evidence of his guilt was

slightly stronger, plenty of factual and legal issues remained for

the other defendants to dispute. The jury was not overwhelmed with

uncontested, incriminating evidence, but instead witnessed a normal

trial in which the prosecutor’s case received no rebuttal with

respect to one of several nearly equivalent defendants.           Finally,

the district court gave an instruction designed to neutralize any

negative effects of Kearns’ departure on the jury’s view of the

case:

      Members of the jury, Michael Kearns is not with us. It
      appears that he has decided to voluntarily not continue
      to participate in the proceeding. So, I have decided
      that we will go forward with the trial without Mr. Kearns
      being here.    The trial will continue as to all eight
      accused. The fact that Mr. Kearns has decided not to be
      present and participate any further should not be
      interpreted by you, in any way, as to effect [sic] or to
      prejudice any of the other people on trial. It should
      not affect you at all, in any way.

To the extent that Kearns’s departure had an effect on the jury,

this instruction was sufficient to protect the defendants from

                                     7
compelling prejudice.



                                    D.

      Vicki Slater argues that the pro se defendants introduced

evidence harmful to her that would not have been admissible by the

prosecution.     Specifically, Kearns invited the introduction of

evidence about Slater’s ownership of a gun by asking a Bank One

representative why she did not have Slater’s car repossessed.        The

witness replied that she “did not send a repo agent” because she

knew that Slater owned guns.   Slater’s counsel's objection to this

testimony was overruled.

      Counsel then asked questions to demonstrate that Slater was a

former police officer, that she hunted, and that gun ownership was

not   illegal.     These   questions     presumably   contradicted   the

implication that she was a dangerous and violent person and that

the bank agent was afraid of her.        The prosecution then asked the

witness if she didn’t send a repo agent because she didn’t want to

take a risk that the guns “might be anything more than . . . for

hunting.”   Because evidence of Slater’s gun ownership was already

in the record, the introduction of this evidence did not rise to

the level of compelling prejudice.       See United States v. Daly, 756

F.2d 1076, 1081 (5th Cir. 1985).



                               E.

      In Daly, this circuit found no compelling prejudice arising

out of a codefendant’s pro se representation.         As in this case,


                                    8
most of the pro se defendant’s blunders were made out of the jury's

presence.1    756 F.2d at 1080.      Furthermore, the Daly court pointed

out that in a long, complex trial, considerations of judicial

economy    require   that   defendants     involved   in   related    criminal

conduct be tried together.         756 F.2d at 1080.       The facts of the

instant trial were complex, and several of the counts involved acts

by both represented and unrepresented codefendants. Conducting two

trials would have caused significant inconvenience to witnesses and

duplicative use of court resources.

      Judicial economy aside, the refusal to sever was not an abuse

of discretion because the court used special instructions to

ameliorate any prejudice.        See Daly, 756 F.2d at 1081.         The court

instructed the jury to compartmentalize the evidence against each

defendant on each count:

      A separate crime is charged against one or more of the
      defendants in each count of the indictment. Each count,
      and the evidence pertaining to it, should be considered
      separately. Also, the case of each of the defendants
      should be considered separately and individually. The
      fact that you may find one or more of the accused guilty
      or not guilty of any of the crimes should not control
      your verdict as to any other crime or any other
      defendant. You must give separate consideration to the
      evidence as to each defendant.


During voir dire and trial, the court gave additional instructions

to consider the counts and defendants separately.                    Under the


       1
         For instance, the pro se defendants proclaimed themselves sovereign
citizens primarily at pre-trial motions. Forrester appeared in court and stated,
“I’m a man on the land. I’m a sovereign citizen. And, further I say not.”
Similarly, Paulson demanded to see the prosecutor’s identification because
Paulson had been required to attend an “identity hearing.” Even if the jury had
heard these statements, however, a neutralizing instruction sufficiently would
have ameliorated any prejudice.

                                       9
circumstances, the court did not abuse its discretion in refusing

to sever the trials.



                                III.

     Vicki Slater is the only defendant who presents a colorable

case on sufficiency of the evidence, although her argument is more

accurately characterized as claiming a constructive amendment of

the indictment.   She was indicted on only one substantive count,

which involved a CMO she sent to Bank One.

     The indictment, however, does not list Bank One as one of the

several financial institutions defrauded by the conspiracy and by

the specific acts. The facts describing Slater’s substantive count

state that the CMO was mailed to Bank One, and the acts alleged in

the conspiracy count accurately describe her conduct, so there is

no question of notice.     Slater argues that notice is irrelevant

because there was a constructive amendment of the grand jury

indictment, and the amendment invalidates her conviction despite

the full description of her conduct.

     The   government   characterizes   the   claim   as   one    of   fatal

variance between indictment and proof.        Slater cannot succeed on

this theory, because a defendant cannot receive relief for a

variance unless it is material and prejudices his substantial

rights. See, e.g., United States v. Morgan, 117 F.3d 849, 858 (5th

Cir.), cert. denied, 118 S. Ct. 454 (1997).            As long as the

defendant receives notice and is not subject to a risk of double

jeopardy, his substantial rights are not affected.               See, e.g.,


                                 10
United States v. Berger, 295 U.S. 78, 83 (1935).                      Because the

conspiracy      count   accurately      described       the    conduct,   and    the

substantive count stated the date and the fact that Bank One was

involved, there was no problem with notice, and double jeopardy

could not occur.

       Slater   urges    us    to   apply     the    more     stringent   rule   for

constructive     amendments:          Where   a     constructive    amendment    has

occurred, the conviction cannot stand; there is no prejudice

requirement.      See, e.g., United States v. Salinas, 654 F.2d 319

(5th Cir. 1981), overruled on other grounds by United States v.

Adamson, 700 F.2d 953 (5th Cir. 1983) (en banc).                    This argument

fails, too, because a constructive amendment cannot occur where the

indictment completely and accurately describes the conduct, so that

the grand jury is not misled about the basis for the indictment.



       This criterion distinguishes the cases Slater cites from her

own.    In Salinas, the case most closely analogous, the defendant

was charged with conspiring to defraud a bank.                     The indictment

alleged that he conspired with the bank's president.                  The evidence

showed,    however,     that    the    defendant      had     conspired   with   the

executive vice president.           We reversed, holding as follows:

       The mistake in the particular name of the officer
       involved is not like a variance in a date or place. The
       appellant was not formally charged with theft.        The
       indictment said in effect that Woodul stole and that the
       appellant helped.    Once it is shown that the named
       principal did not steal, it begins to look like the
       appellant was convicted of a crime different from that of
       which he was accused.

Salinas, 654 F.2d at 324-25.

                                         11
      In Salinas, the indictment did not even mention the name of

the real principal.       Therefore, the grand jury easily could have

been misled as to the crime with which it charged the defendant.

Here, in contrast, the indictment makes plain what Slater did, and

the grand jury probably did not even notice the omission of Bank

One from the list of victims.

      Other cases applying the doctrine of constructive amendment

detract further from Slater’s argument.           For instance, she       cites

United States v. Mucciante, 21 F.3d 1228, 1235 (2d Cir. 1994), in

which the defendant alleged that the government charged him as a

principal, but instructed the jury to find him liable as an aider

and   abettor.      Not    only   would    such     a    change    be     easily

distinguishable from this case, but Mucciante’s claim was rejected.

Slater also cites United States v. Doucet, 994 F.2d 169, 173 (5th

Cir. 1993), in which we reversed on the ground that the prosecution

had obtained an indictment for possession of an unregistered

machine gun, but finally asked the jury to convict for possession

of individual parts that could be assembled into a shotgun.                 This

allowed the defendant to be convicted on grounds broader than those

stated in the indictment.

      Such a situation raises the possibility that both the grand

jury and the defense were misled about the material elements of the

crime, so that the grand jury might have mistakenly indicted, and

the defense was unable to prepare an effective defense.                 Here, in

contrast, the indictment contained a drafting error that confused

and   prejudiced   no   one.      While   Slater    is   correct    that     the


                                     12
constructive      amendment    rule   does    not    require    a    showing     of

prejudice, prejudice is inherent in the concept of constructive

amendment:      If the amendment contained an accurate description of

the crime, and that crime was prosecuted at trial, there is no

constructive amendment.



                                      IV.

     Vicki   Slater     also   challenges     the   admission       of    allegedly

irrelevant evidence of past acts. Because this is a criminal case,

evidentiary rulings are reviewed under a heightened abuse of

discretion standard.      United States v. Carrillo, 981 F.2d 772, 774

(5th Cir. 1993).        Evidence in criminal trials must be “strictly

relevant to the particular offense charged.”                 United States v.

Hays, 872 F.2d 582, 587 (5th Cir. 1989).            We must take into account

“what effect the error had or reasonably may be taken to have had

upon the jury’s decision.” Hays, 872 F.2d at 587 (citing Kotteakos

v. United States, 328 U.S. 750, 764 (1946)).

     All of the evidence whose admissibility is contested was

evidence   of    past   acts   used    to    cross-examine     the       defendant.

Importantly, FED. R. EVID. 404(b) states:

          Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order to
     show action in conformity therewith. It may, however, be
     admissible for other purposes, such as proof of motive,
     opportunity, intent, preparation, plan, knowledge,
     identity, or absence of mistake or accident. . . .

A defendant makes his character an issue, losing the protection of

rule 404(b), when he testifies.         United States v. Tomblin, 46 F.3d

1369, 1388 (5th Cir. 1995).           This does not give the prosecution

                                       13
free rein, but allows it to cross-examine him with respect to

“instances     of   misconduct     that     are   ‘clearly      probative    of

truthfulness or untruthfulness,’ such as perjury, fraud, swindling,

forgery, bribery, and embezzlement.”           Id. at 1389 (citing United

States v. Leake, 642 F.2d 715, 718 (4th Cir. 1981)).

     Slater argues that the court erred in admitting evidence that

she had     filed   a   public   notice    “rescinding”   her   tax   returns.

Objections to the introduction of this testimony were initially

sustained, but when Slater took the stand to testify to her own

good faith, the judge allowed the prosecution to cross-examine her

about it.    The government defends this decision on the ground that

the CMO's were arguably also a form of “protest” activity, so the

tax protest evidence was relevant to her “state of mindSSknowledge,

intent and motive.”

     Slater’s past protest activity does not fall within the

category of past acts that may be used to impugn a defendant’s

credibility on cross-examination.            It involved no fraud and no

illegal activity, and therefore falls far short of the “clearly

probative of truthfulness or untruthfulness” test we apply.                 The

government does not allege that the evidence directly contradicted

an issue raised in Slater's direct examination, and the evidence

cannot do so, because Slater's past lawful protest has, at best, a

tenuous relationship to her good faith in using the CMO's.

     The evidence does not actually relate to Slater’s state of

mind at the time she allegedly committed the crime, either.              It is

not relevant to her “knowledge” whether the CMO's were valid.               The


                                      14
government argues that it is relevant to her motive and intent,

because it suggests she had a motive or intent to protest the

monetary system.     The past protest has only slight relevance on

this issue.

     Slater emphasizes the fact that her past protest was lawful,

while the CMO scheme was unlawful.             Furthermore, however, the

government offered no evidence suggesting that Slater had a protest

motive when she used the CMO's.       The only evidence on this was the

statements in the CMO packets, which Slater did not prepare.

     The only possible effect of the past protest evidence would be

to suggest a protest motive in the use of the CMO's that the

evidence did not already put at issue. Slater claims that labeling

her a “protester” unfairly associated her with Kearns and Koehler,

self-proclaimed “sovereigns” who would be viewed by the jury as

terrorist    lunatics.     While   this    argument    is   farfetched,    her

conclusion    that   the   evidence    might    have    had   a   “guilt   by

association” effect, suggesting that she had a motive that could

otherwise have been attributed only to the instigators of the

scheme, is plausible.

     Nevertheless, we deny Slater’s request for a new trial,

because the error was harmless.       See United States v. Polk, 56 F.3d

613, 629 (5th Cir. 1995); United States v. Heller, 625 F.2d 594,

599 (5th Cir. 1980).       She did not contest the evidence that she

attempted to pay off her car loan with a CMO, demanded that her

loan balance be brought to zero, and refused to offer legitimate

payment or turn over the car when asked.        These are not the actions


                                      15
of an innocent victim.     If, as she alleges, Slater thought the

CMO's were valid and had no intent to defraud anyone, she would not

have attempted to avoid her loan obligations once she discovered

that the CMO's were worthless.

     Furthermore,   the   prejudicial   effect   of   the   evidence   was

slight.   While it did suggest a protest motive not convincingly

demonstrated by the evidence, it was not the kind of inflammatory

evidence that could get an overly emotional response from the

jurors.   Nor was it similar enough to the crime charged that the

jury was likely to conclude, improperly, that the commission of the

prior act implied commission of the current act.             Under these

circumstances, we are “sure, after viewing the entire record, that

the error did not influence the jury or had a very slight effect on

its verdict.”   Heller, 625 F.2d at 599 (citing United States v.

Underwood, 588 F.2d 1073, 1076 (5th Cir. 1979)).



                                  V.

     Koehler contests the amount of restitution to which she was

sentenced.   She claims she should not have to pay $27,192.51 to the

Ford Motor Credit Company, because the amount includes compensation

for consequential damages not properly recoverable under the Victim

and Witness Protection Act (VWPA).      Specifically, Koehler contests

restitution for the legal expenses incurred by Ford to defend a

lawsuit that Kearns had brought after he tried to pay off a car

loan with a CMO and Ford, unable to obtain payment on the CMO,

repossessed the vehicle.    Ford incurred over $20,000 in legal fees


                                  16
defending the suit.

     The VWPA does not generally authorize recovery of legal fees

expended   to   recover   stolen    property.   See   United   States   v.

Mitchell, 876 F.2d 1178, 1184 (1989).        This limitation is derived

from 18 U.S.C. § 3663 (1985), the relevant portion of which reads

as follows:

     (b) The order may require that such defendantSS

     (1) in the case of an offense resulting in damage to or
     loss or destruction of property of a victim of the
     offenseSS

     (A) return the property to the owner of the property or
     someone designated by the owner, or

     (B) if return of the property under subparagraph (A) is
     impossible, impractical, or inadequate, pay an amount
     equal to the greater ofSS

          (i) the value of the property on the date of the
     damage, loss, or destruction, or

          (ii) the value of the property on the date of the
     sentencing,

     less the value (as of the date the property is returned) of
     any part of the property that is returned. . . .

     Because this is a case involving “loss” of property “of a

victim of the offense,” the statute authorizes the return of the

property or of its value.          In Mitchell, we held that the plain

language of the statute did not authorize the “cost of employing

counsel to recover from an insurance company.”        876 F.2d at 1184.

Ford’s costs of recovering the Explorer, such as the wages of its

repo man or, hypothetically, the cost of a lawsuit to recover the

car, would not be recoverable by analogy to the situation in

Mitchell; such costs are merely consequential damages that would


                                     17
not be recoverable as damages in a lawsuit and, similarly, are not

recoverable as restitution.

      The legal costs incurred by Ford are not analogous to those

incurred by the victims in Mitchell or to the typical costs of a

lawsuit to recover property.         In Hughey v. United States, 495 U.S.

411, 412 (1990), the Court held, in interpreting § 3663, that

restitution can be awarded only for “the loss caused by the

specific offense that is the basis of the conviction.”                     Here,

Kearns's action of bringing a lawsuit against Ford was part of the

scheme to defraud, the offense that is the basis of Koehler’s

conspiracy conviction.2 Ford’s costs of defending the lawsuit were

a direct and mandatory result of Kearns's act in furtherance of the

conspiracy,    not   a   voluntary    action   taken     by   Ford   to   recover

property or damages from Kearns, Koehler, or a third party.



                                      VI.

      Mikolajczyk alleges that his counsel provided ineffective

assistance at trial and on appeal.          He did not raise this argument

before the district court.         We generally do not review claims of

ineffective    assistance     that   have   not   been    raised     before   the

district court, because there has been no opportunity to develop

and include in the record evidence bearing on the merits of the

allegation.    See, e.g., United States v. Foy, 28 F.3d 464, 476 (5th


      2
         The fact that Kearns, rather than Koehler, brought the suit does not
matter, because Koehler can be required to pay restitution for all acts taken in
furtherance of the scheme to defraud of which she was convicted. See United
States v. Stouffer, 986 F.2d 916, 928 (5th Cir. 1993); United States v. Ismoila,
100 F.3d 380, 398 (5th Cir.), cert. denied, 117 S. Ct. 1858 (1996).

                                       18
Cir. 1994).      The typical procedure is to dismiss without prejudice

to a subsequent § 2255 motion.               Id.        Mikolajczyk’s claim of

ineffective assistance at trial cannot be reviewed, because the

record is not well developed on this issue.

      Mikolajczyk also complains of ineffective representation on

appeal, because he was appointed standby counsel, but counsel made

no effort to contact him.         For the same reason that we decline to

consider the claim of ineffective assistance at trial, we must

pretermit consideration of this issue too, and allow it to be

raised in a § 2255 motion once the outcome of the appeal is known.

      Were we to consider Mikolajczyk’s claim, however, his case

would be weak.      This court has held that a defendant’s statutory

right to choose pro se or attorney representation is “disjunctive”;

a defendant has a right to one or the other, but not a combination

of the two.      United States v. Daniels, 572 F.2d 535, 540 (5th Cir.

1978).    Mikolajczyk was constitutionally guaranteed the right to

represent    himself    if   he   so   chose,      or    to    receive    competent

representation from an attorney, but the availability of standby

counsel     to    provide    a    combination       of        the   two   was   not

constitutionally required.        If Mikolajczyk had no right to standby

counsel, it seems unlikely that standby counsel’s failure to assist

could be a violation of his Sixth Amendment rights.3

      3
        Furthermore, Mikolajczyk complains only that his standby counsel never
contacted him. He does not allege that he made any attempt to contact standby
counsel, despite the fact that standby counsel exists primarily to help the pro se
litigant upon request. “The Court may appoint . . .’standby counsel’ to aid the
accused if and when the accused requests help. . . .” Faretta v. California, 95 S.
Ct. 2525, 2540 (1975), citing United States v. Dougherty, 473 F.2d 1113, 1124-26
(D.C. Ct. App. 1972). We have no evidence that
                                                                    (continued...)

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      AFFIRMED.




(...continued)
Mikolajczyk made such a request or was prevented from making one.

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