IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31192 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARD R. JOHNSON, also known as Leonard R. Robertson,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 00-CR-126-ALL-A -------------------- January 27, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, CIRCUIT JUDGES.

PER CURIAM:*

Leonard R. Johnson, also known as Leonard R. Robertson,

appeals from his conviction for felon in possession of a firearm,

in violation of

(g)(1). Johnson raises numerous

issues on appeal. Johnson first argues that his trial counsel

rendered ineffective assistance of counsel, which we decline to

address because we generally do not allow such claims on direct

appeal except in rare cases where the record allows for a fair

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. evaluation of the merits, and we conclude that this is not such a

rare case. See United States v. Navejar,

(5th

Cir. 1992).

Johnson next argues that his prosecution was a "sham" under

Bartkus v. Illinois,

(1959), because he was previously

acquitted in a state bench trial for the same conduct forming the

basis of the federal indictment. We conclude that Johnson has not

made the requisite showing of a sham prosecution. See United

States v. Harrison,

(5th Cir. 1990). Johnson

also argues that the Government violated its own procedures in

obtaining a waiver of its Petite policy. However, a defendant may

not invoke the Government's Petite policy to bar federal

prosecution. Harrison,

.

Johnson argues that he was subject to prosecutorial misconduct

because the prosecutor made false statements and relied on false

evidence in presenting the case to the grand jury, in obtaining the

waiver to the Petite policy, and in trying the case. Johnson's

claim concerning the indictment was not made in a pre-trial motion

to dismiss the indictment and is waived. See FED. R. CRIM. P. 12;

United States v. Cathey,

, 271 n.1 (5th Cir. 1979). In

any event, we conclude that Johnson has not shown that the alleged

falsehoods cast any doubt on the jury's verdict. See United States

v. Hernandez-Guevara,

(5th Cir. 1998); see also

Napue v. Illinois,

(1959). Johnson also argues

that he was subject to vindictive prosecution. This issue is

inadequately briefed and therefore is considered abandoned. See

2 Cinel v. Connick,

(5th Cir. 1994); FED. R. APP.

P. 28(a)(9)(A). It is also raised for the first time on appeal and

is without merit. See United States v. Johnson,

(5th Cir. 1996); Douglass v. United Servs. Auto. Ass'n,

(5th Cir. 1996)(en banc).

Johnson next argues that the district judge should have

recused himself, although he did not move in the district court for

recusal. He has not shown that a reasonable person would doubt the

district court's impartiality. United States v. Jordan,

(5th Cir. 1995). He also argues that the district court

erroneously characterized his numerous objections to the

presentence report as frivolous, citing to sentencing guidelines

concerning downward departure. To the extent he argues that the

district court failed to consider his objections, including his

contention that he was subject to a justification defense, as

mitigating circumstances, we lack jurisdiction to consider the

issue because the district judge did not expressly state a belief

that he lacked authority to depart downward. See United States v.

Yanez-Huerta,

(5th Cir. 2000). To the extent he

argues that his objections were improperly denied, Johnson has not

shown that the district court imposed a sentence in violation of

law or incorrectly applied the sentencing guidelines. See United

States v. Cuyler,

(5th Cir. 2002).

Johnson argues that the prosecution withheld exculpatory

evidence in violation of Brady v. Maryland,

(1963), but

he has not shown that the Government suppressed any evidence. He

3 also argues that prosecution under §

(g) violates

the Second Amendment in light of unspecified comments from the

Attorney General. This argument, in addition to being inadequately

briefed, is without merit. See United States v. Emerson,

(5th Cir. 2001), cert. denied,

(2002).

Finally, Johnson's claim that the evidence was insufficient to

support his conviction is also without merit. See United States v.

Knezek,

(5th Cir. 1992); United States v.

Cavazos,

(5th Cir.), cert. denied,

(2002); United States v. Privett,

(5th Cir. 1995);

United States v. Thomas,

(5th Cir. 1987).

AFFIRMED.

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