## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3599

___________ United States of America, * * Appellee, * * v. * * Eugene H. Mathison, * * Appellant. * * * *

___________ Appeals from the United States District Court for the District No. 97-3600 of South Dakota.

___________ United States of America, * * Appellee, * * v. * * Perry Gobel, * * Appellant. * * * *-2-

___________ No. 97-3602

___________ United States of America, * * Appellee, * * v. * * Robert E. Holmes, * * Appellant. * * * *

___________ No. 97-3603

___________ United States of America, * * Appellee, * * v. * * Dean G. Chambers, * * Appellant. *The Hon orable John T. Noonan, Jr., United States Circuit Judge for the Court 1 of Appeals for the Ninth Circuit, sitting by designation. -3- ___________ Submitted: May 15, 1998 Filed: September 2, 1998

___________ Befo re McMILLIAN, NOONAN, and MORRIS SHEPPARD ARNOLD, Circui t 1 Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Eugene Mathison and his associates Perry Gobel, Robert Holmes, and Dea n Chambers were indicted on numerous counts of conspiracy, see 18 U.S.C. § 371, mail fraud, see 18 U.S.C. § 1341, wire fraud, see 18 U.S.C. § 1343, perjury, see 18 U.S.C. § 1623(a), and money laundering, see 18 U.S.C. § 1956(a)(1), § 1957(a). Th e gove rnment

alleged that Mr. Mathison operated three fraudulent investment scheme s by himself and that the four defendants together operated a fourth. While operating the fou rthinvestment group alone, the government charged, the defendants defraude d family, friends, and acquaintances of nearly $1 million. Mr. Mathison's investment groups operated as a simple Ponzi scheme. The first limited group of investors formed the Northern States Inves tment Group. Mr. Mathison convinced his victims that they were investing with a Kansas City broker who ha d devised a way to make exceptio nal returns in the commodities market. Once investors gave Mr. Mathison their money, he began mailing statements showing monthly rates of return from about 7 percent to 17.6 percent. Mr. Mathison never invested the money, however; instead, he deposited the money into a bank account and paid out-4-

mostof it to h imself and his wife. Some small amounts of money were returned t o investors.
The nexttwo investment groups, Goldstar and Universal, operated i n sub stantially the same manner as Northern States. In their promotional materials , Mr. Mat hison reported the paper success of the first group and all but promised th e same success for the new ones. Goldstar collected $102,500 and Universal collected $171,000. A gain, no money was ever invested, and substantial payouts were made to Mr. Mathison and his wife from the groups' funds. In June, 1995, Mr. M athison was arrested for crimes arising out of his activities with the first three groups. The government produced proof at trial that Mr. Chambers kn ew that Mr. Mathison had been arrested for fraud and for money laundering. Later th atyear, the four defendants formed the final relevant entity, the Perob Investmen t Grou p. By this time, the government was already investigating Mr. Mathison' s activit ies, and thus the final group's organization was, the government alleged , calculatedto conceal Mr. Mathison's involvement. The government alleged also that Mr. Gobel and Mr. Holmes solicited friends and relatives to invest in the group, and that Mr. Chambers acted as the registered agent for the group, while Mr. Mathiso n con tinuedto do the "investing" from behind the scenes. The defendants collecte d $947,000 from the Perob investors. The government maintained at trial that Mr. Gobel and Mr. H olmes used the fake statement s from the previous investment groups to lure victims to Perob. All fou r de fendants received sizable amounts of money from Perob's bank accounts

. Mr. Mathi son laundered some of this money by wiring it to an associate at a bank i n Arizona, who then wired the money back to Mr. Mathison, or into another account, at his direc tion. Much of this laundered money was wired into accounts associated with the first three investment groups and wholly under Mr. Mathison's control.The Honorable Lawrence L. Piersol, United States District Judge for th e District 2 of South Dakota. -5- Al lfour defendants were found guilty of conspiracy, mail fraud, and mone y laundering , and Mr. Mathison was convicted on five additional counts of wire fraud

. Mr. Holmes wa s convicted in addition on one count of perjury. The trial court 2 sentenced the defendants to lengthy prison terms and ordered them to make restitution. They urge reversal on a great number of diverse grounds. Because we fi nd none of their arguments persuasive, we affirm the trial court's judgments.
I. Mr. Mathison asserts that the trial court was biased against him. He maintains that th e judge should have recused himself from this case because Mr. Mathison ha d embarrassed and humiliated him during a deposition in a civil case several years earlier when the judge was in practice. Federal law requires a federal judge to disqualif y himse lf or herself where "his impartiality might reasonably be questioned," see 2 8 U.S.C. § 455(a), or where "he has a person al bias or prejudice concerning a party," see 28 U.S.C. § 455(b)(1). We find, after careful review, that Mr. Mathison waived his right to seek recusal from the trial court. We have held that claims under § 455 will not be considered unless they were timely made before the t rial court. See United States v. Bauer , 19 F.3d 409, 414 (8 Cir. 1994). In a letter tha t he sent to the trial court following some particularly th adver se rulings, Mr. Mathison referred to the events that he now claims warranted a recusal. The letter indicated his opinion that the events alluded to might warrant th e judge's recusa

l, but nowhere did the letter actually seek recusal. We therefore believe that the trial court quite properly did not consider the letter to be a motion to recuse.-6-

Mr. Mathison chose not to raise the matter of recusal before the trial court , alth oughhe plainly thought that he might have a basis for asking the judge to recuse

. Mr. Mathison did not simply forfeit an objecti on by mere inadvertent inaction; he made aconscious choice not to raise the objection. In these circumstances, it is plain to us that he has waived it. See United States v. Olano, 507 U.S. 725, 732-34 (1993).
II. Mr. Holmes and Mr. Chambers mount several challenges to the trial court' s refusal to sever their trials from Mr. Mathison's. In counts 1-37, onl y Mr. Mathison was a defendant, and crimes arising out of only the first three of the four investment schemes w e re alleged. In counts 38-61, which concerned the fourth investment group, all four defendants were charged. Although Mr. Ho lmes and Mr. Chambers moved for severance during a pretrial hearing, they did not renew the motion at the close of the government's case or at the close of al l of the evidence. Because of this omission, we review the denial of th e motion for plain error only. See id. at 733-34. To succeed on plain-error review of the denial of a motion to sever, a defendant must show an abuse of discretion by the trial court as well as "prejudice affecting his substantial rights and an extraordinary reason to reverse ." United States v. Rogers , No. 98-1073, 1998 WL 414468, at *3 (8 Cir

. th July 24, 1998); see also Fed. R. Crim. P. 14.
While it is true, as the defendants point out, that the acts alleged in counts 1-37 were distinc t from those alleged in counts 38-61, the trial court did not abuse it s discretion by having all of the counts considered in the same trial. Mr. Mathison's first three investment groups served as the model and progenitor for the final scam. At least on e defendant, Mr. Mathison, was involved in all of the acts, and the governmen t presented evidence allegedly l inking Mr. Gobel and Mr. Holmes to the acts underlying all of the counts. Furthermore, the comple x money-laundering scheme, for which all of the defendants were convicted, involved money obtained from all four of the-7-

investment gro ups. As in a typical Ponzi scheme, money obtained from victims of the final scam was used to placate victims of the previous three scams. Fina lly, promotional materials f

rom the first three scams were used to defraud investors in the fourth one

. For all of these reasons, we hold that the offenses charged were "of the same or similar character" and were "based on ... two or more ... transactions connected together," see Fed. R. Crim. P. 8(a), and that joinder of all of the counts was therefore proper.
It is true that the government produced more evidence of Mr. Mathison’s guil t thanit did of his co-defendants', and it is also true that Mr. Mathison was indicted on more counts than his co-conspirators were. But “[a] defendant is not entitled t o severan ce merely because the evidence against a co-defendant is more damaging than the evidence against him. ... Severance beco mes necessary [only] where ... a jury could not be expected to compartmentaliz e the evidence as it relates to separate defendants.” United St ates v. Jackson , 549 F.2d 517, 525 (8th Cir. 1977), cert. denied , 430 U.S

. 985, 431 U.S. 923, 968 (1977). In this cas e, “any risk of prejudice was reduced by the district c ourt's instructions, which directed the jury to consider each offense and it s supporting evidence separately, and to analyze the evidence with respect to eac h indivi dual without considering evidence admitted solely against other defendants. " United States v. Noske , 117 F.3d 1053, 1057 (8 Cir. 1997), cert. denied , 118 S. Ct

. th 315, 389 (1997), 118 S. Ct. 1060 (1998).
More im portant, because a substantial amount, if not all, of the evidenc e present ed with respect to counts 1-37 would have been admissible (and likely woul d have been us ed) in a separate trial on counts 38-61, Mr. Holmes and Mr. Chamber s could not have been prejudiced by the trial court’s failure to sever their trials from that of Mr. Mathison. We have held, moreover, that defendants "charged in a conspiracy should be tried together, parti cularly where proof of the charges against the defendants is based upon th e same evidence and acts." United States v. Boyd , 610 F.2d 521, 525 (8 Cir. 1979) , cert. denied , 444 U.S. 1089 (1980). We hold, therefore, that all of the th-8-

defend ants were "alleged to have participated ... in the same series of acts o r transactions," see Fed. R. Crim. P. 8(b), and that a joint trial was thus proper.
Mr. Holmes and Mr. Chambers also argue that the trial court erred in failing to sever their trials from Mr. Mathison's b ecause his pro se representation was prejudicial to their right to a fair trial. Requests for severance of defe ndants under Fed. R. Crim. P. 14 must be made prior to trial. See Fed. R. Crim P. 12(b)( 5). Because Mr. Holmes and Mr. Chambers never requested severance on this ground from the trial court, we review forplain er ror. See Olano , 507 U.S. at 733-34. Our examination of the recor d convinces us that Mr. Mat hison's pro se representation was prejudicial to no one other thanhimself, and we therefore find that the court did not commit plain error in failing to sever the defendants' trials on this ground. Id . at 734-35.
III. Mr. Mathison maintains that the trial court erred in denying his motion t o suppress evide nce that was seized from his office pursuant to the first of two warrants that were issued to search his property. He argues that he was improperly denied a Franks hearing, see Franks v. Delaware , 438 U.S. 154 (1977), that the magistrat e j u dges who issued the warrants were not neutral and detached, that the affidavit upon which the first search warrant was based was insufficient to state probable cause, that the first warrant was not specific enough, and that items removed from his office during the first search were not described in the warrant. The FBI originally investigated Mr. Mathison for crimes relating to a fraudulent loan scheme in which, the government asserted, he solicited borrowers for a number of sham loan offe

rings. The affidavit that was presented in support of the application for th e first search warrant, and sworn out by FBI Special Agent Danny Reynolds, wa s based on several sources of information, all tending to sh ow that Mr. Mathison, through several of his business entities, was involved in soliciting fraudulent loan deals. The-9-

first warrant therefore authorized the seizure o f all records at Mr. Mathison's office that pertained to 17 distinct businesse s and 11 individuals, including Mr. Mathison himself.
Fort he affidavit, Mr. Reynolds first obtained incriminating information from a special a gent with the South Dakota Division of Criminal Investigation. That information was based on interviews with five separate bor rowers and on several letters indicating that Mr. Mathison's office might contain evidence that those and othe r borrow ers were defrauded. Second, Mr. Reynolds reviewed bank records provide d pursuant to a federal grand jury subpoena of the ringleader behind the fraudulent loan scheme, one Ronald

Totaro. The accounts revealed wire transfers from Mr. Mathison and his associates. Third, Mr. Reynolds interviewed Lynn Tjaden, an alleged victim of one of Mr. Mathison's loan schemes, and Mr. Tjaden provided information about th e formof the scam, provided the names of several other borrowers, and indicated that releva nt evidence could be found at Mr. Mathison's office. Fourth, Mr. Reynold s revieweda report of an FBI interview with Eugene Drong, an associate o f Mr. Mathison 's who claimed that he too was defrauded by Mr. Totaro and that Mr. Mathison had introduced him to Mr. Totaro. Fifth, Mr. Reynolds obtaine d informa tionfrom a special agent with the IRS Criminal Investigation Divisio n sugge sting that Mr. Mathison was engaged in tax evasion and money-launderin g activities in connection with the operation of one of his numerous business entities, and that evidence of such activity could be found at his office. Finally, Mr. Reynold s listenedto a recording of a phone conversation between Mr. Mathison and Lero y Anderson, a potential borrower, in which Mr. Mathison solicited Mr . Anderson to apply for one of Mr. Totaro's presumably fraudulent loans. A defendant is entitled to a hearingto determine the veracity of a search warrant affidavit if he or she can make a substantial preliminary showing that a false statement was include d in the affidavit (or that relevant information was omitted from it ) intention ally or recklessly, and that the allegedly false statement was necessary to a finding of probable cause or that the alleged omission would have made it impossible-10-

to find probable cause. See id. at 155-56; United States v. House , 604 F. 2d 1135, 1141, 1141 n.9 (8 Cir. 1 979), cert. denied , 445 U.S. 931 (1980). Mr. Mathison argues that

th the affiant in his case intentionally included false statements and omitted exculpatory ones.
We a gree with the trial court that Mr. Mathison was not entitled to a Frank s heari ng because he did not make "a substantial preliminary showing that a fals e statement knowingly and intentionally, or with reckless disregard for the truth, wa s included by the affiant in the warrant affidavit." Franks , 438 U.S. at 155-56; see also United States v. Garcia , 785 F.2d 214, 222 (8 Cir . 1986), cert. denied , 475 U.S. 1143 th (198 6). The requirement of a substantial preliminary showing "is not lightly met. " United States v. Wajda , 810 F.2d 754, 759 (8 Cir. 1987), cert. denied , 481 U.S. 1040 th (1987). A mere allegation standing alone, without an offer of proof in the form of a sworn affidavit of a witness or some other reliable corroboration, is insufficient to make th e difficult preliminary showing. Franks , 438 U.S. at 171. While Mr. Mathiso n identified what he said were specific falsehoods in the affidav it, he offered no proof that the alleged falsehoods were deliberate or reckless. "When no proof is offered that an affiant deliberately lied or recklessly disregarded the truth, a Franks hearing is no t required." United States v. Moore , 129 F.3d 989, 992 (8th Cir. 1997), cert. denied , 118 S. Ct. 1402 (1998).
Mr. Math ison further alleges that the affiant omitted material information about one of the informants on whom the affiant relied in gathering information for th e affidavit, specifically, that the informant was in jail and charged with grand theft at the time that he made the relevant s tatements. Mr. Mathison asserts that the omission was

" 'clearly critical' to the finding of probable cause," and thus that recklessness may be inferred from the fact of the omissio n. United States v. Reivich , 793 F.2d 957, 961 (8 th Cir. 1986), quoting United States v. Martin , 615 F.2d 318, 329 (5th Cir. 1980). While we do not dispute that evid ence of an informant's credibility may sometimes be critical to a finding of probable cause, we agree with the trial court that, in this case, the-11-

inclusionof the omitted information would not have affected that determination. The amount of e vidence recited in the affidavit was considerable, to say the least, and was certainly enough to overcome the doubt, if any, that might have been cast on its weight by the informant's alleged lack of credibility.
IV. Mr. Mathison argues in addition that the magistrate judges who issued th e warr ant under discussion and a subsequent one were not neutral and detached. I n connection with his suppres sion motion, Mr. Mathison filed an affidavit stating that, in the course of

his business of holding seminars on living trusts, he criticized the way in which the ma gistrate judge who issued the first warrant had handled a probate cas e while that mag istrate judge was in practice. We have held that a magistrate judge i s neutral and detached if his or her impartiality cannot reasonably be questioned. Se e United States v. DeLuna , 763 F.2d 897, 907 (8 Cir. 1985), cert. denied , 474 U.S. 980 th (1985). We agre e with the trial court that Mr. Mathison has not alleged facts that could lead a reas onable person to believe that either magistrate judge was unable to asses s impartially the existence of probab le cause for the relevant search warrant. The record contains no evidence that the magistrate judge who iss ued the first warrant was actually aware of Mr. Mathison's criticisms. It may be that Mr. Mathison was not neutral and det ached with respect to that magistrate judge, but one may not reasonably infer from this that the o pposite was true. Mr. Mathison's claim that the magistrate judge issuing the second warrant also was not neutral and detached, moreover, amounts to nothin g more than a vague and conclusory allegation.
V. Mr. Mathison maintains that the affidavit upon which the first s earch warrant was premised was insufficient to support a finding of probable cause for the search o f several of the distinct business entities for which the search warrant was issued. In-12-

order to find probable cause, the court issuing a search warrant must decide " 'whether, gi venall the circumstances set forth in the affidavit before [it], ... there is a fai r probability that ... evidence of a crime w ill be found.' " United States v. Kail , 804 F.2d 441 , 444 (8 Cir. 1986), quoting Illinois v. Gates , 462 U.S. 213, 238 (1983). Take n

th together, the information in the affidavit in question strongly s uggests that Mr. Mathison was using several of his businesses to recruit victims for Mr. Totaro's fraudulent loan de als, and that evidence tending to demonstrate Mr. Mathison's involvement could be found in the records of those corporate entities, located in his office. Because there is more than ample evidence in the affidavit that Mr. Mathison was involved in criminal activ ity, and that evidence of this involvement could be found in his financial records, the affidavit properly supported the magistrate judge's finding of probable cause with respect to all of the records seized under the first warrant. We find, likewise, that

the first search warrant was appropriately specific; it did not, contrar y to another of Mr. Mathison's assertions, authorize a general search. A search warrant must be specific enough to avo id a "general, exploratory rummaging" of a person's property, Coolidge v. New Hampshire , 403 U.S. 443, 467 (1971). In thi s case the FBI had considerable information regarding Mr. Mathison's criminal activity, including the names of 17 corporations that were potentially involved in crimina l wrongdoing

. But fraud, by its nature, entails concealment. The FBI could not b e cer tainthat the records of the 17 corporate entities about which it had informatio n would c ontain evidence of Mr. Mathison's crimes. It therefore sought, and received , authoriz ationto search all of Mr. Mathison's financial records in addition to th e delineated corporate record s. Because the first search warrant limited the search to all rec ords pertaining to the specified corporations and to certain individuals' financia l records, we find that it was sufficiently particular. See, e.g., United States v. Rude , 88 F.3d 1538, 1551 (9 Cir. 1996), cert. denied , 117 S. Ct. 690 (1997). th Similarly, we find that the trial court properly denied Mr. Mathison's motion to suppress certain eviden ce on the ground that its seizure exceeded the scope of the first-13-

search wa rrant. Mr. Mathison alleges that the FBI unlawfully seized document s pertaining to a number of companies not specifical ly named in either the affidavit or the warrant. The trial court declined to suppress that evidence, finding that it fit within the confines of th e warrant. We agree. As we have noted, the first warrant properl y aut horizedthe seizure of Mr. Mathison's financial records. Because the dispute d evidence related to investment groups in which Mr. Mathison was listed as an investor, the seizure did not exceed the scope of the warrant.
We therefore affirm the trial court's denial of Mr. Mat hison's motion for a Franks hearin g and of his motion to suppress. His claim that evidence obtained pursuant to a second search, under a second warrant based on information derived from the initia l search, should be suppressed as fruit of the poisonous tree is therefore moot.
VI. Mr. Mathiso n maintains that the trial court erred in refusing to force th e government

to allow him to examine the property seized from his home and offic e during the second search. When Mr. Mathison moved to i nspect that evidence, the trial cour t treated it as a motion for discovery. At the hearing at which this motion wa s co nsidered, the government indicated that it had complied, and would continue t o comply, with all discovery reques ts. Mr. Mathison acknowledged that the government ha dsufficiently accommodated his discovery requests but then suggested that he ha d been denied access to the ev idence seized under the second search warrant. When the governmentindicated that Mr. Mathison's attorney had in fact reviewed some of th e documents, however, Mr. Mathison seems to have acquiesced. We detect no er ror here.
VII. Allof the defendants contend that the trial court erred in refusing to exten d immuni ty to one of their witnesses. The defendants subpoenaed Sharon Scharlepp , Mr. Mathison's former secretary, to testify, whereupon Ms. Scharlepp informed the trial-14-

cour t that she would assert her Fifth Amendment right not to testify. The government declined to grant immunity to Ms. Scha rlepp in exchange for her testimony, despite the fact t hat it had granted her immunity when she testified against Mr. Mathison at a n earliertax-evasion trial and in interviews with the government before the defendants ' trial.
The relevant f

ederal immunity statutes, 18 U.S.C. §§ 6001-6003, plainly do not give c ourts the authority to immunize witnesses on motion of a party. See, e.g. , Pillsbury Co. v. Conboy , 459 U.S. 248, 2 61 (1983); see also United States v. Capozzi , 883 F.2d 60 8, 612 n.7 (8 Cir. 1989), cert. denied , 495 U.S. 918 (1990). Nor can a th trial c ourt compel the government to offer statutory immunity. See United States v

. Eagle Hawk , 815 F.2d 1213, 121 7 (8 Cir. 1987), cert. denied , 484 U.S. 1012 (1988). th Assumin g, arguendo , that a trial court has some inherent authority to immuniz e witnesses, "it is clear that such an order is an extraordinary remedy, to be use d sp aringly, and then only where the proffered evidence is ' clearly exculpatory. ' " Capozzi , 883 F.2d at 614, quoting Eagle Hawk , 815 F.2d at 1217 (emphasis in original).

In this ca se, none of the defendants made an offer of proof on what Ms. Scharlepp would have testified to if she had been granted immunity. Even if th e trial c ourt had the legal authority to grant immunity, therefore (a proposition that w e very much doubt), it could not have done so in this ins tance, because it was never given a factual predicate sufficient to support the conclusion that the defendants were entitled to what they requested. There is thus no error here, plain or otherwise.
VIII. Mr. Gobel wa s convicted of conspiracy, mail fraud, and money laundering. He contends that the trial court erred in denying his motions for judgment of acquittal on the ground that the evidence was insufficient to support his convictions. Specifically, Mr. Gobel argues that the government failed to prove that he intended to enter into a-15-

consp iracy, that he intended to defraud any of the victims whom he recruited for th e investmentg roup, and that he was even aware of the existence of any financia l impropriety or money laundering. We review a denial of a judgment of ac quittal by considering the evidence in the lightm ost favorable to the verdict. If the evidence so construed would permit a reasonab le jury to find the defendant guilty, we must uphold the verdict. See Unite d State s v. Smith , 104 F.3d 145, 147 (8 Cir. 1997). Viewing the evidence in this light, th we find that the record is sufficient to support Mr. Gobel's convictions.
To convict a defendant of conspiracy, the government must demonstrate that there was an agreement to achieve an illegal purpose and that the defendant knew of the agreement and knowingly became a part of the conspiracy. See United Stat es v. Berndt , 86 F.3d 803, 809 (8th Cir. 1996). We have held, however, that "[o]nce the existence of 'a c onspiracy is established, even slight evidence connecting a defendant to th e conspiracy may be sufficient to prove the defendant's involvement.' " United States v. Agofsky , 20 F.3d 866, 870 (8th Cir. 1994), cert. denied , 513 U.S. 909, 949 (1994) , quotin g United States v. Ivey , 915 F.2d 380, 384 (8th Cir. 1990). The governmen t provided evidence

that Mr. Gobel was closely associated with the relevant investment group: There was proof that he was instrumental in its organization, that he accepted a sizable amount of money from it, and that he encouraged victims to invest in it. I n additio n, the record would support a finding that Mr. Gobel feigned an inability t o recollect how many people he encouraged to make investments. We hold, there fore, that even though the evidence presented by the government was not overwhelming, it was sufficient to prove, beyond a reasonable doubt , Mr. Gobel's participation in the conspiracy. As a result of this involvement, he was also properly convicted on related mail fraud and money-laundering charges. See Unite d States v. Esco bar , 50 F.3d 1414, 1420 (8th Cir. 1995) ("each member of a conspiracy may be held criminally liable for any substantive crime committed by a co--16-

conspi rator

in the course and furtherance of the conspiracy"); see also Pinkerton v

. United States , 328 U.S. 640, 647 (1946).
IX. Mr. Mathison asserts that the tri al court erred in a number of ways in sentencing him. He argues first that the trial court improperly r equired that he make restitution and did so without first assessing his a bility to pay. The Mandatory Victim Restitution Act of 1996 , however, requires restitution for injuries inflicted in the course of crime s inv olving fraud. See 18 U.S.C. § 3663A(c)(1)(A)(ii). The same statute requires tha t resti tutionbe ordered "without consideration of the economic circumstances of th e defendant." See 18 U.S.C. § 3664(f)(1)(A).
Mr. Mathi son also maintains that his sentence constitutes cruel and unusua l punishmentbec ause it will require him to be in prison beyond the extent of his lif e expectancy. But we have held in a previous case that a sentenc e that is within the range prescribe dby statute, although in excess of a defendant's life expectancy, does no t violate the Eig hth Amendment. See United States v. Mendoza , 876 F.2d 639, 640 (8 th Cir. 1989).
X. Mr. Mathison raises numerous claims of ineffective ass istance of counsel. While such claims must ordin arily be raised in a petition for postconviction relief, see United States v. Triplett , 104 F.3d 1074, 1083 (8 Cir. 1997), cert. denied, 117 S. Ct. 1837, th 2445 (1997), we believe tha t Mr. Mathison's claims in this instance are ripe for review because heraised them below and the trial court ruled on them. We reject all of them as without merit, but address in detail only the claim that Mr. Mathison's counsel was ineffective in not obtaining a Frankshearing in connection with Mr. Mathison's motion to suppress.-17-

We have already held that

Mr. Mathison's first motion for a Franks hearing was co rrectly denied because, among other things, he did not make a preliminary showing of deliberate or reckless untruthfulness by Mr. Reynolds that was sufficient to justif y a hearing. Mr. Mathison later made a pro se motion for a Franks hearing that wa s insufficient for the same reason. W hile he asserts on appeal that his lawyer could have rea sonably discovered certain additional facts that would have supported the origina l moti onfor a Franks hearing, those additional facts did not tend to show that Mr. Reynolds's alleged untruthfulness was deliberate or reckless. Mr. Mathison would thus not have been entitled to a Franks hearing even if his lawyer had discovered the fac ts that Mr. Mathison asserts should have been discovered. In our view, then , Mr. Mat hison cannot show prejudice from his lawyer's alleged shortcomings, and this claim of ineffective assistance must therefore fail.
XI. Mr. Mat hison makes a number of other arguments, all of which we hav e considered carefully and find to be entirely without merit.
XII. For the foregoing reasons, we affirm the judgments of the trial court. NOONAN, Circuit Judge, concurring and dissenting.
I c oncur in the court's opinion except as to its holding on Mathison's claim o f ineffective assistance of counsel. The usual way of ruling on such claims is on a motion for habeas corpus. See United States v. Petty , 1 F.3d 695, 696 (8th Cir. 1993). Th e record here is so sparsely developed that I cannot form an opinion on the merits of the claim. Mathison's account of his c ounsel's failure to move for recusal in itself warrants more inquiry.-18-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.