UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6111

RONALD NELSON, a/k/a Ronnie,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6201

RONALD NELSON, a/k/a Ronnie,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina at Fayetteville.

Malcolm J. Howard, District Judge.

(CR-94-57-H)

Submitted: July 2, 1998

Decided: July 21, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Ronald Nelson, Appellant Pro Se. Jane J. Jackson, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Ronald Nelson was convicted of conspiracy to possess with intent

to distribute cocaine and cocaine base and substantive offenses of distribution of cocaine base, and for aiding and abetting in the distribution thereof. The court sentenced Nelson to 240 months'

incarceration, five years supervised release, and fines and assessments

of $12,300. Nelson appealed his convictions and sentences, and this

Court affirmed. Nelson then filed numerous motions in the district

court. Nelson now appeals the district court's denial of his motion to

dismiss his indictment for lack of jurisdiction and his motion to

vacate the court's restitution order for lack of jurisdiction.

First, Nelson claims that the district court erred in denying his

motion to dismiss his indictment for lack of jurisdiction. Specifically,

Nelson avers that jurisdiction was lacking because the Government

failed to obtain a grand jury concurrence form with the signatures of

at least twelve members voting to indict and that therefore his due

process rights were violated. We find that the district court properly

found that Nelson's motion to dismiss was without merit. Nelson

waived his right to challenge any non-jurisdictional defects in the

indictment process by failing to raise objections prior to trial, as

required by Fed. R. Crim. P. 12(b)(2), and did not show cause and

prejudice for his waiver. See Davis v. United States, 411 U.S. 233,

242 (1973). Further, Nelson fails to allege grounds to justify the disclosure of the voting record. See Fed. R. Crim. P. 6. This failure robs

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his claim of any merit even if it was not waived. Accordingly, we

affirm the district court's denial of Nelson's motion to dismiss for

lack of jurisdiction.

Next, Nelson avers that the district court erred in denying his

motion to vacate the court's order of restitution.* Specifically, Nelson

claims that the district court's fine order improperly delegated the

responsibility for devising a payment schedule. The district court

ordered Nelson to pay the $12,300 financial penalty in installments

as established by the probation officer, but not later than five years

after release from imprisonment. We find that the district court's

order delegating its authority to establish the installment amount and

timing of his fine to the United States probation officer without

retaining ultimate authority was error that requires us to vacate the

portion of his sentence relating to the fine and remand for sentencing.

See United States v. Miller, 77 F.3d 71, 77-78 (4th Cir. 1996) (applying the rationale of United States v. Johnson , 48 F.3d 806, 808-09

(4th Cir. 1995) to fines); see also 18 U.S.C.A. § 3572(d) (West 1994

& Supp. 1998).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED IN PART; VACATED IN PART AND REMANDED 

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*This court construes the district court's order denying relief on Nelson's motion to vacate restitution as a motion to vacate fines because the

record indicates that the district court ordered fines, not restitution.

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