IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40286

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLOVIS PRINCE,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:09-CR-161-1

USDC No. 4:10-CR-47-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Clovis Prince, proceeding pro se, appeals his jury trial convictions of

bank fraud, money laundering, perjury, and bankruptcy fraud. The district 

court sentenced Prince to a total of 30 years in prison. 

Prince first avers that the Government interfered with his right to

present evidence. He argues that he was denied access to his own corporate 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2013

Lyle W. Cayce

Clerk

 

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records and “trial evidence” and that when he finally obtained the “trial 

evidence,” it was in disarray and had been tampered with. He claims that the 

Government was responsible for the state of the evidence. In a closely related 

issue, he asserts that he was subjected to an illegal search and seizure, i.e., 

that an attorney for American Bank and Trust (ABT), one of the defrauded 

banks, illegally obtained his corporate records.

The right to present a complete defense “is an essential attribute of the 

adversary system.” United States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008). 

We review alleged violations of a defendant’s Sixth Amendment right to 

present a complete defense de novo, subject to review for harmless error. 

United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). 

With regard to the denial of access to his corporate records and trial 

evidence, Prince fails to specifically elucidate the precise nature of the records

and evidence and fails to explain how his alleged denial of access affected the 

outcome of the trial. His conclusional allegations are insufficient to warrant 

relief. See United States v. Volksen, 766 F.2d 190, 193 (5th Cir. 1985); see also 

United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc) (holding 

that this court is not required to search the record to find a legal or factual 

basis for an issue). 

Further, there is no evidence that the Government denied Prince access 

to any records. The record showed that some of the documents were under the 

control of the bankruptcy court. The record reflects that stand-by counsel Don 

Bailey requested, and obtained, the records from the bankruptcy court and 

stored them on behalf of Prince. Although Prince contends that, once the 

records were obtained, they were “in shambles,” he produces no reliable 

evidence of the condition of the records at the Fannin County Jail or that the 

Government was responsible for their alleged condition.

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With regard to his argument that he was subjected to an illegal search 

and seizure when an attorney for ABT entered his corporate office and 

allegedly confiscated certain files, appellate review is barred because Prince 

did not file a motion in the district court challenging the purported illegal 

search and seizure. See United States v. Chavez-Valencia, 116 F.3d 127, 134 

(5th Cir. 1997). Regardless of whether the search and seizure were legal, there 

can be no cognizable search and seizure absent governmental action. The 

Fourth Amendment does not protect against searches conducted by private 

individuals acting in a private capacity. United States v. Jacobsen, 466 U.S. 

109, 113 (1984); United States v. Runyan, 275 F.3d 449, 457 (5th Cir. 2001). 

Prince fails to offer any credible evidence that the attorney for ABT was acting 

as an agent for the Government. 

The remaining portion of Prince’s arguments concerning the denial of 

access to evidence include unsubstantiated and unsupported allegations of 

stolen email passwords, fraudulently created emails designed to place the 

blame on him for the ponzi-like scheme, the existence of a “dummy box” 

containing Papa John receipts instead of handwritten notes that Prince 

contends shows his innocence, and the mysterious disappearance of the box 

purportedly containing the notes. These unsupported allegations, many raised 

for the first time on appeal, are insufficient to warrant relief. See Volksen, 766 

F.2d at 193; United States v. Smith, 915 F.2d 959, 963-64 (5th Cir. 1990).

We reject, as without merit, Prince’s argument that the district court 

erred in submitting Government’s exhibits 144, 145, and 148 to the jury during 

its deliberations. The exhibits are not part of the record on appeal, but 

according to the parties the exhibits consisted of charts and summaries 

outlining Prince’s fraudulent scheme. 

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“[A]llowing the use of charts as pedagogical devices intended to present 

the government’s version of the case is within the bounds of the trial court’s 

discretion to control the presentation of evidence under” Federal Rule of 

Evidence 611(a). United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000) 

(internal citation and quotation marks omitted). Charts summarizing 

voluminous material under Federal Rule of Evidence 1006 are admitted as 

evidence themselves when the evidence underlying them is too voluminous to 

be effectively presented, while pedagogical or demonstrative aids submitted 

under Rule 611(a) are not introduced into evidence, but merely are shown to 

the jury to help them understand evidence that has already been admitted into 

the record. United States v. Buck, 324 F.3d 786, 790-91 (5th Cir. 2003). 

Here, the charts and summaries were not summaries of voluminous 

evidence submitted to stand in for the evidence itself, but instead were merely 

summaries of evidence already admitted and were therefore pedagogical aids

under Rule 611(a). See id. at 790. Further, the district court’s instructions to 

the jury made clear that the exhibits in question were not evidence, but merely 

summarized evidence that had already been admitted. Lastly, the 

Government and stand-by counsel did not object to sending the pedagogical 

summaries to the jury room. See Pierce v. Ramsey Winch Co., 753 F.2d 416, 

431 (5th Cir. 1985); see also United States v. Winn, 948 F.2d 145, 159 & n.35 

(5th Cir. 1991) (holding that Pierce does not stand for the proposition that 

sending pedagogical charts to the jury room constitutes reversible error; it 

more properly stands for the proposition that a trial court does not err in 

refusing to send pedagogical charts to the jury room).

We also find, as without merit, Prince’s argument that he was denied his 

right to a speedy trial. The Speedy Trial Act requires that a federal defendant 

be tried within 70 days of the filing of his indictment or his appearance before 

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a judicial officer, whichever comes later. 18 U.S.C. § 3161(c)(1). When the 

court grants a continuance on the motion of any party or sua sponte, that 

period of delay is excluded “if the judge granted such continuance on the basis 

of his findings that the ends of justice served by taking such action outweigh 

the best interest of the public and the defendant in a speedy trial.” 

§ 3161(h)(7)(A). 

Of the complained-of continuances, one of them, entered on January 4, 

2010, was a properly entered ends-of-justice continuance and thus the delay 

engendered by the continuance is excluded. See § 3161(h)(7)(A). The August 

20, 2010, continuance of which Prince complains was entered after the district 

court granted Prince’s motion to consolidate the bank fraud/money laundering 

and perjury/bankruptcy fraud cases for trial. “The Speedy Trial Act entitles 

criminal defendants to adequate time for preparing a defense, but that right 

may not be used as a two-edged sword in this fashion.” United States v. 

Westbrook, 119 F.3d 1176, 1188 (5th Cir. 1997). Thus, this court follows the 

“sensible maxim that defendants ought not to be able to claim relief on the 

basis of delays which they themselves deliberately caused.” United States v. 

Kington, 875 F.2d 1091, 1108 (5th Cir. 1989). Because Prince insisted on 

consolidation, he should not be heard to complain of the continuance that 

ensued. 

Lastly, the district court’s June 7, 2010, continuance did not violate the 

Speedy Trial Act. Open-ended continuances are permissible if they are in effect 

only for a reasonable length of time. See Westbrook, 119 F.3d at 1187. Because 

the June 7 continuance was in effect for five months and eight days, it was

reasonable. See id. (finding an open-ended continuance for five months to be 

reasonable).

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Prince’s arguments that he was denied the right to call witnesses on his 

behalf, that a witness had been threatened, and that other witnesses were 

prevented from testifying by governmental “interference” are without merit. 

See United States v. Girod, 646 F.3d 304, 310 (5th Cir. 2011); United States v. 

Thompson, 130 F.3d 676, 686 (5th Cir. 1997); Gibbs v. King, 779 F.2d 1040, 

1047 (5th Cir. 1986). 

We have endorsed the position, like many other circuits, that a trial court 

generally does not have a duty to explain to a defendant that he has a right to 

testify or to verify that the defendant voluntarily waives his right to testify. 

See United States v. Brown, 217 F.3d 247, 258 (5th Cir. 2000), vacated and 

remanded on other grounds sub nom, Randle v. United States, 531 U.S. 1136

(2001). The record shows that stand-by counsel advised Prince of his right to 

testify at the conclusion of the defense’s case. Prince, at that time, had not 

decided whether he would exercise his right. The district court had no 

obligation to inquire or obtain a waiver of the right. See Brown, 217 F.3d at

258 (right to testify is critical element of trial strategy best left to defendant 

and counsel with no intrusion by trial court because any intrusion may, 

unintentionally, affect the defendant’s decision).

To prove a due process violation based on the use of perjured testimony, 

Prince must show that the testimony was false, that the prosecutor knew that 

it was false, and that it was material to the issue of guilt. See United States v. 

Blackburn, 9 F.3d 353, 357 (5th Cir. 1993). An allegedly perjured statement is 

material only if use of the false testimony “creates a reasonable likelihood that 

the jury’s verdict might have been different.” United States v. Washington, 44 

F.3d 1271, 1282 (5th Cir. 1995) (internal quotation marks and footnote 

omitted). Prince has not made the required showing on any of his claims that 

the Government knowingly used perjured testimony.

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Finally, “[t]he general rule in this circuit is that a claim for ineffective 

assistance of counsel cannot be resolved on direct appeal when the claim has 

not been raised before the district court since no opportunity existed to develop 

the record on the merits of the allegations.” United States v. Cantwell, 470 

F.3d 1087, 1091 (5th Cir. 2006) (internal citation and quotation marks 

omitted). We decline to address any of Prince’s allegations of ineffective 

assistance of counsel because the record is not sufficiently developed to 

consider the claims.

AFFIRMED.

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