* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. A. LEONARD VARAH,

Defendant-Appellant. No. 97-8077 (D.C. No. 86-CR-0063-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 While Mr. Varah’s motion to dismiss the indictment was pending, he filed a

28 U.S.C. § 2255 motion on May 9, 1994. He then fi led a motion to disqualify the United States Attorney from representing the Un ited States in any post-trial proceedings with respect to his conviction. The di strict court denied the disqualification motion on June 28, 1994, and Mr. V arah filed a motion for reconsideration. The district court denied Mr. Var ah’s § 2255 motion on November 24, 1995, but did not deny the motion to r econsider the disqualification motion until its July 9, 1997 order. Although Mr. Varah indicates he is appealing the denial of his disqualification motion, he makes no claim of error with respect to its denial, nor do we find any. The district co urt’s July 9, 1997 order also denied as moot Mr. Varah’s March 28, 1996 motion to correct the record, which Mr. Varah does not appeal, and granted Mr. Varah’s February 3, 1997 motion to enforce an order for reimbursement of funds. -2- A. Leonard Varah, whose 1987 conviction for conspir acy to commit mail fraud, mail fraud and securities fraud was affirmedby this court in 1992, see United States v. Varah , Nos. 87-2320, 87-2354 and 87-2355, 1992 WL 186530 (10th Cir. July 30, 1992) (unpublished order and ju dgment), filed a motion to dismiss his indictment on October 8, 1993. Mr. Var ah argues that the indictment against him was undated and, therefore, insufficient to prove that he was involved in the charged schemes within the five years preced ing the indictment, as required by the 18 U.S.C. § 3282 statute of limitations. Th e district court denied the motion to dismiss on July 9, 1997. 1 Mr. Varah filed his notice of appeal from the July 9, 1997 order on July 29, 1997. Mr. Varah is appearing pro se. Construing h is motion liberally, see Haines v. Kerner , 404 U.S. 519, 520 (1972), we view his arguments i n his motion to dismiss the indictment as a motion to vacate, set a side or correct his sentence2 The district court stated that Mr. Varah filed a se cond pre-trial motion to

dismiss the indictment on April 30, 1987, raising the same § 3282 statute of limitations argument. However, the record on appea l does not include this motion. -3- under 28 U.S.C. § 2255. See, e.g. , United States v. Rourke , 984 F.2d 1063, 1067 (10th Cir. 1992) (liberally construing a pro se mot ion as one brought pursuant to § 2255). Section 2255 appeals are governed by the time requirements for civil, not criminal, appeals. See Klink v. United States , 308 F.2d 775, 776 (10th Cir. 1962). The time to file an appeal in a civil case in which the United States is a party is within sixty days after entry of the order or judgm ent appealed from. See Fed. R. App. P. 4(a)(1). For this reason, Mr. Varah’s noti ce of appeal was timely, and we have jurisdiction. “Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal.” United States v. Warner , 23 F.3d 287, 291 (10th Cir.1994). Mr. Varah filed at least one pre-trial motion to dismiss his indictment raising the same 18 U.S.C. § 3282 statut e of limitations claim that Mr. Varah raises in his October 8, 1983 motion; that is , that his involvement in the alleged conspiracy and fraud ended more than five-y ears prior to the filing of the indictment. 2 See R., Doc. 36, 50. The pre-trial motion to dismiss the indictment was denied by the district court. Mr. Varah did no t raise the § 3282 statute of limitations issue on direct appeal, nor did he rais e any objections with respect to-4-

the date or sufficiency of the indictment. See Varah , 1992 WL 186530, at **1-4. “A defendant’s failure to present an issue on direc t appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the err ors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.” Warner , 23 F.3d at 291. We need not address whether this bars Mr. Varah from asserting his claim, however, because, e ven assuming it is not procedurally barred, the claim fails on its merits. “When ‘the attack upon the indictment is made collaterally, the judgment must stand if the indictment is sufficient to meet constitutional requirements.’” Chavez v. Baker , 399 F.2d 943, 944 (10th Cir. 1968) (quoting Flore s v. United States , 338 F.2d 966, 967 (10th Cir. 1964). The districtcourt docket sheet shows that the indictment was filed on September 18, 1986 , and the indictment bears the clerk’s file stamp of that date. See R. Doc. 1. Mr. Varah’s pre-trial motion to dismiss the indictment states that the indictment w as filed on September 23, 1986, and bases its § 3282 statute of limitations argument on that date. As the indictment adequately informed Mr. Varah of the off enses charged and alleged the essential elements of the offenses, the indictment was constitutionally sufficient. See id. Further, even if the indictment were subject to attack, this court necessarily and implicitly resolved Mr. Varah’s statute of limitations issue against-5-

him when it affirmed his conviction, finding eviden ce that Mr. Varah sent mailings in furtherance of the charged schemes on July 16, 1 982, and January 19, 1983, within § 3282's five-year limitation period, applyi ng the September 18, 1986 filing date of the indictment. See Varah , 1992 WL 186530, at **2, 4. The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED. The mandate shall issue forth with.

Entered for the Court

Robert H. Henry Circuit Judge