United States v. Tarnawa

* 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this opinion should not be published and is not precedent except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
F I L E D
May 8, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40719
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DONALD TARNAWA,
Defendant-Appellant.
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Appeal From the United States District Court
for the Eastern District of Texas
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Before JOLLY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Donald Tarnawa has challenged his convictions in
connection with an alleged scheme to defraud potential investors in
a software technology he claimed to have invented. Tarnawa argues
in his initial brief that the evidence was insufficient to support
these convictions, that the Government improperly constructively
amended the indictment, that the district court erred in preventing
Tarnawa from questioning an investigator about his research into
the viability of the software, that the district court improperly
allowed the Government to introduce evidence of Tarnawa’s use of
assumed names, and that the district court erred by imposing an

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No. 05-40719
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unreasonable sentence. The panel approved a request by the
defendant to file an additional, pro se supplemental brief. In this
brief, the defendant additionally argues that he was not afforded
adequate time to file his supplemental brief, that the trial was
improperly bifurcated, that his criminal history was
mischaracterized by the trial court, that his sentence violates
double jeopardy, and that the district court lacked jurisdiction to
determine his restitution payments. After reviewing all the
evidence and the record, we conclude that each of these arguments
is without merit. Tarnawa concedes that his objections that his
sentencing enhancements violate the ex post facto clause and that
prior criminal convictions must be proven by a reasonable doubt are
foreclosed by United States v. Scroggins, 411 F.3d 572 (5th Cir.
2005), and Almendarez-Torres v. United States, 523 U.S. 224 (1998),
respectively. The short time frame allotted to Tarnawa to file the
supplemental brief is of his own making, as he filed a last-minute
request to represent himself pro se immediately prior to a long-
scheduled oral argument date. Accordingly, the defendant’s
conviction and sentence are AFFIRMED.

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