IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30588

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMAL DERRICK HUDSON, also known as Cali Hudson,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CR-171-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Following a jury trial, Jamal Derrick Hudson was convicted of several 

charges of conspiracy to commit access fraud and bank fraud, access device 

fraud and aiding and abetting, and bank fraud and aiding and abetting. The 

district court sentenced him to serve 116 months in prison and a five-year term 

of supervised release, and the district court also ordered that he pay restitution 

in the amount of $188,756.44. 

* 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

December 20, 2013

Lyle W. Cayce

Clerk

 

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Proceeding pro se, Hudson now appeals his convictions and sentences, 

and he has also filed several motions with this court. We start with his claim 

that the district court erred by denying his motion to dismiss the charges 

against him as barred by the statute of limitations. He acknowledges the 

written waiver of limitations in the record but disavows it, contending that the 

signature on it purporting to be his was not in fact placed there by him and 

that the waiver is fraudulent. Although Hudson filed three motions to dismiss 

the charges in the district court, none of them raised this issue. Consequently,

it is reviewed for plain error only. See United States v. Mondragon-Santiago, 

564 F.3d 357, 361 (5th Cir. 2009). He has not met this standard because this 

claim is based on no more than his own unsworn allegation that his signature 

on the waiver is not authentic, which does not establish a plain or obvious 

error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

Additionally, our review of the record does not show that the 

Government intentionally delayed charging Hudson to gain some tactical 

advantage, nor has he shown that the delay resulted in actual, substantial 

prejudice to his defense. See United States v. Avants, 367 F.3d 433, 441 (5th 

Cir. 2004). Consequently, he has not shown that his due process rights were 

infringed by the delay in charging him. 

Next, we consider Hudson’s challenge to the district court’s denial of his 

motion to suppress. When reviewing a denial of a motion to suppress evidence, 

we review the district court’s factual findings for clear error and conduct a de 

novo review of its legal determinations. United States v. Scroggins, 599 F.3d 

433, 440 (5th Cir. 2010). Hudson disputes the district court’s factual 

determination that Alltel did not act as a Government agent when it 

intercepted telephone communications as part of its investigation into the 

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conspiracy underlying the charges against him. See United States v. Blocker, 

104 F.3d 720, 725 (5th Cir. 1997). 

Hudson is correct insofar as he avers that we may consider the evidence 

admitted at trial when reviewing the propriety of the denial of the motion to 

suppress. See United States v. Jones, 239 F.3d 716, 718 (5th Cir. 2001). 

However, our review of the evidence both confirms the district court’s 

conclusion that Alltel did not act as a Government agent and refutes Hudson’s 

assertion that the Government withheld cell phone tower records. 

Our review of the record likewise shows that the evidence is sufficient to 

uphold Hudson’s convictions and that the convictions are not a manifest 

miscarriage of justice. See United States v. Davis, 690 F.3d 330, 336 (5th Cir. 

2012), cert. denied, 133 S. Ct. 1283 (2013). Hudson does not argue that the 

evidence adduced at trial failed to establish the elements of the offenses with 

which he was charged. Instead, he contends that his convictions should be 

overturned because there was no physical evidence to show that he committed 

the charged crimes and because his own testimony proved his innocence. In 

essence, he asks us to overturn the jury’s determination that he was not 

credible and that his testifying coconspirators were. 

The jury is wholly responsible for weighing the evidence and assessing 

witness credibility. United States v. Powell, 732 F.3d 361, 375 & n.14 (5th Cir. 

2013). Testimony will be discredited only if it “relates to facts that the witness 

could not possibly have observed or to events which could not have occurred 

under the laws of nature.” United States v. Green, 180 F.3d 216, 221-22 (5th 

Cir. 1999) (internal quotation marks and citations omitted). This standard has 

not been met in this case. Although Hudson denied everything and testified 

that the other witnesses were lying, the jury was not obligated to believe him. 

It is inappropriate for this court to consider whether the jury erred by rejecting 

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Hudson’s version of events. See Powell, 732 F.3d at 375 n.14. This case “was 

largely a swearing contest” that Hudson lost, and we are “not inclined to 

interfere with the jury’s decision about witnesses’ credibility when that issue 

was so squarely set before it.” See United States v. Doke, 171 F.3d 240, 243 

(5th Cir. 1999).

Too, Hudson contends that the district court erred by not giving his 

requested alibi instruction, which he avers was needed to support his 

testimony that he had never met his alleged coconspirators. We review the 

district court’s denial of a requested jury charge for an abuse of discretion. 

United States v. Laury, 49 F.3d 145, 152 (5th Cir. 1995). The district court did 

not abuse its discretion by concluding that the requested charge was 

inappropriate because the charged offenses could be committed by one who was 

not physically present when the underlying acts were accomplished. See 

United States v. Lee, 483 F.2d 968, 970 (5th Cir. 1973). Hudson’s argument 

that his right to a public trial was infringed when the trial judge held 

proceedings on Veterans Day was waived because it was not raised in the 

district court. See United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006). 

Accordingly, we will not consider it. 

Also at issue in this appeal are several of the district court’s evidentiary 

rulings. In a criminal case, we review a district court’s decision to admit or 

exclude evidence under a heightened abuse of discretion standard. United 

State v. Garcia, 530 F.3d 348, 351 (5th Cir. 2002). An abuse of discretion occurs

when the disputed ruling is grounded in a clearly erroneous factual finding or 

a legal error. Id. 

Our review of the record shows no abuse of discretion in connection with 

the district court’s decision to permit the Government to adduce summary 

evidence. The disputed exhibit summarized voluminous documents that were 

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integral to the case, and the summary witness’s testimony helped explain it to 

the jury. See United States v. Whitfield, 590 F.3d 325, 364-65 (5th Cir. 2009); 

FED. R. EVID. 1006. Hudson’s assertions that the prosecution should not have 

been permitted to use a summary witness because the phone companies did 

not authorize this witness to represent them, because the witness was not an 

Alltel employee at the time of trial, and because the witness was not the 

custodian of the records underlying his testimony do not show an abuse of 

discretion regarding the district court’s decision to permit the introduction of 

summary evidence.

Likewise unavailing are Hudson’s challenges to the admission of 

recordings of several phone conversations. His hearsay argument lacks merit 

because “[s]tatements made between co-conspirators in furtherance of a 

conspiracy are not testimonial.” See United States v. Alaniz, 726 F.3d 586, 608 

(5th Cir. 2013) (internal quotation marks and citation omitted). His argument 

that the recordings were hearsay that should not have been admitted gains no 

traction because “[h]earsay problems are not a concern if the jury believes that 

the defendant was one of the participants in the conversation; any statements 

he made would be admissible as a statement of a party opponent.” See United 

States v. Thompson, 130 F.3d 676, 683 n.7 (5th Cir. 1997); FED. R. EVID.

801(d)(2). Hudson’s conclusional assertion that the recordings were “doctored” 

also shows no abuse of discretion in connection with the district court’s decision 

to admit them. Hudson’s argument that he should have been permitted to 

testify concerning his military service is unavailing because this issue was not 

relevant to the charges against him. See FED. R. EVID. 404(b). Because the 

claims discussed above are not worthy of relief, Hudson’s cumulative error 

argument fails. See Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996). 

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We decline to consider Hudson’s claim that his first attorney rendered 

ineffective assistance by not moving to dismiss the charges against him on 

limitations grounds because this claim was not presented to the district court. 

See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Similarly, 

we decline to consider his Double Jeopardy argument because it was presented 

for the first time in his reply brief. See United States v. Jackson, 426 F.3d 301, 

304 n.2 (5th Cir. 2005).

Next, we analyze Hudson’s challenges to his sentence. He argues that 

the district court erred by determining that his offense involved 50-250 victims, 

that it involved sophisticated means, and that he obstructed justice. 

Additionally, he argues that his sentence is unreasonably harsh because he is 

innocent, because other defendants who caused greater losses and committed 

more heinous crimes got lesser sentences, and because he is a veteran, 

husband, and father.

We review sentences under the abuse-of-discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). First, we ensure that the district court 

committed no significant procedural error, such as failing to properly calculate 

the Guidelines range, treating the Guidelines as mandatory, or failing to 

consider the § 3553(a) sentencing factors. Id. If the sentence is procedurally 

sound, we then consider the substantive reasonableness of the sentence. Id. A 

district court’s interpretation and application of the Guidelines are reviewed 

de novo, and its factual findings are reviewed for clear error. United States v. 

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Our review of the record and pertinent authority shows no clear error in 

connection with the district court’s conclusions concerning the number of 

victims, obstruction of justice, and sophisticated means. See United States v. 

Ford, 558 F.3d 371, 377 (5th Cir. 2009); United States v. Conner, 537 F.3d 480, 

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492 (5th Cir. 2008); United States v. Pofahl, 990 F.2d 1456, 1481 (5th Cir. 

1993). Hudson’s arguments that his sentence is unduly harsh amount to no 

more than a disagreement with the district court’s weighing of the pertinent 

sentencing factors and the propriety of the sentence imposed. These 

contentions do not suffice to show error in connection with his sentence. See 

United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

Hudson also challenges his restitution order, arguing that it is improper 

because Verizon did not submit an affidavit and because it does not take into 

account his circumstances and obligations. The district court did not err by 

ordering restitution. See 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v. 

Espinoza, 677 F.3d 730, 732 (5th Cir. 2012). Our review of the record also 

shows that the district court considered the pertinent factors when setting the 

schedule of payments. See United States v. Arledge, 553 F.3d 881, 900 (5th Cir. 

2008). 

Hudson’s myriad arguments do not show that he should receive relief 

from his convictions and sentences. Accordingly, the judgment of the district 

court is AFFIRMED. All outstanding motions are DENIED.

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