United States Court of Appeals

Fifth Circuit

FILED

April 6, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 03–41738

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

W. LASSITER HOLMES, III,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

Before HIGGINBOTHAM, SMITH, and

BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

W. Lassiter Holmes, III, an attorney practicing in McAllen, Texas, was convicted of

mail fraud and conspiracy to commit mail

fraud, stemming from a scheme he executed

with Pauline Gonzalez, who at the time was

the District Clerk of Hidalgo County, Texas,

to back-date and file a fraudulent original petition in a medical malpractice suit Holmes was

handling, for purposes of avoiding a statute of

limitations bar. Holmes challenges his conviction and sentence on eight grounds. Finding

no reversible error with respect to his conviction and no plain error with respect to his

sentence, we affirm. 

I.

Holmes was retained in 1994 to represent

Hector and Felipa Gonzalez in a medical malpractice suit after Hector Gonzalez suffered

the loss of a kidney from the alleged negligence of Dr. Miguel Aleman. Over the course

of the next two years, Holmes worked sporadically on the case, seeking relevant medical
2

records and attempting to procure an expert

report. In May 1996, Holmes realized that the

statute of limitations on the tort claims would

soon expire.1

On May 14, 1996, Holmes filed a pleading

styled “Plaintiff’s Original Petition” with the

Hidalgo County District Clerk’s Office. A letter from an expert witness, bearing the same

date, was attached. Holmes paid the required

filing fee ($183.00) with a check (#1361)

drawn from his law firm and likewise dated

May 14, 1996. The clerk’s office opened a

new case file, assigned a new cause number,

and date-stamped the petition May 14, 1996.

That same day, Holmes personally delivered a

copy ofthe petition to Aleman’s attorney, Ron

Hole, and faxed a copy to Ross. 

Although the parties took discovery, the

suit remained largely dormant for three years,

but on May 3, 1999, Hole received a letter

from Bobby Garcia, an attorney Holmes had

brought in to work on the Gonzalez suit, seeking to settle the case for $3.5 million. Several

days later, on May 8, 1999, the parties attended a court-ordered mediation.

During the course ofthe mediation, the mediatorSSconducting shuttle-diplomacy between

the partiesSSapproached Hole and his partner

Micaela Alvarez, both of whom were

representing Aleman, and inquired whether

they planned to make a settlement offer. They

said no. The mediator admonished them to

reconsider, telling them they were “barking up

the wrong tree” if they thought they had a limitations defense. (Hole had asserted a limitations defense in his answer to the May 14,

1996, petition, but never urged it during discovery.) Specifically, the mediator told the

defense what Holmes had relayed to her moments before: He had mailed an original petition before filing the May 14, 1996, petition,

and he had an envelope to prove it. 

Because this was the first time the issue of

an earlier, mailed petition had been raised,

Hole and Alvarez went to the clerk’s office on

May 10, 1999. They examined the case file for

the suit filed by Hector Gonzalez against

Aleman and found no indication that a petition

had been filed in advance of the petition that

was date-stamped May 14, 1996. 

On May 11, 1999, Hole moved for summary judgment raising, inter alia, the defense

that limitations had run on May 11, 1996, but

suit was not initiated until May 14, 1996. The

next day, May 12, 1999, Holmes sent the following letter by fax to Pauline Gonzalez,2

the

then-elected District Clerk for Hidalgo County:

Dear Ms. Gonzalez:

Upon May 7,1996 I mailed a petition

style [sic] Hector and Felipa Gonzalez vs.

Dr. Miguel Aleman. It has come to my attention that the petition was never made

part of the record. 

Could you please conduct an investi1 Holmesrelayed this point toRichardRoss, the

insurance adjustor assigned to handle Aleman’s

case, in a phone conversation on May 14, 1996, in

which Holmes said he would be filing Hector

Gonzalez’ssuit “today,” because limitations would

expire the next day.

2 Holmes copied Hole on this letter and sent him

a version by mail. The letter sent to Hole was not,

however, a photocopy of the letter faxed to Gonzalez but was a re-typed version that, save for a

typographical error, is identical.
3

gation into this matter to determine if this

petition was ever received by your office.

Thank you for your assistance.

Sincerely,

[Signed by stamp]

W. Lassiter Holmes, III

Pauline Gonzalez faxed the following answer on May 13, 1999:

In response to your inquiry, the plaintiff’s original petition in cause number

C-2564-96-B was received. The search

was conducted and petition was found in

our office bearing the stamp file date of

May 7, 1996.

If you have any questions or inquiries,

please do not hesitate to contact me.

Sincerely,

[No signature]

Pauline G. Gonzalez

District Clerk

Hidalgo County

Indeed, when Alvarez returned to the

clerk’s office on May 13 to reexamine the file,

she discovered a document styled “Plaintiff’s

Original Petition,” this one bearing a file stamp

of May 7, 1996.3 This petition contained

Holmes’s signature in blue ink and a notation

of check number 1361 under the signature

block.4 In addition, Alvarez discovered what

remained of a pre-printed envelope,

postmarked May 7, 1996, with the return address of Holmes’slaw firm. The envelope was

severely torn such that the content of the

addressee portion was not legible save the

letter “S,” preceded by a portion of a letter

that appears to be an “E,” and a small portion

of a third letter.5

In light of the sudden emergence of this

hitherto nonexistent document, Hole sought

and received permission from the state district

court to depose Holmes and Pauline Gonzalez.6

 In his deposition, Holmes testified that he

mailed the newly-discovered original petition

on the evening of May 6 and that he had addressed the now-torn envelope to Pauline

Gonzalez and had misspelled her name to end

in an “ES.”

Although the record is opaque on the exact

circumstances, Holmes subsequently entered

3 Unlike the petition filed on May 14, however,

this petition was not time-stamped and did not have

a signature stamp naming the particular deputy

clerk who had received the pleading, both of which

the record reveals were customary practices in the

clerk’s office. 

4 The check number on this petition is the same

asthe check dated May 14 with which Holmes paid

the filing fee for the May 14 petition. 

5 The true addressee of this envelope was a

significant issue at trial, because the government

alleged, and attempted to prove through expert

testimony from a Texas Department of Public

Safety document examiner, that Holmes provided

this envelope as part of his fraudulent scheme: The

government maintained that the envelopewaslikely

a self-addressed stamped envelope Holmes had in

an old case file with his law firm’s name as the

addressee, and he tore the envelope such that only

the letters “ES” remained.

6 Hole subsequently received permission from

the state district court to remove the petition dated

May 7 for purposes of conducting nondestructive

forensic testing. 
4

into a settlement agreement bywhich he would

dismiss all claims against Aleman and pay

$15,000 to Aleman’s insurance carrier.

Holmes also executed an agreement with Hector and Felipa Gonzalez whereby they agreed

to release all malpractice claims against

Holmes in exchange for $10,000. 

Holmes did not, however, obtain peace

with these settlements: Hole and Alvarez filed

a formal grievance against him with the State

Bar of Texas. At a disciplinary hearing held in

October 1999, Hole presented forensic

evidence that the bond paper on which the

May 7 petition was printed contained a watermark and date code. According to the manufacturer,7 Hole maintained, the date code corresponded to the year 1997, and thusthe bond

paper could not have been manufactured before 1997. The petition could not, therefore,

have been printed and mailed, as Holmes suggested, in May 1996. Holmes received a sanction oftwo years’ probation fromthe state bar.

II.

Texas authorities subsequently initiated an

investigation of the Hidalgo County Clerk’s

Office. In an interview with Texas Ranger Israel Pacheco on March 26, 2001,8 Holmes

gave a revised version of the events: He had

made several attempts to obtain a copy of the

original petition he mailed on May 6, before he

filed the petition on May 14, but the clerk’s

office was unable to locate the original petition, so he brought a copy of the earlier, original petition to the clerk’s office as a “go-by” to

show employeesthe document he waslooking

for.

Federal investigatorsinitiated an independent investigation. He and Pauline Gonzalez

were indicted for conspiracy to commit mail

fraud in violation of 18 U.S.C. § 371 (count

one) and mail fraud in violation of 18 U.S.C.

§§ 1341 and 1346 (count two).9

Holmes testified in his own defense, trying

to convince the jury that the copy he brought

to the clerk’s office as a “go-by” became the

petition file-stamped May 7, when someone in

the clerk’s office erroneously file-stamped it.10

As for the May 14 petition, Holmes’s story

wasthat he mailed the original petition on May

6, but it did not contain an expert report, so

after securing an expert report he went to the

clerk’s office with another petition attaching

the report; and because the deputy clerk was

unable to tell himwhat cause number had been

assigned to his earlier petition, he filed the

May 14 petition “as if it were the new filing

expecting that, when the May 6 petition was

located, the District Clerk’s Office would

clean up the paperwork.”

The jury was not persuaded, and Holmes

was convicted on both counts. He now ap7 The government presented the testimony of

Edward Kennedy, a longtime employee of Bostonbased Southworth Paper Company, the manufacturer of the bond paper, who corroborated these

facts. Holmes made no effort to dispute this

evidence at trial.

8 Holmes was represented at this meeting by

counsel, and both he and counsel took copious

notes. See infra part VI.

9 Gonzalez was not tried with Holmes: After

the indictment wasreturned,shebecame physically

incapacitated,suffering fromlife-threatening health

problems. She died while charges were pending.

10 According to this theory, the earlier, original

petition Holmes claims to have mailed is still missing, although the envelope in which he claims to

have mailed it has surfaced. 
5

peals his conviction and sentence on various

grounds.

III.

A.

Holmes contendsthe district court admitted

the videotaped and transcribed deposition testimony of Pauline Gonzalez in contravention

of his SixthAmendmentright ofconfrontation.

The government proffered Gonzalez’s

deposition testimony as a co-conspirator’s

statement under Federal Rule of Evidence

801(d)(2)(E), according to which a statement

is admissible nonhearsay if it is made (1) by a

co-conspirator (2) during the course of the

conspiracy and (3) in furtherance of the conspiracy. The government asserts that Gonzalez’s deposition, which was taken by Hole on

May 19, 1999, only a few days after the petition file-stamped May 7, 1996, was discovered, consisted ofstatements bya co-conspirator made in furtherance of the conspiracy with

Holmes, insofar as her testimony was an effort

to conceal the objectives of a conspiracy then

occurring.11

DuringHole’s direct testimony, the government playedGonzalez’s videotaped deposition

and offered a transcribed copy of the deposition into the record. Before playing the tape,

the court inquired whether there was any

objection, to which defense counsel responded, “None whatsoever, Judge.” The court

likewise inquired whether there was any objection before admitting the transcribed copy

of the deposition, to which defense counsel

responded in kind, “No objection, Judge.”

Notwithstanding the almost-inviting approach to this evidence taken at trial, Holmes

submits on appeal that the admission of this

evidence violated his rights under the ConfrontationClause.12 Given Holmes’s failure to

object, our review is for plain error. See United States v. Cartwright, 6 F.3d 294, 300 (5th

Cir. 1993); FED. R. CRIM. P. 52(b).

B.

Holmes relies on Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354 (2004), in which

the Court fundamentally altered the scope and

effect oftheConfrontationClause byreplacing

the standard-driven balancing test, which had

delimited the right to confrontation, with a

categorical rule barring the admission of outof-court testimonialstatements against the accused absent opportunity for cross-examination. See Crawford, 124 S. Ct. at 1374. 

BeforeCrawford, the right ofconfrontation

was controlled by Ohio v. Roberts, 448 U.S.

56, 66 (1980), which held that the Sixth

Amendment does not bar admission of an

unavailable witness’sstatement against a criminal defendant so long as the statement bears

“adequate ‘indicia of reliability.’” To meet

that test, Roberts required that the out-ofcourt statement either fall within a “firmly

rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Id. Applying this approach, the Court held, in Bourjaily v. United States, 483 U.S. 171, 183-84

(1987), that the co-conspirator exception to

the hearsay rule wassufficiently steeped in our

11 jurisprudence that “the Confrontation Clause See United States v. Phillips, 219 F.3d 404,

419 (5th Cir. 2000) (“Efforts to conceal an ongoing conspiracy obviously can further the conspiracy by assuring that the conspirators will not be

revealed and the conspiracy brought to an end.”).

12 “In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. CONST. amend. VI.
6

does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule

801(d)(2)(E).”

Crawford abrogated Roberts with respect

to prior testimonial statements: Such statements may not be admitted against a defendant

unless he has an opportunity to cross-examine

the declarant, irrespective of whether the

statement falls within a firmly rooted hearsay

exception or bears particularized guarantees of

trustworthiness.13 With respect to nontestimonial statements, however, Crawford

leaves in place the Roberts approach to determining admissibility.14

 

1.

Because the categorical rule adopted in

Crawford is triggered only with respect to

“testimonial” evidence, whether a challenged

statement falls within the class of evidence

deemed “testimonial” will generally be outcome-determinative. But Crawford declined

to “spell out a comprehensive definition of

‘testimonial.’” Crawford, 124 S. Ct. at 1374.

Instead, the Court held that “[w]hatever else

the term covers, it applies at a minimum to

priortestimonyat a preliminaryhearing, before

a grand jury, or at a former trial; and to police

interrogations.” Id. Beyond these specific

examples, however, the boundaries of testimonial evidence remain unsettled. The Court

quoted three potential formulations of the

“core class” of testimonial statements but

declined to adopt or reject any of them.15

In the case at hand, we are presented with

a challenge to the admission of a co-conspirator’s statement made during the course and in

furtherance of the conspiracy in civil deposition testimony. Statements made by a co-conspirator during the course and in furtherance

13 See Crawford, 124 S. Ct. at 1374 (“Where

testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually

prescribes: confrontation.”); id. (“Where testimonial evidence is at issue . . . the Sixth Amendment

demands what the common law required: unavailability and a prior opportunity for cross-examination.”).

14 Crawford does, however, explicitly leave

open the possibility of “an approach that exempted

[nontestimonial] statements from Confrontation

Clause scrutiny altogether.” Id. Nevertheless, to

the extent the Court declined to overrule White v.

Illinois, 502 U.S. 346 (1992), in which a majority

of the Court rejected a view of the Confrontation

Clause that would place no constitutional limits on

the admissibility of nontestimonial statements, instead leaving their admissibility to controlling hearsay law, see Crawford, 124 S. Ct. at 1370 (“Although our analysis in this case casts doubt on that

holding, we need not definitively resolve whether

[White] survives our decision today . . . .’), Roberts remains controlling for purposes of nontestimonial statements. 

15 These include: (1) “ex parte in-court testimony or itsfunctional equivalentSSthat is, material

such as affidavits, custodial examinations, prior

testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Crawford, 124 S. Ct. at 1364 (citation

omitted); (2) “extrajudicial statements . . . contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions,” id. (quoting White, 502 U.S. at 365)

(Thomas, J., concurring in part and concurring in

the judgment)); and (3) “statementsthat weremade

under circumstances whichwould lead an objective

witness reasonably to believe that the statement

would be available for use at a later trial,” id.

(citation omitted).
7

of a conspiracy are by their nature generally

nontestimonial and thus are routinely admitted

against an accused despite the absence of an

opportunityfor cross-examination.16 The challenged evidence here, however, is not the runof-the-mill co-conspirator’s statement made

unwittingly to a confidential government

informant,17 or made casually to a partner-incrime; rather, we have a co-conspirator’s

statement that is derived from a formalized

testimonial sourceSSrecorded and sworn civil

deposition testimony.

2.

Whether this evidence is “testimonial” as

Crawford used that term is uncertain. This

case does not, however, require resolution of

whether Gonzalez’s civil deposition qualifies

as testimonial evidence triggering the right of

confrontation. Even assuming arguendo that

her deposition is testimonial under Crawford,

there was no constitutional error, because the

government did not offer her testimony to

prove the truth of the matter asserted.18

In her deposition, PaulineGonzalez lamented the organizational problems in the clerk’s

office, testifying that her office was forced to

deal with sloppy lawyers who were invariably

forgetting and confusing pleadings, and was

staffed by rotating and volunteer clerks prone

to mistakes. Pauline Gonzalez thus explained

that someone in the office could have

mistakenly back-dated the petition after looking up the case information on the computer

and using the postmark date stamped on the

torn envelope.

Far fromoffering thistestimonyto prove its

truthfulness, the government sought to establish its falsity through independent evidence. Indeed, the entire thrust of the government’s case was that the back-dating was not

the result of a clerical error, but instead was

the objective of an illicit conspiracy between

Holmes and Pauline Gonzalez. Gonzalez’s

testimony was thus offered both to show the

16 See, e.g., id. at 1367 (challenging the concurrence’s suggestion that hearsay exceptions

historically havepermitted admission of testimonial

statements against the accused in a criminal case,

reasoning that “[m]ost of the hearsay exceptions

covered statements that by their nature were not

testimonialSSfor example, business records or

statements in furtherance of a conspiracy.”);

United States v. Reyes, 362 F.3d 536, 540 n.4 (8th

Cir. 2004) (rejecting Crawford argument on

ground that “co-conspirator statements are nontestimonial”); C. MUELLER & L. KIRKPATRICK,

FEDERAL EVIDENCE § 398.1 (2004)

(“[C]oconspirator statements . . . are nontestimonial in character and admitting them does

not infringe defense confrontation rights.”); United

States v. Delgado, No. 03-41379, 2005 U.S. App.

LEXIS 2686, at *18 (5th Cir. Feb. 16, 2005)

(“Crawford is not applicable to [hearsay statements made during the course and in furtherance of

a conspiracy] because they are not testimonial

hearsay statements.”).

17 See, e.g., Bourjaily, 483 U.S. at 181-84

(holding admissible as against a Confrontation

Clause challenge co-conspirator’s unwitting statements to an FBI informant despite absence of opportunity for cross-examination and unavailability

of declarant); United States v. Saget, 377 F.3d

223, 229-30 (2d Cir. 2004) (holding that co-conspirator’s statement made unwittingly to police was

nontestimonial and thus admissible against defendant despite absence of opportunity for crossexamination).

18 See Crawford, 124 S. Ct. at 1369 n.9 (“The

[Confrontation] Clause . . . does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter asserted.”) (citing

Tennessee v. Street, 471 U.S. 409, 414 (1985)). 
8

existence of a scheme and to prove one of the

overt acts charged in the indictment.19 Even

assuming that her civil deposition testimony is

testimonial within the meaning of Crawford,

then, this nonhearsayuse of her testimony poses no Confrontation Clause concerns. See

Crawford, 124 S. Ct. at 1369 n.9; Street, 471

U.S. at 414.20

3.

The irony is that Holmes was keenly aware

of the fact that Pauline Gonzalez was not a

“witness[] against him” inasmuch as her deposition testimony was not inculpatory. In fact,

it was Holmes, not the government, that repeatedly relied on her deposition testimony at

trial for its truthfulness. The record is replete

with instances in which Holmes pointed to

Gonzalez’s deposition testimony as exculpatory and corroborating his primary defense

theorySSi.e., that the pleading he provided as

a “go-by” must have been back-dated in error

by someone in the clerk’s office.

During opening argument, for example, the

defense pointed to the deposition as exculpatory:

Pauline Gonzalez, byway of her testimony,

will tell you what she thinks happened on

that videotape. Someone took that blank

petition, looked it up in the computer,

pulled that case out of the computer, because [the government] already told you it

was filed on [May] 14.

The defense relied on the exculpatory nature

of her deposition testimony again while crossexamining Ron Hole:

Q: Ms. Gonzalez offered an explanation

for how this could have happened,

didn’t she?

A: Not in my mind; it was not a plausible

explanation.

Q: She attempted or said that it could

have been file marked by mistake,

didn’t she say that in the deposition.

. . . And she indicated that some clerk

or some volunteer working in the office could have done it accidentallyand

not deliberately, without any malice,

on the video.

The defense returned to the exculpatory force

of her testimony again during closing argument:

Now, Ms. Gonzalez says on her video,

sworn deposition: Someone could very

easily have said, just put the cause number

on it or file it. Put it with the file. . . .

Well, that’s not a crime, and no one should

go to the penitentiary and be convicted of

two federal felonies for that.

19 The indictment returned by the grand jury

specifically charged that “[o]n or about May 19,

1999, Defendant Pauline Gonzalez testified falsely

in a deposition regarding a civil petition bearing a

file-stamped date of May 7, 1996.”

20 The manner in which Holmes has presented

this claim to the court bears mentioning: His claim

amounts to a wholesale challenge to Gonzalez’s

testimony. That is, of the less than two pages his

brief devotes to this claimed constitutional error,

Holmes does not identify a single specific statement

made by Gonzalez that was offered against him for

the truth of the matter asserted. At oral argument,

the government stressed the nonhearsay use of this

evidence, and we asked defense counsel why such

use would pose Confrontation Clause concerns, to

which we were told, without elaboration or example, “there were truthful matters asserted.”
9

That the government did not offer Gonzalez’s civil deposition testimony for the purpose

of proving the truth of the matters to which

Holmes points cannot seriously be contested.

After all, the entire raison d’etre for the indictment and the felony charges was the government’s belief that the back-dated petition

wasthe result of a criminal conspiracy and not

some clerical error. Because the government

did not offer her testimony for its truth, there

is no Sixth Amendment violation.21

IV.

Holmes contends that the evidence is insufficient to sustain his convictions for conspiracy to commit mail fraud and the substantive mail fraud offense. We address each

count in turn. 

A.

“It is by now well-settled that a defendant

seeking reversal on the basis of insufficient

evidence swims upstream.” United States v.

Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).

In reviewing a challenge to the sufficiency of

the evidence, we view all the evidence and the

reasonable inferences drawn therefrom in the

light most favorable to the verdict, and ask

whether a rational trier of fact could have

found that the evidence established the elements of the offense beyond a reasonable

doubt. See, e.g., United States v. Smith, 296

F.3d 344, 346 (5th Cir. 2002). “In so doing,

we apply a ‘rule of reason,’ knowing that the

jury may properly rely on their ‘common

sense’ and ‘evaluate the facts in light of their

knowledge and the natural tendencies and inclinations of human beings.’” Mulderig, 120

F.3d at 547 (quoting United States v. Ayala,

887 F.2d 62, 67 (5th Cir. 1989)).

Because the jury is “free to choose among

reasonable constructions of the evidence,”

United States v. Richards, 204 F.3d 177, 206

(5th Cir. 2000), and retains the sole authority

to “weigh conflicting evidence and evaluate

the credibility of the witnesses,” United States

v. Milsaps, 157 F.3d 989, 994 (5th Cir. 1998),

“it is not necessary that the evidence exclude

everyreasonable hypothesis ofinnocence or be

wholly inconsistent with every conclusion

except that of guilt.” United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001). If,

however, the evidence viewed in the light most

favorable to the verdict points equally to a

theory of innocence and guilt, we will reverse

a conviction based on circumstantial evidence.

Mulderig, 120 F.3d at 546. 

B.

Holmes challenges the sufficiency of the

evidence to support his conviction of conspiracy, characterizing the government’s case as

establishing only that he prepared a pleading

21 Of course, even if we had found an error, a

separate question would follow: whether, having

forfeited the error by failing to object, we would

exercise our discretion under rule 52(b) to correct

it. (In Crawford, the Court noted the applicability

of the harmless error doctrine, see Crawford, 124

S. Ct. at 1359 n.1; id. at 1378 (Rehnquist, C.J.,

concurring in the judgment); but we do not read

those references as altering the applicability of the

plain error rubric where there was no trial objection, and thus Holmes would have the burden of

demonstrating that the error affected substantial

rights.) 

Although our disposition renders this inquiry

unnecessary, we note that it would be strange, indeed, were we to hold that the admission of evidence to which the accused repeatedly relied upon

as exculpatory and favoring an acquittal was such

an egregious error that justice and the public integrity of the judicial process require the remedy he

seeks: reversal. More likely, the opposite is true.
10

and gave it to the clerk’s office, which, in turn,

file-stamped it May 7, 1996. Although he

admits that it is “not unreasonable to conclude

fromthe record” that Pauline Gonzalez caused

the back-dating to occur, he contends that the

evidence isinsufficient in two allegedly critical

respects: First, there is no evidence

demonstrating his knowledge of the backdating at the time; and second, there is no

evidence demonstrating anymotive on the part

of Gonzalez to back-date the pleading. In the

absence of such evidence, Holmes claims he

cannot properly be found guilty of conspiracy

without “wild speculation.”

1.

To prove a conspiracy in violation of 18

U.S.C. § 371, the government must establish

three elements beyond a reasonable doubt:

(1) an agreement between two or more persons to pursue an unlawful objective; (2) the

defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more

members of the conspiracy in furtherance of

the objective of the conspiracy. E.g., United

States v. Peterson, 244 F.3d 385, 389 (5thCir.

2001). “The Government need not rely on

direct evidence of a conspiracy; each element

may be proven by circumstantial evidence.”

Mulderig, 120 F.3d at 547. 

2.

The evidence is sufficient to support conspiracy. Although his trial story differedSSas

it had to, given the bond paper revelationSSfrom his earlier deposition testimony,

Holmes admitted that the May 7, 1996, petition could not have been mailed on that date

and that he printed and signed the petition that

was ultimately back-dated May 7, 1996, by the

clerk’s office and placed into the case file. 

Coupled with this admission, the jury could

reasonablyhave concluded that the envelope in

which Holmes claims to have mailed the

original petition on May 6, 1996, was actually

a self-addressed envelope in which something

was returned to Holmes’s law firm.22 If this

envelope, which asthe postmark reveals had at

one point been properly mailed, was in fact

addressed to Holmes’s law firm, the jury reasonably could have concluded that it was at

some point prior to being placed in the clerk’s

case file in Holmes’s possession. 

At a minimum, then, the evidence reveals

that Holmes gave someone in the clerk’s office

both the petition that was ultimately backdated and the envelope in which he claims to

have mailed the original petition. The

question, then, is whether there was an

agreement or common purpose to back-date

the pleading and represent it to be the original.

On that score, as the district court observed in

its thorough post-trial memorandum, the testimony of three clerk’s employees is sufficient

to give rise to the inference that Holmes was

knowingly working in concert with Pauline

Gonzalez.

First, Alexandra Gomez, a criminal appeals

clerk, testified that Holmes approached her

“and he asked me . . . if I could step outside

because he needed to speak with me.” She

22A forensic document expert from the Texas

Department of Public Safety testified that the

partially visible letter preceding the letters “ES”

could not have been an “L.” The expert testified

that the letter was more likely an “M,” which, of

course, would be consistent with “Holmes.” The

jury reasonably could have credited this testimony

rather than accepting Holmes’s testimony that the

“ES” resulted from his misspelling of Gonzalez’s

last name.
11

testified that Holmes asked “if it was possible

for me to back-file something for him that

needed to be put into the file, or should have

been put in the file. And I told him I could

not.” After refusing Holmes’s request, Gomez

told Holmes she “could not be the one to do

that, that he would need to speak with Ms.

Gonzalez to see what she could do.” Gomez

testified further that a week after she refused

Holmes’s request, Gonzalez “called me on the

telephone and asked me to stamp file a pleading that was on her desk with the date it had

written on it,” but that she refused because she

“knew it was against our rules to do that, the

District Clerk’s Office rules.” 

Second, Veronica Muniz testified that, at

some point during the critical time period

(May 10-13, 1999), she observed Holmes

speaking with Pauline Gonzalez in Gonzalez’s

“glassed-in” office. And, although she was the

employee in the clerk’s office who had examined the file with Hole and Alvarez and did

not find any indication of an earlier petition,

Muniz testified that shortly after observing

Holmes and Gonzalez speaking privately, she

“saw a letter printing out that said they [the

clerk’s office] had found the document.” She

then identified the May 13, 1999, lettersent by

fax from Gonzalez to Holmes as the letter she

observed in the printer, and relayed that, upon

seeing the letter, “I was surprised because I

had, you know, I had been looking through the

file, and I couldn’t find anything. So I was just

surprised that . . . it had been found . . . .”23

Third, Viola Wise testified that she prepared the May 13, 1999, letter from Pauline

Gonzalez to Holmes at the direction of Gonzalez. Specifically, Wise testified to a conversation she had with Gonzalez during which Gonzalez “said that she had found a . . . missing

document” and instructed Wise to “go ahead

and make a letter stating that [Gonzalez] had

found the paperwork.”

Based on this testimony, the jury could

reasonably have concluded that Holmes was

seeking assistance to back-date a petition; and

that after Holmes met privately with Pauline

Gonzalez, she asked Gomez (exactly what

Holmes had previouslyasked her)to back-date

the petition, and that Gonzalez then directed

another employee to prepare a letter stating

that the petition had been “found.” This

testimony, when taken together withHolmes’s

admission that the petition ultimately backdated was printed and signed as an original by

him and provided to the clerk’s office, and the

expert testimony concerning the envelope, is

more than sufficient to establish an adequate

picture of Holmes’s role in the conspiracy.

Thus, despite Holmes’s continued reliance on

his version of the events in questionSSthat

someone in the clerk’s office must have backdated the pleading in errorSSthe jury was free

to reject his explanation and accept the government’s. 

To the extent Holmes relies on the government’s failure to establish Pauline Gonzalez’s

motive, he is attempting to avail himself of the

absence of evidence the government was not

required to offer. To be sure, the government

did not establish Gonzalez’s motive for conspiring with Holmes to back-date the petition;

indeed, the government admitted as much

during closing argument:

23 Muniz also testified that it was “significant”

that the back-dated petition was not signed by a

clerk, observing that “[b]ecause [if] it’s [an] original petition . . . it should have the specific time

that it was filed and it also should have a signature

on it.”
12

The only thing you-all aren’t charged to

figure out is what the motive of everybody

is, and I submit to you, I can’t exactly tell

you what Ms. Gonzalez’s motive was. I’ll

tell you she did violate her oath of office.

I’ll tell you she did something illegal.

Whether [Holmes] promised to give her

some money on the end, I don’t know. I

think it’s reasonable to suspect, but I think

it’s equally reasonable that she just is corrupt and just decided to allow a lawyer to

do something like that, and she was willing

to use her office to help him.

Nevertheless, because the government is not

required to prove Gonzalez’ssubjective intent

for conspiring with Holmes, the absence of

such motive evidence does not render insufficient the evidence supporting Holmes’s conviction of conspiracy. 

C.

With respect to the substantive mail fraud

offense, Holmes contends that the evidence is

insufficient to support his conviction because

the alleged misrepresentations were immaterial. Specifically, he reasons that regardless of

whether the May 7 or May 14 date is used for

purposes oflimitations, the underlying medical

malpractice claims were time barred, and thus

any representations about the May 7 petition’s

being the original were immaterial. 

1.

To prove mailfraud under § 1341, the government must show (1) a scheme to defraud;

(2) the use of the mails to execute the scheme;

and (3) the specific intent to defraud. United

States v. Bieganowski, 313 F.3d 264, 275 (5th

Cir. 2002). “In addition, the Supreme Court

hasinterpreted section 1341 to require that the

misstatement made in the course ofthe scheme

to defraud be a material one.” Id. (citing

Neder v. United States, 527 U.S. 1 (1999)).24

Because Holmes limits his attack to the

materiality of the alleged misrepresentations,

we cabin our analysis accordingly. 

2.

When the defense in the underlying tort suit

moved for summary judgment asserting that

Hector Gonzalez’s suit was time-barred as of

May 11, 1996, Holmes was taking a position

completelycontraryto what he urges now. Indeed, in his opposition to summary judgment,

Holmes repeatedly pointed to the May 7,

1996, filing date as defeating Aleman’s

limitations defense. Consider, for example, the

following passages from Holmes’s pleading:

The Defendant admits on page six of his

motion that the last date to file would have

been May 11, 1996. Assuming this date to

be true, the filing of the Plaintiffs Petition

on May 7, 1996 would have been timely.

. . .

Alternatively, assuming arguendo that the

last date of treatment was February 25,

1994, as asserted by the Defendant then the

limitations period would have extended to

24 The mail fraud statute expressly applies to a

“scheme or artifice to defraud another of the intangible right of honest services.” 18 U.S.C.

§ 1346. The government entered into evidence the

constitutional oath of office taken by Gonzalez,see

TEX. CONST. art. XVI, § 1, and the oath taken by

Holmes as a condition of membership in the State

Bar of Texas, see TEX. GOV’T CODE ANN. §

82.037. The court also instructed the jury that

tampering with or fabricating government documents and committing perjury are prohibited by

Texas law. Holmes does not, however, raise any

challenge to the applicability of the intangible services doctrine to the facts at hand.
13

May 10, 1996, which would have been

three days after the filing of the Plaintiffs

Petition.

Despite these representations, which plainly

contemplate the May 11 date as viable for

limitations purposes, Holmes characterizesthe

evidence adduced at trialsupporting his assertion that either date was beyond the limitations

period as “overwhelming.” His brief,

however, fails to cite any record evidence

supporting this claim. Our independent review

of the record indicates that, during the

defense’s cross-examination of Hole and again

during closing argument, the defense attempted to use the materials submitted by Hole to

the state bar to establish that limitations had

expired as of either date.

Specifically, the defense pointed to a chronology of events included in the file prepared

byHole, which indicatesthat on April 3, 1996,

the “SOL runs on last non-barred negligence

claim,” and includes a notation that “Mr.

Holmes was correct that the statute on the

01/08/94 visit would have expired on 04/03/96

not 05/04/96 as originally indicated.” From

this single entry, the defense claimed that the

limitations period expired in April, and thus

argued to the jury that Holmes had no motive

to fabricate a petition with a May 7, 1996,

date-stamp.25 

Holmes fails, however, to account for the

next entry in that same chronology: On May

11, 1996, the chronologynotes, the “SOLruns

on last non-barred treatment date.” Thus,

contrary to Holmes’s wholesale claim that the

limitations period expired in April, Aleman’s

lawyers believed that claims calculated from

the last date oftreatment (pursuant to what the

parties refer to in their summary judgment papers as the “continuing course of treatment

doctrine”), rather than from the last date of

negligent treatment, were potentially viable as

a limitations matter until May 11, 1996.26

And, as we indicated, this is precisely what

Holmes asserted in his opposition to summary

judgment.

Doubtless it is now (with the medical malpractice case long-since over, and sitting under

two federal felony convictions) in Holmes’s

interest to disclaimhis previousreliance on the

so-called continuing course of treatment

doctrine and to maintain that the suit would

have been time-barred even on May 7, 1996.

25 Defense counsel stressed the import of this

notation to the jury during closing argument:

I offered one exhibit into evidence and only one

exhibit. . . . I offered . . . the document that

Ron Hole offered to the state bar grievance

committee. . . . 

[I]n that document he says very clearly

that the statute of limitations was missed in

(continued...)

25(...continued)

April of 1996. In April. And he highlighted it.

And it’s there for you to read. He says, I agree.

Mr. Holmes was right. The statute was missed

in April.

26 Hole testified to why the May 11 date was

relevant during cross-examination:

Q: Whether May 7th or May 14th is the filing

date of the petition you had him on [the]

statute of limitations?

A: Not really. If the statute, if they go by the

last date, under the continuing course of

treatment doctrine, the last date would

have brought the statute of limitations to

May 11th, and that’s why we said at the

latest, May 11th.
14

But there was never any judicial resolution of

the limitations question; instead, the record

reflects a vigorous dispute as to the proper

calculation of limitations. At the time, Aleman’s lawyers were asserting that claims not

filed byMay 11 were time-barred; and Holmes

responded by claiming that the suit was not

time-barred because the petition filed on May

7SSthe fraudulent petitionSSwas timely filed.

Therefore, to the extent Holmes

represented that the suit was filed on May 7,

1996, thisrepresentation could have saved him

from a limitations bar had the state court

ultimately accepted the view that the applicable trigger date was the last date of treatment,

as Holmes himself pressed in his response to

summary judgment.27 That Holmes or even

Hole may now regard this as unlikely is not

controlling; that the May 11 date could have

saved the suit from the time-bar then-being

pressed byAleman’s defense counselis. These

representations thus were material, so we

affirm Holmes’s conviction of mail fraud.

V.

Holmes aversthat the government’s closing

argument contained an improper plea for

sympathy for Hector and Felipa Gonzalez,

thereby prejudicing the jury against him to

such a degree that he was denied a fair trial.

We find no error.

A.

“Improper prosecutorial comments constitute reversible error only where ‘the defendant’s right to a fair trial is substantially affected.’” United States v. Bernard, 299 F.3d

467, 488 (5th Cir. 2002) (quoting United

States v. Andrews, 22 F.3d 1328, 1341 (5th

Cir. 1994)). “A criminal conviction is not to

be lightlyoverturned on the basis of a prosecutor’s comments standing alone. The

determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” United States

v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).

To resolve this question, we consider the

magnitude of the prejudicial effect of the challenged statements, the efficacy of any cautionary instructions, and the strength of the evidence of the defendant’s guilt. Bernard, 299

F.3d at 488 (citing Andrews, 22 F.3d at 1341).

This already narrow standard of review is further constrained by Holmes’sfailure to object;

he bears the burden of demonstrating that the

prosecutor’sstatements constitute plain error.

See id.; FED. R. CRIM. P. 52(b).

B.

Holmes has failed to demonstrate error,

much less plain error. The prosecutor’s

lengthy closing argument, viewed in its entirety and in context ofthe charged offenses, is

not primarily an appeal to the jurors’ emotions

regarding Hector and Felipa Gonzalez; rather,

27 Accord Neder, 527 U.S. at 22 n.5 (quoting

one formulation providing that a matter is material

if “the maker of the representation knows or has

reason to know that its recipient regards or is likely

to regard thematter asimportant in determining his

choice of action, although a reasonable man would

not so regard it”) (quoting RESTATEMENT (SECOND) OF TORTS § 538 (1977))); Kungys v. United

States, 485 U.S. 759, 770 (1988) (“[A] concealment or misrepresentation is material ‘if it has a

natural tendency to influence, or was capable of

influencing, the decision of’ the decisionmaker to

which it was addressed.”); United States v. Heath,

970 F.2d 1397, 1403 (5th Cir. 1992) (stating that,

in bank fraud context, “[a] statement is material if

it ‘has a natural tendency to influence, or was

capable of influencing the decision of’ the lending

institution.”) (quoting Kungys, 485 U.S. at 770)).
15

the prosecutor was attempting to underscore

the situation Holmes found himself in, having

missed the limitations period on an ostensibly

serious and valuable medical malpractice

claim. 

The government therefore referred to the

underlying malpractice suit as demonstrating

Holmes’s motive for conspiring with Pauline

Gonzalez to back-date a fraudulent petition.

Thus, although the government’s closing argument undoubtedly contains certain statements

that tend to evoke sympathy for Hector and

Felipa Gonzalez, the subject ofthe malpractice

suit, including its meritsSSand therefore the

seriousness of the injury suffered by Hector

Gonzalez, and the value that injurywould have

in such a suitSShas obvious relevance beyond

an argumentum ad misericordiam. 

And once it is accepted that the merits of

the underlying malpractice suit bear on

Holmes’smotive, the proprietyofthe prosecutor’sstatements becomes a question of degree.

At that point, we must proceed in light of the

“wide latitude” afforded counsel when presenting jury argument. See United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir.

1998). Here, given the district court’s cautionary instruction to the jury to consider only

the evidence and that the attorneys’ arguments

were not evidence, and the critical fact that

these statements were “neither persistent nor

pronounced when viewedwithinthe context of

the entire closing argument,” Bradford v.

Whitley, 953 F.2d 1008, 1013 (5th Cir. 1992),

it is unlikely that the jury was led astray.28 In

any event, there is substantial evidence

supporting conviction on both counts. The

prosecutor’s unobjected statements do not

produce reversible error. 

VI.

Holmes avers that his substantial rights

were prejudiced by the government’s delayed

disclosure of Pacheco’s report summarizing his

March 2001 interview.29 The government

28 To the extent Holmes complains that the

prosecutor’s closing argument was improper insofar as it conveyed to the jury that Hector and

Felipa Gonzalez were denied their “day in court”

(continued...)

28(...continued)

not as a consequence of his conceded legal malpractice, but, rather, as a result of his illegal actions, this argument is alsomeritless. The prosecutor did not argue that they were denied their chance

to have their case heard in court as a consequence

of the charged crimes; to the contrary, the prosecutor argued that “the reason they never got the same

chance their lawyer got this week [to have their

case heard in court] is that their lawyer made a

mistake. And then he compounded that mistake by

violating the law.”

29 The report at issue consists of two paragraphs from a longer report prepared by Pacheco

on the details of his investigation of the Hidalgo

County Clerk’s Office. Paragraphs 5.1 and 5.2 of

the report summarize Pacheco’s March 26, 2001,

interview of Holmes, and read in full as follows:

On 03-26-01, writer interviewed attorney

Lassiter HOLMES at the Texas Ranger office

in McAllen. Present during the interview was

his attorney, Joe CONNORS. HOLMES said

that he had mailed the petition on 05-07-1996.

He said that contrary to what had been said, the

statute of limitations had nothing to do with this

case.

HOLMES advised that he had gone on

several occasions to try and get a copy of the

petition, but no one at the Clerk’s office could

find one. He finally took a copy of the original

(continued...)
16

concedes the delayed disclosure and resulting

violation of Federal Rule of Criminal Procedure 16(a)(1)(A).

A.

The standard of review for discovery matters is steep. “We review alleged errors in the

administration of discovery rules under an

abuse of discretion standard and will not reverse on that basis unless a defendant establishes prejudice to his substantial rights.” See

United States v. Ellender, 947 F.2d 748, 756

(5thCir. 1991) (citing United States v. Garcia,

917 F.2d 1370, 1374 (5th Cir. 1990)).30 

B.

The district court rejected Holmes’s posttrial claim holding that he failed to demonstrate prejudice to his substantial rights because defense counsel had ample time to review the report, make Holmes aware of its

contents, and prepare him for any questions

concerning the report on cross-examination.31

Moreover, the district court characterized as

disingenuous Holmes’s claim that the delayed

disclosure undermined the defense strategy

and theory of the case; the court observed that

Holmes could not have been blind-sided by the

contents of a report summarizing a meeting he

attended with his attorney; in fact, the district

court noted that the defense had a lengthy,

contemporaneousreport Holmes had prepared

about the interview. 

C.

Holmes now contends hissubstantialrights

were prejudiced insofar as he was forced to

decide whether to testify in his own defense

before he received a copy of Pacheco’sreport.

Holmes claims that the central defense theory

of the case turned on proving that someone in

the clerk’s office had back-dated (without his

knowledge or encouragement) the petition he

had brought as a reference; but because he was

unaware of the existence of Pacheco’s written

summary of the interview where he had explained this story, he felt forced to testify. 

As a threshold matter, there is no merit to

Holmes’ssuggestion that had he known about

Pacheco’s written summary of hisinterview he

could have relied solely on that report, could

have refrained from taking the stand, and still

would have adequately presented his defense

theoryto the jury. Pacheco’s written summary

is not sufficient by itself to present Holmes’s

“go-by” theorySSit statesthat Holmes claimed

to have brought a “copy” of the petition to the

clerk’s office; it does not, however, explain

why this “copy” was signed and printed as an

original. Indeed, it was only when Holmes

testified on direct examination that the jury

wastreated to his explanation for thisseeming

irregularity:

Q: Ordinarily, how do you handle your

copies, copies of petitions that are in

your file?

29(...continued)

petition to the Clerk’s office so that they could

see what petition he was talking about.

30 See also United States v. Johnson, 127 F.3d

380, 391 (5th Cir. 1997) (“Delayed production is

not in and of itself grounds for reversal of conviction. Prejudice to the substantial rights of a defendant is required before reversal of conviction is

warranted.”).

31 The district court determined that “there appears to be no dispute that the Pacheco Report was

provided to defense counsel during the trial but

before the defense had started to present any evidence.” Holmes’s brief, however, suggests that the

report was not disclosed until after a break taken

during the course of Holmes’s direct testimony.
17

A: I sign them.

Q: Why?

A: I like signing my names [sic] toSSon

the pleadings. I just like doing it.

Moreover, Pacheco’s written summary of

Holmes’s statement is wholly insufficient to

provide an exculpatory answer to any of the

other critical questions in this case, questions

that only Holmes was competent to testify

about. Only he could testify to the alleged

preparation of the petition and envelope on

May 6, 1996, which he claims to have done

alone; or the alleged mailing of that (still undiscovered) petition. Only he could explain

what he actually wasinquiring of Gomez, who

testified that Holmes asked her to back-date

and file a pleading; or the many occasions on

which he claims to have gone (although no

other witness was able to corroborate these

periodic stops) to the clerk’s office to inquire

about his missing petition; or why he told Aleman’s lawyer and insurance adjustor he was

going to file the suit “today” on May 14, 1996,

if he had in fact already mailed a petition and

was referring only to the filing of an expert

report; or why, if he had in fact mailed an

earlier petition, he did not style the petition

filed on May 14, 1996, “First Amended Petition” or something similar.

It is therefore implausible to credit

Holmes’s suggestion that timely disclosure of

Pacheco’s written summary of his interview

would have rendered Holmes’s testimony unnecessary such that the delay prejudiced his

substantial rights.32 Thus, although we have

indicated that the delayed disclosure of a

report within rule 16’s mandate of disclosure

may be prejudicial if a defendant has to decide

whether to testify before becoming aware of

the statement’s particulars,33 Holmes cannot

credibly suggest that he would not have testified had the government produced the document in a timely manner. Absent such prejudice, the delayed disclosure is not reversible

error.

VII.

Holmes challenges the denial of his motion

for a new trial based on newly-discovered

evidence. We reject his claim.

A.

Holmes points to the deposition of Claude

Hildreth, a private investigator, taken during

discoveryin the legalmalpractice suit. Holmes

contends that Hildreth’s deposition testimony

reveals that he was instructed by Hole and

Alvarez to contact Hector and Felipa Gonzalez

and to inform them of Holmes’s misconduct

related to the filing of their medical

malpractice lawsuit. According to Holmes, this

32 Our conclusion is bolstered by the testimony

of Holmes’s own trial counsel when asked at the

(continued...)

32(...continued)

post-trialmotions hearing about the delayed disclosure and its impact, if any, on trial strategy:

Q: Would your strategy about putting Lassiter Holmes on the stand have changed?

A: Probably Not.

33 See, e.g., United States v. Gonzalez, 967

F.2d 1032, 1036 (5th Cir. 1992) (rejecting claim

for lack of prejudice where particulars ofstatement

became known prior to decision about whether to

testify); United States v. Arcentales, 532 F.2d

1046, 1050 (5th Cir. 1976) (“We think it highly

significant that the inculpatory statement became

known during the government’s case-in-chief.”).
18

testimony contradicts Hole’s and Alvarez’s

testimony and lends credence to Holmes’s

theory that Hole and Alvarez “were pursuing

a vendetta against him.”

Alvarez testified that she felt precluded as

a matter of professional ethicsSSgiven her role

as opposing counsel in the underlying medical

malpractice suitSSfrom contacting Hector and

Felipa Gonzalez to relate the truth about their

lawsuit. She did, however, testify that she

“felt obliged” to write a letter to the editor of

a local McAllen newspaper setting out thenmayoral candidate Bobby Garcia’s involvement in and awareness of Holmes’s conduct in

the underlying medical malpractice suit after

viewing a campaign advertisement portraying

him as “the candidate . . . who stood for . . .

good ethical practice and honesty and integrity

in the mayor’s office.” It was after reading

this letter to the editor, Hole testified, that

Hector and Felipa Gonzalez contacted his

office, and it was only then that Alvarez

referred them to an attorney to pursue a legal

malpractice suit against Holmes.

B.

We review the denial of a motion for new

trial for abuse of discretion, see, e.g., United

States v. Blackthorne, 378 F.3d 449, 452 (5th

Cir. 2004), and we subject new trial motions

based on newly-discovered evidence to “an

unusually stringent substantive test,” United

States v. Ugalde, 861 F.2d 802, 808 (5th Cir.

1988). Namely, under the so-called Berry

rule, a defendant is not entitled to a new trial

on the basis of newly-discovered evidence unless he demonstrates that (1) the evidence is

newly discovered and was unknown to him at

the time of trial; (2) the failure to discover the

evidence was not due to his lack of diligence;

(3) the evidence is not merely cumulative or

impeaching, but is material; and (4) the evidence would probably produce an acquittal.

See United States v. Freeman, 77 F.3d 812,

816 (5th Cir. 1996) (citing Berry v. Georgia,

10 Ga. 511 (1851)). 

C.

Holmes cannot satisfy these standards.

Leaving aside the question of diligence,34

whether a private investigator caused Hector

Gonzalez to contact Alvarez, and whether the

investigator was directed to do so by Hole or

Alvarez, do not bear on whether Holmes committed the charged offenses. Indeed, as the

district court noted, “even if Mr. Hole did everything in his power to ensure that Mr. Gonzalez brought a legalmalpractice claim against

[Holmes], thisfact could not affect [Holmes’s]

guilt or innocence.”

To be sure, Hildreth’s testimony would

have provided some support to Holmes’s claim

that Hole had a vendetta against him.

Nevertheless, insofar as this evidence only

casts doubt on the veracity of Hole’s and

Alvarez’s testimony regarding their contact

with Hector and Felipa Gonzalez and demonstrates a bias on the part of HoleSSstandard

methods of impeachmentSSit is merely impeachment evidence, and therefore insufficient

to entitle Holmes to a new trial. See, e.g.,

Blackthorne, 378 F.3d at 454–55. In any

event, given the substantial evidence support34 The government contends that Holmes was

not diligent in acquiring this evidence, noting that

Holmes has failed even to identify when he became

aware of Hildreth’s testimony. Moreover, the

government contends that because the legal malpractice suit against him has been pending in state

court since 2001, whereas the instant criminal

action was not indicted until July 2002 and not

tried until January 2003, Holmes (in defending the

civil suit) could have deposed Hole, Alvarez, and

Hildreth before his criminal trial.
19

ing the verdict beyond the testimony of Hole

and Alvarez, this impeachment evidence does

not have any tendency to undermine the outcome.

VIII.

Holmes contends that his trial counsel provided ineffective assistance under the Sixth

Amendment. This assertion is without merit.

A.

Holmes advanced his ineffective assistance

claim in an amended motion for new trial in

which he faulted counsel for failing to object

to (1) the government’s use of the Pacheco

report on cross-examination; and (2) various

instances of alleged prosecutorial misconduct.

After a hearing, the district court denied relief,

finding that Holmes had failed to satisfy even

the first requirement of Strickland v. Washington, 466 U.S. 668 (1984)SSnamely, that counsel’s performance was deficient.

The court referenced an affidavit of trial

counselsubmittedwithHolmes’smotion35 that

characterized the failure to object to certain

perceived errors as deliberate trial strategy.

Relying on our precedent foreclosing reliance

on informed tactical decisions except in the

most exceptional circumstances as a basis for

claims of ineffective assistance,36 the court

faulted Holmes for trying to “have it both

ways,” i.e., “using a deliberate, reasonable

strategy at trial, and then relying on that same

strategy as grounds for a new trial.”

B.

Holmes charts a different tack on appeal.

He now faults counsel for, as his brief puts it,

deciding to be “‘Mr. Nice Guy’ . . . agreeable

to everybody except his client.” He claims

that counsel(1) without objection allowed the

case to be tried in Houston as opposed to McAllen or Laredo, and then lied to Holmes

about the circumstances ofthe Houston venue

selection;37(2) failed to conduct a proper investigation of certain “important materials”;38

and (3) subjected Holmes to “outrageous and

improper cross-examination covering as much

35 Trial counsel’s affidavit provides, in part: 

During the cross-examination of my client I had

to make several tactical decisions. One of

which was whether I would object to certain

questions propounded to my client that I felt

were improper. I decided I would not object

because my client was a lawyer. I felt my constant objecting might hurt the jury’s view of

him and his credibility.

36 See, e.g., Cotton v. Cockrell, 343 F.3d 746,

752–53 (5th Cir. 2003) (“A conscious and informed decision on trial tactics and strategy cannot

be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it

permeates the entire trial with obvious unfairness.”) (quoting United States v. Jones, 287 F.3d

325, 331 (5thCir. 2002) (quotingGarland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983))).

37 Although counsel informed the court that

Holmes preferred to be tried in McAllen, Holmes

alleges that counsel nevertheless told the court that

there was no objection to venue in Houston after

the prosecutor informed the court that he was

based in Houston. Holmes further alleges that

counsel lied to him when he said that the Houston

venue selection was decided by order of the court.

38 Holmes refers to (1) a report by his former

attorney, Joe Connors, made in preparation for a

potential state criminal prosecution before the federal indictment was handed down; and (2) an expert opinion prepared by an attorney on the statute

of limitations question. 
20

as seven or eight hours over a period of two

days.”

Because Holmes did not present to the district court his claims concerning counsel’s

handling of venue and failure to investigate,

we must determine as a threshold matter

whether to address these claims. Our controlling precedent generally precludes review on

direct appeal ofineffective assistance claimsin

the absence of presentment to the district court

and an adequatelydeveloped record. See, e.g.,

United States v. Navejar, 963 F.2d 732, 735

(5th Cir. 1992).39 

Althoughthe record does contain testimony

at the post-trial hearing on the question of venue and on counsel’s failure to investigate

certain materials, these claims were not presented to the district court as grounds for relief. Because the record on these issues is

incomplete and inadequate for proper appellate

review, we decline to reach them. We also

express no opinion as to their merit vel non.

To the extent, however, that Holmes’s

complaints regarding cross-examination and

counsel’s passivity overlap and restate the

claim actually developed and presented to the

district court based on counsel’s failure to

object to various instances of prosecutorial

misconduct, we reject Holmes’s claim. His

briefing on this issue is devoid of serious

analysis. He does not address the district

court’s findings regarding trial counsel’s apparent deliberate strategy of passivity. Nor

does he provide even a single citation to even

a single example of improper cross-examination by the prosecutor and a possible valid objection counsel could have raised. Instead,

Holmes merely concludes that counsel’s performance constitutes “an utter perversion of

the attorney-client relationship.”

This bare assertion will not suffice. To

succeed on his ineffective assistance claim,

Holmes bearsthe burden of demonstrating that

counsel’s performance was deficient and that

the deficient performance prejudiced his

defense. Holmes cannot escape this burden

merely by stating his conclusion. “Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient

to raise a constitutional issue.” Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). 

IX.

A.

The presentence report (“PSR”) grouped

the two counts of conviction and applied the

1998 version ofthe sentencing guidelines. The

PSR scored Holmes at a base offense level of

10 under U.S.S.G. § 2C1.7 and enhanced his

offense level by eight levels because the

offense involved an elected official or official

holding a high-level decision-making or

sensitive position pursuant to U.S.S.G. §

2C1.7(b)(1)(B), for a total offense level of 18.

Holmes had a criminal history score of I,

yielding a punishment range of 27 to 33

months’ imprisonment. 

39 See also Massaro v. United States, 538 U.S.

500, 504–05 (2003) (“[I]n most cases, a motion

brought under § 2255 is preferable to direct appeal

for deciding claims ofineffective-assistance. When

an ineffective-assistance claim is brought on direct

appeal, appellate counsel and the court must

proceed on a trial record not developed precisely

for the object of litigating or preserving the claim

and thus often incomplete or inadequate for this

purpose.”); United States v. Cornett, 195 F.3d

776, 781 n.2 (5th Cir. 1999) (“[A]n ineffective

assistanceof counsel argumentshould not be raised

for the first time on appeal except in rare cases

where the record is fully developed.”).
21

The government filed a written objection to

the PSR’s failure to recommend a two-level

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, because Holmes had

falsely testified under oath during his trial.

The court sustained the objection. Thus,

Holmes’s offense level was increased to 20,

yielding a range of 33 to 41 months. The

court sentenced Holmes to concurrent 33-

month terms and three years’ supervised

release.40

A few days later, the court held a telephonic conference with all counsel and Holmes.

As the transcript of the call reveals, the court

“wanted to revisit the obstruction of justice

enhancement . . . to make absolutely sure that

the Court had been sufficiently specific about

the statements that the Court believes to be

perjurious.” The court thus systematically

identified each of the statementsit found to be

false and therefore to be providing the basis

for t he two-level enhancement.

4 1

40 The district court further ordered Holmes to

pay a $5,000 fine for each count of conviction and

a special assessment of $200.

41 The transcript reads, in pertinent part, as

follows:

The Court finds and holds that the following statements domeet [the] criteria for perjury:

The testimony by Mr. Holmes that he

mailed an original petition on May 6, 1996.

The testimony that on May 14th, 1996,

Mr. Holmes asked the clerks to look up the

cause number on the case, and when they couldn’t find it, he filed the second petition.

Thirdly, the testimony that Mr. Holmes

(continued...)

41(...continued)

received a phone call from the Clerk’s Office,

possibly from Mrs. Gonzalez herself stating

that the petition had been found bearing the

May 7th date.

Fourth, the testimony that Mr. Holmes

asked unnamed clerks to look for the ‘missing’

petition and finally gave a signed copy of the

quote, ‘missing petition’ to the Clerk’s Office

as a go-by.

The Court also finds that there were numerous misstatements made about how the

check number found its way onto the May 7th

petition. At trial, for example, Mr. Holmes said

he put the check number on the file copy at the

same time that he signed it.

In his deposition Mr. Holmes stated he

wrote the check number on the petition eight

months earlier, when the petition was already in

the possession of the Clerk’s Office. This explanation, of course, became impossible once

the watermark evidence came to light.

At trial Mr. Holmes attempted to disavow

his deposition testimony by stating that he was

confused because Mr. Ron Hole, had made an

unclear copy of the petition. Therefore, his testimony about the filing-fee dispute supposedly

pertained to a different case.

However, Mr. Holmes repeatedly stated

during the course of the deposition that the

deposition was supposed to be limited to the

topic of the May 7th document and the filing of

the document, and he refused to answer, repeatedly, questionsthat he considered off-topic.

Therefore, the Court finds that he could

not possibly have thought that the testimony

about the filing-fee dispute pertained to a different case.

(continued...)
22

B.

In his initial brief on appeal, Holmes, on

two grounds, challenges as clear error the

two-level sentencing enhancement for

obstruction of justice. First, he avers that

certain statements found to be false by the

district court are not so; and second, he asserts

that, even if false, his deposition testimony

cannot not form the basis for the perjury

enhancement, because the deposition was

taken before any official investigation.

1.

“We review a district court’s finding of

obstruction of justice for clear error.” United

States v. Powers, 168 F.3d 741, 752 (5th Cir.

1999). “A factual finding is not clearly erroneous as long as it is plausible in light of the

record as a whole.” Id. (quoting United States

v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998)).

“This is particularly true where a sentencing

court’s imposition of a § 3C1.1 enhancement

is based, at least in part, upon an evaluation of

a witness’ credibility.” Id. (citing Johnson v.

Collins, 964 F.2d 1527, 1532 (5thCir. 1992)).

2.

Holmes attempts to show clear error by essentially repeating his version of the events in

question, maintaining that neither his claim to

have brought the ultimately back-dated petition to the clerk’s office as a go-by nor his

claim to have mailed the original petition on

May 6, 1996, was controverted by the evidence at trial. These claims were apparently

unconvincing to the jury, and there is more

than ample evidence supporting the district

court’s determination that these statements,

among others, were false. This is particularly

true given that Holmes was the key witness in

his own defense, setting his own story of the

events in question against the entirety of the

government’s case, and therefore the district

court’s perjury conclusion is based substantially on a determination about Holmes’s

credibility.42

X.

This does not, however, end the sentencing

inquiry. During the pendency of this appeal,

the Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005), and Holmes

has raised, in supplemental briefing, a constitutional challenge, asserting that his sentence

is infirm because it was enhanced based on

(1) a judicial finding that his offense involved

an elected official under U.S.S.G. § 2C1.7(b)-

(1)(B) and (2) a judicial finding that he obstructed justice by committing perjury under

U.S.S.G. § 3C1.1. 

A.

Holmes did not object to his sentence on

SixthAmendment groundsinthe district court,

41(...continued)

Further, if the trial-story told by Mr.

Holmes at trial were true, Mr. Holmes should

have known he was looking at the ‘go-by’ as

soon as he saw the check number, because he

did not write that on the original, only on his

own file copy, which became the go-by.

So I believe all of these statements were

and are false.

42 Because the district court’s findings that

Holmes lied at trial about, inter alia, mailing the

petition on May 6, 1996, and having given the

back-dated petition to someone in the clerk’s office

as a “go-by” are not clearly erroneous, we need not

resolve Holmes’s further claim that any false

statements from his deposition testimony cannot

properly form the basis of an obstruction of justice

enhancement.
23

so our review is for plain error. See, e.g.,

Booker, 125 S. Ct. at 769; United States v.

Mares, 2005 U.S. App. LEXIS 3653, at *22

(5th Cir. Mar. 4, 2005). Under plain error review, we may not correct an error not raised in

the district court unless there is (1) an error;

(2) that is plain; and (3) that affectssubstantial

rights. See, e.g., Johnson v. United States,

520 U.S. 461, 466–67 (1997). “If all three

conditions are met, an appellate court may

then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (alternation in original) (internal quotation marks

omitted) (quoting United States v. Olano, 507

U.S. 725, 732 (1993)). 

B.

Holmes first contends that the eight-level

enhancement for an offense involving an elected-official under U.S.S.G. § 2C1.7(b)(1)(B) is

error under Booker. He contends that the jury

verdict alone did not find that Pauline

Gonzalez was an elected official. This is

frivolous. Holmes admitted as much at trial,

and that is all Booker requires.43

C.

Holmes next contends that the two-level

enhancement for obstruction of justice based

on his perjury at trial under U.S.S.G. § 3C1.1

is error under Booker because the jury was

never presented with the question whether he

obstructed justice. Insofar as the jury was not

specifically asked and instructed to find beyond a reasonable doubt (as is required with

the elements of charged offenses) whether

Holmes committed perjury while on the stand,

and thus obstructed justice, imposing this

enhancement under a mandatory guidelines

regime was error under the Sixth Amendment.44

 

43 Consider, for example, Holmes’s testimony

on direct examination when asked to whom he

addressed the envelope in which he claims to have

mailed the “original” May 6, 1996 petition:

Q: Would you have mailed it to Pauline Gonzalez or Hidalgo County District Clerk’s

Office?

A: No, it would have been to her.

Q: Why?

A: Because everything is addressed to the

district clerk.

(continued...)

43(...continued)

Q: And she is the district clerk?

A: Yes, sir.

Or consider the closing jury argument where defense counsel put the following question to the jury:

“Why would Pauline Gonzalez, respected in that

community . . . [and] elected for at least two

decades to public office, risk her public reputation,

her public office, and her freedom for nothing?”

44 Accord Blakely, 124 S. Ct. at 2540 n.11

(“Why perjury during trialshould be grounds for a

judicial sentence enhancement on the underlying

offense, rather than an entirely separate offense to

be found by a jury beyond a reasonable doubt (as

it has been for centuries, see 4 W. BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND

136–38 (1769)), is unclear.”). The Eleventh Circuit has recently suggested, in dictum, that an obstruction of justice enhancement imposed on a defendant who took the stand and falsely denied his

guilt may not be Booker error, “because the jury

verdict convicting [him] of the crimes he denied

necessarily, albeit implicitly, found that he had engaged in behavior that fits within § 3C1.1.” United States v. Rodriguez, 398 F.3d 1291, 1298 n.5

(continued...)
24

Because there was error, the second prong

of plain error review requires us to determine

whether the error was plain. Johnson, 520

U.S. at 467. Although the error was not

“plain” at the time of sentencing, it is now

plain in light of Booker.

45

We therefore turn to the third prong of

plain error review: whether the error affects

substantial rights, which “means that the error

must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. And “[i]t

is the defendant rather than the Government

who bears the burden of persuasion with respect to prejudice.” Id.46

To carry this burden, a defendant must

show “‘a reasonable probability that, but for

44(...continued)

(11th Cir. 2005). Having found beyond a reasonable doubt that the back-dating and filing of the petition was the object and consequence of an illicit

conspiracy, the jury in the instant case, it could be

said, necessarily found that Holmes waslyingwhen

he testified that he had provided that petition to the

clerk’s office as a go-by during the search for the

alleged “missing petition.”

Though we agree that the jury necessarily rejected the veracity of Holmes’s story, the sentencing enhancement imposed by the district court

based on its determination that he committed perjury cannot be saved froma finding of constitutional error under Booker by reference to the jury’s

guilty verdict on the charged offenses. A finding of

perjury within the meaning of U.S.S.G. § 3C1.1

requires more than a conclusion that the defendant’s story of events is not credible; indeed, the

Supreme Court has given meaning to the term

“perjury” for guidelines purposes by borrowing the

elements of perjury from the federal perjury statute. See United States v. Dunnigan, 507 U.S. 87,

94 (1993) (“In determining what constitutes perjury, we rely upon the definition that has gained

general acceptance and common understanding

under the federal criminal perjury statute, 18

U.S.C. § 1621.”); id. (“A witness testifying under

oath or affirmation violates this statute if she gives

false testimony concerning a material matter with

the willful intent to provide false testimony, rather

than as a result of confusion, mistake, or faulty

memory.”) (citing 18 U.S.C. § 1621(1)). As a result, the Court has required district courts to make

a finding of obstruction of justice “that encompasses all of the factual predicates for a finding of perjury,” or, when faced with a defendant’s objection

to a perjury enhancement, “to address each element

of the alleged perjury in a separate and clear finding.” Id. at 95.

As we indicated with respect to Holmes’s initial

nonconstitutional challenge to the perjury enhance-

(continued...)

44(...continued)

ment, there is more than ample evidence in the

record to support the district court’s thorough perjury findings. Nevertheless, because the enhancement wasimposed under mandatory guidelines and

the jury was not specifically asked and instructed

to find beyond a reasonable doubt whether Holmes

had committed perjury based on the foregoing

elements, there is Booker error. So although we

harbor little doubt that, if so asked and instructed,

the jury would have reached the same conclusion as

the district courtSSi.e., that Holmes committed

perjurySSthe requisite findings cannot be projected

onto the jury’s guilty verdict to cure the constitutional error.

45 See id. at 468 (“[W]here the law at the time

of trial was settled and clearly contrary to the law

at the time of appeal[,]it is enough that the error be

‘plain’ at the time of appellate consideration.”).

46 See also United States v. Dominguez Benitez,

124 S. Ct. 2333, 2340 (2004) (“[T]he burden of

establishing entitlement to relief for plain error is

on the defendant claiming it . . . .”).
25

[the error claimed], the result of the proceeding would have been different.’” Dominguez

Benitez, 124 S. Ct. at 2339 (alteration in

original)(quoting United States v. Bagley, 473

U.S. 667, 682 (1985)). “A defendant must

thus satisfy the judgment of the reviewing

court, informed by the entire record, that the

probability of a different result is ‘sufficient to

undermine confidence in the outcome.’” Id. at

2340 (quoting Washington, 466 U.S. at 694).

In assessing whether a defendant has carried his burden ofshowing prejudice, we must,

asthis court in Mares and the Eleventh Circuit

in Rodriguez have cogently explained, keep in

mind precisely what isSSand thus what is

notSSerror under Booker. The precise Sixth

Amendment error identified in Booker is not

the use of extra-verdict enhancements that

increase a sentence; the constitutional error is

that extra-verdict enhancements were being

used under mandatory guidelines. See Mares,

2005 U.S. App. LEXIS 3653, at *27; Rodriguez, 398 F.3d at 1300.

Thus, in applying the third prong, “the

pertinent question is whether [the defendant]

demonstrated that the sentencing

judgeSSsentencing under an advisory scheme

rather than a mandatory oneSSwould have

reached a significantly different result.”

Mares, 2005 U.S. App. LEXIS 3653, at *27-

*28. Absent some indication in the record that

the outcome would have been different if the

district court had been operating under an

advisory system, a defendant fails to carry his

burden of demonstrating prejudice and therefore that the error affected his substantial

rights.47

Holmes attempts to demonstrate prejudice

by quoting the following statement apparently

made by the district judge at sentencing:

Those who practice in my court have heard

me saymany timesthat I generally think the

guidelines provide punishments that are far

too harsh. . . . I also think that I took an

oath to apply the law faithfully. And I

don’t have a free-ranging portfolio to ignore the sentencing table.

The problem for Holmesisthat he failed to include in the record on appeal the transcript of

that hearing.48 As a result, even if the alleged

quoted statement constituted a sufficient basis

for Holmes to carry his burden of demonstrating prejudice (a question we do not answer), it

is not in the record on appeal and thus cannot

47 See Mares, 2005 U.S. App. LEXIS 3653, at

*28 (“[T]here is no indication in the record from

(continued...)

47(...continued)

the sentencing judge’s remarks or otherwise that

gives us any clue as to whether she would have

reached a different conclusion. Under these circumstances the defendant cannot carry his burden

of demonstrating that the result would have likely

been different had the judge been sentencing under

the Booker advisory regime rather than the preBooker mandatory regime.”); see also Jones v.

United States, 527 U.S. 373, 394–95 (1999)

(“Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial

rights.”).

48

Instead, he included only (as relevant here)

the transcript from the December 17, 2003, telephonic conference in which the court specified its

rationale for its previous decision to impose the enhancement; but, critically, the transcript from this

conference reveals no similar statements by the

district judge about being bound by the mandatory

guidelines to apply a sentence he deemed so severe.
26

formthe basisfor a finding of prejudice.49 Nor

has Holmes identified any other basis in the

record to suggest that the outcome would

have been different if the district court had

been operating under an advisory guidelines

system. Holmes has therefore failed to carry

his burden as to the third prong of the plain

error test.

There is no reversible error in the conviction and no plain error in the sentence. The

judgments of conviction and sentence are

AFFIRMED.

49 See FED. R. APP. P. 10(b)(1)(A) (stating that

the appellant must order “transcript of such parts

of the proceedings not already on file as the appellant considers necessary”); United States v.

Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992) (“We

are unable to consider [defendant’s sentencing

challenge] because [he] has not provided this Court

with a record of the sentencing hearing, and no

justification is given for not doing so.”); Brookins

v. United States, 397 F.2d 261, 261 (5th Cir.

1968) (“This appellate court ‘[C]an only take the

record as it finds it, and cannot add thereto, or go

behind, beyond, or outside it, and it will not prosecute and independent inquiry’ as to what happened

in the lower court . . . .”) (quoting 4A CORPUS

JURIS SECUNDUM, APPEAL AND ERROR § 1206, at

1333)); United States v. Narvaez, 38 F.3d 162,

167 (5th Cir. 1994) (“It isthe appellant’s responsibility to order parts of the record which he contends contain error and his failure to do so prevents

us from reviewing this assignment of error.”); id.

(“As the district court relied upon such evidence

and as [defendant] failed to order that portion of

the record, this court is precluded from reviewing

his allegation.”); United States v. Johnson, 584

F.2d 148, 156 n.18 (6th Cir. 1978) (“It is the

responsibility of appellants to insure inclusion in

the record of all trial materials upon which they

intend to rely on appeal.”).