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

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### W. L ASSITER 

### H OLMES



### , III,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

Before H IGGINBOTHAM

, S MITH , and

B ENAVIDES , Circuit Judges.

J ERRY E. S MITH , 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 Co unt y , 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 ei ght grounds. Finding

n o reversible error with respect to hi s conviction and no plain erro r with respect to hi s

sentence, we affirm.

I.

Holmes was retained i n 1994 to represent

Hector and Felipa Gonzalez in a medical malpractice su it after Hector Gonzalez suffered

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

of the next two years, Holmes worked sporadically on the case, seeking relevant medical2

re c ords 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 “Plaint iff’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, 199 6. The clerk’s office opened a

new case file, assigned a new cause nu mber,

and date-st amped the petition May 14, 1996.

That same day, Holmes personally delivered a

copy of the 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 let t er

from Bobby Garcia, an attorney Holmes had

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

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

During the course of the mediation, the medi ator 

### S S conducting shuttle -diplomacy between

the parties 

### SS

approached Hole and his partner

Micaela Alvarez, both of who m were

representing Aleman, and inquired whether

they planned to make a settlement offer. They

said no. The mediator admonished them to

reconsider, t elling them they were “barking up the wrong tree” if they thought they had a limitations defense. (Hole had asserted a limitations def ense in his answer to the May 14,

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

defense what Holme s 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, ma iled 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 Hect o r Gonzalez against

Aleman and found no indication that a petition

had been filed in a dvance 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:

Up o n May 7

, 1996 I mailed a petition

style [sic] Hect o r and Felipa Gonzalez vs.

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

part of the record.

Could yo u please conduct an investi1 Holmes relayed this point to Richard Ross, 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’s suit “today,” beca u se 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 f or a

typographical error, is identical.3

gat io n 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 f

axed the following answer on May 13, 1999:

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

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

was conducted and petition was f ound i n

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 t o th e

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

she discovered a document styled “Plaint iff’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 notati on

of check numb er 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’s law firm. The envelope was

s everely torn such that the content of the

addressee porti on was not legible save the

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

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

of a third letter. 5

In ligh t o f the sudden emergence of this

hitherto nonexistent document, Hole sought

and received permission from the state district

court to depose Holmes and P auline 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

as the check dated May 14 with which Holmes paid

the filing fee for the May 14 petition.

5 The true addres see of this envelope was a

significant issue a t trial, because the government

alleged, and attempted to pr ove through expert

testimony from a Texas Department of Public

S afety document examiner, that Holmes provided

this envelope as part of his fraudulent scheme: The

government maintained that the envelope was likely

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 r eceived permission from

the state district court to remove the petition dated

May 7 for purposes of conducting nondestruc tive

forensic testing.4

into a settlement agreement by which he would

dismiss a ll 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 agains t

Holmes in exchange for $10,000.

Holmes di d not, however, obtain peace

with these settlements: Hole and Alvarez filed

a formal grievance against him wit h the State

Bar of Texas. At a disciplinary hearing held in

October 1999, Hole pres e nted forensic

evidence that the bo nd 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 thus the 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 of two years’ probation from the state bar.

II.

Texas authorities subsequently initiated an

investigation of the Hidalgo Co unt y Clerk’s

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

gave a revised ver sio n of the events: He had

made several attem

pts to obtain a copy of the

original petition he mailed on May 6, before he

filed the petit io n o n 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 employees the document he was looking

for.

Federal investigators initiated an independent investigation. He and Pauline Gonzalez

were indicted for c o nspiracy to commit mail

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

one) and mail fraud in violation of 1 8 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 of

fice 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, H olmes’s story

was that 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 be c ause the deputy clerk was

unable to tell him what cause number had been

assigned to his earlier petition, he filed t h e

May 14 petition “as if it were the n e w filing

expecting that, when t he May 6 petition was

located, the District Clerk’s O ffice would

clean up the paperwork.”

The jury was not persuaded, an d Ho lmes

was convicted on b oth 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 was returned, she became physically

incapacitated, suffering from life-threa tening 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 contends the district court admitted

the videotaped and transcribed deposition testimony of Pauline Gonzalez i n contravention

of his Sixth Amendment right of confrontation.

The government prof f ered Gonzalez’s

deposition testimon y 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-conspira tor (2) duri ng the course of the

co n spiracy 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 petitionfile-stamped May 7, 1996, was discovered, consisted of statements by a 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

During Hole’s direct testimony, the government played Gonzalez’s videotaped deposition

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

t he court inquired whether there was any

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

likewise inqui

red whether there was any objection before admitting the transcribed copy

of t he deposition, to which defense counsel responded in kind, “No objection, Judge.”

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

submits on appeal that the admission of t h is

evidence viola t ed his rights under the Confrontation Clause. 12 Given Holmes’s failure to

object, our review is for plain error. S ee United States v. Cartwright

, 6 F.3d 294, 300 (5th

Cir. 1993); F ED

. R. C RIM

. 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 of the Confrontation Clause by replacing

the standard-driven balancing test, which had

delimited the ri g ht to confrontation, with a

categorical rule barring the admission of out

of-court testimonial statements against the accused absent opportuni ty for cross-examination. See Crawford , 124 S. Ct. at 1374.

Before Crawford

, the right of confrontation

was controlled by O hio v. Roberts

, 448 U.S.

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

Amendment does not bar admission of an

unavailable witness’s statement against a criminal defendant so l o ng as the statement bears

“adequate ‘indicia of reliabilit y .’” To meet

that test, Roberts required that th e out-of

court st at ement either fall within a “firmly

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

(1987), that the co-conspirator excep tion to

the hearsay rule was sufficiently steeped in our

jurisprudence that “the Co nfrontation Clause 11 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 conspirator s will not be

revealed and the conspiracy brought to an end.”). 12 “In all criminal prosecuti ons, the accused

shall enjoy the right

. . . to be confronted with the

witnesses against him.” U.S. C ONST . amend. VI.6

does not require a court to emb ark on an independent inquiry into the reliabi lity of statements that satisfy the requirement s o f Rule

801(d)(2)(E).”

Crawfo rd abrogated Roberts with respect

to prior te st imo nial statements: Such statements may not be admitted against a defendant

unless he has an opportuni ty to cross-examine

th e declarant, irrespective of whether the

statement falls within a firmly rooted he arsay

exception or bears particularized guarantees of

trustworthiness. 13 With respect to nontestimonial statemen t s, however, Crawford

leaves in place the Roberts approach to determining admissibilit y. 14 1.

Because the categorical rule adopted in

Crawford is t riggered only with respect to

“testimonial” evidence, wh et her a challenged

st atement falls within the class of evidence

deemed “testim

o nial” will generally be outcome-determinative. But C rawford d e clined

to “spell out a comprehensive definition of

‘testimonial.’” C rawford

, 124 S. Ct. at 1374.

Instead, the Court held t hat “[w]hatever else

the term co vers, it applies at a minimum to

prior testimony at a preliminary hearing, before

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

interrogati ons.” I

d. Beyond these specific

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

quoted three potential formulations o f 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 co urse and in furtherance 13 See C rawford , 124 S. Ct. at 1374 (“Where

testimonial statements are at issue, the only indicium of reliability sufficient to sat isfy 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 fro m Confrontation

Clause scrutiny altogethe

r .” I d. N evertheless, to

the extent the Court declined to overrule W

hite v.

Illinois

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

of the Court rejected a view of the Confron tation

Clause that would place no constitutional limits on

the admissibility of nontestimonial statements, instead leaving their admissibility to controlli n g hearsay law, see Crawford

, 124 S. Ct. at 1370 (“Although our analysis in this case casts doubt on that

holding, we need not definitiv e ly resolve whether

[ White ] surviv es our decision today . . . .’), R oberts remains controlling for purposes of nontestimonial statements. 15 These include: (1) “ ex parte in-court testimony or its functional equivalent SS that is, material

such as affidavits, custodial exam inations, prior

testimony that the defendant was unableto crossexamine, or similar pretrial statements that declarants would reasonably expect to be used p rosecutorially,” 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) “statements that were made

under circumstances which would lead an objective

witness reasonably to believe that the statement

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

(citation omitted).7

of a conspiracy a re by their nature generally

nontestimonial and thus are routinely admitted

against an accuse d despite the absence of an

opportuni ty for cross-exa minat io n. 1 6 The challenged evidence here, however, is not the runof-the-mill co-conspirator’s statement made

u nwittingly 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 source 

### SS recorded and sworn civil

deposition testimony.

2.

Whethe r this evidence is “testimonial” as

Crawford used t hat term is uncertain. This

case does not, however, require resolution of

whether Gonzalez’s civil deposition qual ifies

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 he r testimony to

prove the truth of the matter asserted. 18

In her deposition, Pauline Gonzalez 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 confusin g pleadings, and was

staffed by rotating and volunteer clerks prone

to mistakes. Pauline Gonzalez thus explained

t hat someone in the office could have

mistakenly back-dated the petition after looking up the case i n formation on the computer

and using the postmark

date stam ped on the

torn envelope.

Far from offering this testimony to prove its

truthf u lness

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

the result of a clerical

error, but i nstead was

the objective of an ill

icit conspiracy between

Holmes and Pauline Gonzalez. Go nzalez’s

testimony was thus offered both to sh ow the 16 See, e.g

. , i d. at 1367 (challenging the concurrence’s suggestion that hearsay exceptions

historically have permitted admission of testimonial

statements against the accused in a criminal case,

reasoning that “[m]ost of the hearsay exceptions

covered statement s that by their nature were not

testimonial SS

for example, business reco rds or

stat e ments 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 nont e stimonial”); C. M UELLER & L. K IRKPATRICK

, F EDERAL E VIDENCE § 398.1 (2004)

(“[C]oconspirator stateme nts . . . are nontestimonial in character and adm itting 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

. , B ourjaily

, 483 U.S. at 181-84

(holding admissible a s 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

testimo nial within the meaning of C rawford

, then, this nonhearsay use of her testimony poses no Confrontation Clause concerns. S e e

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 Holm

es, not the governm ent, 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 e xculpatory and corroborating his primary defense

theory 

### SS i.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, by way of her testimony,

wi l l tell you what she thinks happened on

that videotape. Someone took that blank

petition, looked it up in t he computer,

pulled that cas e out of the com puter, because [the government] already told you it

was filed on [May] 14.

The defense relied on the exc ulpatory 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 t hat in the deposition.

. . . And she indicated that some clerk

or some volunteer working in the office could have done it accidentally and

not de liberately, without any malice,

on the video.

The defense returned to the exculpatory force

of her testimony again during cl osing argument:

Now, Ms. Gonzalez says on her video,

sworn deposition : Someone could very

easily have said, just put the cause number

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

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

go to the penitent iary and be convicted of

two federal felonies for that. 1 9 The indictment returned by the grand jur y

specifically charged that “[o]n or about May 1 9

, 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 constitutio nal 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 tr ut h 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

was the 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 contend s t hat 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-se t t led that a defendant seeking reversal on the basis of insufficient

evidence swims upstream.” U nited St a tes v.

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

In reviewing a challenge to the su fficiency 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 th e evidence established the elements of the offense beyond a reasonable

doubt. S ee, e.g.

, United States v. Smith

, 296

F.3d 3 44, 346 (5th Cir. 2002). “In so doing,

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

jury ma y properly rely on their ‘common

sense’ and ‘evaluate the fa ct s in light of their

knowledge and the natural tendencies and inc linations of human beings.’” M ulderig

, 120

F.3d at 547 (quo ting U

nited States v. Ayala

, 887 F.2d 62, 67 (5th

Cir. 1989)).

Because the jury is “free to choose among

reasonable constructions of the eviden ce,”

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

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

to “weigh conflic t ing evidence and evaluate

the credibility of the witnesses,” United States

v. Milsaps

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

“it is not necessary tha t t he evidence exclude

every reasonable hypothesis of innocence or be

wholl y inconsistent with every conclusion

ex c ept that of guilt.” U nited 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 equa lly 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 go vernment’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

for feited the error by failing to object, we would

exercise our discretion under rule 52(b) to correct

it. (In C rawford

, the Court noted the applicability

of the harmless error doctrine, see Crawford , 124

S. Ct. at 1359 n.1; i d. 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 wa s 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 th e 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 r equire the remedy he

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

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

file-stam ped it May 7, 1996. Although he

admits that it is “not unreasonable to conclude

from the record” that Pauline Gonzalez caused

the back-dating to occur, he contends that the

evidence is insufficient in two allegedly critical

respects: First , there is no evidence

demonstrating his kn o wledge of the backd a ting at the time; and second, there is no

evidence demonstrating any motive on the part

of Gonzalez to back-date the pleading. In the

absence of such evidence, Holmes cla ims he

cannot properly be found guilty of conspiracy

without “wild speculation.”

1.

To prove a conspiracy in violat io n of 18

U.S.C. § 371, th e go vernment must establish

three elements beyond a reas o nable doubt:

(1) a n agreement between two or more persons to pursue an unlawful o bjective; (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 ob ject ive of the conspiracy. E .g.

, United

States v. Peterson

, 244 F.3d 385, 389 (5th Cir.

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 differed 

### S S as

it had to, given the bo nd paper revelation 

### S S from his earlier deposition testimony

, Holmes admitted that the May 7, 199 6, peti

tion could not have been mail ed 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

reasonably have concluded that the envelope in

which Holmes claims to have m ailed the

original petition on May 6, 1996, was actually

a self-addressed envelope in which something

was returned t o Holmes’s law firm. 2 2 If this

envelope, which as the postmark reveals had at

one po int 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

bo t h the petition that was ultimately backd at ed and the envelope in which he claims to

have mail ed t he original petition. The

question, then, is whether th ere 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 t horough post-trial memorandum, the testimony of three clerk’s employees is sufficient

to give rise t o the inference that Holmes was

knowingly worki ng in concert with Pauline

Gonzalez.

First, Alexandra Gomez, a criminal appeals

clerk, test i fied that Holmes approached her

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

because he needed to speak with me.” She

22 A forensic document expert from the Tex a s

Department of Public S afety 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 ” r esulted 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 t hat

needed to be put into the fil e, or should have

been put in th e file. And I told him I could

not.” After refusing Holmes’s request, Gomez

told Holmes she “could not be the one t o do

that, that he would need to speak w it h Ms.

Gonzalez to see what she could do.” Gomez

testified further that a week after sh e 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 da te i t 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 d uring 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 print ing out that said they [the

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

then identified the May 13, 1999, letter sent by

fax from Gonzalez to Holmes as the letter she

observed in the printer, and relayed that, upon

s eeing 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 “g o ahead

and make a letter stating that [Gonzalez ] had

found the paperwork.”

Based on this testimony, t he jury could

reasonabl y have concluded that Holmes was

seeking assistance to back-date a petition; and

t hat after Holmes met privately with Pauline

Gonzalez, she asked Gomez ( e xactly what

Holmes had previously asked her) to back-date

the petition, and that Gonzalez then directed

another employee to prepare a l etter stati ng

that the pet it ion had been “found.” This

testimony, when taken together with Holmes’s

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

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

expert testimony c o ncerning the envelope, is

more tha n sufficient to establish an adequate

picture of Holmes’s role in the c o nspiracy.

Thus, despite Holmes’s continued reliance on

his version of the eve nt s in question 

### S S that

someone in the clerk’s office must have backdated the pleading in error 

### SS the 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

a bsence of evidence the government was no t

required to offer. To be sure, the government

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

i ndeed, 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 p etition . . . it should have the specific time

that it was filed and it also should have a signature

on it.”12

The onl y thing you-all aren’t charged to

figure out is what the motive of everybody

is, and I submi

t t o you, I can’t exactly tell

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

tell you she did vi o late her oath of office.

I’ l l tell you she did something illegal.

Whether [Holmes] promised t o 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 t hat she just is corrupt and just decided to allow a lawyer t o

do something like that, and she was willing

to use her office to help him.

Nevertheles s, because the government is not

required to prove Gonzalez’s subjective intent

for conspiring with Holmes, the absen c e of

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

C.

With respect t o the substantive mail fraud

offense, Holmes contends that the evidence is

insufficient to support his conviction because

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

whether the May 7 or May 14 date is used for

purposes of limitations, 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 mail fraud 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. U nited

States v. Bieganow ski

, 313 F.3d 264, 275 (5th

C ir. 2002). “In addition, the Supreme Court

has interpreted section 1341 to require that the

misstatement made in the course of the scheme

to defraud be a material one.” I d. (citing Neder v. United States

, 527 U.S. 1 (1999)). 24

Because Holmes limit s his attack to the

materiality of the al leged misrepresentations,

we cabin our analysis accordingly.

2.

When the defense in the underlying tort suit

moved for summary j udgment asserting that

Hector Gonzalez’s suit was time-barred as of

Ma y 11, 1996, Holmes was taking a position

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

Holmes repeatedly pointed to the May 7,

1996, f iling 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 Plaint iffs P etition

on May 7, 1996 would have been timely.

. . .

Alternatively, assuming arguendo that the

last date of tr eat ment was February 25,

1994, as asserted by the Defendant then the

limit a t ions 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

T EX

. C ONST

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

Holmes as a condition of membership in the State

Bar of Texas, see T EX

. G OV ’ T C O DE A NN

. §

82.037. T he court also instructed the jury that

tampering wi t h 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

t hree days after the filing of the Plaintiffs

Petition.

Des pi te these representations, which plainly

co nt emplate the May 11 date as viable for

limitations purposes, Holmes characterizes the

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

period as “overwhelming.” His brief,

however, fails to c it e any record evidence

supporting this claim. Our independent review

of the record indicates that, durin g 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 limitati o ns had

expired as of either date.

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

by Hole, which indicates that on April 3, 1996,

the “SOL r uns on last non-barred negligence

claim,” and includes a notati on that “Mr.

Holme s was correct that the statute on the

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

not 05/04/96 as originall

y indicated.” From

this single entry, the defense claimed that the

limi t ations period expired in April, and thus

argued to the jury that Holmes had no motive

to fabric at e a petition with a May 7, 1996,

date-stamp. 25 Holmes fails, ho wever, to account for the

next entry in that same chronology: On May

11, 1996, the chronology notes, the “SOL runs

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 claim s calculated from

the last date of treatment (pursuant to what the

parties refer to in their summary judgment papers as the “continuing course of t reatm ent

doctrine”), rather than from the last date of

negligent treatment, were potentially viable as

a limit at io ns matter until May 11, 1996. 2 6

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 disclaim his previous reliance on the

so-called contin u ing course of treatment

doc t rine 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

Ro n Hole offered to the state bar grievance

committee. . . .

[I]n that document he says very clearly

that the statute of limitations was mis s ed 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 te stified 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 co ntinuing course of

treatme nt doctrine, the last date would

have brought the statute of limi tations to

May 11th

, a nd 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 vigoro us di spute as to the proper

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

filed by May 11 were time-barred; and Holmes

responded by

claiming that the suit was not

time-barred because the petition filed on May

7 

### SS the fraudulent petition 

### SS

was t imely filed.

T herefore, to the extent Hol mes

represented that the suit was filed o n May 7,

1996, this representation could have saved him

from a limitations bar had t he state court

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

as Holm es himself pressed in his response to

summary ju dgment. 2 7 That Holmes or even

Hole may now regard this as unli kely is not

controll ing; that the May 11 date could have

saved the suit from t he t ime-bar then-being

pressed by Aleman’s defense counsel is. These

representations th us were material, so we

affirm Holmes’s conviction of mail fraud. V.

Holmes avers that the government’s closing

argument contained an improper plea for

sympathy for Hector and Felipa Gon z alez,

t hereby prejudicing the jury against him t o

such a degree t hat he was denied a fair trial.

We find no error.

A.

“Improper prosecutorial comments constit ut e reversible error only where ‘the defend ant’s right to a fair trial is substantial ly affected.’” United States v. Bernard

, 299 F.3d

467, 488 (5th Cir. 2002) (quoti ng U nited

Sta t es v. Andrews

, 22 F.3d 1328, 1341 (5th

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

be light ly overturned on the basis of a prosecutor’s co mments standing alone. The

determinative question is whether the prosecuto r’s remarks cast serious doubt on the correctness o f the jury’s verdict.” U nited 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 th e st rength of the evidence of the defendant’s guilt. B ernard

, 299

F.3d at 488 (citing Andrews

, 22 F.3d at 1341).

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

he bears the burden of demonstrating that the

prosecutor’s statements constitute plain error.

See id. ; F ED

. R. C RIM

. P. 52(b).

B.

Holmes has failed t o dem onstrate error,

much less plain err o r. The prosecutor’s

lengthy closing argument, viewed in its entirety and in context of the 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 (q uoting

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 the matter as important in determining his

choice of action, although a reasonable man would

not so regard it”) (quoting R E STATEMENT (S EC

OND ) OF T ORTS § 538 (1977))); Kungys v. United

St a tes

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

natural tendency to influence, or was capable of

i nfluencing, the decision of’ the decisionmaker t o

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 n atural tendency to influence, or was

capable of influencing the decision of’ the lending

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

th e prosecutor was attempting to underscore

the situation Holmes found himself in, having

missed the limitations period on an ostensibly

serious and valuable med ical malpractice

claim.

T he government therefore referred to the

underlying malpractice suit as demonstrating

H o lmes’s m otive for conspiring with Pauline

Gonzalez to back-date a fraudulent petition.

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

that tend t o evoke sympathy for Hector and

Felipa Gonzalez, the subject of the malpractice

suit, including its merits 

### SS and therefore the

seriousness of the injury suffered b y Hector

Gonzalez, and the value that injury would have

in such a suit 

### SS

has obvious relevance beyond

an argumentum ad misericordiam

.

And once it is accept e d that the merits of

the underlying malpractice suit bear on

Holmes’s motive, the propriety of the prosecutor’s statements becomes a question of degree.

At that point, we must proceed in light of the

“wide l atitude” 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

w ere not evidence, and the critical fact that

these statement s were “neither persistent nor

pronounced when viewed within the 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 aver s that his substantial rights

were prejudiced by the government’s delayed

disclos ure 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 insof ar as it conveyed to the jury that He ctor and

Felipa Go nzalez were denied their “day in court”

(continued...) 28 (...continued)

not as a consequence of his concede d legal malpractice, but, rather, as a result of his i llegal actions, this argument is also meritless. 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 wee k [to have their

case heard in court] is that their lawy er made a

mistake. A nd then he compounded that mistake by

violating the law .”

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

on the details of his investigation of the H idalgo

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.

HO L MES 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

vi o lation 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

administra t io n of discovery rules under an

abuse of discretion standard and will n o t reverse on t hat basis unless a defendant establishes prejudice to his substantial rights.” S ee

United States v. Ellender

, 947 F.2d 748, 756

(5th Cir. 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 H o lmes aware of its

contents, and prepare him for any que stions

concerning the report on cross-examination. 31

Moreover, the district c o urt 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 th at t he defense had a lengthy,

contemporaneous report Holmes had prepared

about the interview.

C.

Holmes now contends his substantial rights

were prejudiced insofar as he was forced to

decide whether to testify in his o wn defense

before he received a copy of Pacheco’s report.

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.

A s a threshold matter, there is no merit to

Holmes’s suggestion that had he known about

Pacheco’s written summary of his interview he

could have relied solely on that report, could

have refrained from taking the stand, and still

would have adequately presented his de f ense

theory to the jury. Pacheco’s written summary

is not sufficient by itself to prese nt Holmes’s

“go-by” theory SS

it states that 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 o nly when Holmes

testified on direct examination that the jury

was treated to his explanation for this seeming

irregularity:

Q: Ordinarily, h o w do you handle your

copies, copies of

pet itions 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 defenda nt 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 unti l after a break taken

during the course of Holmes’s direct testimony.17

A: I sign them.

Q: Why?

A: I like signing my n a mes [sic] to 

### SS on

the pleadings. I just like doing it.

Moreover, Pacheco’s written summar y of

Holmes’s statement is wholly insufficient to

provide an exculp atory answer to a ny of the

other critical questions in this case, questions

that only Holmes was comp etent to testi fy

about. Only he could testify to the alleged

preparation of the petition and envelo pe on

May 6, 1996, which he claims to have do ne

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

what he actually was inquiring of Gomez, who

testified that Holmes asked her to ba ck-date

and file a pl eading; 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 a lready mailed a petition and

was referring only to the filing of an expert

report; or why, if h e had in fact mailed an

earlier pet ition, he did not style the petition

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

It i s therefore implausible to credit

Holmes’s suggestion that timely disclosure of

Pacheco’s written summar y o f his interview

would have rendered Holmes’s testimony unnecessary such

t hat the delay prejudiced his

substanti al rights. 3 2 Thus, although we have indicated that th e delayed disclosure of a

r epo rt 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 can n ot

credibly suggest that he would not have testified had the government produced th e 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

discovery in the legal malpractice 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 o f Holmes’s misconduct

related to the filing of their medical

malpractice lawsuit. According to Holmes, th i s

32 Our conclusion is bolstered by the testimony

of Holmes’s own trial couns e l when asked at the

(continued...) 32 (...continued)

post-trial motions 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 of statement

became known prior to decision about whether to

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

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

significant th at the inculpatory statement became

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

testimony contrad i cts 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 t hat she felt precluded as

a matter of professional ethics 

### SS given her role

as opposing counsel in the underlying medical

malpractice suit 

### SS

from contacting Hector and

Felipa Gonzalez to relate the truth about their

lawsu it . She did, however, testify that she

“felt obliged” to wri te a l etter to the edi tor of

a local McAllen newspa per setti ng out thenmayoral candidate Bo bby Garcia’s involvement in and awareness of Holmes’s conduct in

th e underlying medical malpractice suit after

viewing a campaign advertisement portraying

him a s “the candidate . . . who stood for . . .

good ethical practice and honesty and integrity

in the mayor’ s o ffice.” It was after reading

t his letter to the editor, Hole testified , that

Hector and Felipa Gonzalez contacted his

office, and it was o nly 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.

, U n ited

States v. Blackthorne

, 378 F.3d 449, 452 (5th

C ir. 2004), and we subject new trial moti ons

based on newly-d isco vered evidence to “an

unusually strin g ent substantive test,” United

States v. Ugalde

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

1988). Namely, under the so-called B erry

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 m at erial; and (4) the evidence would proba bly 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.

Ho lmes cannot satisfy these standards.

Leaving as ide the question of diligence, 3 4

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 legal malpractice claim against

[Holmes], this fact 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 thi s evidence only

casts doubt on the v eracity of Hole’s and

Alvarez’s testimo n y regarding their contact

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

### SS standard

methods of impeachment 

### S S it is merely impeachment evidence, and therefore insufficient

to entitle Holmes to a new trial. S ee, e.g.

, Blackthorne

, 378 F.3d at 454–55. In any

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

not diligent in acquiring this evidence, noting that

Holmes has failed even to identify when he became

aware of Hildreth’s test imony. Moreover, the

gov e rnment 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 unt il July 2002 and not

tried until January 2003, Holmes (in defending the

civil suit) co uld have deposed Hole, Alvarez, and

Hildreth before his criminal trial.19

ing the verdict beyond the test i mony of Hole

and Alvarez, this impeachment evidence does

not have any tendency to undermine the outcome.

VIII.

Holmes contends that his trial counsel provide d ineffective assistance under the Sixth

Amendment. This assertion is without merit.

A.

Holmes advanced his ineffective assistance

claim in an amended mo t io n for new trial in

which he faulted counsel for faili ng 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) 

### SS namely, that counsel’s performance was deficient.

The court referenced an affida vit of trial

counsel submitted with Holmes’s motion 35 that

charac t erized the failure to object to certain

perceived errors as deliberate trial strategy.

Relying on our precedent foreclosing reliance

on informed t actical 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 dif

ferent tack on appeal.

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

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

to every bo dy 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 the n lied to Holmes

about the circumstances of the Houston venue

selection; 3 7 (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 decision s

. One of

wh ich was whether I would object to certain

questions pr opounded to my client that I felt

wer e improper. I decided I would not object

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

him and his credibility. 36 See, e.g.

, Cotton v. Cockrell , 343 F.3d 746,

752–53 (5th Cir. 2003) (“A cons cious 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 (5th Cir. 2002) (quoting Garland 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

t he prosecutor informed the court that he wa s

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; an d (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 co ncerning counsel’s

handling of venue and failure to investigat e,

we must determine as a thr e shold matter

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

direct appeal of ineffective assistance claims in

the absence of presentment to the district court

and an adequately developed record. S ee, e.g.

, United States v. Navej ar , 963 F.2d 732, 735

(5th Cir. 1992). 39

Although the record does contain testimony

at the post-tri al hearing on the question of venue and on co u nsel’s failure to investigate

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

i ncomplete and inadequate for proper appellate

review, we de cline t o 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

coun sel’s passivity overlap and restate the

claim actually developed and presented to the district court based on c o unsel’s failure to

object to various instances of prosecuto rial

misconduct, we reject Holmes’s claim. His

briefing on this issue is devoid of serious

analysis. He does not address the district

court’s findin gs 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 obj ection counsel could have raised. Instead,

Holmes merely concludes t hat counsel’s performance constitutes “an utte r perversion of

the attorney-client relationship.”

T his bare assertion will not suffice. To

s ucceed on his ineffective assistance claim,

Holmes bears the burden of demonstrating that

counsel’s performance was defic ient and that

the deficient perf

o rmance 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.” G reen v. Johnson , 160 F.3d 1029, 1042 (5th Cir. 1998).

IX.

A.

The presentence report (“PSR”) grouped

the two counts of conviction and ap plied the

1998 version of the sentencing guidelines. The

PSR scored Holmes at a base offense level of

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

offense level by eight levels because the

offense involved a n elected official or official

holding a high-level decision-making o r

sensitive position pursuan t 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,

y i elding 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 of ineffective -assistance. When

an ineffective-assistance claim is brought on direct

appeal, appellat e counsel and the court must

procee d 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 S tates v. Cornett , 195 F.3d

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

assistance of counsel argument should not be raised

for the first time on appeal except in rar e cases

where the record is fully developed.”).21

The government filed a written objection to

the PSR’s failure to recommend a t w o-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 off

ense level was increased to 20,

yielding a range of 33 to 41 months. The

court sentenced Holmes to concurrent 33

-

month te rms and three years’ supervised

release. 40

A few days later, the court held a telephon ic conference with all counsel and Ho lmes.

As the transcript of the call reveals, the court

“w ant ed to revisit the obstruction of justice

enhancement

. . . to make absolutely sure that

the Court had been sufficiently specific about

the statements that the Court believe s to be

perjurious.” The court thus systematically

identified each of the statements it 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 transc ript reads, in pertinent part, as

follows:

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

The testimony by Mr. Holmes t hat he

mailed an original petition on May 6, 1996.

The t estimony that on May 14th , 1996,

Mr. Holmes asked the clerks t o 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)

r eceived 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. Holm e s

asked unnamed clerks to look for the ‘missing’

petition and f

ina lly gave a signed copy of the

quote, ‘missing pet ition’ to the Clerk’s Office

as a go-by.

The Court also finds that there were numerous misstate m ents 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 de position 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 c o urse, 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

duri ng 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, questions that he considered off-topic.

Therefore, the

Court finds that he could

not possibly have thought that the testimony

about th e filing-fee dispute pertained to a different case.

(continued...)22 B.

In his init ial brief on appeal, Ho lmes, on

two groun ds, 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 f

o rm the basis for the perjury

enhancem e nt, because the deposition was

taken before any official investigation.

1.

“We review a d ist rict court’s finding of

obstruction of justice for clear error.” U nited

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

1 999). “A factual finding is not clearly erro

neous as long as it is plausible in light of the

record as a whole.” I

d. (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 enhan c ement

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

a witness’ credibility.” I

d. (citin g J

ohnson v.

Collins

, 964 F.2d 1527, 1532 (5th Cir. 1992)).

2.

Holmes attem

pts 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

c l aim to have mailed the original petition on

May 6, 19 9 6, was controverted by the evidence at trial. These claims were apparently

unconvincing to the jury, and there is more

than ample evi dence supporting the district

court’s determination that t hese statements,

among others, were false. This is particularly

true given that Holmes was the key witness in

his own defense, settin g his own story of the

events in question against the en tirety of the

govern ment’s case, and therefore the district

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

credibility. 42

X.

This does not, however, end the sentencing

inquiry. During t he pendency of this appeal,

the Supreme Court decided U nited States v.

Booker

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

has raised, in supplem

ent al briefing, a constitutional challenge, asserting that his sentence

is infirm because it was enhan ced 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 th at he obstructed justice by committing per jury under

U.S.S.G. § 3C1.1.

A.

Holmes did not object to his sentence on

Sixth Amendment grounds in the district court,

41 (...continued)

Further, if th e trial-story told by Mr.

Holmes at trial were true, Mr. Holmes shoul d

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

so on as he saw the check number, because he

did not write th at 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 abo ut, i nter 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 fu rther claim that any false

statements from his deposition test i mony 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; U nited 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 affects substantial

rights. S ee, e.g.

, Johns on v. United States

, 5 20 U.S. 461, 466–67 (1997). “If all three

co ndit ions are met, an appellate court may

then exercise its discretion to notice a forfeited

error, but only if (4) the error ser i ously

affect[s] the fairness, integrity, or public reputati on of judicial proceedings.” I d

. at 467 (alternation in original) (internal quotati on marks

omitted) (quoting United States v. Olano

, 507

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

B.

Holm es first contends that the eight-level

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

error under Booker

. He contends that the jury

verdict alone d id no t find that Pauline

Gonza lez was an elected official. This is

frivolo us. Holmes admitted as much at trial,

and that is all Booker

requires. 43 C.

H o lmes next contends that the two-level

enhancement fo r obstruction of justice based

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

i s error under B ooker because the jury was

never presented with the question whether he

obstructed justice. Insofar as the jury was not

specifically asked and instructed to fin d beyond a reason able doubt (as is required with

the elements o f charged offenses) whether

Holmes committed perjury while on the stand,

and thus obstructed justice, imposin g this

enhan cement under a mandatory guidelines

regime was error under the Sixth Amendment. 44

43 Consider, for example, H o lmes’s testimony

on dir ect 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 t he closing jury argument where defense counsel put the following question to the jury:

“W hy 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 254 0 n.11

(“Why perjury during trial should 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 bee n for centuries, see 4 W. B LACKSTONE

, C OMMENTAR IES ON THE L AWS OF E NGLAND

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 fa lsely denied his

guilt may not be Booker error, “because the jury

verdict convicting [him] of th e cr imes 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 t h e error was plain. J ohnson

, 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 t herefore turn to the thi rd prong of

plain err o r review: whether the error affects

substantial rights, which “means that the error

must have been prejudicial: It must have affected the outcom e of the di stri ct court proceedings.” O lano

, 507 U.S. at 734. And “[i]t

is the defend ant rather than the Government

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

To carry this burden, a defendant must

show “‘a reaso n able 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 was lying when

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 th e district court

based on its determination that he committed perjury cannot be saved from a finding of constitutional er ror under B ooker by reference to the jury’s

guilty verdict on the charged offenses. A finding of

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

requires more t ha n a conclusion that the defendant’s story of events i s 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. S ee United States v. Dunnigan

, 507 U.S. 87,

94 (1993) (“In deter mining what constitutes perjury, we rely upon the definitio n that has gained

g eneral 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 testimo n y concerning a material matter with

the willful intent to provide false testimony, rather

than as a result of confu sion, 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 was imposed under mandatory guidelines and

t he jury was not specifically asked and instructe d

to find beyond a reasonable doubt whether Holmes

had commi tted perjury based on the foregoing

elem ents, there is B ooker error. So although we

harbor little doubt that, if so asked and instructed,

the jury would have reached the same conclusion as

the district court SS i.e.

, tha t Holmes committed

perjury SS the 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 bee n different.’” D ominguez

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.’” I d. at

2340 (quoting Washington

, 466 U.S. at 694).

In assessing whether a de fendant has carried his burden of showing prejudice, we must,

as this court in Mares and the Eleventh Circuit

in Rodriguez have cogently explained, keep in

mind precisely what is 

### SS and thus what is

n ot 

### SS error under Booker

. The precise Sixth

Amendment error ident ified in B ooker is not

the use of extra-verdict enhancements that

increase a sentence; the constitutional error is

that extra-verdict en h ancements were being

used under mandatory guidelines. S ee Mares

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

Thus, in applyin g the third prong, “the

pertinent question is whether [the defendant]

demonstrated that the sentencing

judge 

### SS sentencing under an advi so ry scheme

rather than a mand atory one 

### S S would have

reached a significant ly

different result.”

Mares

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

*28. Absent some indication in the record that

t he outcome would have been different if the

distric t 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 say many times that I generally think the

guidelines provide punishments that are far

too harsh. . . . I al so thi nk that I took an

oath to apply the law faithfu l ly. And I

don’t have a free-ra n ging portfolio to ignore the sentencing table.

The problem for Holmes is that 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 sentenci ng judge’s remarks or otherwise that

gives us an y 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 rat her than the preBook er 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.”).

4 8 Instead, he included only (as relevant here)

the transcript f

r om the December 17, 2003, telephonic co n ference 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 state m ents by the

district judge about being bound by the mandatory

guidelines to apply a sentence he deemed so severe.26

form the basis for a finding of prejudice. 49 Nor

has Holmes identified any other basis in the

recor d to suggest that the outcom e woul d

have been diff

e rent if the district court had

been operating under an advisory guidelines

system. Holmes has therefore failed to carry

his burden

as t o the third prong of the plain

error test.

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

judgments of con v iction and sentence are

AFFIRMED.

49 See F ED

. R. A PP

. P. 10(b)(1)(A) (stating that

the appellant must order “transcript of such parts

of the proceedings not already on fileas the appellant considers neces sary”); U nited 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 r ecor d 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 on ly 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 cour t . . . .”) (quoting 4A C O RPUS

J URIS S ECUNDUM

, A PPEAL AND E RROR § 1206, at

1333)); United States v. Narvaez

, 38 F.3d 162,

167 (5th Cir. 1994) (“It is the appellant’s responsibility to order parts of the record w hich 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

t he record of all trial materials upon whi ch they

intend to rely on appeal.”).