* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________

No. 96-10630

Summary Calendar

________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERRY LISBY AND JERRY LISBY,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:95-CR-107-Y)

_________________________________________________________________

May 23, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Brothers Gerry and Jerry Lisby appeal their convictions for

conspiracy to possess with intent to distribute amphetamine and

aiding and abetting. We AFFIRM.

Gerry Lisby contends that the district court erred in denying

his motion to sever the trial on the ground that the Government

intended to introduce testimony of a Government witness that Jerry
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Lisby had threatened that witness. Jerry Lisby did not threaten

the witness for offering testimony against Gerry Lisby and there is

no reason to believe that the jury would have been unable to follow

the trial court’s cautionary instruction in considering the

witness’ testimony. The trial court did not abuse its discretion

in denying the motion. See United States v. Rocha, 916 F.2d 219,

229-31 (5th Cir. 1990) cert. denied, 500 U.S. 934 (1991).

Gerry and Jerry Lisby contend that the district court erred in

failing to dismiss venire person Crouch for cause. Because Ms.

Crouch indicated that she could be fair and impartial and because

there was no evidence that she was biased against the Lisby

brothers, the district court did not abuse its discretion in

denying the motion to strike her. See United States v. Munoz, 15

F.3d 395, 397 (5th Cir.) cert. denied, 511 U.S. 1134 (1994); United

States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976).

Gerry Lisby contends that the district court erred in

admitting hearsay testimony by witness David Mitchell that some of

his employees had stated that money given him by Gerry Lisby had

smelled unusual. Because there was no contemporaneous objection,

Gerry Lisby concedes this issue should be reviewed only for plain

error. See, e.g., Douglass v. United Services Auto. Ass’n, 79 F.3d

1415, 1420 (5th Cir. 1996)(en banc); Robertson v. Plano City of

Texas, 70 F.3d 21, 23 (5th Cir. 1995). If an appellant shows clear

or obvious error that affects his substantial rights, this court
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has discretion to correct a forfeited error that seriously affects

the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994)(en banc), cert. denied, 115 S.Ct. 1266 (1995). The

testimony at issue was not substantially probative of guilt and its

admission did not seriously affect the fairness or integrity of the

trial.

Jerry Lisby contends that the district court erred in

admitting hearsay testimony by Government witness Robert Baskin

pursuant to Fed. R. Evid. 801(d)(2)(E). The Government counters

that we should review only for plain error. We need not decide

this standard of review question, because the statement was clearly

in furtherance of the conspiracy and there was no error, plain or

otherwise, in admitting the evidence.

Jerry Lisby contends the district court erred in limiting the

scope of his cross-examination of Baskin regarding Baskin’s prior

use of illegal drugs. But, Jerry Lisby was permitted wide-ranging

cross-examination of Baskin. Baskin admitted to long-term drug use

and to the possibility that drug abuse could cause brain damage and

hallucinations. Jerry Lisby was not prevented from undermining

Baskin’s testimony by showing that Baskin had abused drugs. The

district court did not abuse its discretion in limiting the scope

of the inquiry. See United States v. Wallace, 32 F.3d 921, 926

(5th Cir. 1994).
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Finally, Gerry Lisby contends that the district court erred in

adjusting his offense level for obstruction of justice, pursuant to

U.S.S.G. § 3C1.2. In adopting the findings in the presentence

report, the district court implicitly concluded that Gerry Lisby’s

testimony denying any involvement in the conspiracy was material

because it was clearly designed to influence the outcome of the

case. United States v. Cabral-Castillo, 35 F.3d 182, 187 (5th Cir.

1994) cert. denied, 115 S.Ct. 1157 (1995); see United States v.

Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); § 3C1.2, comment.

(n.3(b)). The district court’s findings were adequate and not

clearly erroneous. See United States v. Storm, 36 F.3d 1289, 1295

(5th Cir. 1994); Cabral-Castillo, 35 F.3d at 186-87.

AFFIRMED