### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60471 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EARNEST HOLDER, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:09-CR-40-1

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Earnest Holder has appealed his jury convictions of accepting kickbacks in connection with the award of a federally funded contract (Count 1), participating in a conspiracy to receive kickbacks in connection with the award of a federally funded contract (Count 2), making false material declarations to the grand jury (Count 3), and filing a false tax return that understated his taxable income for 2006 (Count 5). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D March 22 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60471 Document: 00511796812 Page: 1 Date Filed: 03/22/2012No. 11-60471

Holder complains that he was not permit t ed to have counsel present during his grand jury testimony and that he was not permitted t o r eturn with counsel. As this issue has been raised for the first time on appeal, we review it for plain error only. Puckett v. United States , 556 U.S. 129, 135 (2009). When,

as here, cri m i n a l p r oceedings had not yet been instituted, the witness had no constitutional right to h av e counsel present during the grand jury proceeding. F uller v. Johnson , 158 F.3d 903, 907-08 (5th Cir. 1998). No error has bee n shown, plain or otherwise. See id. Holder complains that, by “requiring both sides to use blind strikes,” the district court deprived him of one of his peremptory strik e s b e c a use both the defense and the government struck the same juror. As the use of blind strikes has been approved by this court, Holder cannot show that the district c o u rt abused its discretion. See United States v. Durham , 587 F.3d 799, 801 (5th Cir. 1979); United States v. Sarris , 632 F.2d 1341, 1343 (5th Cir. 1 980). Holder asserts that the district court erred in admitting his signed statement into evidence because the stat e m ent was involuntarily given in connection with a polygraph examination that was n o t a dministered in accordance with FBI policies and procedures. The government made a proffer regarding the manner in which th e p o l ygraph examination was conducted. Based on that evidence, we conclude that the district court did not abu s e its discretion in excluding details o f the polygraph examination and in admitting the signed statement that resulted from the examination. See United States v. El-Mezain , 664 F.3d 467, 494 (5th Cir. 2011). The polygraph examiner’s alleged failure to follow FBI guidelines does not provide Holder a basis for challenging his conviction. See United States v. Cooks , 589 F

. 3 d 173, 184 (5th Cir. 2009). The distri c t court did not clearly err in finding that Holder’s signed statement

was voluntarily given. See Nunez-Sanchez , 478 F. 3 d a t 666. United States v. Nunez-Sanchez , 478 F.3d 663, 666 (5th Cir. 200 7).

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Holder contends that the district court abused its discretion by overruling his hearsay objection to admission of out- of

- c ourt statements of his coconspirator and that the government impr o perly referred to the hearsay statements in its opening statement. The district court did not abuse its discretion in determining th at th e co c o n s p irator’s out-of-court statements were admissible. See El

-M eza i n , 664 F.3d at 502; F E D
. R. E V I D
. 801(d)(2)(E). As the evidence was admissible, the district court did not plainly err in permitting the prosecutor to refer to those statements in her opening argument. Puckett , 556 U.S. at 135. Holder claims that the district court erred by l i m iting his cross examination of the FBI’s polygraph examiner and case agent. Holder has not shown, and the record does not reflect, that the district court’s rulings limited him in any material way from attempting to undermine the agents’ testimony. See United States v. McCullough , 631 F.3d 783, 790 (5th Cir. 201 1). Holder asserts that the di s tri c t court erred in denying his motion to dismiss the conspiracy charge based on the acquittal o f h i s c oconspirator. No

error has been shown in this regard. See United States v. Zuniga-Salinas , 952 F.2d 876, 877-79 (5th Cir. 1992) (en banc). Holder complains that several government witnesses who testified in the fi r s t t rial were not available to testify in the second trial. The record does not reflect whether Holder subpoenaed the witnesses or why he did not call them as witnesses. No error on the part of the distri ct court has been shown. As the record has not been developed, we shall not consider Holder’s related ineffectiveassistance-of-counsel claim on direct appeal. See United States v. Cantwell , 470 F.3d 1087, 1091 (5th Cir. 2006). Holder contends that the district court erred in denying his motion for a mistrial aft e r a government informant gave non-responsive testimony during

cross e x a m i n at ion about the manner in which he had generated cash to pay Holder and the manner i n w h i ch he determined the total amount of those payments. Holder claims that, having denied the motion, the district court erred
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in failing to strike th e n o n - r esponsive testimony and in failing to give him addi t i onal time in which to prepare his cross examination of the informant. Holder has failed to show that the district cou rt ab used its discretion in this respect. See United States v. Lucas , 516 F.3d 316, 345 (5th Cir. 200 8). Holder urges that th e di s trict court erred in instructing the jury with regard to the tax-evasion charges. We review this question for plain error. See Puckett , 556 U.S. at 135. As the district court’s instruction was consistent with the pattern jury instruction of the trial courts of this c ircuit, no error is apparent, plain or otherwise. See United States v. Whitfield , 590 F.3d 325, 354 (5th Cir. 2009). In a related contention, Holder complains that the verdicts in his first trial

were inconsistent. The fact that the jury’s verdict was inconsistent does not necessarily undermine the conviction. See United States v. Dubea , 612 F.2d 950, 951 (5th Cir. 1980). “Where a multi

- c o unt verdict appears inconsistent, the appell ate inquiry is limited to a determination whether the evidence is legally sufficient to support the counts on which a conviction is returned.” Id. No error has been shown. See id. ; see also United States v. Mann , 161 F.3d 840, 848 (5th Cir. 1998). We have not considered several spu rious arguments raised for the first time in Holder’s reply brief. See United States v . A guirre-Villa , 460 F.3d 681, 683 n.2 (5th Cir. 2006). Neither have w e c o n sidered any issues raised in the original brief that have been inadequately briefed. See F E D
. R. AP P
. P. 28(a)(9)(A); see also Grant v. Cuellar , 59 F.3d 52 3 , 524 (5th Cir. 1995). The judgment is AFFIRMED.

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