IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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). 

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-60471

Holder complains that he was not permitted to have counsel present

during his grand jury testimony and that he was not permitted to return 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, criminal proceedings had not yet been instituted, the witness had no

constitutional right to have counsel present during the grand jury proceeding. 

Fuller v. Johnson, 158 F.3d 903, 907-08 (5th Cir. 1998). No error has been

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 strikes because 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 court

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. 1980). 

Holder asserts that the district court erred in admitting his signed

statement into evidence because the statement was involuntarily given in

connection with a polygraph examination that was not administered in

accordance with FBI policies and procedures. The government made a proffer

regarding the manner in which the polygraph examination was conducted. 

Based on that evidence, we conclude that the district court did not abuse its

discretion in excluding details of 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.3d 173, 184 (5th Cir. 2009). 

The district court did not clearly err in finding that Holder’s signed statement

was voluntarily given. See Nunez-Sanchez, 478 F.3d at 666. United States v.

Nunez-Sanchez, 478 F.3d 663, 666 (5th Cir. 2007). 

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Holder contends that the district court abused its discretion by overruling

his hearsay objection to admission of out-of-court statements of his coconspirator

and that the government improperly referred to the hearsay statements in its

opening statement. The district court did not abuse its discretion in determining

thatthe coconspirator’s out-of-court statements were admissible. See El-Mezain,

664 F.3d at 502; FED. R. EVID. 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 limiting 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. 2011).

Holder asserts that the district court erred in denying his motion to

dismiss the conspiracy charge based on the acquittal of his coconspirator. 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

first trial 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 district 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 after a government informant gave non-responsive testimony during

cross examination about the manner in which he had generated cash to pay

Holder and the manner in which 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 the non-responsive testimony and in failing to give him

additional time in which to prepare his cross examination of the informant. 

Holder has failed to show that the district court abused its discretion in this

respect. See United States v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008). 

Holder urges that the district 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 circuit, 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-count verdict appears inconsistent, the

appellate 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 spurious arguments raised for the first

time in Holder’s reply brief. See United States v. Aguirre-Villa, 460 F.3d 681,

683 n.2 (5th Cir. 2006). Neither have we considered any issues raised in the

original brief that have been inadequately briefed. See FED. R. APP. P.

28(a)(9)(A); see also Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). The

judgment is AFFIRMED. 

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