UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4535
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELLY ANDREW HOLLAND,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00054-jpj-pms-1)
Submitted: February 23, 2011 Decided: March 18, 2011
Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Lees, Jr., HUNT & LEES, LC, Charleston, West Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelly Andrew Holland appeals his convictions for
obstruction of justice, in violation of 18 U.S.C. § 1512(c)
(2006), and possession of a stolen Marlin rifle, in violation of
18 U.S.C. § 922(j) (2006). On appeal, Holland contests the
district court’s denial of his motion to suppress the statements
given to investigators in the United States Fish and Wildlife
Professional Responsibility Unit (PRU), the district court’s
exclusion of testimony from his wife regarding Holland’s
discovery of the Marlin rifle, and the sufficiency of the
evidence against him. We affirm.
Holland’s primary argument on appeal is that the
district court should have excluded the statements Holland gave
to the PRU investigators under Garrity v. New Jersey, 385 U.S.
493 (1967). We review the underlying legal determination in a
motion to suppress de novo. United States v. Kellam, 568 F.3d
125, 132 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009). Under
Garrity, when an individual is compelled to give testimony to
his public employer, and thus waive his Fifth Amendment
protections, any statements given in the course of the compelled
interview cannot be used in a future prosecution. Garrity, 385
U.S. at 500. The Government concedes that the protections
announced in Garrity apply to Holland’s statements but argues
that those protections do not extend to the false statements
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Holland provided to PRU investigators. The district court
agreed with the Government that, because Holland was not on
trial for the content of his statements but for their falsity,
the statements were admissible.
In United States v. Mandujano, 425 U.S. 564 (1976)
(plurality), the Supreme Court reaffirmed the principle that
“[i]n this constitutional process of securing a witness’
testimony, perjury simply has no place whatever.” Id. at 576.
Put another way, “[o]ur legal system provides methods for
challenging the Government’s right to ask questions—lying is not
one of them.” Bryson v. United States, 396 U.S. 64, 72 (1969)
(footnote omitted). As the Eleventh Circuit explained regarding
the use of false statements in an obstruction of justice
prosecution:
When an accused has been accorded immunity to preserve
his right against self-incrimination, he must choose
either to relinquish his Fifth Amendment right and
testify truthfully, knowing that his statements cannot
be used against him in a subsequent criminal
prosecution regarding the matter being investigated,
or continue to assert the privilege and suffer the
consequences. There is no third option for testifying
falsely without incurring potential prosecution for
perjury or false statements.
United States v. Veal, 153 F.3d 1233, 1241 (11th Cir. 1998)
(footnote omitted).
Thus, “[a]n accused may not abuse Garrity by
committing a crime involving false statements and thereafter
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rely on Garrity to provide a safe haven by foreclosing any
subsequent use of such statements in a prosecution for perjury,
false statements, or obstruction of justice.” Id. at 1243; see
also United States v. Kennedy, 372 F.3d 686, 688 (4th Cir. 2004)
(affirming convictions based upon false testimony taken in
violation of Fifth and Sixth Amendments). In this case, Holland
was informed that he would face prosecution if he gave false
information. For these reasons, the district court correctly
admitted Holland’s statements to the PRU investigators into
evidence. *
Holland next argues that the district court abused its
discretion in excluding his wife Shannon’s testimony that, when
Holland discovered the Marlin rifle, he told her that he thought
he had given it back but must have accidently misplaced it
during the couple’s move. We review a district court’s
evidentiary rulings for abuse of discretion. United States v.
Basham, 561 F.3d 302, 325 (4th Cir. 2009), cert. denied, 130 S.
Ct. 3353 (2010).
Federal Rule of Evidence 803(3) provides that a
hearsay statement is admissible if it is:
*
Holland suggests briefly that admission of the testimony
violated Federal Rule of Evidence 403 and that counts on which
the jury acquitted him should have been dismissed before trial
because those counts did not constitute crimes, as alleged in
the superseding indictment. We conclude these claims lack
merit.
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[a] statement of the declarant’s then existing state
of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a
statement of memory or belief to prove the fact
remembered or believed . . . .
Fed. R. Evid. 803(3). The district court did not abuse its
discretion in excluding the testimony under this Rule. The
district court correctly concluded that Shannon’s testimony was
being used as a statement of memory or belief to prove the fact
remembered — that Holland had not knowingly possessed the Marlin
rifle — and did not fall within the ambit of Rule 803(3).
We also reject Holland's argument that the jury's
verdict was not supported by sufficient evidence. This court
must sustain a guilty verdict if, viewing the evidence in the
light most favorable to the Government, the verdict is supported
by evidence a reasonable finder of fact could accept as adequate
to find the defendant guilty beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Having carefully reviewed the record, and applying the
appropriate standard of review, we conclude the Government
sustained its burden of proof.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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