Case: 14-10345 Document: 00512999511 Page: 1 Date Filed: 04/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10345 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, April 9, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
PHILLIP MONROE BALLARD,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-67
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
Phillip Monroe Ballard appeals the jury’s verdict convicting him of
solicitation to commit the murder of federal judge John McBryde. We reject
Ballard’s arguments for the following reasons and AFFIRM.
Ballard does not adequately explain his arguments or provide supporting
authority. Arguments not adequately briefed are waived. See U.S. v.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10345
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010). Nonetheless, for the reasons set
forth below, Ballard’s claims fail.
First, Ballard asserts that the evidence did not establish his intent to
solicit the murder of Judge McBryde. To prove their case, the Government
must show that the defendant intended that another person commit a crime of
violence against another. 18 U.S.C. § 373(a). This court in Vargas-Ocampo
reiterates the Supreme Court standard that a conviction must be affirmed “if
after viewing the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Vargas-Ocampo, 747 F.3d 299, 300 (5th Cir. 2014 (en banc), cert. denied, 135
S. Ct. 170 (2014) (citing Jackson v. Virginia, 443 U.S. 307, 313-14, 99 S. Ct.
2781-2786 (1979)). To show Ballard’s intent, the Government presented
evidence including, but not limited to: (1) informant testimony that Ballard
asked if he knew someone to kill Judge McBryde; (2) audio/visual recordings
reflecting Ballard discussing with the informant the preferred manner for
killing the judge and Ballard calling the undercover FBI agent posing as a
hitman; as well as (3) email sent from Ballard’s account asking his sister to
send money to the address provided by the undercover agent. Since Ballard
presented no sufficient countervailing evidence, it was plausible for a rational
jury to find him guilty on the evidence presented.
Next, Ballard contends that the trial court abused its discretion by not
excluding Government Exhibits 2-5, 7, 7A and 8 as highly prejudicial. First,
a court abuses its discretion when its decision is based “on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” See United States
v. Ebron, 683 F.3d 105, 125 (5th Cir. 2012). As to excluding evidence, in United
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No. 14-10345
States v. Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993), this court stated that
“[r]elevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter under Rule 403.” Furthermore, In Perez-Solis, we explained that unfair
prejudice speaks to the ability of relevant evidence to “lure the factfinder into
declaring guilt on a ground different from proof specific to the offense charged.”
United States v. Perez-Solis, 709 F.3d 453, 464-65 (5th Cir. 2013). Ballard fails
to prove that the evidence at issue was offered to show anything other than his
intent to solicit the murder of Judge McBryde, and thus fails to prove the trial
court erroneously admitted the evidence.
Finally, the trial court did not abuse its discretion by overruling Ballard’s
hearsay objection to Government Exhibit 4. Rule 801 defines hearsay as a
statement the declarant did not make while testifying at the trial that is
offered into evidence by a party “to prove the truth of the matter asserted in
the statement.” Fed. R. Evid. 801(c). The Government accurately maintains
that Exhibit 4, the undercover FBI agent’s handwritten letter agreeing to
perform the hit, was not offered to show that the agent intended to carry out
the hit. But it was instead offered to show Ballard’s intent to hire a hitman as
evidenced by his actions after receiving the letter (e-mailing his sister asking
her to send money to the address provided in the letter, and calling the phone
number provided in the letter). Consequently, Exhibit 4 is not hearsay and
was not admitted in error.
Given the foregoing, a rational jury could have found sufficient evidence
to convict Ballard of Solicitation to Commit Murder, and Ballard does not prove
that the district court abused its discretion.
AFFIRMED.
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