United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 17, 2003
Charles R. Fulbruge III
Clerk
No. 02-60851
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY D. STYLES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CR-173-ALL
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Larry D. Styles appeals from his conviction of assault
within the special territorial jurisdiction of the United States
and from the denial of a post-verdict motion pursuant to FED.
R. CRIM. P. 29 and FED. R. CRIM. P. 33. Styles contends that the
evidence was insufficient to support his conviction because the
district court violated Apprendi v. New Jersey, 530 U.S. 466
(2000), by taking judicial notice that the VA Hospital in which
his offense occurred is within the special maritime and
*
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that this opinion should not be published and is not precedent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.
No. 02-60851
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territorial jurisdiction of the United States; that the district
court erred by admitting hearsay testimony that the head nurse at
the VA Hospital previously had received complaints about Styles;
that the district court erred by denying admission of evidence of
Styles’s private polygraph examination; and that the district
court constructively amended Styles’s indictment through its
instruction defining the term “assault.”
In Apprendi, the Supreme Court held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. Apprendi did not otherwise alter the
legal landscape regarding whether elements of an offense must be
proved beyond a reasonable doubt, and it had no effect on whether
the district court could take judicial notice of the status of
the VA Hospital.
A district court may take judicial notice of the legislative
fact that a federal installation is under federal jurisdiction.
United States v. Bowers, 660 F.2d 527, 531 (5th Cir. 1981). VA
hospitals are “within the special maritime or territorial
jurisdiction of the United States.” United States v. Dixon, 185
F.3d 393, 396 n.1 (5th Cir. 1999). The district court did not
err by taking notice that the VA Hospital in Styles’s case was
within the special territorial jurisdiction of the United States.
No. 02-60851
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The head nurse’s testimony that complaints had been filed
against Styles was hearsay. See FED. R. EVID. 801(c). However,
the admission of the testimony was harmless. Styles himself
testified that complaints had been filed against him for
roughness with patients. See United States v. Rodriguez, 43 F.3d
117, 123 (5th Cir. 1995).
The testimony of Polygraph Examiner Wayne Humphries did not
establish that polygraph tests generally, or his tests
specifically, were sufficiently reliable to be introduced into
evidence. Nor had any of Humphries’s examinations ever been
admitted into evidence. Humphries could not say that Styles was
not being deceptive, and he placed Styles into his second-highest
category of honest responding. Nor was the Government invited to
participate in the examination. Exclusion of the evidence was
not an abuse of discretion. See United States v. Pettigrew, 77
F.3d 1500, 1514 (5th Cir. 1996).
Styles did not raise the constructive-amendment contention
he raises on appeal sufficiently for it to be considered by the
district court. Our review thus is for plain error. United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc).
The jury in Styles’s case was informed that it must find that he
inflicted serious bodily injury on his victim. The definition of
“assault” did not create any possibility that Styles might have
been convicted of a crime other than the one alleged in his
No. 02-60851
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indictment. See United States v. Nuñez, 180 F.3d 227, 230-31
(5th Cir. 1999).
AFFIRMED.