United States v. Holmes

United States Court of Appeals
Fifth Circuit
F I L E D
In the April 6, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 03–41738
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

W. LASSITER HOLMES, III,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________

Before HIGGINBOTHAM, SMITH, and limitations bar. Holmes challenges his convic-
BENAVIDES, Circuit Judges. tion and sentence on eight grounds. Finding
no reversible error with respect to his con-
JERRY E. SMITH, Circuit Judge: viction and no plain error with respect to his
sentence, we affirm.
W. Lassiter Holmes, III, an attorney prac-
ticing in McAllen, Texas, was convicted of I.
mail fraud and conspiracy to commit mail Holmes was retained in 1994 to represent
fraud, stemming from a scheme he executed Hector and Felipa Gonzalez in a medical mal-
with Pauline Gonzalez, who at the time was practice suit after Hector Gonzalez suffered
the District Clerk of Hidalgo County, Texas, the loss of a kidney from the alleged negli-
to back-date and file a fraudulent original peti- gence of Dr. Miguel Aleman. Over the course
tion in a medical malpractice suit Holmes was of the next two years, Holmes worked sporad-
handling, for purposes of avoiding a statute of ically on the case, seeking relevant medical
records and attempting to procure an expert the wrong tree” if they thought they had a lim-
report. In May 1996, Holmes realized that the itations defense. (Hole had asserted a limita-
statute of limitations on the tort claims would tions defense in his answer to the May 14,
soon expire.1 1996, petition, but never urged it during dis-
covery.) Specifically, the mediator told the
On May 14, 1996, Holmes filed a pleading defense what Holmes had relayed to her mo-
styled “Plaintiff’s Original Petition” with the ments before: He had mailed an original peti-
Hidalgo County District Clerk’s Office. A let- tion before filing the May 14, 1996, petition,
ter from an expert witness, bearing the same and he had an envelope to prove it.
date, was attached. Holmes paid the required
filing fee ($183.00) with a check (#1361) Because this was the first time the issue of
drawn from his law firm and likewise dated an earlier, mailed petition had been raised,
May 14, 1996. The clerk’s office opened a Hole and Alvarez went to the clerk’s office on
new case file, assigned a new cause number, May 10, 1999. They examined the case file for
and date-stamped the petition May 14, 1996. the suit filed by Hector Gonzalez against
That same day, Holmes personally delivered a Aleman and found no indication that a petition
copy of the petition to Aleman’s attorney, Ron had been filed in advance of the petition that
Hole, and faxed a copy to Ross. was date-stamped May 14, 1996.

Although the parties took discovery, the On May 11, 1999, Hole moved for sum-
suit remained largely dormant for three years, mary judgment raising, inter alia, the defense
but on May 3, 1999, Hole received a letter that limitations had run on May 11, 1996, but
from Bobby Garcia, an attorney Holmes had suit was not initiated until May 14, 1996. The
brought in to work on the Gonzalez suit, seek- next day, May 12, 1999, Holmes sent the fol-
ing to settle the case for $3.5 million. Several lowing letter by fax to Pauline Gonzalez,2 the
days later, on May 8, 1999, the parties attend- then-elected District Clerk for Hidalgo Coun-
ed a court-ordered mediation. ty:

During the course of the mediation, the me- Dear Ms. Gonzalez:
diator SSconducting shuttle-diplomacy between
the partiesSSapproached Hole and his partner Upon May 7,1996 I mailed a petition
Micaela Alvarez, both of whom were style [sic] Hector and Felipa Gonzalez vs.
representing Aleman, and inquired whether Dr. Miguel Aleman. It has come to my at-
they planned to make a settlement offer. They tention that the petition was never made
said no. The mediator admonished them to part of the record.
reconsider, telling them they were “barking up
Could you please conduct an investi-

1
Holmes relayed this point to Richard Ross, the
2
insurance adjustor assigned to handle Aleman’s Holmes copied Hole on this letter and sent him
case, in a phone conversation on May 14, 1996, in a version by mail. The letter sent to Hole was not,
which Holmes said he would be filing Hector however, a photocopy of the letter faxed to Gonza-
Gonzalez’s suit “today,” because limitations would lez but was a re-typed version that, save for a
expire the next day. typographical error, is identical.

2
 gation into this matter to determine if this block.4 In addition, Alvarez discovered what
petition was ever received by your office. remained of a pre-printed envelope,
postmarked May 7, 1996, with the return ad-
Thank you for your assistance. dress of Holmes’s law firm. The envelope was
severely torn such that the content of the
Sincerely, addressee portion was not legible save the
[Signed by stamp] letter “S,” preceded by a portion of a letter
W. Lassiter Holmes, III that appears to be an “E,” and a small portion
of a third letter.5
Pauline Gonzalez faxed the following an-
swer on May 13, 1999: In light of the sudden emergence of this
hitherto nonexistent document, Hole sought
In response to your inquiry, the plain- and received permission from the state district
tiff’s original petition in cause number court to depose Holmes and Pauline Gonzal-
C-2564-96-B was received. The search ez.6 In his deposition, Holmes testified that he
was conducted and petition was found in mailed the newly-discovered original petition
our office bearing the stamp file date of on the evening of May 6 and that he had ad-
May 7, 1996. dressed the now-torn envelope to Pauline
Gonzalez and had misspelled her name to end
If you have any questions or inquiries, in an “ES.”
please do not hesitate to contact me.
Although the record is opaque on the exact
Sincerely, circumstances, Holmes subsequently entered
[No signature]
Pauline G. Gonzalez
District Clerk 4
The check number on this petition is the same
Hidalgo County as the check dated May 14 with which Holmes paid
the filing fee for the May 14 petition.
Indeed, when Alvarez returned to the
clerk’s office on May 13 to reexamine the file, 5
The true addressee of this envelope was a
she discovered a document styled “Plaintiff’s significant issue at trial, because the government
Original Petition,” this one bearing a file stamp alleged, and attempted to prove through expert
of May 7, 1996.3 This petition contained testimony from a Texas Department of Public
Holmes’s signature in blue ink and a notation Safety document examiner, that Holmes provided
of check number 1361 under the signature this envelope as part of his fraudulent scheme: The
government maintained that the envelope was likely
a self-addressed stamped envelope Holmes had in
an old case file with his law firm’s name as the
addressee, and he tore the envelope such that only
3
Unlike the petition filed on May 14, however, the letters “ES” remained.
this petition was not time-stamped and did not have
6
a signature stamp naming the particular deputy Hole subsequently received permission from
clerk who had received the pleading, both of which the state district court to remove the petition dated
the record reveals were customary practices in the May 7 for purposes of conducting nondestructive
clerk’s office. forensic testing.

3
into a settlement agreement by which he would office was unable to locate the original peti-
dismiss all claims against Aleman and pay tion, so he brought a copy of the earlier, origi-
$15,000 to Aleman’s insurance carrier. nal petition to the clerk’s office as a “go-by” to
Holmes also executed an agreement with Hec- show employees the document he was looking
tor and Felipa Gonzalez whereby they agreed for.
to release all malpractice claims against
Holmes in exchange for $10,000. Federal investigators initiated an independ-
ent investigation. He and Pauline Gonzalez
Holmes did not, however, obtain peace were indicted for conspiracy to commit mail
with these settlements: Hole and Alvarez filed fraud in violation of 18 U.S.C. § 371 (count
a formal grievance against him with the State one) and mail fraud in violation of 18 U.S.C.
Bar of Texas. At a disciplinary hearing held in §§ 1341 and 1346 (count two).9
October 1999, Hole presented forensic
evidence that the bond paper on which the Holmes testified in his own defense, trying
May 7 petition was printed contained a water- to convince the jury that the copy he brought
mark and date code. According to the manu- to the clerk’s office as a “go-by” became the
facturer,7 Hole maintained, the date code cor- petition file-stamped May 7, when someone in
responded to the year 1997, and thus the bond the clerk’s office erroneously file-stamped it.10
paper could not have been manufactured be- As for the May 14 petition, Holmes’s story
fore 1997. The petition could not, therefore, was that he mailed the original petition on May
have been printed and mailed, as Holmes sug- 6, but it did not contain an expert report, so
gested, in May 1996. Holmes received a sanc- after securing an expert report he went to the
tion of two years’ probation from the state bar. clerk’s office with another petition attaching
the report; and because the deputy clerk was
II. unable to tell him what cause number had been
Texas authorities subsequently initiated an assigned to his earlier petition, he filed the
investigation of the Hidalgo County Clerk’s May 14 petition “as if it were the new filing
Office. In an interview with Texas Ranger Is- expecting that, when the May 6 petition was
rael Pacheco on March 26, 2001,8 Holmes located, the District Clerk’s Office would
gave a revised version of the events: He had clean up the paperwork.”
made several attempts to obtain a copy of the
original petition he mailed on May 6, before he The jury was not persuaded, and Holmes
filed the petition on May 14, but the clerk’s was convicted on both counts. He now ap-

7
The government presented the testimony of
9
Edward Kennedy, a longtime employee of Boston- Gonzalez was not tried with Holmes: After
based Southworth Paper Company, the manu- the indictment was returned, she became physically
facturer of the bond paper, who corroborated these incapacitated, suffering from life-threatening health
facts. Holmes made no effort to dispute this problems. She died while charges were pending.
evidence at trial.
10
According to this theory, the earlier, original
8
Holmes was represented at this meeting by petition Holmes claims to have mailed is still miss-
counsel, and both he and counsel took copious ing, although the envelope in which he claims to
notes. See infra part VI. have mailed it has surfaced.

4
peals his conviction and sentence on various responded in kind, “No objection, Judge.”
grounds.
Notwithstanding the almost-inviting ap-
III. proach to this evidence taken at trial, Holmes
A. submits on appeal that the admission of this
Holmes contends the district court admitted evidence violated his rights under the Con-
the videotaped and transcribed deposition tes- frontation Clause.12 Given Holmes’s failure to
timony of Pauline Gonzalez in contravention object, our review is for plain error. See Unit-
of his Sixth Amendment right of confrontation. ed States v. Cartwright, 6 F.3d 294, 300 (5th
The government proffered Gonzalez’s Cir. 1993); FED. R. CRIM. P. 52(b).
deposition testimony as a co-conspirator’s
statement under Federal Rule of Evidence B.
801(d)(2)(E), according to which a statement Holmes relies on Crawford v. Washington,
is admissible nonhearsay if it is made (1) by a 541 U.S. 36, 124 S. Ct. 1354 (2004), in which
co-conspirator (2) during the course of the the Court fundamentally altered the scope and
conspiracy and (3) in furtherance of the con- effect of the Confrontation Clause by replacing
spiracy. The government asserts that Gonza- the standard-driven balancing test, which had
lez’s deposition, which was taken by Hole on delimited the right to confrontation, with a
May 19, 1999, only a few days after the peti- categorical rule barring the admission of out-
tion file-stamped May 7, 1996, was discov- of-court testimonial statements against the ac-
ered, consisted of statements by a co-conspira- cused absent opportunity for cross-examina-
tor made in furtherance of the conspiracy with tion. See Crawford, 124 S. Ct. at 1374.
Holmes, insofar as her testimony was an effort
to conceal the objectives of a conspiracy then Before Crawford, the right of confrontation
occurring.11 was controlled by Ohio v. Roberts, 448 U.S.
56, 66 (1980), which held that the Sixth
During Hole’s direct testimony, the govern- Amendment does not bar admission of an
ment played Gonzalez’s videotaped deposition unavailable witness’s statement against a crim-
and offered a transcribed copy of the deposi- inal defendant so long as the statement bears
tion into the record. Before playing the tape, “adequate ‘indicia of reliability.’” To meet
the court inquired whether there was any that test, Roberts required that the out-of-
objection, to which defense counsel respond- court statement either fall within a “firmly
ed, “None whatsoever, Judge.” The court rooted hearsay exception” or bear “particular-
likewise inquired whether there was any ob- ized guarantees of trustworthiness.” Id. Ap-
jection before admitting the transcribed copy plying this approach, the Court held, in Bour-
of the deposition, to which defense counsel jaily v. United States, 483 U.S. 171, 183-84
(1987), that the co-conspirator exception to
the hearsay rule was sufficiently steeped in our
11
See United States v. Phillips, 219 F.3d 404, jurisprudence that “the Confrontation Clause
419 (5th Cir. 2000) (“Efforts to conceal an ongo-
ing conspiracy obviously can further the conspir-
12
acy by assuring that the conspirators will not be “In all criminal prosecutions, the accused
revealed and the conspiracy brought to an end.”). shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. CONST. amend. VI.

5
does not require a court to embark on an in- 1.
dependent inquiry into the reliability of state- Because the categorical rule adopted in
ments that satisfy the requirements of Rule Crawford is triggered only with respect to
801(d)(2)(E).” “testimonial” evidence, whether a challenged
statement falls within the class of evidence
Crawford abrogated Roberts with respect deemed “testimonial” will generally be out-
to prior testimonial statements: Such state- come-determinative. But Crawford declined
ments may not be admitted against a defendant to “spell out a comprehensive definition of
unless he has an opportunity to cross-examine ‘testimonial.’” Crawford, 124 S. Ct. at 1374.
the declarant, irrespective of whether the Instead, the Court held that “[w]hatever else
statement falls within a firmly rooted hearsay the term covers, it applies at a minimum to
exception or bears particularized guarantees of prior testimony at a preliminary hearing, before
trustworthiness.13 With respect to non- a grand jury, or at a former trial; and to police
testimonial statements, however, Crawford interrogations.” Id. Beyond these specific
leaves in place the Roberts approach to deter- examples, however, the boundaries of testi-
mining admissibility.14 monial evidence remain unsettled. The Court
quoted three potential formulations of the
“core class” of testimonial statements but
declined to adopt or reject any of them.15
13
See Crawford, 124 S. Ct. at 1374 (“Where In the case at hand, we are presented with
testimonial statements are at issue, the only indi- a challenge to the admission of a co-conspira-
cium of reliability sufficient to satisfy constitu- tor’s statement made during the course and in
tional demands is the one the Constitution actually
furtherance of the conspiracy in civil deposi-
prescribes: confrontation.”); id. (“Where testimo-
tion testimony. Statements made by a co-con-
nial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavail- spirator during the course and in furtherance
ability and a prior opportunity for cross-examina-
tion.”).
15
These include: (1) “ex parte in-court testi-
14
Crawford does, however, explicitly leave mony or its functional equivalentSSthat is, material
open the possibility of “an approach that exempted such as affidavits, custodial examinations, prior
[nontestimonial] statements from Confrontation testimony that the defendant was unable to cross-
Clause scrutiny altogether.” Id. Nevertheless, to examine, or similar pretrial statements that declar-
the extent the Court declined to overrule White v. ants would reasonably expect to be used prose-
Illinois, 502 U.S. 346 (1992), in which a majority cutorially,” Crawford, 124 S. Ct. at 1364 (citation
of the Court rejected a view of the Confrontation omitted); (2) “extrajudicial statements . . . con-
Clause that would place no constitutional limits on tained in formalized testimonial materials, such as
the admissibility of nontestimonial statements, in- affidavits, depositions, prior testimony, or confes-
stead leaving their admissibility to controlling hear- sions,” id. (quoting White, 502 U.S. at 365)
say law, see Crawford, 124 S. Ct. at 1370 (“Al- (Thomas, J., concurring in part and concurring in
though our analysis in this case casts doubt on that the judgment)); and (3) “statements that were made
holding, we need not definitively resolve whether under circumstances which would lead an objective
[White] survives our decision today . . . .’), Rob- witness reasonably to believe that the statement
erts remains controlling for purposes of nontesti- would be available for use at a later trial,” id.
monial statements. (citation omitted).

6
of a conspiracy are by their nature generally testimonial sourceSSrecorded and sworn civil
nontestimonial and thus are routinely admitted deposition testimony.
against an accused despite the absence of an
opportunity for cross-examination.16 The chal- 2.
lenged evidence here, however, is not the run- Whether this evidence is “testimonial” as
of-the-mill co-conspirator’s statement made Crawford used that term is uncertain. This
unwittingly to a confidential government case does not, however, require resolution of
informant,17 or made casually to a partner-in- whether Gonzalez’s civil deposition qualifies
crime; rather, we have a co-conspirator’s as testimonial evidence triggering the right of
statement that is derived from a formalized confrontation. Even assuming arguendo that
her deposition is testimonial under Crawford,
there was no constitutional error, because the
16
See, e.g., id. at 1367 (challenging the con- government did not offer her testimony to
currence’s suggestion that hearsay exceptions prove the truth of the matter asserted.18
historically have permitted admission of testimonial
statements against the accused in a criminal case, In her deposition, Pauline Gonzalez lament-
reasoning that “[m]ost of the hearsay exceptions ed the organizational problems in the clerk’s
covered statements that by their nature were not office, testifying that her office was forced to
testimonialSSfor example, business records or deal with sloppy lawyers who were invariably
statements in furtherance of a conspiracy.”); forgetting and confusing pleadings, and was
United States v. Reyes, 362 F.3d 536, 540 n.4 (8th staffed by rotating and volunteer clerks prone
Cir. 2004) (rejecting Crawford argument on to mistakes. Pauline Gonzalez thus explained
ground that “co-conspirator statements are non- that someone in the office could have
testimonial”); C. MUELLER & L. KIRKPATRICK,
mistakenly back-dated the petition after look-
F E D E R A L E V I D E N C E § 398.1 (2004)
ing up the case information on the computer
(“[C]oconspirator statements . . . are non-
testimonial in character and admitting them does and using the postmark date stamped on the
not infringe defense confrontation rights.”); United torn envelope.
States v. Delgado, No. 03-41379, 2005 U.S. App.
LEXIS 2686, at *18 (5th Cir. Feb. 16, 2005) Far from offering this testimony to prove its
(“Crawford is not applicable to [hearsay state- truthfulness, the government sought to es-
ments made during the course and in furtherance of tablish its falsity through independent evi-
a conspiracy] because they are not testimonial dence. Indeed, the entire thrust of the govern-
hearsay statements.”). ment’s case was that the back-dating was not
17
the result of a clerical error, but instead was
See, e.g., Bourjaily, 483 U.S. at 181-84 the objective of an illicit conspiracy between
(holding admissible as against a Confrontation Holmes and Pauline Gonzalez. Gonzalez’s
Clause challenge co-conspirator’s unwitting state-
testimony was thus offered both to show the
ments to an FBI informant despite absence of op-
portunity for cross-examination and unavailability
of declarant); United States v. Saget, 377 F.3d
18
223, 229-30 (2d Cir. 2004) (holding that co-conspir- See Crawford, 124 S. Ct. at 1369 n.9 (“The
ator’s statement made unwittingly to police was [Confrontation] Clause . . . does not bar the use of
nontestimonial and thus admissible against defen- testimonial statements for purposes other than es-
dant despite absence of opportunity for cross- tablishing the truth of the matter asserted.”) (citing
examination). Tennessee v. Street, 471 U.S. 409, 414 (1985)).

7
existence of a scheme and to prove one of the During opening argument, for example, the
overt acts charged in the indictment.19 Even defense pointed to the deposition as exculpa-
assuming that her civil deposition testimony is tory:
testimonial within the meaning of Crawford,
then, this nonhearsay use of her testimony pos- Pauline Gonzalez, by way of her testimony,
es no Confrontation Clause concerns. See will tell you what she thinks happened on
Crawford, 124 S. Ct. at 1369 n.9; Street, 471 that videotape. Someone took that blank
U.S. at 414.20 petition, looked it up in the computer,
pulled that case out of the computer, be-
3. cause [the government] already told you it
The irony is that Holmes was keenly aware was filed on [May] 14.
of the fact that Pauline Gonzalez was not a
“witness[] against him” inasmuch as her depo- The defense relied on the exculpatory nature
sition testimony was not inculpatory. In fact, of her deposition testimony again while cross-
it was Holmes, not the government, that re- examining Ron Hole:
peatedly relied on her deposition testimony at
trial for its truthfulness. The record is replete Q: Ms. Gonzalez offered an explanation
with instances in which Holmes pointed to for how this could have happened,
Gonzalez’s deposition testimony as exculpa- didn’t she?
tory and corroborating his primary defense
theorySSi.e., that the pleading he provided as A: Not in my mind; it was not a plausible
a “go-by” must have been back-dated in error explanation.
by someone in the clerk’s office.
Q: She attempted or said that it could
have been file marked by mistake,
didn’t she say that in the deposition.
19
The indictment returned by the grand jury . . . And she indicated that some clerk
specifically charged that “[o]n or about May 19, or some volunteer working in the of-
1999, Defendant Pauline Gonzalez testified falsely fice could have done it accidentally and
in a deposition regarding a civil petition bearing a not deliberately, without any malice,
file-stamped date of May 7, 1996.” on the video.
20
The manner in which Holmes has presented The defense returned to the exculpatory force
this claim to the court bears mentioning: His claim of her testimony again during closing argu-
amounts to a wholesale challenge to Gonzalez’s ment:
testimony. That is, of the less than two pages his
brief devotes to this claimed constitutional error,
Now, Ms. Gonzalez says on her video,
Holmes does not identify a single specific statement
made by Gonzalez that was offered against him for
sworn deposition: Someone could very
the truth of the matter asserted. At oral argument, easily have said, just put the cause number
the government stressed the nonhearsay use of this on it or file it. Put it with the file. . . .
evidence, and we asked defense counsel why such Well, that’s not a crime, and no one should
use would pose Confrontation Clause concerns, to go to the penitentiary and be convicted of
which we were told, without elaboration or exam- two federal felonies for that.
ple, “there were truthful matters asserted.”

8
 That the government did not offer Gonzal- seeking reversal on the basis of insufficient
ez’s civil deposition testimony for the purpose evidence swims upstream.” United States v.
of proving the truth of the matters to which Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).
Holmes points cannot seriously be contested. In reviewing a challenge to the sufficiency of
After all, the entire raison d’etre for the in- the evidence, we view all the evidence and the
dictment and the felony charges was the gov- reasonable inferences drawn therefrom in the
ernment’s belief that the back-dated petition light most favorable to the verdict, and ask
was the result of a criminal conspiracy and not whether a rational trier of fact could have
some clerical error. Because the government found that the evidence established the ele-
did not offer her testimony for its truth, there ments of the offense beyond a reasonable
is no Sixth Amendment violation.21 doubt. See, e.g., United States v. Smith, 296
F.3d 344, 346 (5th Cir. 2002). “In so doing,
IV. we apply a ‘rule of reason,’ knowing that the
Holmes contends that the evidence is in- jury may properly rely on their ‘common
sufficient to sustain his convictions for con- sense’ and ‘evaluate the facts in light of their
spiracy to commit mail fraud and the substan- knowledge and the natural tendencies and in-
tive mail fraud offense. We address each clinations of human beings.’” Mulderig, 120
count in turn. F.3d at 547 (quoting United States v. Ayala,
887 F.2d 62, 67 (5th Cir. 1989)).
A.
“It is by now well-settled that a defendant Because the jury is “free to choose among
reasonable constructions of the evidence,”
United States v. Richards, 204 F.3d 177, 206
21 (5th Cir. 2000), and retains the sole authority
Of course, even if we had found an error, a
separate question would follow: whether, having to “weigh conflicting evidence and evaluate
forfeited the error by failing to object, we would the credibility of the witnesses,” United States
exercise our discretion under rule 52(b) to correct v. Milsaps, 157 F.3d 989, 994 (5th Cir. 1998),
it. (In Crawford, the Court noted the applicability “it is not necessary that the evidence exclude
of the harmless error doctrine, see Crawford, 124 every reasonable hypothesis of innocence or be
S. Ct. at 1359 n.1; id. at 1378 (Rehnquist, C.J., wholly inconsistent with every conclusion
concurring in the judgment); but we do not read except that of guilt.” United States v. Wil-
those references as altering the applicability of the liams, 264 F.3d 561, 576 (5th Cir. 2001). If,
plain error rubric where there was no trial ob- however, the evidence viewed in the light most
jection, and thus Holmes would have the burden of favorable to the verdict points equally to a
demonstrating that the error affected substantial theory of innocence and guilt, we will reverse
rights.) a conviction based on circumstantial evidence.
Mulderig, 120 F.3d at 546.
Although our disposition renders this inquiry
unnecessary, we note that it would be strange, in-
deed, were we to hold that the admission of evi- B.
dence to which the accused repeatedly relied upon Holmes challenges the sufficiency of the
as exculpatory and favoring an acquittal was such evidence to support his conviction of conspir-
an egregious error that justice and the public integ- acy, characterizing the government’s case as
rity of the judicial process require the remedy he establishing only that he prepared a pleading
seeks: reversal. More likely, the opposite is true.

9
and gave it to the clerk’s office, which, in turn, Coupled with this admission, the jury could
file-stamped it May 7, 1996. Although he reasonably have concluded that the envelope in
admits that it is “not unreasonable to conclude which Holmes claims to have mailed the
from the record” that Pauline Gonzalez caused original petition on May 6, 1996, was actually
the back-dating to occur, he contends that the a self-addressed envelope in which something
evidence is insufficient in two allegedly critical was returned to Holmes’s law firm.22 If this
respects: First, there is no evidence envelope, which as the postmark reveals had at
demonstrating his knowledge of the back- one point been properly mailed, was in fact
dating at the time; and second, there is no addressed to Holmes’s law firm, the jury rea-
evidence demonstrating any motive on the part sonably could have concluded that it was at
of Gonzalez to back-date the pleading. In the some point prior to being placed in the clerk’s
absence of such evidence, Holmes claims he case file in Holmes’s possession.
cannot properly be found guilty of conspiracy
without “wild speculation.” At a minimum, then, the evidence reveals
that Holmes gave someone in the clerk’s office
1. both the petition that was ultimately back-
To prove a conspiracy in violation of 18 dated and the envelope in which he claims to
U.S.C. § 371, the government must establish have mailed t he original petition. The
three elements beyond a reasonable doubt: question, then, is whether there was an
(1) an agreement between two or more per- agreement or common purpose to back-date
sons to pursue an unlawful objective; (2) the the pleading and represent it to be the original.
defendant’s knowledge of the unlawful objec- On that score, as the district court observed in
tive and voluntary agreement to join the con- its thorough post-trial memorandum, the tes-
spiracy; and (3) an overt act by one or more timony of three clerk’s employees is sufficient
members of the conspiracy in furtherance of to give rise to the inference that Holmes was
the objective of the conspiracy. E.g., United knowingly working in concert with Pauline
States v. Peterson, 244 F.3d 385, 389 (5th Cir. Gonzalez.
2001). “The Government need not rely on
direct evidence of a conspiracy; each element First, Alexandra Gomez, a criminal appeals
may be proven by circumstantial evidence.” clerk, testified that Holmes approached her
Mulderig, 120 F.3d at 547. “and he asked me . . . if I could step outside
because he needed to speak with me.” She
2.
The evidence is sufficient to support con-
spiracy. Although his trial story differedSSas 22
it had to, given the bond paper revela- A forensic document expert from the Texas
Department of Public Safety testified that the
tionSSfrom his earlier deposition testimony,
partially visible letter preceding the letters “ES”
Holmes admitted that the May 7, 1996, peti- could not have been an “L.” The expert testified
tion could not have been mailed on that date that the letter was more likely an “M,” which, of
and that he printed and signed the petition that course, would be consistent with “Holmes.” The
was ultimately back-dated May 7, 1996, by the jury reasonably could have credited this testimony
clerk’s office and placed into the case file. rather than accepting Holmes’s testimony that the
“ES” resulted from his misspelling of Gonzalez’s
last name.

10
testified that Holmes asked “if it was possible Third, Viola Wise testified that she pre-
for me to back-file something for him that pared the May 13, 1999, letter from Pauline
needed to be put into the file, or should have Gonzalez to Holmes at the direction of Gonza-
been put in the file. And I told him I could lez. Specifically, Wise testified to a conversa-
not.” After refusing Holmes’s request, Gomez tion she had with Gonzalez during which Gon-
told Holmes she “could not be the one to do zalez “said that she had found a . . . missing
that, that he would need to speak with Ms. document” and instructed Wise to “go ahead
Gonzalez to see what she could do.” Gomez and make a letter stating that [Gonzalez] had
testified further that a week after she refused found the paperwork.”
Holmes’s request, Gonzalez “called me on the
telephone and asked me to stamp file a plead- Based on this testimony, the jury could
ing that was on her desk with the date it had reasonably have concluded that Holmes was
written on it,” but that she refused because she seeking assistance to back-date a petition; and
“knew it was against our rules to do that, the that after Holmes met privately with Pauline
District Clerk’s Office rules.” Gonzalez, she asked Gomez (exactly what
Holmes had previously asked her) to back-date
Second, Veronica Muniz testified that, at the petition, and that Gonzalez then directed
some point during the critical time period another employee to prepare a letter stating
(May 10-13, 1999), she observed Holmes that the petition had been “found.” This
speaking with Pauline Gonzalez in Gonzalez’s testimony, when taken together with Holmes’s
“glassed-in” office. And, although she was the admission that the petition ultimately back-
employee in the clerk’s office who had ex- dated was printed and signed as an original by
amined the file with Hole and Alvarez and did him and provided to the clerk’s office, and the
not find any indication of an earlier petition, expert testimony concerning the envelope, is
Muniz testified that shortly after observing more than sufficient to establish an adequate
Holmes and Gonzalez speaking privately, she picture of Holmes’s role in the conspiracy.
“saw a letter printing out that said they [the Thus, despite Holmes’s continued reliance on
clerk’s office] had found the document.” She his version of the events in questionSSthat
then identified the May 13, 1999, letter sent by someone in the clerk’s office must have back-
fax from Gonzalez to Holmes as the letter she dated the pleading in errorSSthe jury was free
observed in the printer, and relayed that, upon to reject his explanation and accept the gov-
seeing the letter, “I was surprised because I ernment’s.
had, you know, I had been looking through the
file, and I couldn’t find anything. So I was just To the extent Holmes relies on the govern-
surprised that . . . it had been found . . . .”23 ment’s failure to establish Pauline Gonzalez’s
motive, he is attempting to avail himself of the
absence of evidence the government was not
required to offer. To be sure, the government
23
Muniz also testified that it was “significant” did not establish Gonzalez’s motive for con-
that the back-dated petition was not signed by a spiring with Holmes to back-date the petition;
clerk, observing that “[b]ecause [if] it’s [an] orig- indeed, the government admitted as much
inal petition . . . it should have the specific time during closing argument:
that it was filed and it also should have a signature
on it.”

11
 The only thing you-all aren’t charged to Neder v. United States, 527 U.S. 1 (1999)).24
figure out is what the motive of everybody Because Holmes limits his attack to the
is, and I submit to you, I can’t exactly tell materiality of the alleged misrepresentations,
you what Ms. Gonzalez’s motive was. I’ll we cabin our analysis accordingly.
tell you she did violate her oath of office.
I’ll tell you she did something illegal. 2.
Whether [Holmes] promised to give her When the defense in the underlying tort suit
some money on the end, I don’t know. I moved for summary judgment asserting that
think it’s reasonable to suspect, but I think Hector Gonzalez’s suit was time-barred as of
it’s equally reasonable that she just is cor- May 11, 1996, Holmes was taking a position
rupt and just decided to allow a lawyer to completely contrary to what he urges now. In-
do something like that, and she was willing deed, in his opposition to summary judgment,
to use her office to help him. Holmes repeatedly pointed to the May 7,
1996, filing date as defeating Aleman’s
Nevertheless, because the government is not limitations defense. Consider, for example, the
required to prove Gonzalez’s subjective intent following passages from Holmes’s pleading:
for conspiring with Holmes, the absence of
such motive evidence does not render insuffi- The Defendant admits on page six of his
cient the evidence supporting Holmes’s con- motion that the last date to file would have
viction of conspiracy. been May 11, 1996. Assuming this date to
be true, the filing of the Plaintiffs Petition
C. on May 7, 1996 would have been timely.
With respect to the substantive mail fraud
offense, Holmes contends that the evidence is ...
insufficient to support his conviction because
the alleged misrepresentations were immate- Alternatively, assuming arguendo that the
rial. Specifically, he reasons that regardless of last date of treatment was February 25,
whether the May 7 or May 14 date is used for 1994, as asserted by the Defendant then the
purposes of limitations, the underlying medical limitations period would have extended to
malpractice claims were time barred, and thus
any representations about the May 7 petition’s
24
being the original were immaterial. The mail fraud statute expressly applies to a
“scheme or artifice to defraud another of the in-
1. tangible right of honest services.” 18 U.S.C.
To prove mail fraud under § 1341, the gov- § 1346. The government entered into evidence the
ernment must show (1) a scheme to defraud; constitutional oath of office taken by Gonzalez, see
TEX. CONST. art. XVI, § 1, and the oath taken by
(2) the use of the mails to execute the scheme;
Holmes as a condition of membership in the State
and (3) the specific intent to defraud. United Bar of Texas, see TEX. GOV’T CODE ANN. §
States v. Bieganowski, 313 F.3d 264, 275 (5th 82.037. The court also instructed the jury that
Cir. 2002). “In addition, the Supreme Court tampering with or fabricating government docu-
has interpreted section 1341 to require that the ments and committing perjury are prohibited by
misstatement made in the course of the scheme Texas law. Holmes does not, however, raise any
to defraud be a material one.” Id. (citing challenge to the applicability of the intangible ser-
vices doctrine to the facts at hand.

12
 May 10, 1996, which would have been Holmes fails, however, to account for the
three days after the filing of the Plaintiffs next entry in that same chronology: On May
Petition. 11, 1996, the chronology notes, the “SOL runs
on last non-barred treatment date.” Thus,
Despite these representations, which plainly contrary to Holmes’s wholesale claim that the
contemplate the May 11 date as viable for limitations period expired in April, Aleman’s
limitations purposes, Holmes characterizes the lawyers believed that claims calculated from
evidence adduced at trial supporting his asser- the last date of treatment (pursuant to what the
tion that either date was beyond the limitations parties refer to in their summary judgment pa-
period as “overwhelming.” His brief, pers as the “continuing course of treatment
however, fails to cite any record evidence doctrine”), rather than from the last date of
supporting this claim. Our independent review negligent treatment, were potentially viable as
of the record indicates that, during the a limitations matter until May 11, 1996.26
defense’s cross-examination of Hole and again And, as we indicated, this is precisely what
during closing argument, the defense attempt- Holmes asserted in his opposition to summary
ed to use the materials submitted by Hole to judgment.
the state bar to establish that limitations had
expired as of either date. Doubtless it is now (with the medical mal-
practice case long-since over, and sitting under
Specifically, the defense pointed to a chro- two federal felony convictions) in Holmes’s
nology of events included in the file prepared interest to disclaim his previous reliance on the
by Hole, which indicates that on April 3, 1996, so-called continuing course of treatment
the “SOL runs on last non-barred negligence doctrine and to maintain that the suit would
claim,” and includes a notation that “Mr. have been time-barred even on May 7, 1996.
Holmes was correct that the statute on the
01/08/94 visit would have expired on 04/03/96
not 05/04/96 as originally indicated.” From 25
(...continued)
this single entry, the defense claimed that the April of 1996. In April. And he highlighted it.
limitations period expired in April, and thus And it’s there for you to read. He says, I agree.
argued to the jury that Holmes had no motive Mr. Holmes was right. The statute was missed
to fabricate a petition with a May 7, 1996, in April.
date-stamp.25
26
Hole testified to why the May 11 date was
relevant during cross-examination:
25
Defense counsel stressed the import of this
notation to the jury during closing argument: Q: Whether May 7th or May 14th is the filing
date of the petition you had him on [the]
I offered one exhibit into evidence and only one statute of limitations?
exhibit. . . . I offered . . . the document that
Ron Hole offered to the state bar grievance A: Not really. If the statute, if they go by the
committee. . . . last date, under the continuing course of
treatment doctrine, the last date would
[I]n that document he says very clearly have brought the statute of limitations to
that the statute of limitations was missed in May 11th, and that’s why we said at the
(continued...) latest, May 11th.

13
But there was never any judicial resolution of V.
the limitations question; instead, the record Holmes avers that the government’s closing
reflects a vigorous dispute as to the proper argument contained an improper plea for
calculation of limitations. At the time, Ale- sympathy for Hector and Felipa Gonzalez,
man’s lawyers were asserting that claims not thereby prejudicing the jury against him to
filed by May 11 were time-barred; and Holmes such a degree that he was denied a fair trial.
responded by claiming that the suit was not We find no error.
time-barred because the petition filed on May
7SSthe fraudulent petitionSSwas timely filed. A.
“Improper prosecutorial comments consti-
Therefore, to the extent Holmes tute reversible error only where ‘the defen-
represented that the suit was filed on May 7, dant’s right to a fair trial is substantially af-
1996, this representation could have saved him fected.’” United States v. Bernard, 299 F.3d
from a limitations bar had the state court 467, 488 (5th Cir. 2002) (quoting United
ultimately accepted the view that the applica- States v. Andrews, 22 F.3d 1328, 1341 (5th
ble trigger date was the last date of treatment, Cir. 1994)). “A criminal conviction is not to
as Holmes himself pressed in his response to be lightly overturned on the basis of a prosecu-
summary judgment.27 That Holmes or even tor’s comments standing alone. The
Hole may now regard this as unlikely is not determinative question is whether the prosecu-
controlling; that the May 11 date could have tor’s remarks cast serious doubt on the cor-
saved the suit from the time-bar then-being rectness of the jury’s verdict.” United States
pressed by Aleman’s defense counsel is. These v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).
representations thus were material, so we
affirm Holmes’s conviction of mail fraud.
To resolve this question, we consider the
magnitude of the prejudicial effect of the chal-
27
Accord Neder, 527 U.S. at 22 n.5 (quoting lenged statements, the efficacy of any caution-
one formulation providing that a matter is material ary instructions, and the strength of the evi-
if “the maker of the representation knows or has dence of the defendant’s guilt. Bernard, 299
reason to know that its recipient regards or is likely F.3d at 488 (citing Andrews, 22 F.3d at 1341).
to regard the matter as important in determining his This already narrow standard of review is fur-
choice of action, although a reasonable man would ther constrained by Holmes’s failure to object;
not so regard it”) (quoting RESTATEMENT (SEC- he bears the burden of demonstrating that the
OND) OF TORTS § 538 (1977))); Kungys v. United prosecutor’s statements constitute plain error.
States, 485 U.S. 759, 770 (1988) (“[A] conceal- See id.; FED. R. CRIM. P. 52(b).
ment or misrepresentation is material ‘if it has a
natural tendency to influence, or was capable of
B.
influencing, the decision of’ the decisionmaker to
which it was addressed.”); United States v. Heath,
Holmes has failed to demonstrate error,
970 F.2d 1397, 1403 (5th Cir. 1992) (stating that, much less plain error. The prosecutor’s
in bank fraud context, “[a] statement is material if lengthy closing argument, viewed in its en-
it ‘has a natural tendency to influence, or was tirety and in context of the charged offenses, is
capable of influencing the decision of’ the lending not primarily an appeal to the jurors’ emotions
institution.”) (quoting Kungys, 485 U.S. at 770)). regarding Hector and Felipa Gonzalez; rather,

14
the prosecutor was attempting to underscore any event, there is substantial evidence
the situation Holmes found himself in, having supporting conviction on both counts. The
missed the limitations period on an ostensibly prosecutor’s unobjected statements do not
serious and valuable medical malpractice produce reversible error.
claim.
VI.
The government therefore referred to the Holmes avers that his substantial rights
underlying malpractice suit as demonstrating were prejudiced by the government’s delayed
Holmes’s motive for conspiring with Pauline disclosure of Pacheco’s report summarizing his
Gonzalez to back-date a fraudulent petition. March 2001 interview.29 The government
Thus, although the government’s closing argu-
ment undoubtedly contains certain statements
that tend to evoke sympathy for Hector and 28
(...continued)
Felipa Gonzalez, the subject of the malpractice not as a consequence of his conceded legal mal-
suit, including its meritsSSand therefore the practice, but, rather, as a result of his illegal ac-
seriousness of the injury suffered by Hector tions, this argument is also meritless. The prosecu-
Gonzalez, and the value that injury would have tor did not argue that they were denied their chance
in such a suitSShas obvious relevance beyond to have their case heard in court as a consequence
an argumentum ad misericordiam. of the charged crimes; to the contrary, the prosecu-
tor argued that “the reason they never got the same
And once it is accepted that the merits of chance their lawyer got this week [to have their
the underlying malpractice suit bear on case heard in court] is that their lawyer made a
Holmes’s motive, the propriety of the prosecu- mistake. And then he compounded that mistake by
violating the law.”
tor’s statements becomes a question of degree.
At that point, we must proceed in light of the 29
The report at issue consists of two para-
“wide latitude” afforded counsel when present- graphs from a longer report prepared by Pacheco
ing jury argument. See United States v. Her- on the details of his investigation of the Hidalgo
nandez-Guevara, 162 F.3d 863, 874 (5th Cir. County Clerk’s Office. Paragraphs 5.1 and 5.2 of
1998). Here, given the district court’s cau- the report summarize Pacheco’s March 26, 2001,
tionary instruction to the jury to consider only interview of Holmes, and read in full as follows:
the evidence and that the attorneys’ arguments
were not evidence, and the critical fact that On 03-26-01, writer interviewed attorney
these statements were “neither persistent nor Lassiter HOLMES at the Texas Ranger office
pronounced when viewed within the context of in McAllen. Present during the interview was
the entire closing argument,” Bradford v. his attorney, Joe CONNORS. HOLMES said
Whitley, 953 F.2d 1008, 1013 (5th Cir. 1992), that he had mailed the petition on 05-07-1996.
He said that contrary to what had been said, the
it is unlikely that the jury was led astray.28 In
statute of limitations had nothing to do with this
case.
28
To the extent Holmes complains that the HOLMES advised that he had gone on
prosecutor’s closing argument was improper inso- several occasions to try and get a copy of the
far as it conveyed to the jury that Hector and petition, but no one at the Clerk’s office could
Felipa Gonzalez were denied their “day in court” find one. He finally took a copy of the original
(continued...) (continued...)

15
concedes the delayed disclosure and resulting disclosure undermined the defense strategy
violation of Federal Rule of Criminal Proce- and theory of the case; the court observed that
dure 16(a)(1)(A). Holmes could not have been blind-sided by the
contents of a report summarizing a meeting he
A. attended with his attorney; in fact, the district
The standard of review for discovery mat- court noted that the defense had a lengthy,
ters is steep. “We review alleged errors in the contemporaneous report Holmes had prepared
administration of discovery rules under an about the interview.
abuse of discretion standard and will not re-
verse on that basis unless a defendant estab- C.
lishes prejudice to his substantial rights.” See Holmes now contends his substantial rights
United States v. Ellender, 947 F.2d 748, 756 were prejudiced insofar as he was forced to
(5th Cir. 1991) (citing United States v. Garcia, decide whether to testify in his own defense
917 F.2d 1370, 1374 (5th Cir. 1990)).30 before he received a copy of Pacheco’s report.
Holmes claims that the central defense theory
B. of the case turned on proving that someone in
The district court rejected Holmes’s post- the clerk’s office had back-dated (without his
trial claim holding that he failed to demon- knowledge or encouragement) the petition he
strate prejudice to his substantial rights be- had brought as a reference; but because he was
cause defense counsel had ample time to re- unaware of the existence of Pacheco’s written
view the report, make Holmes aware of its summary of the interview where he had ex-
contents, and prepare him for any questions plained this story, he felt forced to testify.
concerning the report on cross-examination.31
Moreover, the district court characterized as As a threshold matter, there is no merit to
disingenuous Holmes’s claim that the delayed Holmes’s suggestion that had he known about
Pacheco’s written summary of his interview he
could have relied solely on that report, could
29
(...continued) have refrained from taking the stand, and still
petition to the Clerk’s office so that they could would have adequately presented his defense
see what petition he was talking about. theory to the jury. Pacheco’s written summary
is not sufficient by itself to present Holmes’s
30
See also United States v. Johnson, 127 F.3d “go-by” theorySSit states that Holmes claimed
380, 391 (5th Cir. 1997) (“Delayed production is to have brought a “copy” of the petition to the
not in and of itself grounds for reversal of convic- clerk’s office; it does not, however, explain
tion. Prejudice to the substantial rights of a defen- why this “copy” was signed and printed as an
dant is required before reversal of conviction is original. Indeed, it was only when Holmes
warranted.”).
testified on direct examination that the jury
31
The district court determined that “there ap- was treated to his explanation for this seeming
pears to be no dispute that the Pacheco Report was irregularity:
provided to defense counsel during the trial but
before the defense had started to present any evi- Q: Ordinarily, how do you handle your
dence.” Holmes’s brief, however, suggests that the copies, copies of petitions that are in
report was not disclosed until after a break taken your file?
during the course of Holmes’s direct testimony.

16
 A: I sign them. indicated that the delayed disclosure of a
report within rule 16’s mandate of disclosure
Q: Why? may be prejudicial if a defendant has to decide
whether to testify before becoming aware of
A: I like signing my names [sic] toSSon the statement’s particulars,33 Holmes cannot
the pleadings. I just like doing it. credibly suggest that he would not have testi-
fied had the government produced the docu-
Moreover, Pacheco’s written summary of ment in a timely manner. Absent such preju-
Holmes’s statement is wholly insufficient to dice, the delayed disclosure is not reversible
provide an exculpatory answer to any of the error.
other critical questions in this case, questions
that only Holmes was competent to testify VII.
about. Only he could testify to the alleged Holmes challenges the denial of his motion
preparation of the petition and envelope on for a new trial based on newly-discovered
May 6, 1996, which he claims to have done evidence. We reject his claim.
alone; or the alleged mailing of that (still un-
discovered) petition. Only he could explain A.
what he actually was inquiring of Gomez, who Holmes points to the deposition of Claude
testified that Holmes asked her to back-date Hildreth, a private investigator, taken during
and file a pleading; or the many occasions on discovery in the legal malpractice suit. Holmes
which he claims to have gone (although no contends that Hildreth’s deposition testimony
other witness was able to corroborate these reveals that he was instructed by Hole and
periodic stops) to the clerk’s office to inquire Alvarez to contact Hector and Felipa Gonzalez
about his missing petition; or why he told Ale- and to inform them of Holmes’s misconduct
man’s lawyer and insurance adjustor he was related to the filing of their medical
going to file the suit “today” on May 14, 1996, malpractice lawsuit. According to Holmes, this
if he had in fact already mailed a petition and
was referring only to the filing of an expert
report; or why, if he had in fact mailed an 32
(...continued)
earlier petition, he did not style the petition post-trial motions hearing about the delayed disclo-
filed on May 14, 1996, “First Amended Peti- sure and its impact, if any, on trial strategy:
tion” or something similar.
Q: Would your strategy about putting Lassi-
It is therefore implausible to credit ter Holmes on the stand have changed?
Holmes’s suggestion that timely disclosure of
Pacheco’s written summary of his interview A: Probably Not.
would have rendered Holmes’s testimony un- 33
See, e.g., United States v. Gonzalez, 967
necessary such that the delay prejudiced his F.2d 1032, 1036 (5th Cir. 1992) (rejecting claim
substantial rights.32 Thus, although we have for lack of prejudice where particulars of statement
became known prior to decision about whether to
testify); United States v. Arcentales, 532 F.2d
32
Our conclusion is bolstered by the testimony 1046, 1050 (5th Cir. 1976) (“We think it highly
of Holmes’s own trial counsel when asked at the significant that the inculpatory statement became
(continued...) known during the government’s case-in-chief.”).

17
testimony contradicts Hole’s and Alvarez’s dence would probably produce an acquittal.
testimony and lends credence to Holmes’s See United States v. Freeman, 77 F.3d 812,
theory that Hole and Alvarez “were pursuing 816 (5th Cir. 1996) (citing Berry v. Georgia,
a vendetta against him.” 10 Ga. 511 (1851)).

Alvarez testified that she felt precluded as C.
a matter of professional ethicsSSgiven her role Holmes cannot satisfy these standards.
as opposing counsel in the underlying medical Leaving aside the question of diligence,34
malpractice suitSSfrom contacting Hector and whether a private investigator caused Hector
Felipa Gonzalez to relate the truth about their Gonzalez to contact Alvarez, and whether the
lawsuit. She did, however, testify that she investigator was directed to do so by Hole or
“felt obliged” to write a letter to the editor of Alvarez, do not bear on whether Holmes com-
a local McAllen newspaper setting out then- mitted the charged offenses. Indeed, as the
mayoral candidate Bobby Garcia’s involve- district court noted, “even if Mr. Hole did ev-
ment in and awareness of Holmes’s conduct in erything in his power to ensure that Mr. Gon-
the underlying medical malpractice suit after zalez brought a legal malpractice claim against
viewing a campaign advertisement portraying [Holmes], this fact could not affect [Holmes’s]
him as “the candidate . . . who stood for . . . guilt or innocence.”
good ethical practice and honesty and integrity
in the mayor’s office.” It was after reading To be sure, Hildreth’s testimony would
this letter to the editor, Hole testified, that have provided some support to Holmes’s claim
Hector and Felipa Gonzalez contacted his that Hole had a vendetta against him.
office, and it was only then that Alvarez Nevertheless, insofar as this evidence only
referred them to an attorney to pursue a legal casts doubt on the veracity of Hole’s and
malpractice suit against Holmes. Alvarez’s testimony regarding their contact
with Hector and Felipa Gonzalez and demon-
B. strates a bias on the part of HoleSSstandard
We review the denial of a motion for new methods of impeachmentSSit is merely im-
trial for abuse of discretion, see, e.g., United peachment evidence, and therefore insufficient
States v. Blackthorne, 378 F.3d 449, 452 (5th to entitle Holmes to a new trial. See, e.g.,
Cir. 2004), and we subject new trial motions Blackthorne, 378 F.3d at 454–55. In any
based on newly-discovered evidence to “an event, given the substantial evidence support-
unusually stringent substantive test,” United
States v. Ugalde, 861 F.2d 802, 808 (5th Cir. 34
1988). Namely, under the so-called Berry The government contends that Holmes was
rule, a defendant is not entitled to a new trial not diligent in acquiring this evidence, noting that
Holmes has failed even to identify when he became
on the basis of newly-discovered evidence un-
aware of Hildreth’s testimony. Moreover, the
less he demonstrates that (1) the evidence is government contends that because the legal mal-
newly discovered and was unknown to him at practice suit against him has been pending in state
the time of trial; (2) the failure to discover the court since 2001, whereas the instant criminal
evidence was not due to his lack of diligence; action was not indicted until July 2002 and not
(3) the evidence is not merely cumulative or tried until January 2003, Holmes (in defending the
impeaching, but is material; and (4) the evi- civil suit) could have deposed Hole, Alvarez, and
Hildreth before his criminal trial.

18
ing the verdict beyond the testimony of Hole claims of ineffective assistance,36 the court
and Alvarez, this impeachment evidence does faulted Holmes for trying to “have it both
not have any tendency to undermine the out- ways,” i.e., “using a deliberate, reasonable
come. strategy at trial, and then relying on that same
strategy as grounds for a new trial.”
VIII.
Holmes contends that his trial counsel pro- B.
vided ineffective assistance under the Sixth Holmes charts a different tack on appeal.
Amendment. This assertion is without merit. He now faults counsel for, as his brief puts it,
deciding to be “‘Mr. Nice Guy’ . . . agreeable
A. to everybody except his client.” He claims
Holmes advanced his ineffective assistance that counsel (1) without objection allowed the
claim in an amended motion for new trial in case to be tried in Houston as opposed to Mc-
which he faulted counsel for failing to object Allen or Laredo, and then lied to Holmes
to (1) the government’s use of the Pacheco about the circumstances of the Houston venue
report on cross-examination; and (2) various selection;37 (2) failed to conduct a proper in-
instances of alleged prosecutorial misconduct. vestigation of certain “important materials”;38
After a hearing, the district court denied relief, and (3) subjected Holmes to “outrageous and
finding that Holmes had failed to satisfy even improper cross-examination covering as much
the first requirement of Strickland v. Washing-
ton, 466 U.S. 668 (1984)SSnamely, that coun-
36
sel’s performance was deficient. See, e.g., Cotton v. Cockrell, 343 F.3d 746,
752–53 (5th Cir. 2003) (“A conscious and in-
The court referenced an affidavit of trial formed decision on trial tactics and strategy cannot
be the basis for constitutionally ineffective assis-
counsel submitted with Holmes’s motion35 that
tance of counsel unless it is so ill chosen that it
characterized the failure to object to certain
permeates the entire trial with obvious unfair-
perceived errors as deliberate trial strategy. ness.”) (quoting United States v. Jones, 287 F.3d
Relying on our precedent foreclosing reliance 325, 331 (5th Cir. 2002) (quoting Garland v. Mag-
on informed tactical decisions except in the gio, 717 F.2d 199, 206 (5th Cir. 1983))).
most exceptional circumstances as a basis for
37
Although counsel informed the court that
Holmes preferred to be tried in McAllen, Holmes
alleges that counsel nevertheless told the court that
there was no objection to venue in Houston after
the prosecutor informed the court that he was
35
Trial counsel’s affidavit provides, in part: based in Houston. Holmes further alleges that
counsel lied to him when he said that the Houston
During the cross-examination of my client I had venue selection was decided by order of the court.
to make several tactical decisions. One of
38
which was whether I would object to certain Holmes refers to (1) a report by his former
questions propounded to my client that I felt attorney, Joe Connors, made in preparation for a
were improper. I decided I would not object potential state criminal prosecution before the fed-
because my client was a lawyer. I felt my con- eral indictment was handed down; and (2) an ex-
stant objecting might hurt the jury’s view of pert opinion prepared by an attorney on the statute
him and his credibility. of limitations question.

19
as seven or eight hours over a period of two district court based on counsel’s failure to
days.” object to various instances of prosecutorial
misconduct, we reject Holmes’s claim. His
Because Holmes did not present to the dis- briefing on this issue is devoid of serious
trict court his claims concerning counsel’s analysis. He does not address the district
handling of venue and failure to investigate, court’s findings regarding trial counsel’s ap-
we must determine as a threshold matter parent deliberate strategy of passivity. Nor
whether to address these claims. Our control- does he provide even a single citation to even
ling precedent generally precludes review on a single example of improper cross-examina-
direct appeal of ineffective assistance claims in tion by the prosecutor and a possible valid ob-
the absence of presentment to the district court jection counsel could have raised. Instead,
and an adequately developed record. See, e.g., Holmes merely concludes that counsel’s per-
United States v. Navejar, 963 F.2d 732, 735 formance constitutes “an utter perversion of
(5th Cir. 1992).39 the attorney-client relationship.”

Although the record does contain testimony This bare assertion will not suffice. To
at the post-trial hearing on the question of ven- succeed on his ineffective assistance claim,
ue and on counsel’s failure to investigate Holmes bears the burden of demonstrating that
certain materials, these claims were not pre- counsel’s performance was deficient and that
sented to the district court as grounds for re- the deficient performance prejudiced his
lief. Because the record o n these issues is defense. Holmes cannot escape this burden
incomplete and inadequate for proper appellate merely by stating his conclusion. “Mere con-
review, we decline to reach them. We also clusory allegations in support of a claim of in-
express no opinion as to their merit vel non. effective assistance of counsel are insufficient
to raise a constitutional issue.” Green v. John-
To the extent, however, that Holmes’s son, 160 F.3d 1029, 1042 (5th Cir. 1998).
complaints regarding cross-examination and
counsel’s passivity overlap and restate the IX.
claim actually developed and presented to the A.
The presentence report (“PSR”) grouped
the two counts of conviction and applied the
39
See also Massaro v. United States, 538 U.S. 1998 version of the sentencing guidelines. The
500, 504–05 (2003) (“[I]n most cases, a motion PSR scored Holmes at a base offense level of
brought under § 2255 is preferable to direct appeal 10 under U.S.S.G. § 2C1.7 and enhanced his
for deciding claims of ineffective-assistance. When offense level by eight levels because the
an ineffective-assistance claim is brought on direct offense involved an elected official or official
appeal, appellate counsel and the court must
holding a high-level decision-making or
proceed on a trial record not developed precisely
for the object of litigating or preserving the claim
sensitive position pursuant to U.S.S.G. §
and thus often incomplete or inadequate for this 2C1.7(b)(1)(B), for a total offense level of 18.
purpose.”); United States v. Cornett, 195 F.3d Holmes had a criminal history score of I,
776, 781 n.2 (5th Cir. 1999) (“[A]n ineffective yielding a punishment range of 27 to 33
assistance of counsel argument should not be raised months’ imprisonment.
for the first time on appeal except in rare cases
where the record is fully developed.”).

20
 The government filed a written objection to
the PSR’s failure to recommend a two-level
41
enhancement for obstruction of justice pursu- (...continued)
ant to U.S.S.G. § 3C1.1, because Holmes had received a phone call from the Clerk’s Office,
falsely testified under oath during his trial. possibly from Mrs. Gonzalez herself stating
The court sustained the objection. Thus, that the petition had been found bearing the
Holmes’s offense level was increased to 20, May 7th date.
yielding a range of 33 to 41 months. The
Fourth, the testimony that Mr. Holmes
court sentenced Holmes to concurrent 33-
asked unnamed clerks to look for the ‘missing’
month terms and three years’ supervised
petition and finally gave a signed copy of the
release.40 quote, ‘missing petition’ to the Clerk’s Office
as a go-by.
A few days later, the court held a telepho-
nic conference with all counsel and Holmes. The Court also finds that there were nu-
As the transcript of the call reveals, the court merous misstatements made about how the
“wanted to revisit the obstruction of justice check number found its way onto the May 7th
enhancement . . . to make absolutely sure that petition. At trial, for example, Mr. Holmes said
the Court had been sufficiently specific about he put the check number on the file copy at the
the statements that the Court believes to be same time that he signed it.
perjurious.” The court thus systematically
identified each of the statements it found to be In his deposition Mr. Holmes stated he
false and therefore to be providing the basis wrote the check number on the petition eight
months earlier, when the petition was already in
for t he two-level enhancement. 4 1
the possession of the Clerk’s Office. This ex-
planation, of course, became impossible once
the watermark evidence came to light.
40
The district court further ordered Holmes to
pay a $5,000 fine for each count of conviction and At trial Mr. Holmes attempted to disavow
a special assessment of $200. his deposition testimony by stating that he was
confused because Mr. Ron Hole, had made an
41
The transcript reads, in pertinent part, as unclear copy of the petition. Therefore, his tes-
follows: timony about the filing-fee dispute supposedly
pertained to a different case.
The Court finds and holds that the follow-
ing statements do meet [the] criteria for perjury: However, Mr. Holmes repeatedly stated
during the course of the deposition that the
The testimony by Mr. Holmes that he deposition was supposed to be limited to the
mailed an original petition on May 6, 1996. topic of the May 7th document and the filing of
the document, and he refused to answer, re-
The testimony that on May 14th, 1996, peatedly, questions that he considered off-topic.
Mr. Holmes asked the clerks to look up the
cause number on the case, and when they could- Therefore, the Court finds that he could
n’t find it, he filed the second petition. not possibly have thought that the testimony
about the filing-fee dispute pertained to a dif-
Thirdly, the testimony that Mr. Holmes ferent case.
(continued...) (continued...)

21
 B. tion to the clerk’s office as a go-by nor his
In his initial brief on appeal, Holmes, on claim to have mailed the original petition on
two grounds, challenges as clear error the May 6, 1996, was controverted by the evi-
two-level sentencing enhancement for dence at trial. These claims were apparently
obstruction of justice. First, he avers that unconvincing to the jury, and there is more
certain statements found to be false by the than ample evidence supporting the district
district court are not so; and second, he asserts court’s determination that these statements,
that, even if false, his deposition testimony among others, were false. This is particularly
cannot not form the basis for the perjury true given that Holmes was the key witness in
enhancement, because the deposition was his own defense, setting his own story of the
taken before any official investigation. events in question against the entirety of the
government’s case, and therefore the district
1. court’s perjury conclusion is based substan-
“We review a district court’s finding of tially on a determination about Holmes’s
obstruction of justice for clear error.” United credibility.42
States v. Powers, 168 F.3d 741, 752 (5th Cir.
1999). “A factual finding is not clearly erro- X.
neous as long as it is plausible in light of the This does not, however, end the sentencing
record as a whole.” Id. (quoting United States inquiry. During the pendency of this appeal,
v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998)). the Supreme Court decided United States v.
“This is particularly true where a sentencing Booker, 125 S. Ct. 738 (2005), and Holmes
court’s imposition of a § 3C1.1 enhancement has raised, in supplemental briefing, a consti-
is based, at least in part, upon an evaluation of tutional challenge, asserting that his sentence
a witness’ credibility.” Id. (citing Johnson v. is infirm because it was enhanced based on
Collins, 964 F.2d 1527, 1532 (5th Cir. 1992)). (1) a judicial finding that his offense involved
an elected official under U.S.S.G. § 2C1.7(b)-
(1)(B) and (2) a judicial finding that he ob-
2. structed justice by committing perjury under
Holmes attempts to show clear error by es- U.S.S.G. § 3C1.1.
sentially repeating his version of the events in
question, maintaining that neither his claim to A.
have brought the ultimately back-dated peti- Holmes did not object to his sentence on
Sixth Amendment grounds in the district court,

41
(...continued)
42
Further, if the trial-story told by Mr. Because the district court’s findings that
Holmes at trial were true, Mr. Holmes should Holmes lied at trial about, inter alia, mailing the
have known he was looking at the ‘go-by’ as petition on May 6, 1996, and having given the
soon as he saw the check number, because he back-dated petition to someone in the clerk’s office
did not write that on the original, only on his as a “go-by” are not clearly erroneous, we need not
own file copy, which became the go-by. resolve Holmes’s further claim that any false
statements from his deposition testimony cannot
So I believe all of these statements were properly form the basis of an obstruction of justice
and are false. enhancement.

22
so our review is for plain error. See, e.g., C.
Booker, 125 S. Ct. at 769; United States v. Holmes next contends that the two-level
Mares, 2005 U.S. App. LEXIS 3653, at *22 enhancement for obstruction of justice based
(5th Cir. Mar. 4, 2005). Under plain error re- on his perjury at trial under U.S.S.G. § 3C1.1
view, we may not correct an error not raised in is error under Booker because the jury was
the district court unless there is (1) an error; never presented with the question whether he
(2) that is plain; and (3) that affects substantial obstructed justice. Insofar as the jury was not
rights. See, e.g., Johnson v. United States, specifically asked and instructed to find be-
520 U.S. 461, 466–67 (1997). “If all three yond a reasonable doubt (as is required with
conditions are met, an appellate court may the elements of charged offenses) whether
then exercise its discretion to notice a forfeited Holmes committed perjury while on the stand,
error, but only if (4) the error seriously and thus obstructed justice, imposing this
affect[s] the fairness, integrity, or public repu- enhancement under a mandatory guidelines
tation of judicial proceedings.” Id. at 467 (al- regime was error under the Sixth Amend-
ternation in original) (internal quotation marks ment.44
omitted) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
43
(...continued)
B. Q: And she is the district clerk?
Holmes first contends that the eight-level
enhancement for an offense involving an elect- A: Yes, sir.
ed-official under U.S.S.G. § 2C1.7(b)(1)(B) is
error under Booker. He contends that the jury Or consider the closing jury argument where de-
fense counsel put the following question to the jury:
verdict alone did not find that Pauline
“Why would Pauline Gonzalez, respected in that
Gonzalez was an elected official. This is
community . . . [and] elected for at least two
frivolous. Holmes admitted as much at trial, decades to public office, risk her public reputation,
and that is all Booker requires.43 her public office, and her freedom for nothing?”
44
Accord Blakely, 124 S. Ct. at 2540 n.11
43
Consider, for example, Holmes’s testimony (“Why perjury during trial should be grounds for a
on direct examination when asked to whom he judicial sentence enhancement on the underlying
addressed the envelope in which he claims to have offense, rather than an entirely separate offense to
mailed the “original” May 6, 1996 petition: be found by a jury beyond a reasonable doubt (as
it has been for centuries, see 4 W. BLACKSTONE,
Q: Would you have mailed it to Pauline Gon- COMMENTARIES ON THE LAWS OF ENGLAND
zalez or Hidalgo County District Clerk’s 136–38 (1769)), is unclear.”). The Eleventh Cir-
Office? cuit has recently suggested, in dictum, that an ob-
struction of justice enhancement imposed on a de-
A: No, it would have been to her. fendant who took the stand and falsely denied his
guilt may not be Booker error, “because the jury
Q: Why? verdict convicting [him] of the crimes he denied
necessarily, albeit implicitly, found that he had en-
A: Because everything is addressed to the gaged in behavior that fits within § 3C1.1.” Unit-
district clerk. ed States v. Rodriguez, 398 F.3d 1291, 1298 n.5
(continued...) (continued...)

23
 Because there was error, the second prong
of plain error review requires us to determine
44
(...continued) whether the error was plain. Johnson, 520
(11th Cir. 2005). Having found beyond a reason- U.S. at 467. Although the error was not
able doubt that the back-dating and filing of the pe- “plain” at the time of sentencing, it is now
tition was the object and consequence of an illicit plain in light of Booker.45
conspiracy, the jury in the instant case, it could be
said, necessarily found that Holmes was lying when We therefore turn to the third prong of
he testified that he had provided that petition to the
plain error review: whether the error affects
clerk’s office as a go-by during the search for the
substantial rights, which “means that the error
alleged “missing petition.”
must have been prejudicial: It must have af-
Though we agree that the jury necessarily re- fected the outcome of the district court pro-
jected the veracity of Holmes’s story, the sentenc- ceedings.” Olano, 507 U.S. at 734. And “[i]t
ing enhancement imposed by the district court is the defendant rather than the Government
based on its determination that he committed per- who bears the burden of persuasion with re-
jury cannot be saved from a finding of constitution- spect to prejudice.” Id.46
al error under Booker by reference to the jury’s
guilty verdict on the charged offenses. A finding of To carry this burden, a defendant must
perjury within the meaning of U.S.S.G. § 3C1.1 show “‘a reasonable probability that, but for
requires more than a conclusion that the defen-
dant’s story of events is not credible; indeed, the
Supreme Court has given meaning to the term 44
(...continued)
“perjury” for guidelines purposes by borrowing the ment, there is more than ample evidence in the
elements of perjury from the federal perjury stat- record to support the district court’s thorough per-
ute. See United States v. Dunnigan, 507 U.S. 87, jury findings. Nevertheless, because the enhance-
94 (1993) (“In determining what constitutes per- ment was imposed under mandatory guidelines and
jury, we rely upon the definition that has gained the jury was not specifically asked and instructed
general acceptance and common understanding to find beyond a reasonable doubt whether Holmes
under the federal criminal perjury statute, 18 had committed perjury based on the foregoing
U.S.C. § 1621.”); id. (“A witness testifying under elements, there is Booker error. So although we
oath or affirmation violates this statute if she gives harbor little doubt that, if so asked and instructed,
false testimony concerning a material matter with the jury would have reached the same conclusion as
the willful intent to provide false testimony, rather the district courtSSi.e., tha t Holmes committed
than as a result of confusion, mistake, or faulty perjurySSthe requisite findings cannot be projected
memory.”) (citing 18 U.S.C. § 1621(1)). As a re- onto the jury’s guilty verdict to cure the constitu-
sult, the Court has required district courts to make tional error.
a finding of obstruction of justice “that encompass-
es all of the factual predicates for a finding of per- 45
See id. at 468 (“[W]here the law at the time
jury,” or, when faced with a defendant’s objection of trial was settled and clearly contrary to the law
to a perjury enhancement, “to address each element at the time of appeal[,] it is enough that the error be
of the alleged perjury in a separate and clear find- ‘plain’ at the time of appellate consideration.”).
ing.” Id. at 95.
46
See also United States v. Dominguez Benitez,
As we indicated with respect to Holmes’s initial 124 S. Ct. 2333, 2340 (2004) (“[T]he burden of
nonconstitutional challenge to the perjury enhance- establishing entitlement to relief for plain error is
(continued...) on the defendant claiming it . . . .”).

24
[the error claimed], the result of the proceed- Holmes attempts to demonstrate prejudice
ing would have been different.’” Dominguez by quoting the following statement apparently
Benitez, 124 S. Ct. at 2339 (alteration in made by the district judge at sentencing:
original) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). “A defendant must Those who practice in my court have heard
thus satisfy the judgment of the reviewing me say many times that I generally think the
court, informed by the entire record, that the guidelines provide punishments that are far
probability of a different result is ‘sufficient to too harsh. . . . I also think that I took an
undermine confidence in the outcome.’” Id. at oath to apply the law faithfully. And I
2340 (quoting Washington, 466 U.S. at 694). don’t have a free-ranging portfolio to ig-
nore the sentencing table.
In assessing whether a defendant has car-
ried his burden of showing prejudice, we must, The problem for Holmes is that he failed to in-
as this court in Mares and the Eleventh Circuit clude in the record on appeal the transcript of
in Rodriguez have cogently explained, keep in that hearing.48 As a result, even if the alleged
mind precisely what isSSand thus what is quoted statement constituted a sufficient basis
notSSerror under Booker. The precise Sixth for Holmes to carry his burden of demonstrat-
Amendment error identified in Booker is not ing prejudice (a question we do not answer), it
the use of extra-verdict enhancements that is not in the record on appeal and thus cannot
increase a sentence; the constitutional error is
that extra-verdict enhancements were being
used under mandatory guidelines. See Mares,
2005 U.S. App. LEXIS 3653, at *27; Rodri- 47
(...continued)
guez, 398 F.3d at 1300.
the sentencing judge’s remarks or otherwise that
gives us any clue as to whether she would have
Thus, in applying the third prong, “the reached a different conclusion. Under these cir-
pertinent question is whether [the defendant] cumstances the defendant cannot carry his burden
demonstrated that the sentencing of demonstrating that the result would have likely
judgeSSsentencing under an advisory scheme been different had the judge been sentencing under
rather than a mandatory oneSSwould have the Booker advisory regime rather than the pre-
reached a significantly different result.” Booker mandatory regime.”); see also Jones v.
Mares, 2005 U.S. App. LEXIS 3653, at *27- United States, 527 U.S. 373, 394–95 (1999)
*28. Absent some indication in the record that (“Where the effect of an alleged error is so uncer-
the outcome would have been different if the tain, a defendant cannot meet his burden of show-
district court had been operating under an ing that the error actually affected his substantial
advisory system, a defendant fails to carry his rights.”).
burden of demonstrating prejudice and there- 48
Instead, he included only (as relevant here)
fore that the error affected his substantial the transcript from the December 17, 2003, tele-
rights.47 phonic conference in which the court specified its
rationale for its previous decision to impose the en-
hancement; but, critically, the transcript from this
47
See Mares, 2005 U.S. App. LEXIS 3653, at conference reveals no similar statements by the
*28 (“[T]here is no indication in the record from district judge about being bound by the mandatory
(continued...) guidelines to apply a sentence he deemed so severe.

25
form the basis for a finding of prejudice.49 Nor
has Holmes identified any other basis in the
record to suggest that the outcome would
have been different if the district court had
been operating under an advisory guidelines
system. Holmes has therefore failed to carry
his burden as to the third prong of the plain
error test.

There is no reversible error in the con-
viction and no plain error in the sentence. The
judgments of conviction and sentence are
AFFIRMED.

49
See FED. R. APP. P. 10(b)(1)(A) (stating that
the appellant must order “transcript of such parts
of the proceedings not already on file as the ap-
pellant considers necessary”); United States v.
Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992) (“We
are unable to consider [defendant’s sentencing
challenge] because [he] has not provided this Court
with a record of the sentencing hearing, and no
justification is given for not doing so.”); Brookins
v. United States, 397 F.2d 261, 261 (5th Cir.
1968) (“This appellate court ‘[C]an only take the
record as it finds it, and cannot add thereto, or go
behind, beyond, or outside it, and it will not prose-
cute and independent inquiry’ as to what happened
in the lower court . . . .”) (quoting 4A CORPUS
JURIS SECUNDUM, APPEAL AND ERROR § 1206, at
1333)); United States v. Narvaez, 38 F.3d 162,
167 (5th Cir. 1994) (“It is the appellant’s responsi-
bility to order parts of the record which he con-
tends contain error and his failure to do so prevents
us from reviewing this assignment of error.”); id.
(“As the district court relied upon such evidence
and as [defendant] failed to order that portion of
the record, this court is precluded from reviewing
his allegation.”); United States v. Johnson, 584
F.2d 148, 156 n.18 (6th Cir. 1978) (“It is the
responsibility of appellants to insure inclusion in
the record of all trial materials upon which they
intend to rely on appeal.”).

26