United States v. Holliman ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 22, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-20014
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN G. HOLLIMAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-411-3
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Allen G. Holliman (“Holliman”) appeals his jury-trial
conviction and sentence for conspiracy to commit bank fraud and
four counts of bank fraud and aiding and abetting bank fraud.
Holliman raises five issues on appeal. First, Holliman argues that
the district court abused its discretion by excluding the testimony
of an expert offered by Holliman’s co-defendant. Assuming arguendo
that the district judge abused his discretion in excluding the
*
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that this opinion should not be published and is not precedent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. 02-20014
-2-
expert’s testimony, we believe such an error was harmless, as “the
trier of fact would have found the defendant guilty beyond a
reasonable doubt with the additional evidence inserted.” United
States v. Lueben, 812 F.2d 179, 186 n.7 (5th Cir. 1987).
Second, Holliman asserts that the district court plainly erred
in allowing hearsay testimony of communication that was not “in
furtherance of” the conspiracy. Although the hearsay testimony
consisted of statements that were not made in furtherance of the
conspiracy, the admission of the testimony was not plain error and
did not affect Holliman’s substantial rights, as similar statements
in furtherance of the conspiracy had been properly admitted. See
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002); United
States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999).
Third, Holliman argues that the district court abused its
discretion in refusing to grant a mistrial based upon the testimony
of an FBI agent that Holliman obstructed justice. Viewed in light
of the entire record, there is not a significant possibility that
the prejudicial testimony had a substantial impact upon the jury
verdict. See United States v. Layne, 43 F.3d 127, 134 (5th Cir.
1995).
Fourth, Holliman asserts that the district court erred in
finding that he obstructed justice and adjusting his offense level
pursuant to U.S.S.G. § 3C1.1. The district court correctly found
that Holliman’s conduct fell within conduct included under
Application Note 4(c) of § 3C1.1 and constituted obstruction of
No. 02-20014
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justice. See United States v. Martinez, 263 F.3d 436, 441-42 & n.3
(5th Cir. 2001).
Finally, Holliman argues that the district court erred by
failing to instruct the jury that the amount of the loss was an
element of the offense that had to be found by the jury beyond a
reasonable doubt. The district court properly overruled Holliman’s
objection, as only facts that increase the penalty for a crime
beyond the statutory maximum must be submitted to the jury and
proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S.
466, 489 (2000); United States v. Wilson, 249 F.3d 366, 380 (5th
Cir. 2001).
AFFIRMED.