United States v. Jordan ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10038
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONTOYA JORDAN; LEWIS HENRY ANTHONY,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-117-6-A
--------------------
May 13, 2002
Before REAVLEY, SMITH, and DENNIS, Circuit Judges
PER CURIAM:*
Montoya Jordan and Lewis Henry Anthony have appealed their
jury convictions of conspiracy to possess and possession of stolen
mail, and bank fraud. We AFFIRM.
Appellants’ contention that the evidence was insufficient to
support their convictions, based principally on the alleged
unreliability of the accomplice testimony, is without merit. See
United States v. Robles-Pantoja, 887 F.2d 1250, 1254-55 (5th Cir.
1989).
*
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that this opinion should not be published and is not precedent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. 01-10038
-2-
Anthony argues that the district court abused its discretion
by admitting into evidence his prior conviction of bank fraud.
This evidence was admissible because it was relevant to issues
other than Anthony’s character; its probative value was not
substantially outweighed by its prejudicial effect; and it met the
other requirements of FED. R. EVID. 403. See FED. R. EVID. 404(b);
United States v. Richards, 204 F.3d 177, 199-201 (5th Cir.), cert.
denied, 531 U.S. 826 (2000).
Jordan contends that the district court’s admission into
evidence of an undercover police officer’s testimony entitles him
to reversal, although the court struck the testimony because of a
discovery violation and instructed the jury to disregard it.
Jordan’s contention lacks merit because his counsel expressed
satisfaction with the district court’s limiting instruction; there
was no motion for a mistrial; and the court did not commit plain
error. See United States v. Norris, 780 F.2d 1207, 1212 (5th Cir.
1986).
The district court did not abuse its discretion by sustaining
the Government’s objection to a question by Anthony’s counsel on
cross-examination of a postal inspector, who testified to the chain
of custody of forged checks and other items sent to a laboratory
for fingerprint analysis. The question, whether Anthony had
voluntarily provided a handwriting specimen, clearly exceeded the
scope of direct examination; and Anthony has not shown that the
district court’s ruling resulted in any prejudice to his defense.
See FED. R. EVID. 611(b); United States v. Route, 104 F.3d 59, 64
(5th Cir. 1997).
No. 01-10038
-3-
Contrary to Jordan’s next contention, there was ample evidence
which proved that the offenses were committed in the Northern
District of Texas, as alleged in the indictment. See United States
v. Carreon-Palacio, 267 F.3d 381, 391-93 (5th Cir. 2001).
Anthony contends that he was denied a fair trial as a result
of the district court’s erroneous evidentiary rulings, considered
both individually and cumulatively. This lacks merit because
Anthony has not shown that any such errors were made by the
district court. See United States v. Lindell, 881 F.2d 1313, 1327
(5th Cir. 1989).
Anthony asserts that the district court reversibly erred by
ordering him to pay restitution to two financial institutions which
lost money as a result of cashing forged checks. It was proper,
however, for the court to base its order of restitution on either
Anthony’s conviction of conspiracy to possess checks stolen from
the mail or his conviction of bank fraud. See 18 U.S.C. § 3663A;
United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998).
Anthony now contends, for the first time, that some of the
losses claimed by the banks did not occur within the time periods
alleged in the indictment. However, he would not be entitled
to relief on this new claim unless he could show plain error. See
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.), cert.
denied, 531 U.S. 972 (2000). “Questions of fact capable
of resolution . . . at sentencing [such as this] can never
constitute plain error.” United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991); accord United States v. Chung, 261 F.3d 536, 539
No. 01-10038
-4-
(5th Cir. 2001). Thus Anthony is not entitled to any relief
relative to the restitution order.
The judgments of conviction of Lewis Henry Anthony and Montoya
Jordan are due to be, and they are hereby, AFFIRMED in all
respects.
AFFIRMED.