United States v. Holmes

United States Court of Appeals
Fifth Circuit
F I L E D
April 6, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
W. Lassiter Holmes, III, an attorney prac-
ticing in McAllen, Texas, was convicted of
mail fraud and conspiracy to commit mail
fraud, stemming from a scheme he executed
with Pauline Gonzalez, who at the time was
the District Clerk of Hidalgo County, Texas,
to back-date and file a fraudulent original peti-
tion in a medical malpractice suit Holmes was
handling, for purposes of avoiding a statute of
limitations bar. Holmes challenges his convic-
tion and sentence on eight grounds. Finding
no reversible error with respect to his con-
viction and no plain error with respect to his
sentence, we affirm.
I.
Holmes was retained in 1994 to represent
Hector and Felipa Gonzalez in a medical mal-
practice suit after Hector Gonzalez suffered
the loss of a kidney from the alleged negli-
gence of Dr. Miguel Aleman. Over the course
of the next two years, Holmes worked sporad-
ically on the case, seeking relevant medical

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2
records and attempting to procure an expert
report. In May 1996, Holmes realized that the
statute of limitations on the tort claims would
soon expire.1
On May 14, 1996, Holmes filed a pleading
styled “Plaintiff’s Original Petition” with the
Hidalgo County District Clerk’s Office. A let-
ter from an expert witness, bearing the same
date, was attached. Holmes paid the required
filing fee ($183.00) with a check (#1361)
drawn from his law firm and likewise dated
May 14, 1996. The clerk’s office opened a
new case file, assigned a new cause number,
and date-stamped the petition May 14, 1996.
That same day, Holmes personally delivered a
copy of the petition to Aleman’s attorney, Ron
Hole, and faxed a copy to Ross.
Although the parties took discovery, the
suit remained largely dormant for three years,
but on May 3, 1999, Hole received a letter
from Bobby Garcia, an attorney Holmes had
brought in to work on the Gonzalez suit, seek-
ing to settle the case for $3.5 million. Several
days later, on May 8, 1999, the parties attend-
ed a court-ordered mediation.
During the course of the mediation, the me-
diatorSSconducting shuttle-diplomacy between
the partiesSSapproached Hole and his partner
Micaela Alvarez, both of whom were
representing Aleman, and inquired whether
they planned to make a settlement offer. They
said no. The mediator admonished them to
reconsider, telling them they were “barking up
the wrong tree” if they thought they had a lim-
itations defense. (Hole had asserted a limita-
tions defense in his answer to the May 14,
1996, petition, but never urged it during dis-
covery.) Specifically, the mediator told the
defense what Holmes had relayed to her mo-
ments before: He had mailed an original peti-
tion before filing the May 14, 1996, petition,
and he had an envelope to prove it.
Because this was the first time the issue of
an earlier, mailed petition had been raised,
Hole and Alvarez went to the clerk’s office on
May 10, 1999. They examined the case file for
the suit filed by Hector Gonzalez against
Aleman and found no indication that a petition
had been filed in advance of the petition that
was date-stamped May 14, 1996.
On May 11, 1999, Hole moved for sum-
mary judgment raising, inter alia, the defense
that limitations had run on May 11, 1996, but
suit was not initiated until May 14, 1996. The
next day, May 12, 1999, Holmes sent the fol-
lowing letter by fax to Pauline Gonzalez,2 the
then-elected District Clerk for Hidalgo Coun-
ty:
Dear Ms. Gonzalez:
Upon May 7,1996 I mailed a petition
style [sic] Hector and Felipa Gonzalez vs.
Dr. Miguel Aleman. It has come to my at-
tention that the petition was never made
part of the record.
Could you please conduct an investi-
1 Holmes relayed this point to Richard Ross, the
insurance adjustor assigned to handle Aleman’s
case, in a phone conversation on May 14, 1996, in
which Holmes said he would be filing Hector
Gonzalez’s suit “today,” because limitations would
expire the next day.
2 Holmes copied Hole on this letter and sent him
a version by mail. The letter sent to Hole was not,
however, a photocopy of the letter faxed to Gonza-
lez but was a re-typed version that, save for a
typographical error, is identical.

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

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4
into a settlement agreement by which he would
dismiss all claims against Aleman and pay
$15,000 to Aleman’s insurance carrier.
Holmes also executed an agreement with Hec-
tor and Felipa Gonzalez whereby they agreed
to release all malpractice claims against
Holmes in exchange for $10,000.
Holmes did not, however, obtain peace
with these settlements: Hole and Alvarez filed
a formal grievance against him with the State
Bar of Texas. At a disciplinary hearing held in
October 1999, Hole presented forensic
evidence that the bond paper on which the
May 7 petition was printed contained a water-
mark and date code. According to the manu-
facturer,7 Hole maintained, the date code cor-
responded to the year 1997, and thus the bond
paper could not have been manufactured be-
fore 1997. The petition could not, therefore,
have been printed and mailed, as Holmes sug-
gested, in May 1996. Holmes received a sanc-
tion of two years’ probation from the state bar.
II.
Texas authorities subsequently initiated an
investigation of the Hidalgo County Clerk’s
Office. In an interview with Texas Ranger Is-
rael Pacheco on March 26, 2001,8 Holmes
gave a revised version of the events: He had
made several attempts to obtain a copy of the
original petition he mailed on May 6, before he
filed the petition on May 14, but the clerk’s
office was unable to locate the original peti-
tion, so he brought a copy of the earlier, origi-
nal petition to the clerk’s office as a “go-by” to
show employees the document he was looking
for.
Federal investigators initiated an independ-
ent investigation. He and Pauline Gonzalez
were indicted for conspiracy to commit mail
fraud in violation of 18 U.S.C. § 371 (count
one) and mail fraud in violation of 18 U.S.C.
§§ 1341 and 1346 (count two).9
Holmes testified in his own defense, trying
to convince the jury that the copy he brought
to the clerk’s office as a “go-by” became the
petition file-stamped May 7, when someone in
the clerk’s office erroneously file-stamped it.10
As for the May 14 petition, Holmes’s story
was that he mailed the original petition on May
6, but it did not contain an expert report, so
after securing an expert report he went to the
clerk’s office with another petition attaching
the report; and because the deputy clerk was
unable to tell him what cause number had been
assigned to his earlier petition, he filed the
May 14 petition “as if it were the new filing
expecting that, when the May 6 petition was
located, the District Clerk’s Office would
clean up the paperwork.”
The jury was not persuaded, and Holmes
was convicted on both counts. He now ap-
7 The government presented the testimony of
Edward Kennedy, a longtime employee of Boston-
based Southworth Paper Company, the manu-
facturer of the bond paper, who corroborated these
facts. Holmes made no effort to dispute this
evidence at trial.
8 Holmes was represented at this meeting by
counsel, and both he and counsel took copious
notes. See infra part VI.
9 Gonzalez was not tried with Holmes: After
the indictment was returned, she became physically
incapacitated, suffering from life-threatening health
problems. She died while charges were pending.
10 According to this theory, the earlier, original
petition Holmes claims to have mailed is still miss-
ing, although the envelope in which he claims to
have mailed it has surfaced.

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

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6
does not require a court to embark on an in-
dependent inquiry into the reliability of state-
ments that satisfy the requirements of Rule
801(d)(2)(E).”
Crawford abrogated Roberts with respect
to prior testimonial statements: Such state-
ments may not be admitted against a defendant
unless he has an opportunity to cross-examine
the declarant, irrespective of whether the
statement falls within a firmly rooted hearsay
exception or bears particularized guarantees of
trustworthiness.13 With respect to non-
testimonial statements, however, Crawford
leaves in place the Roberts approach to deter-
mining admissibility.14
1.
Because the categorical rule adopted in
Crawford is triggered only with respect to
“testimonial” evidence, whether a challenged
statement falls within the class of evidence
deemed “testimonial” will generally be out-
come-determinative. But Crawford declined
to “spell out a comprehensive definition of
‘testimonial.’” Crawford, 124 S. Ct. at 1374.
Instead, the Court held that “[w]hatever else
the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before
a grand jury, or at a former trial; and to police
interrogations.” Id. Beyond these specific
examples, however, the boundaries of testi-
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
In the case at hand, we are presented with
a challenge to the admission of a co-conspira-
tor’s statement made during the course and in
furtherance of the conspiracy in civil deposi-
tion testimony. Statements made by a co-con-
spirator during the course and in furtherance
13 See Crawford, 124 S. Ct. at 1374 (“Where
testimonial statements are at issue, the only indi-
cium of reliability sufficient to satisfy constitu-
tional demands is the one the Constitution actually
prescribes: confrontation.”); id. (“Where testimo-
nial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavail-
ability and a prior opportunity for cross-examina-
tion.”).
14 Crawford does, however, explicitly leave
open the possibility of “an approach that exempted
[nontestimonial] statements from Confrontation
Clause scrutiny altogether.” Id. Nevertheless, to
the extent the Court declined to overrule White v.
Illinois, 502 U.S. 346 (1992), in which a majority
of the Court rejected a view of the Confrontation
Clause that would place no constitutional limits on
the admissibility of nontestimonial statements, in-
stead leaving their admissibility to controlling hear-
say law, see Crawford, 124 S. Ct. at 1370 (“Al-
though our analysis in this case casts doubt on that
holding, we need not definitively resolve whether
[White] survives our decision today . . . .’), Rob-
erts remains controlling for purposes of nontesti-
monial statements.
15 These include: (1) “ex parte in-court testi-
mony or its functional equivalentSSthat is, material
such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declar-
ants would reasonably expect to be used prose-
cutorially,” Crawford, 124 S. Ct. at 1364 (citation
omitted); (2) “extrajudicial statements . . . con-
tained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confes-
sions,” id. (quoting White, 502 U.S. at 365)
(Thomas, J., concurring in part and concurring in
the judgment)); and (3) “statements that were made
under circumstances which would lead an objective
witness reasonably to believe that the statement
would be available for use at a later trial,” id.
(citation omitted).

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7
of a conspiracy are by their nature generally
nontestimonial and thus are routinely admitted
against an accused despite the absence of an
opportunity for cross-examination.16 The chal-
lenged evidence here, however, is not the run-
of-the-mill co-conspirator’s statement made
unwittingly to a confidential government
informant,17 or made casually to a partner-in-
crime; rather, we have a co-conspirator’s
statement that is derived from a formalized
testimonial sourceSSrecorded and sworn civil
deposition testimony.
2.
Whether this evidence is “testimonial” as
Crawford used that term is uncertain. This
case does not, however, require resolution of
whether Gonzalez’s civil deposition qualifies
as testimonial evidence triggering the right of
confrontation. Even assuming arguendo that
her deposition is testimonial under Crawford,
there was no constitutional error, because the
government did not offer her testimony to
prove the truth of the matter asserted.18
In her deposition, Pauline Gonzalez lament-
ed the organizational problems in the clerk’s
office, testifying that her office was forced to
deal with sloppy lawyers who were invariably
forgetting and confusing pleadings, and was
staffed by rotating and volunteer clerks prone
to mistakes. Pauline Gonzalez thus explained
that someone in the office could have
mistakenly back-dated the petition after look-
ing up the case information on the computer
and using the postmark date stamped on the
torn envelope.
Far from offering this testimony to prove its
truthfulness, the government sought to es-
tablish its falsity through independent evi-
dence. Indeed, the entire thrust of the govern-
ment’s case was that the back-dating was not
the result of a clerical error, but instead was
the objective of an illicit conspiracy between
Holmes and Pauline Gonzalez. Gonzalez’s
testimony was thus offered both to show the
16 See, e.g., id. at 1367 (challenging the con-
currence’s suggestion that hearsay exceptions
historically have permitted admission of testimonial
statements against the accused in a criminal case,
reasoning that “[m]ost of the hearsay exceptions
covered statements that by their nature were not
testimonialSSfor example, business records or
statements in furtherance of a conspiracy.”);
United States v. Reyes, 362 F.3d 536, 540 n.4 (8th
Cir. 2004) (rejecting Crawford argument on
ground that “co-conspirator statements are non-
testimonial”); C. MUELLER & L. KIRKPATRICK,
FE D E R A L EV I D E N C E § 398.1 (2004)
(“[C]oconspirator statements . . . are non-
testimonial in character and admitting them does
not infringe defense confrontation rights.”); United
States v. Delgado, No. 03-41379, 2005 U.S. App.
LEXIS 2686, at *18 (5th Cir. Feb. 16, 2005)
(“Crawford is not applicable to [hearsay state-
ments made during the course and in furtherance of
a conspiracy] because they are not testimonial
hearsay statements.”).
17 See, e.g., Bourjaily, 483 U.S. at 181-84
(holding admissible as against a Confrontation
Clause challenge co-conspirator’s unwitting state-
ments to an FBI informant despite absence of op-
portunity for cross-examination and unavailability
of declarant); United States v. Saget, 377 F.3d
223, 229-30 (2d Cir. 2004) (holding that co-conspir-
ator’s statement made unwittingly to police was
nontestimonial and thus admissible against defen-
dant despite absence of opportunity for cross-
examination).
18 See Crawford, 124 S. Ct. at 1369 n.9 (“The
[Confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than es-
tablishing the truth of the matter asserted.”) (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)).

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8
existence of a scheme and to prove one of the
overt acts charged in the indictment.19 Even
assuming that her civil deposition testimony is
testimonial within the meaning of Crawford,
then, this nonhearsay use of her testimony pos-
es no Confrontation Clause concerns. See
Crawford, 124 S. Ct. at 1369 n.9; Street, 471
U.S. at 414.20
3.
The irony is that Holmes was keenly aware
of the fact that Pauline Gonzalez was not a
“witness[] against him” inasmuch as her depo-
sition testimony was not inculpatory. In fact,
it was Holmes, not the government, that re-
peatedly relied on her deposition testimony at
trial for its truthfulness. The record is replete
with instances in which Holmes pointed to
Gonzalez’s deposition testimony as exculpa-
tory and corroborating his primary defense
theorySSi.e., that the pleading he provided as
a “go-by” must have been back-dated in error
by someone in the clerk’s office.
During opening argument, for example, the
defense pointed to the deposition as exculpa-
tory:
Pauline Gonzalez, by way of her testimony,
will tell you what she thinks happened on
that videotape. Someone took that blank
petition, looked it up in the computer,
pulled that case out of the computer, be-
cause [the government] already told you it
was filed on [May] 14.
The defense relied on the exculpatory nature
of her deposition testimony again while cross-
examining Ron Hole:
Q: Ms. Gonzalez offered an explanation
for how this could have happened,
didn’t she?
A: Not in my mind; it was not a plausible
explanation.
Q: She attempted or said that it could
have been file marked by mistake,
didn’t she say that in the deposition.
. . . And she indicated that some clerk
or some volunteer working in the of-
fice could have done it accidentally and
not deliberately, without any malice,
on the video.
The defense returned to the exculpatory force
of her testimony again during closing argu-
ment:
Now, Ms. Gonzalez says on her video,
sworn deposition: Someone could very
easily have said, just put the cause number
on it or file it. Put it with the file. . . .
Well, that’s not a crime, and no one should
go to the penitentiary and be convicted of
two federal felonies for that.
19 The indictment returned by the grand jury
specifically charged that “[o]n or about May 19,
1999, Defendant Pauline Gonzalez testified falsely
in a deposition regarding a civil petition bearing a
file-stamped date of May 7, 1996.”
20 The manner in which Holmes has presented
this claim to the court bears mentioning: His claim
amounts to a wholesale challenge to Gonzalez’s
testimony. That is, of the less than two pages his
brief devotes to this claimed constitutional error,
Holmes does not identify a single specific statement
made by Gonzalez that was offered against him for
the truth of the matter asserted. At oral argument,
the government stressed the nonhearsay use of this
evidence, and we asked defense counsel why such
use would pose Confrontation Clause concerns, to
which we were told, without elaboration or exam-
ple, “there were truthful matters asserted.”

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9
That the government did not offer Gonzal-
ez’s civil deposition testimony for the purpose
of proving the truth of the matters to which
Holmes points cannot seriously be contested.
After all, the entire raison d’etre for the in-
dictment and the felony charges was the gov-
ernment’s belief that the back-dated petition
was the result of a criminal conspiracy and not
some clerical error. Because the government
did not offer her testimony for its truth, there
is no Sixth Amendment violation.21
IV.
Holmes contends that the evidence is in-
sufficient to sustain his convictions for con-
spiracy to commit mail fraud and the substan-
tive mail fraud offense. We address each
count in turn.
A.
“It is by now well-settled that a defendant
seeking reversal on the basis of insufficient
evidence swims upstream.” United States v.
Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).
In reviewing a challenge to the sufficiency of
the evidence, we view all the evidence and the
reasonable inferences drawn therefrom in the
light most favorable to the verdict, and ask
whether a rational trier of fact could have
found that the evidence established the ele-
ments of the offense beyond a reasonable
doubt. See, e.g., United States v. Smith, 296
F.3d 344, 346 (5th Cir. 2002). “In so doing,
we apply a ‘rule of reason,’ knowing that the
jury may properly rely on their ‘common
sense’ and ‘evaluate the facts in light of their
knowledge and the natural tendencies and in-
clinations of human beings.’” Mulderig, 120
F.3d at 547 (quoting United States v. Ayala,
887 F.2d 62, 67 (5th Cir. 1989)).
Because the jury is “free to choose among
reasonable constructions of the evidence,”
United States v. Richards, 204 F.3d 177, 206
(5th Cir. 2000), and retains the sole authority
to “weigh conflicting evidence and evaluate
the credibility of the witnesses,” United States
v. Milsaps, 157 F.3d 989, 994 (5th Cir. 1998),
“it is not necessary that the evidence exclude
every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion
except that of guilt.” United States v. Wil-
liams, 264 F.3d 561, 576 (5th Cir. 2001). If,
however, the evidence viewed in the light most
favorable to the verdict points equally to a
theory of innocence and guilt, we will reverse
a conviction based on circumstantial evidence.
Mulderig, 120 F.3d at 546.
B.
Holmes challenges the sufficiency of the
evidence to support his conviction of conspir-
acy, characterizing the government’s case as
establishing only that he prepared a pleading
21 Of course, even if we had found an error, a
separate question would follow: whether, having
forfeited the error by failing to object, we would
exercise our discretion under rule 52(b) to correct
it. (In Crawford, the Court noted the applicability
of the harmless error doctrine, see Crawford, 124
S. Ct. at 1359 n.1; id. at 1378 (Rehnquist, C.J.,
concurring in the judgment); but we do not read
those references as altering the applicability of the
plain error rubric where there was no trial ob-
jection, and thus Holmes would have the burden of
demonstrating that the error affected substantial
rights.)
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-
dence to which the accused repeatedly relied upon
as exculpatory and favoring an acquittal was such
an egregious error that justice and the public integ-
rity of the judicial process require the remedy he
seeks: reversal. More likely, the opposite is true.

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10
and gave it to the clerk’s office, which, in turn,
file-stamped it May 7, 1996. Although he
admits that it is “not unreasonable to conclude
from the record” that Pauline Gonzalez caused
the back-dating to occur, he contends that the
evidence is insufficient in two allegedly critical
respects: First, there is no evidence
demonstrating his knowledge of the back-
dating at the time; and second, there is no
evidence demonstrating any motive on the part
of Gonzalez to back-date the pleading. In the
absence of such evidence, Holmes claims he
cannot properly be found guilty of conspiracy
without “wild speculation.”
1.
To prove a conspiracy in violation of 18
U.S.C. § 371, the government must establish
three elements beyond a reasonable doubt:
(1) an agreement between two or more per-
sons to pursue an unlawful objective; (2) the
defendant’s knowledge of the unlawful objec-
tive and voluntary agreement to join the con-
spiracy; and (3) an overt act by one or more
members of the conspiracy in furtherance of
the objective of the conspiracy. E.g., United
States v. Peterson, 244 F.3d 385, 389 (5th Cir.
2001). “The Government need not rely on
direct evidence of a conspiracy; each element
may be proven by circumstantial evidence.”
Mulderig, 120 F.3d at 547.
2.
The evidence is sufficient to support con-
spiracy. Although his trial story differedSSas
it had to, given the bond paper revela-
tionSSfrom his earlier deposition testimony,
Holmes admitted that the May 7, 1996, peti-
tion could not have been mailed on that date
and that he printed and signed the petition that
was ultimately back-dated May 7, 1996, by the
clerk’s office and placed into the case file.
Coupled with this admission, the jury could
reasonably have concluded that the envelope in
which Holmes claims to have mailed the
original petition on May 6, 1996, was actually
a self-addressed envelope in which something
was returned to Holmes’s law firm.22 If this
envelope, which as the postmark reveals had at
one point been properly mailed, was in fact
addressed to Holmes’s law firm, the jury rea-
sonably could have concluded that it was at
some point prior to being placed in the clerk’s
case file in Holmes’s possession.
At a minimum, then, the evidence reveals
that Holmes gave someone in the clerk’s office
both the petition that was ultimately back-
dated and the envelope in which he claims to
have mailed the original petition. The
question, then, is whether there was an
agreement or common purpose to back-date
the pleading and represent it to be the original.
On that score, as the district court observed in
its thorough post-trial memorandum, the tes-
timony of three clerk’s employees is sufficient
to give rise to the inference that Holmes was
knowingly working in concert with Pauline
Gonzalez.
First, Alexandra Gomez, a criminal appeals
clerk, testified that Holmes approached her
“and he asked me . . . if I could step outside
because he needed to speak with me.” She
22A forensic document expert from the Texas
Department of Public Safety testified that the
partially visible letter preceding the letters “ES”
could not have been an “L.” The expert testified
that the letter was more likely an “M,” which, of
course, would be consistent with “Holmes.” The
jury reasonably could have credited this testimony
rather than accepting Holmes’s testimony that the
“ES” resulted from his misspelling of Gonzalez’s
last name.

-- 10 of 26 --

11
testified that Holmes asked “if it was possible
for me to back-file something for him that
needed to be put into the file, or should have
been put in the file. And I told him I could
not.” After refusing Holmes’s request, Gomez
told Holmes she “could not be the one to do
that, that he would need to speak with Ms.
Gonzalez to see what she could do.” Gomez
testified further that a week after she refused
Holmes’s request, Gonzalez “called me on the
telephone and asked me to stamp file a plead-
ing that was on her desk with the date it had
written on it,” but that she refused because she
“knew it was against our rules to do that, the
District Clerk’s Office rules.”
Second, Veronica Muniz testified that, at
some point during the critical time period
(May 10-13, 1999), she observed Holmes
speaking with Pauline Gonzalez in Gonzalez’s
“glassed-in” office. And, although she was the
employee in the clerk’s office who had ex-
amined the file with Hole and Alvarez and did
not find any indication of an earlier petition,
Muniz testified that shortly after observing
Holmes and Gonzalez speaking privately, she
“saw a letter printing out that said they [the
clerk’s office] had found the document.” She
then identified the May 13, 1999, letter sent by
fax from Gonzalez to Holmes as the letter she
observed in the printer, and relayed that, upon
seeing the letter, “I was surprised because I
had, you know, I had been looking through the
file, and I couldn’t find anything. So I was just
surprised that . . . it had been found . . . .”23
Third, Viola Wise testified that she pre-
pared the May 13, 1999, letter from Pauline
Gonzalez to Holmes at the direction of Gonza-
lez. Specifically, Wise testified to a conversa-
tion she had with Gonzalez during which Gon-
zalez “said that she had found a . . . missing
document” and instructed Wise to “go ahead
and make a letter stating that [Gonzalez] had
found the paperwork.”
Based on this testimony, the jury could
reasonably have concluded that Holmes was
seeking assistance to back-date a petition; and
that after Holmes met privately with Pauline
Gonzalez, she asked Gomez (exactly what
Holmes had previously asked her) to back-date
the petition, and that Gonzalez then directed
another employee to prepare a letter stating
that the petition had been “found.” This
testimony, when taken together with Holmes’s
admission that the petition ultimately back-
dated was printed and signed as an original by
him and provided to the clerk’s office, and the
expert testimony concerning the envelope, is
more than sufficient to establish an adequate
picture of Holmes’s role in the conspiracy.
Thus, despite Holmes’s continued reliance on
his version of the events in questionSSthat
someone in the clerk’s office must have back-
dated the pleading in errorSSthe jury was free
to reject his explanation and accept the gov-
ernment’s.
To the extent Holmes relies on the govern-
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
did not establish Gonzalez’s motive for con-
spiring with Holmes to back-date the petition;
indeed, the government admitted as much
during closing argument:
23 Muniz also testified that it was “significant”
that the back-dated petition was not signed by a
clerk, observing that “[b]ecause [if] it’s [an] orig-
inal petition . . . it should have the specific time
that it was filed and it also should have a signature
on it.”

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12
The only thing you-all aren’t charged to
figure out is what the motive of everybody
is, and I submit to you, I can’t exactly tell
you what Ms. Gonzalez’s motive was. I’ll
tell you she did violate her oath of office.
I’ll tell you she did something illegal.
Whether [Holmes] promised to give her
some money on the end, I don’t know. I
think it’s reasonable to suspect, but I think
it’s equally reasonable that she just is cor-
rupt and just decided to allow a lawyer to
do something like that, and she was willing
to use her office to help him.
Nevertheless, because the government is not
required to prove Gonzalez’s subjective intent
for conspiring with Holmes, the absence of
such motive evidence does not render insuffi-
cient the evidence supporting Holmes’s con-
viction of conspiracy.
C.
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-
rial. Specifically, he reasons that regardless of
whether the May 7 or May 14 date is used for
purposes of limitations, the underlying medical
malpractice claims were time barred, and thus
any representations about the May 7 petition’s
being the original were immaterial.
1.
To prove mail fraud under § 1341, the gov-
ernment must show (1) a scheme to defraud;
(2) the use of the mails to execute the scheme;
and (3) the specific intent to defraud. United
States v. Bieganowski, 313 F.3d 264, 275 (5th
Cir. 2002). “In addition, the Supreme Court
has interpreted section 1341 to require that the
misstatement made in the course of the scheme
to defraud be a material one.” Id. (citing
Neder v. United States, 527 U.S. 1 (1999)).24
Because Holmes limits his attack to the
materiality of the alleged misrepresentations,
we cabin our analysis accordingly.
2.
When the defense in the underlying tort suit
moved for summary judgment asserting that
Hector Gonzalez’s suit was time-barred as of
May 11, 1996, Holmes was taking a position
completely contrary to what he urges now. In-
deed, in his opposition to summary judgment,
Holmes repeatedly pointed to the May 7,
1996, filing date as defeating Aleman’s
limitations defense. Consider, for example, the
following passages from Holmes’s pleading:
The Defendant admits on page six of his
motion that the last date to file would have
been May 11, 1996. Assuming this date to
be true, the filing of the Plaintiffs Petition
on May 7, 1996 would have been timely.
. . .
Alternatively, assuming arguendo that the
last date of treatment was February 25,
1994, as asserted by the Defendant then the
limitations period would have extended to
24 The mail fraud statute expressly applies to a
“scheme or artifice to defraud another of the in-
tangible right of honest services.” 18 U.S.C.
§ 1346. The government entered into evidence the
constitutional oath of office taken by Gonzalez, see
TEX. CONST. art. XVI, § 1, and the oath taken by
Holmes as a condition of membership in the State
Bar of Texas, see TEX. GOV’T CODE ANN. §
82.037. The court also instructed the jury that
tampering with or fabricating government docu-
ments and committing perjury are prohibited by
Texas law. Holmes does not, however, raise any
challenge to the applicability of the intangible ser-
vices doctrine to the facts at hand.

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13
May 10, 1996, which would have been
three days after the filing of the Plaintiffs
Petition.
Despite these representations, which plainly
contemplate the May 11 date as viable for
limitations purposes, Holmes characterizes the
evidence adduced at trial supporting his asser-
tion that either date was beyond the limitations
period as “overwhelming.” His brief,
however, fails to cite any record evidence
supporting this claim. Our independent review
of the record indicates that, during the
defense’s cross-examination of Hole and again
during closing argument, the defense attempt-
ed to use the materials submitted by Hole to
the state bar to establish that limitations had
expired as of either date.
Specifically, the defense pointed to a chro-
nology of events included in the file prepared
by Hole, which indicates that on April 3, 1996,
the “SOL runs on last non-barred negligence
claim,” and includes a notation that “Mr.
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
this single entry, the defense claimed that the
limitations period expired in April, and thus
argued to the jury that Holmes had no motive
to fabricate a petition with a May 7, 1996,
date-stamp.25
Holmes fails, however, to account for the
next entry in that same chronology: On May
11, 1996, the chronology notes, the “SOL runs
on last non-barred treatment date.” Thus,
contrary to Holmes’s wholesale claim that the
limitations period expired in April, Aleman’s
lawyers believed that claims calculated from
the last date of treatment (pursuant to what the
parties refer to in their summary judgment pa-
pers as the “continuing course of treatment
doctrine”), rather than from the last date of
negligent treatment, were potentially viable as
a limitations matter until May 11, 1996.26
And, as we indicated, this is precisely what
Holmes asserted in his opposition to summary
judgment.
Doubtless it is now (with the medical mal-
practice case long-since over, and sitting under
two federal felony convictions) in Holmes’s
interest to disclaim his previous reliance on the
so-called continuing course of treatment
doctrine and to maintain that the suit would
have been time-barred even on May 7, 1996.
25 Defense counsel stressed the import of this
notation to the jury during closing argument:
I offered one exhibit into evidence and only one
exhibit. . . . I offered . . . the document that
Ron Hole offered to the state bar grievance
committee. . . .
[I]n that document he says very clearly
that the statute of limitations was missed in
(continued...)
25(...continued)
April of 1996. In April. And he highlighted it.
And it’s there for you to read. He says, I agree.
Mr. Holmes was right. The statute was missed
in April.
26 Hole testified to why the May 11 date was
relevant during cross-examination:
Q: Whether May 7th or May 14th is the filing
date of the petition you had him on [the]
statute of limitations?
A: Not really. If the statute, if they go by the
last date, under the continuing course of
treatment doctrine, the last date would
have brought the statute of limitations to
May 11th, and that’s why we said at the
latest, May 11th.

-- 13 of 26 --

14
But there was never any judicial resolution of
the limitations question; instead, the record
reflects a vigorous dispute as to the proper
calculation of limitations. At the time, Ale-
man’s lawyers were asserting that claims not
filed by May 11 were time-barred; and Holmes
responded by claiming that the suit was not
time-barred because the petition filed on May
7SSthe fraudulent petitionSSwas timely filed.
Therefore, to the extent Holmes
represented that the suit was filed on May 7,
1996, this representation could have saved him
from a limitations bar had the state court
ultimately accepted the view that the applica-
ble trigger date was the last date of treatment,
as Holmes himself pressed in his response to
summary judgment.27 That Holmes or even
Hole may now regard this as unlikely is not
controlling; that the May 11 date could have
saved the suit from the time-bar then-being
pressed by Aleman’s defense counsel is. These
representations thus were material, so we
affirm Holmes’s conviction of mail fraud.
V.
Holmes avers that the government’s closing
argument contained an improper plea for
sympathy for Hector and Felipa Gonzalez,
thereby prejudicing the jury against him to
such a degree that he was denied a fair trial.
We find no error.
A.
“Improper prosecutorial comments consti-
tute reversible error only where ‘the defen-
dant’s right to a fair trial is substantially af-
fected.’” United States v. Bernard, 299 F.3d
467, 488 (5th Cir. 2002) (quoting United
States v. Andrews, 22 F.3d 1328, 1341 (5th
Cir. 1994)). “A criminal conviction is not to
be lightly overturned on the basis of a prosecu-
tor’s comments standing alone. The
determinative question is whether the prosecu-
tor’s remarks cast serious doubt on the cor-
rectness of the jury’s verdict.” United States
v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).
To resolve this question, we consider the
magnitude of the prejudicial effect of the chal-
lenged statements, the efficacy of any caution-
ary instructions, and the strength of the evi-
dence of the defendant’s guilt. Bernard, 299
F.3d at 488 (citing Andrews, 22 F.3d at 1341).
This already narrow standard of review is fur-
ther constrained by Holmes’s failure to object;
he bears the burden of demonstrating that the
prosecutor’s statements constitute plain error.
See id.; FED. R. CRIM. P. 52(b).
B.
Holmes has failed to demonstrate error,
much less plain error. The prosecutor’s
lengthy closing argument, viewed in its en-
tirety and in context of the charged offenses, is
not primarily an appeal to the jurors’ emotions
regarding Hector and Felipa Gonzalez; rather,
27 Accord Neder, 527 U.S. at 22 n.5 (quoting
one formulation providing that a matter is material
if “the maker of the representation knows or has
reason to know that its recipient regards or is likely
to regard the matter as important in determining his
choice of action, although a reasonable man would
not so regard it”) (quoting RESTATEMENT (SEC-
OND) OF TORTS § 538 (1977))); Kungys v. United
States, 485 U.S. 759, 770 (1988) (“[A] conceal-
ment or misrepresentation is material ‘if it has a
natural tendency to influence, or was capable of
influencing, the decision of’ the decisionmaker to
which it was addressed.”); United States v. Heath,
970 F.2d 1397, 1403 (5th Cir. 1992) (stating that,
in bank fraud context, “[a] statement is material if
it ‘has a natural tendency to influence, or was
capable of influencing the decision of’ the lending
institution.”) (quoting Kungys, 485 U.S. at 770)).

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15
the prosecutor was attempting to underscore
the situation Holmes found himself in, having
missed the limitations period on an ostensibly
serious and valuable medical malpractice
claim.
The government therefore referred to the
underlying malpractice suit as demonstrating
Holmes’s motive for conspiring with Pauline
Gonzalez to back-date a fraudulent petition.
Thus, although the government’s closing argu-
ment undoubtedly contains certain statements
that tend to evoke sympathy for Hector and
Felipa Gonzalez, the subject of the malpractice
suit, including its meritsSSand therefore the
seriousness of the injury suffered by Hector
Gonzalez, and the value that injury would have
in such a suitSShas obvious relevance beyond
an argumentum ad misericordiam.
And once it is accepted that the merits of
the underlying malpractice suit bear on
Holmes’s motive, the propriety of the prosecu-
tor’s statements becomes a question of degree.
At that point, we must proceed in light of the
“wide latitude” afforded counsel when present-
ing jury argument. See United States v. Her-
nandez-Guevara, 162 F.3d 863, 874 (5th Cir.
1998). Here, given the district court’s cau-
tionary instruction to the jury to consider only
the evidence and that the attorneys’ arguments
were not evidence, and the critical fact that
these statements were “neither persistent nor
pronounced when viewed within the context of
the entire closing argument,” Bradford v.
Whitley, 953 F.2d 1008, 1013 (5th Cir. 1992),
it is unlikely that the jury was led astray.28 In
any event, there is substantial evidence
supporting conviction on both counts. The
prosecutor’s unobjected statements do not
produce reversible error.
VI.
Holmes avers that his substantial rights
were prejudiced by the government’s delayed
disclosure of Pacheco’s report summarizing his
March 2001 interview.29 The government
28 To the extent Holmes complains that the
prosecutor’s closing argument was improper inso-
far as it conveyed to the jury that Hector and
Felipa Gonzalez were denied their “day in court”
(continued...)
28(...continued)
not as a consequence of his conceded legal mal-
practice, but, rather, as a result of his illegal ac-
tions, this argument is also meritless. The prosecu-
tor did not argue that they were denied their chance
to have their case heard in court as a consequence
of the charged crimes; to the contrary, the prosecu-
tor argued that “the reason they never got the same
chance their lawyer got this week [to have their
case heard in court] is that their lawyer made a
mistake. And then he compounded that mistake by
violating the law.”
29 The report at issue consists of two para-
graphs from a longer report prepared by Pacheco
on the details of his investigation of the Hidalgo
County Clerk’s Office. Paragraphs 5.1 and 5.2 of
the report summarize Pacheco’s March 26, 2001,
interview of Holmes, and read in full as follows:
On 03-26-01, writer interviewed attorney
Lassiter HOLMES at the Texas Ranger office
in McAllen. Present during the interview was
his attorney, Joe CONNORS. HOLMES said
that he had mailed the petition on 05-07-1996.
He said that contrary to what had been said, the
statute of limitations had nothing to do with this
case.
HOLMES advised that he had gone on
several occasions to try and get a copy of the
petition, but no one at the Clerk’s office could
find one. He finally took a copy of the original
(continued...)

-- 15 of 26 --

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

-- 16 of 26 --

17
A: I sign them.
Q: Why?
A: I like signing my names [sic] toSSon
the pleadings. I just like doing it.
Moreover, Pacheco’s written summary of
Holmes’s statement is wholly insufficient to
provide an exculpatory answer to any of the
other critical questions in this case, questions
that only Holmes was competent to testify
about. Only he could testify to the alleged
preparation of the petition and envelope on
May 6, 1996, which he claims to have done
alone; or the alleged mailing of that (still un-
discovered) petition. Only he could explain
what he actually was inquiring of Gomez, who
testified that Holmes asked her to back-date
and file a pleading; or the many occasions on
which he claims to have gone (although no
other witness was able to corroborate these
periodic stops) to the clerk’s office to inquire
about his missing petition; or why he told Ale-
man’s lawyer and insurance adjustor he was
going to file the suit “today” on May 14, 1996,
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
earlier petition, he did not style the petition
filed on May 14, 1996, “First Amended Peti-
tion” or something similar.
It is therefore implausible to credit
Holmes’s suggestion that timely disclosure of
Pacheco’s written summary of his interview
would have rendered Holmes’s testimony un-
necessary such that the delay prejudiced his
substantial rights.32 Thus, although we have
indicated that the delayed disclosure of a
report within rule 16’s mandate of disclosure
may be prejudicial if a defendant has to decide
whether to testify before becoming aware of
the statement’s particulars,33 Holmes cannot
credibly suggest that he would not have testi-
fied had the government produced the docu-
ment in a timely manner. Absent such preju-
dice, the delayed disclosure is not reversible
error.
VII.
Holmes challenges the denial of his motion
for a new trial based on newly-discovered
evidence. We reject his claim.
A.
Holmes points to the deposition of Claude
Hildreth, a private investigator, taken during
discovery in the legal malpractice suit. Holmes
contends that Hildreth’s deposition testimony
reveals that he was instructed by Hole and
Alvarez to contact Hector and Felipa Gonzalez
and to inform them of Holmes’s misconduct
related to the filing of their medical
malpractice lawsuit. According to Holmes, this
32 Our conclusion is bolstered by the testimony
of Holmes’s own trial counsel when asked at the
(continued...)
32(...continued)
post-trial motions hearing about the delayed disclo-
sure and its impact, if any, on trial strategy:
Q: Would your strategy about putting Lassi-
ter Holmes on the stand have changed?
A: Probably Not.
33 See, e.g., United States v. Gonzalez, 967
F.2d 1032, 1036 (5th Cir. 1992) (rejecting claim
for lack of prejudice where particulars of statement
became known prior to decision about whether to
testify); United States v. Arcentales, 532 F.2d
1046, 1050 (5th Cir. 1976) (“We think it highly
significant that the inculpatory statement became
known during the government’s case-in-chief.”).

-- 17 of 26 --

18
testimony contradicts Hole’s and Alvarez’s
testimony and lends credence to Holmes’s
theory that Hole and Alvarez “were pursuing
a vendetta against him.”
Alvarez testified that she felt precluded as
a matter of professional ethicsSSgiven her role
as opposing counsel in the underlying medical
malpractice suitSSfrom contacting Hector and
Felipa Gonzalez to relate the truth about their
lawsuit. She did, however, testify that she
“felt obliged” to write a letter to the editor of
a local McAllen newspaper setting out then-
mayoral candidate Bobby Garcia’s involve-
ment in and awareness of Holmes’s conduct in
the underlying medical malpractice suit after
viewing a campaign advertisement portraying
him as “the candidate . . . who stood for . . .
good ethical practice and honesty and integrity
in the mayor’s office.” It was after reading
this letter to the editor, Hole testified, that
Hector and Felipa Gonzalez contacted his
office, and it was only then that Alvarez
referred them to an attorney to pursue a legal
malpractice suit against Holmes.
B.
We review the denial of a motion for new
trial for abuse of discretion, see, e.g., United
States v. Blackthorne, 378 F.3d 449, 452 (5th
Cir. 2004), and we subject new trial motions
based on newly-discovered evidence to “an
unusually stringent substantive test,” United
States v. Ugalde, 861 F.2d 802, 808 (5th Cir.
1988). Namely, under the so-called Berry
rule, a defendant is not entitled to a new trial
on the basis of newly-discovered evidence un-
less he demonstrates that (1) the evidence is
newly discovered and was unknown to him at
the time of trial; (2) the failure to discover the
evidence was not due to his lack of diligence;
(3) the evidence is not merely cumulative or
impeaching, but is material; and (4) the evi-
dence would probably produce an acquittal.
See United States v. Freeman, 77 F.3d 812,
816 (5th Cir. 1996) (citing Berry v. Georgia,
10 Ga. 511 (1851)).
C.
Holmes cannot satisfy these standards.
Leaving aside the question of diligence,34
whether a private investigator caused Hector
Gonzalez to contact Alvarez, and whether the
investigator was directed to do so by Hole or
Alvarez, do not bear on whether Holmes com-
mitted the charged offenses. Indeed, as the
district court noted, “even if Mr. Hole did ev-
erything in his power to ensure that Mr. Gon-
zalez brought a legal malpractice claim against
[Holmes], this fact could not affect [Holmes’s]
guilt or innocence.”
To be sure, Hildreth’s testimony would
have provided some support to Holmes’s claim
that Hole had a vendetta against him.
Nevertheless, insofar as this evidence only
casts doubt on the veracity of Hole’s and
Alvarez’s testimony regarding their contact
with Hector and Felipa Gonzalez and demon-
strates a bias on the part of HoleSSstandard
methods of impeachmentSSit is merely im-
peachment evidence, and therefore insufficient
to entitle Holmes to a new trial. See, e.g.,
Blackthorne, 378 F.3d at 454–55. In any
event, given the substantial evidence support-
34 The government contends that Holmes was
not diligent in acquiring this evidence, noting that
Holmes has failed even to identify when he became
aware of Hildreth’s testimony. Moreover, the
government contends that because the legal mal-
practice suit against him has been pending in state
court since 2001, whereas the instant criminal
action was not indicted until July 2002 and not
tried until January 2003, Holmes (in defending the
civil suit) could have deposed Hole, Alvarez, and
Hildreth before his criminal trial.

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19
ing the verdict beyond the testimony of Hole
and Alvarez, this impeachment evidence does
not have any tendency to undermine the out-
come.
VIII.
Holmes contends that his trial counsel pro-
vided ineffective assistance under the Sixth
Amendment. This assertion is without merit.
A.
Holmes advanced his ineffective assistance
claim in an amended motion for new trial in
which he faulted counsel for failing to object
to (1) the government’s use of the Pacheco
report on cross-examination; and (2) various
instances of alleged prosecutorial misconduct.
After a hearing, the district court denied relief,
finding that Holmes had failed to satisfy even
the first requirement of Strickland v. Washing-
ton, 466 U.S. 668 (1984)SSnamely, that coun-
sel’s performance was deficient.
The court referenced an affidavit of trial
counsel submitted with Holmes’s motion35 that
characterized the failure to object to certain
perceived errors as deliberate trial strategy.
Relying on our precedent foreclosing reliance
on informed tactical decisions except in the
most exceptional circumstances as a basis for
claims of ineffective assistance,36 the court
faulted Holmes for trying to “have it both
ways,” i.e., “using a deliberate, reasonable
strategy at trial, and then relying on that same
strategy as grounds for a new trial.”
B.
Holmes charts a different tack on appeal.
He now faults counsel for, as his brief puts it,
deciding to be “‘Mr. Nice Guy’ . . . agreeable
to everybody except his client.” He claims
that counsel (1) without objection allowed the
case to be tried in Houston as opposed to Mc-
Allen or Laredo, and then lied to Holmes
about the circumstances of the Houston venue
selection;37 (2) failed to conduct a proper in-
vestigation of certain “important materials”;38
and (3) subjected Holmes to “outrageous and
improper cross-examination covering as much
35 Trial counsel’s affidavit provides, in part:
During the cross-examination of my client I had
to make several tactical decisions. One of
which was whether I would object to certain
questions propounded to my client that I felt
were improper. I decided I would not object
because my client was a lawyer. I felt my con-
stant objecting might hurt the jury’s view of
him and his credibility.
36 See, e.g., Cotton v. Cockrell, 343 F.3d 746,
752–53 (5th Cir. 2003) (“A conscious and in-
formed decision on trial tactics and strategy cannot
be the basis for constitutionally ineffective assis-
tance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfair-
ness.”) (quoting United States v. Jones, 287 F.3d
325, 331 (5th Cir. 2002) (quoting Garland v. Mag-
gio, 717 F.2d 199, 206 (5th Cir. 1983))).
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
based in Houston. Holmes further alleges that
counsel lied to him when he said that the Houston
venue selection was decided by order of the court.
38 Holmes refers to (1) a report by his former
attorney, Joe Connors, made in preparation for a
potential state criminal prosecution before the fed-
eral indictment was handed down; and (2) an ex-
pert opinion prepared by an attorney on the statute
of limitations question.

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20
as seven or eight hours over a period of two
days.”
Because Holmes did not present to the dis-
trict court his claims concerning counsel’s
handling of venue and failure to investigate,
we must determine as a threshold matter
whether to address these claims. Our control-
ling precedent generally precludes review on
direct appeal of ineffective assistance claims in
the absence of presentment to the district court
and an adequately developed record. See, e.g.,
United States v. Navejar, 963 F.2d 732, 735
(5th Cir. 1992).39
Although the record does contain testimony
at the post-trial hearing on the question of ven-
ue and on counsel’s failure to investigate
certain materials, these claims were not pre-
sented to the district court as grounds for re-
lief. Because the record o n these issues is
incomplete and inadequate for proper appellate
review, we decline to reach them. We also
express no opinion as to their merit vel non.
To the extent, however, that Holmes’s
complaints regarding cross-examination and
counsel’s passivity overlap and restate the
claim actually developed and presented to the
district court based on counsel’s failure to
object to various instances of prosecutorial
misconduct, we reject Holmes’s claim. His
briefing on this issue is devoid of serious
analysis. He does not address the district
court’s findings regarding trial counsel’s ap-
parent deliberate strategy of passivity. Nor
does he provide even a single citation to even
a single example of improper cross-examina-
tion by the prosecutor and a possible valid ob-
jection counsel could have raised. Instead,
Holmes merely concludes that counsel’s per-
formance constitutes “an utter perversion of
the attorney-client relationship.”
This bare assertion will not suffice. To
succeed on his ineffective assistance claim,
Holmes bears the burden of demonstrating that
counsel’s performance was deficient and that
the deficient performance prejudiced his
defense. Holmes cannot escape this burden
merely by stating his conclusion. “Mere con-
clusory allegations in support of a claim of in-
effective assistance of counsel are insufficient
to raise a constitutional issue.” Green v. John-
son, 160 F.3d 1029, 1042 (5th Cir. 1998).
IX.
A.
The presentence report (“PSR”) grouped
the two counts of conviction and applied the
1998 version of the sentencing guidelines. The
PSR scored Holmes at a base offense level of
10 under U.S.S.G. § 2C1.7 and enhanced his
offense level by eight levels because the
offense involved an elected official or official
holding a high-level decision-making or
sensitive position pursuant to U.S.S.G. §
2C1.7(b)(1)(B), for a total offense level of 18.
Holmes had a criminal history score of I,
yielding a punishment range of 27 to 33
months’ imprisonment.
39 See also Massaro v. United States, 538 U.S.
500, 504–05 (2003) (“[I]n most cases, a motion
brought under § 2255 is preferable to direct appeal
for deciding claims of ineffective-assistance. When
an ineffective-assistance claim is brought on direct
appeal, appellate counsel and the court must
proceed on a trial record not developed precisely
for the object of litigating or preserving the claim
and thus often incomplete or inadequate for this
purpose.”); United States v. Cornett, 195 F.3d
776, 781 n.2 (5th Cir. 1999) (“[A]n ineffective
assistance of counsel argument should not be raised
for the first time on appeal except in rare cases
where the record is fully developed.”).

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21
The government filed a written objection to
the PSR’s failure to recommend a two-level
enhancement for obstruction of justice pursu-
ant to U.S.S.G. § 3C1.1, because Holmes had
falsely testified under oath during his trial.
The court sustained the objection. Thus,
Holmes’s offense level was increased to 20,
yielding a range of 33 to 41 months. The
court sentenced Holmes to concurrent 33-
month terms and three years’ supervised
release.40
A few days later, the court held a telepho-
nic conference with all counsel and Holmes.
As the transcript of the call reveals, the court
“wanted to revisit the obstruction of justice
enhancement . . . to make absolutely sure that
the Court had been sufficiently specific about
the statements that the Court believes to be
perjurious.” The court thus systematically
identified each of the statements it found to be
false and therefore to be providing the basis
for t he two-level enhancement. 4 1
40 The district court further ordered Holmes to
pay a $5,000 fine for each count of conviction and
a special assessment of $200.
41 The transcript reads, in pertinent part, as
follows:
The Court finds and holds that the follow-
ing statements do meet [the] criteria for perjury:
The testimony by Mr. Holmes that he
mailed an original petition on May 6, 1996.
The testimony that on May 14th, 1996,
Mr. Holmes asked the clerks to look up the
cause number on the case, and when they could-
n’t find it, he filed the second petition.
Thirdly, the testimony that Mr. Holmes
(continued...)
41(...continued)
received a phone call from the Clerk’s Office,
possibly from Mrs. Gonzalez herself stating
that the petition had been found bearing the
May 7th date.
Fourth, the testimony that Mr. Holmes
asked unnamed clerks to look for the ‘missing’
petition and finally gave a signed copy of the
quote, ‘missing petition’ to the Clerk’s Office
as a go-by.
The Court also finds that there were nu-
merous misstatements made about how the
check number found its way onto the May 7th
petition. At trial, for example, Mr. Holmes said
he put the check number on the file copy at the
same time that he signed it.
In his deposition Mr. Holmes stated he
wrote the check number on the petition eight
months earlier, when the petition was already in
the possession of the Clerk’s Office. This ex-
planation, of course, became impossible once
the watermark evidence came to light.
At trial Mr. Holmes attempted to disavow
his deposition testimony by stating that he was
confused because Mr. Ron Hole, had made an
unclear copy of the petition. Therefore, his tes-
timony about the filing-fee dispute supposedly
pertained to a different case.
However, Mr. Holmes repeatedly stated
during the course of the deposition that the
deposition was supposed to be limited to the
topic of the May 7th document and the filing of
the document, and he refused to answer, re-
peatedly, questions that he considered off-topic.
Therefore, the Court finds that he could
not possibly have thought that the testimony
about the filing-fee dispute pertained to a dif-
ferent case.
(continued...)

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22
B.
In his initial brief on appeal, Holmes, on
two grounds, challenges as clear error the
two-level sentencing enhancement for
obstruction of justice. First, he avers that
certain statements found to be false by the
district court are not so; and second, he asserts
that, even if false, his deposition testimony
cannot not form the basis for the perjury
enhancement, because the deposition was
taken before any official investigation.
1.
“We review a district court’s finding of
obstruction of justice for clear error.” United
States v. Powers, 168 F.3d 741, 752 (5th Cir.
1999). “A factual finding is not clearly erro-
neous as long as it is plausible in light of the
record as a whole.” Id. (quoting United States
v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998)).
“This is particularly true where a sentencing
court’s imposition of a § 3C1.1 enhancement
is based, at least in part, upon an evaluation of
a witness’ credibility.” Id. (citing Johnson v.
Collins, 964 F.2d 1527, 1532 (5th Cir. 1992)).
2.
Holmes attempts to show clear error by es-
sentially repeating his version of the events in
question, maintaining that neither his claim to
have brought the ultimately back-dated peti-
tion to the clerk’s office as a go-by nor his
claim to have mailed the original petition on
May 6, 1996, was controverted by the evi-
dence at trial. These claims were apparently
unconvincing to the jury, and there is more
than ample evidence supporting the district
court’s determination that these statements,
among others, were false. This is particularly
true given that Holmes was the key witness in
his own defense, setting his own story of the
events in question against the entirety of the
government’s case, and therefore the district
court’s perjury conclusion is based substan-
tially on a determination about Holmes’s
credibility.42
X.
This does not, however, end the sentencing
inquiry. During the pendency of this appeal,
the Supreme Court decided United States v.
Booker, 125 S. Ct. 738 (2005), and Holmes
has raised, in supplemental briefing, a consti-
tutional challenge, asserting that his sentence
is infirm because it was enhanced based on
(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-
structed justice by committing perjury under
U.S.S.G. § 3C1.1.
A.
Holmes did not object to his sentence on
Sixth Amendment grounds in the district court,
41(...continued)
Further, if the trial-story told by Mr.
Holmes at trial were true, Mr. Holmes should
have known he was looking at the ‘go-by’ as
soon as he saw the check number, because he
did not write that on the original, only on his
own file copy, which became the go-by.
So I believe all of these statements were
and are false.
42 Because the district court’s findings that
Holmes lied at trial about, inter alia, mailing the
petition on May 6, 1996, and having given the
back-dated petition to someone in the clerk’s office
as a “go-by” are not clearly erroneous, we need not
resolve Holmes’s further claim that any false
statements from his deposition testimony cannot
properly form the basis of an obstruction of justice
enhancement.

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23
so our review is for plain error. See, e.g.,
Booker, 125 S. Ct. at 769; United States v.
Mares, 2005 U.S. App. LEXIS 3653, at *22
(5th Cir. Mar. 4, 2005). Under plain error re-
view, we may not correct an error not raised in
the district court unless there is (1) an error;
(2) that is plain; and (3) that affects substantial
rights. See, e.g., Johnson v. United States,
520 U.S. 461, 466–67 (1997). “If all three
conditions are met, an appellate court may
then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public repu-
tation of judicial proceedings.” Id. at 467 (al-
ternation in original) (internal quotation marks
omitted) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
B.
Holmes first contends that the eight-level
enhancement for an offense involving an elect-
ed-official under U.S.S.G. § 2C1.7(b)(1)(B) is
error under Booker. He contends that the jury
verdict alone did not find that Pauline
Gonzalez was an elected official. This is
frivolous. Holmes admitted as much at trial,
and that is all Booker requires.43
C.
Holmes next contends that the two-level
enhancement for obstruction of justice based
on his perjury at trial under U.S.S.G. § 3C1.1
is error under Booker because the jury was
never presented with the question whether he
obstructed justice. Insofar as the jury was not
specifically asked and instructed to find be-
yond a reasonable doubt (as is required with
the elements of charged offenses) whether
Holmes committed perjury while on the stand,
and thus obstructed justice, imposing this
enhancement under a mandatory guidelines
regime was error under the Sixth Amend-
ment.44
43 Consider, for example, Holmes’s testimony
on direct examination when asked to whom he
addressed the envelope in which he claims to have
mailed the “original” May 6, 1996 petition:
Q: Would you have mailed it to Pauline Gon-
zalez or Hidalgo County District Clerk’s
Office?
A: No, it would have been to her.
Q: Why?
A: Because everything is addressed to the
district clerk.
(continued...)
43(...continued)
Q: And she is the district clerk?
A: Yes, sir.
Or consider the closing jury argument where de-
fense counsel put the following question to the jury:
“Why would Pauline Gonzalez, respected in that
community . . . [and] elected for at least two
decades to public office, risk her public reputation,
her public office, and her freedom for nothing?”
44 Accord Blakely, 124 S. Ct. at 2540 n.11
(“Why perjury during trial should be grounds for a
judicial sentence enhancement on the underlying
offense, rather than an entirely separate offense to
be found by a jury beyond a reasonable doubt (as
it has been for centuries, see 4 W. BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND
136–38 (1769)), is unclear.”). The Eleventh Cir-
cuit has recently suggested, in dictum, that an ob-
struction of justice enhancement imposed on a de-
fendant who took the stand and falsely denied his
guilt may not be Booker error, “because the jury
verdict convicting [him] of the crimes he denied
necessarily, albeit implicitly, found that he had en-
gaged in behavior that fits within § 3C1.1.” Unit-
ed States v. Rodriguez, 398 F.3d 1291, 1298 n.5
(continued...)

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24
Because there was error, the second prong
of plain error review requires us to determine
whether the error was plain. Johnson, 520
U.S. at 467. Although the error was not
“plain” at the time of sentencing, it is now
plain in light of Booker.45
We therefore turn to the third prong of
plain error review: whether the error affects
substantial rights, which “means that the error
must have been prejudicial: It must have af-
fected the outcome of the district court pro-
ceedings.” Olano, 507 U.S. at 734. And “[i]t
is the defendant rather than the Government
who bears the burden of persuasion with re-
spect to prejudice.” Id.46
To carry this burden, a defendant must
show “‘a reasonable probability that, but for
44(...continued)
(11th Cir. 2005). Having found beyond a reason-
able doubt that the back-dating and filing of the pe-
tition was the object and consequence of an illicit
conspiracy, the jury in the instant case, it could be
said, necessarily found that Holmes was lying when
he testified that he had provided that petition to the
clerk’s office as a go-by during the search for the
alleged “missing petition.”
Though we agree that the jury necessarily re-
jected the veracity of Holmes’s story, the sentenc-
ing enhancement imposed by the district court
based on its determination that he committed per-
jury cannot be saved from a finding of constitution-
al error under Booker by reference to the jury’s
guilty verdict on the charged offenses. A finding of
perjury within the meaning of U.S.S.G. § 3C1.1
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
“perjury” for guidelines purposes by borrowing the
elements of perjury from the federal perjury stat-
ute. See United States v. Dunnigan, 507 U.S. 87,
94 (1993) (“In determining what constitutes per-
jury, we rely upon the definition that has gained
general acceptance and common understanding
under the federal criminal perjury statute, 18
U.S.C. § 1621.”); id. (“A witness testifying under
oath or affirmation violates this statute if she gives
false testimony concerning a material matter with
the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty
memory.”) (citing 18 U.S.C. § 1621(1)). As a re-
sult, the Court has required district courts to make
a finding of obstruction of justice “that encompass-
es all of the factual predicates for a finding of per-
jury,” or, when faced with a defendant’s objection
to a perjury enhancement, “to address each element
of the alleged perjury in a separate and clear find-
ing.” Id. at 95.
As we indicated with respect to Holmes’s initial
nonconstitutional challenge to the perjury enhance-
(continued...)
44(...continued)
ment, there is more than ample evidence in the
record to support the district court’s thorough per-
jury findings. Nevertheless, because the enhance-
ment was imposed under mandatory guidelines and
the jury was not specifically asked and instructed
to find beyond a reasonable doubt whether Holmes
had committed perjury based on the foregoing
elements, there is Booker error. So although we
harbor little doubt that, if so asked and instructed,
the jury would have reached the same conclusion as
the district courtSSi.e., that Holmes committed
perjurySSthe requisite findings cannot be projected
onto the jury’s guilty verdict to cure the constitu-
tional error.
45 See id. at 468 (“[W]here the law at the time
of trial was settled and clearly contrary to the law
at the time of appeal[,] it is enough that the error be
‘plain’ at the time of appellate consideration.”).
46 See also United States v. Dominguez Benitez,
124 S. Ct. 2333, 2340 (2004) (“[T]he burden of
establishing entitlement to relief for plain error is
on the defendant claiming it . . . .”).

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25
[the error claimed], the result of the proceed-
ing would have been different.’” Dominguez
Benitez, 124 S. Ct. at 2339 (alteration in
original) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). “A defendant must
thus satisfy the judgment of the reviewing
court, informed by the entire record, that the
probability of a different result is ‘sufficient to
undermine confidence in the outcome.’” Id. at
2340 (quoting Washington, 466 U.S. at 694).
In assessing whether a defendant has car-
ried his burden of showing prejudice, we must,
as this court in Mares and the Eleventh Circuit
in Rodriguez have cogently explained, keep in
mind precisely what isSSand thus what is
notSSerror under Booker. The precise Sixth
Amendment error identified in Booker is not
the use of extra-verdict enhancements that
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-
guez, 398 F.3d at 1300.
Thus, in applying the third prong, “the
pertinent question is whether [the defendant]
demonstrated that the sentencing
judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have
reached a significantly different result.”
Mares, 2005 U.S. App. LEXIS 3653, at *27-
*28. Absent some indication in the record that
the outcome would have been different if the
district court had been operating under an
advisory system, a defendant fails to carry his
burden of demonstrating prejudice and there-
fore that the error affected his substantial
rights.47
Holmes attempts to demonstrate prejudice
by quoting the following statement apparently
made by the district judge at sentencing:
Those who practice in my court have heard
me say many times that I generally think the
guidelines provide punishments that are far
too harsh. . . . I also think that I took an
oath to apply the law faithfully. And I
don’t have a free-ranging portfolio to ig-
nore the sentencing table.
The problem for Holmes is that he failed to in-
clude in the record on appeal the transcript of
that hearing.48 As a result, even if the alleged
quoted statement constituted a sufficient basis
for Holmes to carry his burden of demonstrat-
ing prejudice (a question we do not answer), it
is not in the record on appeal and thus cannot
47 See Mares, 2005 U.S. App. LEXIS 3653, at
*28 (“[T]here is no indication in the record from
(continued...)
47(...continued)
the sentencing judge’s remarks or otherwise that
gives us any clue as to whether she would have
reached a different conclusion. Under these cir-
cumstances the defendant cannot carry his burden
of demonstrating that the result would have likely
been different had the judge been sentencing under
the Booker advisory regime rather than the pre-
Booker mandatory regime.”); see also Jones v.
United States, 527 U.S. 373, 394–95 (1999)
(“Where the effect of an alleged error is so uncer-
tain, a defendant cannot meet his burden of show-
ing that the error actually affected his substantial
rights.”).
48 Instead, he included only (as relevant here)
the transcript from the December 17, 2003, tele-
phonic conference in which the court specified its
rationale for its previous decision to impose the en-
hancement; but, critically, the transcript from this
conference reveals no similar statements by the
district judge about being bound by the mandatory
guidelines to apply a sentence he deemed so severe.

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26
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.”).

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