406 F.3d 337 (5th Cir. 2005), 03-41738, United States v. Holmes

Docket Nº:03-41738.
Citation:406 F.3d 337
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. W. Lassiter HOLMES, III, Defendant-Appellant.
Case Date:April 06, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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406 F.3d 337 (5th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

W. Lassiter HOLMES, III, Defendant-Appellant.

No. 03-41738.

United States Court of Appeals, Fifth Circuit.

April 6, 2005

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        Jeffery Alan Babcock (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

        Stanley Lee Schwieger (argued), Law Offices of Stan Schwieger, Waco, TX, for Holmes.

        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 practicing 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 petition in a medical malpractice suit Holmes was handling, for

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purposes of avoiding a statute of limitations bar. Holmes challenges his conviction and sentence on eight grounds. Finding no reversible error with respect to his conviction 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 malpractice suit after Hector Gonzalez suffered the loss of a kidney from the alleged negligence of Dr. Miguel Aleman. Over the course of the next two years, Holmes worked sporadically on the case, seeking relevant medical 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 letter 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, seeking to settle the case for $3.5 million. Several days later, on May 8, 1999, the parties attended a court-ordered mediation.

        During the course of the mediation, the mediator--conducting shuttle-diplomacy between the parties--approached 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 limitations defense. (Hole had asserted a limitations defense in his answer to the May 14, 1996, petition, but never urged it during discovery.) Specifically, the mediator told the defense what Holmes had relayed to her moments before: He had mailed an original petition 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 summary 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 following letter by fax to Pauline Gonzalez, 2 the then-elected District Clerk for Hidalgo County:

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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 attention that the petition was never made part of the record.

        Could you please conduct an investigation 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 answer on May 13, 1999:

        In response to your inquiry, the plaintiff'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 address 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 Gonzalez. 6 In his deposition, Holmes testified that he mailed the newly-discovered original petition on the evening of May 6 and that he had addressed 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 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 Hector and Felipa Gonzalez

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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 watermark and date code. According to the manufacturer, 7 Hole maintained, the date code corresponded to the year 1997, and thus the bond paper could not have been manufactured before 1997. The petition could not, therefore, have been printed and mailed, as Holmes suggested, in May 1996. Holmes received a sanction 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 Israel 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 petition, so he brought a copy of the earlier, original petition to the clerk's office as a "go-by" to show employees the document he was looking for.

        Federal investigators initiated an independent 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 appeals his conviction and sentence on various grounds.

        III.

        A.

         Holmes contends the district court admitted the videotaped and transcribed

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deposition testimony 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 conspiracy. The government asserts that Gonzalez's deposition, which was taken by Hole on May 19, 1999, only a few days after the petition file-stamped May 7, 1996, was discovered, consisted of statements by a co-conspirator made in furtherance of the conspiracy with Holmes, insofar...

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