     Case: 11-60471     Document: 00511796812         Page: 1     Date Filed: 03/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-60471
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EARNEST HOLDER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:09-CR-40-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Earnest Holder has appealed his jury convictions of
accepting kickbacks in connection with the award of a federally funded contract
(Count 1), participating in a conspiracy to receive kickbacks in connection with
the award of a federally funded contract (Count 2), making false material
declarations to the grand jury (Count 3), and filing a false tax return that
understated his taxable income for 2006 (Count 5).



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 11-60471

      Holder complains that he was not permitted to have counsel present
during his grand jury testimony and that he was not permitted to return with
counsel. As this issue has been raised for the first time on appeal, we review it
for plain error only. Puckett v. United States, 556 U.S. 129, 135 (2009). When,
as here, criminal proceedings had not yet been instituted, the witness had no
constitutional right to have counsel present during the grand jury proceeding.
Fuller v. Johnson, 158 F.3d 903, 907-08 (5th Cir. 1998). No error has been
shown, plain or otherwise. See id.
      Holder complains that, by “requiring both sides to use blind strikes,” the
district court deprived him of one of his peremptory strikes because both the
defense and the government struck the same juror. As the use of blind strikes
has been approved by this court, Holder cannot show that the district court
abused its discretion. See United States v. Durham, 587 F.3d 799, 801 (5th Cir.
1979); United States v. Sarris, 632 F.2d 1341, 1343 (5th Cir. 1980).
      Holder asserts that the district court erred in admitting his signed
statement into evidence because the statement was involuntarily given in
connection with a polygraph examination that was not administered in
accordance with FBI policies and procedures. The government made a proffer
regarding the manner in which the polygraph examination was conducted.
Based on that evidence, we conclude that the district court did not abuse its
discretion in excluding details of the polygraph examination and in admitting
the signed statement that resulted from the examination. See United States v.
El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011). The polygraph examiner’s alleged
failure to follow FBI guidelines does not provide Holder a basis for challenging
his conviction. See United States v. Cooks, 589 F.3d 173, 184 (5th Cir. 2009).
The district court did not clearly err in finding that Holder’s signed statement
was voluntarily given. See Nunez-Sanchez, 478 F.3d at 666. United States v.
Nunez-Sanchez, 478 F.3d 663, 666 (5th Cir. 2007).



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                                   No. 11-60471

      Holder contends that the district court abused its discretion by overruling
his hearsay objection to admission of out-of-court statements of his coconspirator
and that the government improperly referred to the hearsay statements in its
opening statement. The district court did not abuse its discretion in determining
that the coconspirator’s out-of-court statements were admissible. See El-Mezain,
664 F.3d at 502; FED. R. EVID. 801(d)(2)(E). As the evidence was admissible, the
district court did not plainly err in permitting the prosecutor to refer to those
statements in her opening argument. Puckett, 556 U.S. at 135.
      Holder claims that the district court erred by limiting his cross
examination of the FBI’s polygraph examiner and case agent. Holder has not
shown, and the record does not reflect, that the district court’s rulings limited
him in any material way from attempting to undermine the agents’ testimony.
See United States v. McCullough, 631 F.3d 783, 790 (5th Cir. 2011).
      Holder asserts that the district court erred in denying his motion to
dismiss the conspiracy charge based on the acquittal of his coconspirator. No
error has been shown in this regard. See United States v. Zuniga-Salinas, 952
F.2d 876, 877-79 (5th Cir. 1992) (en banc).
      Holder complains that several government witnesses who testified in the
first trial were not available to testify in the second trial. The record does not
reflect whether Holder subpoenaed the witnesses or why he did not call them as
witnesses. No error on the part of the district court has been shown. As the
record has not been developed, we shall not consider Holder’s related ineffective-
assistance-of-counsel claim on direct appeal. See United States v. Cantwell, 470
F.3d 1087, 1091 (5th Cir. 2006).
      Holder contends that the district court erred in denying his motion for a
mistrial after a government informant gave non-responsive testimony during
cross examination about the manner in which he had generated cash to pay
Holder and the manner in which he determined the total amount of those
payments. Holder claims that, having denied the motion, the district court erred

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                                  No. 11-60471

in failing to strike the non-responsive testimony and in failing to give him
additional time in which to prepare his cross examination of the informant.
Holder has failed to show that the district court abused its discretion in this
respect. See United States v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008).
      Holder urges that the district court erred in instructing the jury with
regard to the tax-evasion charges. We review this question for plain error. See
Puckett, 556 U.S. at 135. As the district court’s instruction was consistent with
the pattern jury instruction of the trial courts of this circuit, no error is
apparent, plain or otherwise. See United States v. Whitfield, 590 F.3d 325, 354
(5th Cir. 2009).
      In a related contention, Holder complains that the verdicts in his first trial
were inconsistent. The fact that the jury’s verdict was inconsistent does not
necessarily undermine the conviction. See United States v. Dubea, 612 F.2d 950,
951 (5th Cir. 1980). “Where a multi-count verdict appears inconsistent, the
appellate inquiry is limited to a determination whether the evidence is legally
sufficient to support the counts on which a conviction is returned.” Id. No error
has been shown. See id.; see also United States v. Mann, 161 F.3d 840, 848 (5th
Cir. 1998).
      We have not considered several spurious arguments raised for the first
time in Holder’s reply brief. See United States v. Aguirre-Villa, 460 F.3d 681,
683 n.2 (5th Cir. 2006). Neither have we considered any issues raised in the
original brief that have been inadequately briefed.         See FED. R. APP. P.
28(a)(9)(A); see also Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). The
judgment is AFFIRMED.




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