                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4535


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KELLY ANDREW HOLLAND,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:08-cr-00054-jpj-pms-1)


Submitted:   February 23, 2011            Decided:   March 18, 2011


Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Lees, Jr., HUNT & LEES, LC, Charleston, West Virginia,
for Appellant.     Timothy J. Heaphy, United States Attorney,
Jennifer   R.  Bockhorst,   Assistant United  States  Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Kelly    Andrew     Holland       appeals        his    convictions       for

obstruction      of    justice,      in   violation       of     18    U.S.C.    § 1512(c)

(2006), and possession of a stolen Marlin rifle, in violation of

18    U.S.C.    § 922(j)      (2006).       On    appeal,       Holland       contests   the

district court’s denial of his motion to suppress the statements

given to investigators in the United States Fish and Wildlife

Professional         Responsibility       Unit    (PRU),        the    district    court’s

exclusion       of     testimony     from       his     wife     regarding       Holland’s

discovery      of     the   Marlin    rifle,      and     the    sufficiency       of    the

evidence against him.            We affirm.

               Holland’s      primary     argument       on     appeal    is     that    the

district court should have excluded the statements Holland gave

to the PRU investigators under Garrity v. New Jersey, 385 U.S.

493 (1967).          We review the underlying legal determination in a

motion to suppress de novo.               United States v. Kellam, 568 F.3d

125, 132 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009).                               Under

Garrity, when an individual is compelled to give testimony to

his    public        employer,     and    thus        waive     his    Fifth     Amendment

protections, any statements given in the course of the compelled

interview cannot be used in a future prosecution.                             Garrity, 385

U.S.    at   500.       The   Government         concedes       that    the    protections

announced in Garrity apply to Holland’s statements but argues

that those protections do not extend to the false statements

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Holland     provided        to     PRU   investigators.            The    district       court

agreed    with       the    Government     that,      because      Holland      was    not    on

trial for the content of his statements but for their falsity,

the statements were admissible.

             In United States v. Mandujano, 425 U.S. 564 (1976)

(plurality),         the    Supreme      Court    reaffirmed        the   principle       that

“[i]n     this       constitutional        process         of     securing      a     witness’

testimony, perjury simply has no place whatever.”                               Id. at 576.

Put   another        way,     “[o]ur     legal     system       provides     methods         for

challenging the Government’s right to ask questions—lying is not

one of them.”          Bryson v. United States, 396 U.S. 64, 72 (1969)

(footnote omitted).              As the Eleventh Circuit explained regarding

the   use    of      false       statements      in   an    obstruction         of     justice

prosecution:

      When an accused has been accorded immunity to preserve
      his right against self-incrimination, he must choose
      either to relinquish his Fifth Amendment right and
      testify truthfully, knowing that his statements cannot
      be   used  against   him  in  a   subsequent  criminal
      prosecution regarding the matter being investigated,
      or continue to assert the privilege and suffer the
      consequences. There is no third option for testifying
      falsely without incurring potential prosecution for
      perjury or false statements.

United States v. Veal, 153 F.3d 1233, 1241 (11th Cir. 1998)

(footnote omitted).

             Thus,         “[a]n     accused       may      not     abuse       Garrity       by

committing       a    crime      involving    false      statements       and       thereafter


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rely       on    Garrity      to    provide    a       safe    haven     by    foreclosing        any

subsequent use of such statements in a prosecution for perjury,

false statements, or obstruction of justice.”                                 Id. at 1243; see

also United States v. Kennedy, 372 F.3d 686, 688 (4th Cir. 2004)

(affirming            convictions      based       upon       false    testimony         taken    in

violation of Fifth and Sixth Amendments).                             In this case, Holland

was informed that he would face prosecution if he gave false

information.             For these reasons, the district court correctly

admitted         Holland’s         statements      to     the    PRU       investigators         into

evidence. *

                 Holland next argues that the district court abused its

discretion in excluding his wife Shannon’s testimony that, when

Holland discovered the Marlin rifle, he told her that he thought

he   had        given    it   back     but    must      have     accidently       misplaced        it

during          the    couple’s       move.        We     review       a      district     court’s

evidentiary rulings for abuse of discretion.                                  United States v.

Basham, 561 F.3d 302, 325 (4th Cir. 2009), cert. denied, 130 S.

Ct. 3353 (2010).

                 Federal       Rule    of     Evidence          803(3)        provides    that      a

hearsay statement is admissible if it is:

       *
       Holland suggests briefly that admission of the testimony
violated Federal Rule of Evidence 403 and that counts on which
the jury acquitted him should have been dismissed before trial
because those counts did not constitute crimes, as alleged in
the superseding indictment.     We conclude these claims lack
merit.


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     [a] statement of the declarant’s then existing state
     of mind, emotion, sensation, or physical condition
     (such as intent, plan, motive, design, mental feeling,
     pain, and bodily health), but not including a
     statement of memory or belief to prove the fact
     remembered or believed . . . .

Fed. R. Evid. 803(3).                 The district court did not abuse its

discretion      in     excluding      the   testimony    under    this     Rule.      The

district court correctly concluded that Shannon’s testimony was

being used as a statement of memory or belief to prove the fact

remembered — that Holland had not knowingly possessed the Marlin

rifle — and did not fall within the ambit of Rule 803(3).

               We    also    reject    Holland's       argument    that    the     jury's

verdict was not supported by sufficient evidence.                          This court

must sustain a guilty verdict if, viewing the evidence in the

light most favorable to the Government, the verdict is supported

by evidence a reasonable finder of fact could accept as adequate

to find the defendant guilty beyond a reasonable doubt.                            United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

Having    carefully          reviewed       the   record,      and    applying        the

appropriate          standard   of     review,    we    conclude     the    Government

sustained its burden of proof.

               For    the    foregoing      reasons,    we   affirm      the   district

court’s judgment.             We dispense with oral argument because the

facts    and    legal       contentions     are   adequately      presented      in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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