     Case: 11-60606     Document: 00511941533         Page: 1     Date Filed: 08/01/2012




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

                                                                            FILED
                                                                           August 1, 2012
                                     No. 11-60606
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WENDELL W. HOLLIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:11-CR-9-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Wendell W. Hollis appeals his jury trial conviction
for theft of government funds, for which he was sentenced to 16 months in prison
and three years of supervised release. The record is insufficiently developed to
allow consideration at this time of Hollis’s claim of ineffective assistance of
counsel. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
        Hollis contends that the district court abused its discretion by admitting,
over his objection, a government witness’s testimony that she was assaulted and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60606    Document: 00511941533       Page: 2   Date Filed: 08/01/2012

                                   No. 11-60606

intimidated by Hollis’s sister and by failing to weigh the probative value of this
testimony against its prejudicial effect, as required by Federal Rule of Evidence
403. The record belies Hollis’s argument that the district court failed to conduct
the balancing required by Rule 403. Hollis has not shown that the Government’s
primary purpose in calling this witness was to elicit otherwise impermissible
evidence that Hollis’s sister assaulted and intimidated that witness. Based on
the record, the district court did not clearly abuse its discretion in admitting this
evidence. See United States v. Williams, 620 F.3d 483, 492 (5th Cir. 2010);
United States v. Cisneros-Gutierrez, 517 F.3d 751, 760 (5th Cir. 2008).
      Hollis also claims that the district court erred in denying his post-trial
motion for a new trial. In light of Hollis’s sparse assertions in his new trial
motion and of the conclusion above that the district court did not abuse its
discretion in admitting the witness’s intimidation testimony, Hollis has not
shown that the district court clearly abused its discretion in denying his motion
for a new trial. See United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th
Cir. 2008).
      Because Hollis preserved his insufficiency-of-the-evidence claim as to his
occupancy of the property on which his allegedly false FEMA claims were based
by making several motions for judgment of acquittal, we review that claim de
novo. United States v. Moreland, 665 F.3d 137, 148 (5th Cir. 2011). This review,
however, “does not include a review of the weight of the evidence or of the
credibility of the witnesses.” United States v. Anderson, 559 F.3d 348, 353 (5th
Cir. 2009) (internal quotation marks and citation omitted). Viewed in the light
most favorable to the verdict, see id., this evidence supports a finding beyond a
reasonable doubt that Hollis did not occupy the lot in question at the time of
Hurricane Katrina.
      AFFIRMED.




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