United States v. Jordan

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 14, 2002
• Docket: 01-10038
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10038

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MONTOYA JORDAN; LEWIS HENRY ANTHONY,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CR-117-6-A -------------------- May 13, 2002

Before REAVLEY, SMITH, and DENNIS, Circuit Judges

PER CURIAM:*

Montoya Jordan and Lewis Henry Anthony have appealed their

jury convictions of conspiracy to possess and possession of stolen

mail, and bank fraud. We AFFIRM.

Appellants’ contention that the evidence was insufficient to

support their convictions, based principally on the alleged

unreliability of the accomplice testimony, is without merit. See

United States v. Robles-Pantoja, 887 F.2d 1250, 1254-55 (5th Cir.

1989).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-10038 -2-

Anthony argues that the district court abused its discretion

by admitting into evidence his prior conviction of bank fraud.

This evidence was admissible because it was relevant to issues

other than Anthony’s character; its probative value was not

substantially outweighed by its prejudicial effect; and it met the

other requirements of FED. R. EVID. 403. See FED. R. EVID. 404(b);

United States v. Richards, 204 F.3d 177, 199-201 (5th Cir.), cert.

denied, 531 U.S. 826 (2000).

Jordan contends that the district court’s admission into

evidence of an undercover police officer’s testimony entitles him

to reversal, although the court struck the testimony because of a

discovery violation and instructed the jury to disregard it.

Jordan’s contention lacks merit because his counsel expressed

satisfaction with the district court’s limiting instruction; there

was no motion for a mistrial; and the court did not commit plain

error. See United States v. Norris, 780 F.2d 1207, 1212 (5th Cir.

1986).

The district court did not abuse its discretion by sustaining

the Government’s objection to a question by Anthony’s counsel on

cross-examination of a postal inspector, who testified to the chain

of custody of forged checks and other items sent to a laboratory

for fingerprint analysis. The question, whether Anthony had

voluntarily provided a handwriting specimen, clearly exceeded the

scope of direct examination; and Anthony has not shown that the

district court’s ruling resulted in any prejudice to his defense.

See FED. R. EVID. 611(b); United States v. Route, 104 F.3d 59, 64

(5th Cir. 1997). No. 01-10038 -3-

Contrary to Jordan’s next contention, there was ample evidence

which proved that the offenses were committed in the Northern

District of Texas, as alleged in the indictment. See United States

v. Carreon-Palacio, 267 F.3d 381, 391-93 (5th Cir. 2001).

Anthony contends that he was denied a fair trial as a result

of the district court’s erroneous evidentiary rulings, considered

both individually and cumulatively. This lacks merit because

Anthony has not shown that any such errors were made by the

district court. See United States v. Lindell, 881 F.2d 1313, 1327

(5th Cir. 1989).

Anthony asserts that the district court reversibly erred by

ordering him to pay restitution to two financial institutions which

lost money as a result of cashing forged checks. It was proper,

however, for the court to base its order of restitution on either

Anthony’s conviction of conspiracy to possess checks stolen from

the mail or his conviction of bank fraud. See 18 U.S.C. § 3663A;

United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998).

Anthony now contends, for the first time, that some of the

losses claimed by the banks did not occur within the time periods

alleged in the indictment. However, he would not be entitled

to relief on this new claim unless he could show plain error. See

United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.), cert.

denied, 531 U.S. 972 (2000). “Questions of fact capable

of resolution . . . at sentencing [such as this] can never

constitute plain error.” United States v. Lopez, 923 F.2d 47, 50

(5th Cir. 1991); accord United States v. Chung, 261 F.3d 536, 539 No. 01-10038 -4-

(5th Cir. 2001). Thus Anthony is not entitled to any relief

relative to the restitution order.

The judgments of conviction of Lewis Henry Anthony and Montoya

Jordan are due to be, and they are hereby, AFFIRMED in all

respects.

AFFIRMED.