IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40392 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHERI ANDERSON,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:99-CR-76-1 _________________________________________________________________ October 2, 2000

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

A jury convicted Cheri Anderson, a former investment broker,

of fraudulently using the debit card of one of her clients,

88-year-old Gordon Wood, to make over $70,000 in unauthorized

withdrawals from Wood’s account through automated teller machines

(ATMs), in violation of

(a)(2). Anderson appeals,

making four arguments related to three issues.

Anderson first contends that the district court violated her

Sixth Amendment right to an impartial jury by refusing to excuse

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. prospective juror Marilyn Gentry for cause. This court’s review of

this claim is limited to considering the partiality of those who

actually served on the jury. Ross v. Oklahoma,

(1988). Because Gentry did not serve on the jury, Anderson’s claim

has no factual basis and provides no grounds for relief.

Anderson next contends that the court abused its discretion in

applying the “residual exception” of Fed. R. Evid. 807 to admit

testimony that Wood told two witnesses that Anderson “made” him get

the debit card even though he did not want it. This court reviews

evidentiary rulings for abuse of discretion and will “not disturb

the trial court’s ruling on the admissibility of evidence under the

residual exception to the hearsay rule ‘absent a definite and firm

conviction that the court made a clear error of judgment[.]’”

United States v. Perez,

(5th Cir. 2000) (citation

omitted). Wood’s declaration had sufficient indicia of reliability

so that the court did not abuse its discretion in admitting it

under Rule 807.

Anderson also argues that the admission of the hearsay

evidence violated her Sixth Amendment right to confront her

accusers. See United States v. Ismoila,

(5th

Cir. 1996) (evidence admissible under Rule 807 may still violate

Confrontation Clause). Anderson did not raise this issue in the

district court; therefore, it is reviewed for plain error. United

2 States v. Maldonado,

(5th Cir. 1995) (objection

must be specific to preserve issue for review). To satisfy the

Confrontation Clause, hearsay evidence must be supported by a

showing of “particularized guarantees of trustworthiness.” Ohio v.

Roberts,

(1980). The circumstances surrounding

Wood’s declaration rendered it sufficiently trustworthy to be

admitted.

Even if there were a Confrontation Clause error, it was not

“plain.” In order to be plain error, an error must be “clear” or

“obvious.” Olano 507 U.S. at 733-34. The error must also have

been prejudicial, meaning that it affected the outcome of the

proceeding. Id. at 734; Fed. R. Crim. P. 52(b). If these factors

exist, the court may correct the error if it “‘seriously affects

the fairness, integrity or public reputation,” of the judicial

proceedings. Olano, 507 U.S. at 736 (citation omitted). Because

Wood’s declaration was admissible under Rule 807, it was not

obvious error to admit it under the Confrontation Clause. Further,

in the light of the abundant evidence of Anderson’s guilt, the

admission did not affect the outcome, fairness, integrity, or

public reputation of the judicial proceeding.

Finally, Anderson contends that the court erred in allowing

her former coworkers to give opinion testimony that she was the

disguised person shown using Wood’s debit card in an ATM

3 surveillance videotape. This ruling is reviewed for abuse of

discretion. Perez,

. A lay witness may testify as

to opinions that are rationally based on the witness’s perception

and that are helpful to the jury. Fed. R. Evid. 701; United States

v. Riddle,

(5th Cir. 1997). Based on their daily

observations of Anderson, her coworkers were qualified to help the

jury identify her as the person in the videotape. The district

court did not abuse its discretion in admitting their testimony.

Anderson’s conviction is

A F F I R M E D.

4