IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40313 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHERRY KAYE GAUTHIER; PAMELA D. SMALL,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CR-46-2

January 15, 2001

Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Sherry Kaye Gauthier and Pamela D. Small appeal their

convictions for conspiracy to commit mail fraud, in violation of

, and one count of mail fraud, in violation of 18 U.S.

C. § 1341. Gauthier contends that the admission of seven specified

out-of-court statements by Small, who (like Gauthier) did not

testify, violated Gauthier’s Sixth Amendment Right to

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Confrontation. Gauthier also argues that the district court erred

in refusing to reduce her offense level under U.S.S.G. § 3B1.2 for

minimal or, in the alternative, minor participation. Both

defendants contend that the district court erred in determining the

amount of loss under U.S.S.G. § 2F1.1.

Our review of the record and the arguments and authorities

convinces us that no reversible error was committed. In Bruton v.

United States,

(1968), the Supreme Court held that a

defendant’s Sixth Amendment Right to Confrontation is violated

“when his non-testifying co-defendant’s confession naming him as a

participant in the crime is introduced at their joint trial, even

if the jury is instructed to consider that confession only against

the co-defendant.” United States v. Nutall,

(5th

Cir. 1999), cert. denied,

(2000). We review a

properly raised Bruton issue under an abuse-of-discretion standard.

United States v. Mann,

(5th Cir. 1998). We

review the admission of those statements to which Gauthier did not

object only for plain error. See United States v. Walker,

(5th Cir. 1998).

The statements Gauthier challenges on appeal and designates as

numbers 1, 2 and 3 make absolutely no mention of her and hence do

not directly or plainly incriminate her without reference to other

admissible evidence and thus do not fall within the proscription of

Bruton. See United States v. Lage,

(5th Cir.

2 1999). Further, these statements, as well as statement number 4,

all fall within a “firmly rooted” hearsay exception to Bruton,

namely that for co-conspirator statements made during and in

furtherance of the conspiracy, as the trial court properly ruled.

See Walker,

. This is likewise true respecting

statement 7, and in any event that statement is plainly not hearsay

and not admitted for the truth of the matter asserted; the witness

was merely testifying as to a verbal act by Small, her offering of

a bribe to the witness in the presence of the witness; nothing of

the witness’s testimony as to what Small said in that connection

implicates Gauthier; Gauthier was shown to be present, but only by

the witness’s own testimony as to her own observation of Gauthier,

not by any statement which the witness testified Small made.

Statements 5 and 6 were not objected to by Gauthier at trial

(nor, indeed, were any of the seven statements objected to on

Bruton related grounds except statement 1).1 Statement 6 contains

nothing plainly incriminatory of Gauthier. This is also largely

true of statement 5, although a small part of it might fairly be

1 Statements 5 and 6 were admitted only as against Small, and the jury was told not to consider them as to Gauthier. This, of course, does not preclude Bruton error, but it may explain the failure to object. We further note that these statements could have been properly admitted against Gauthier under the co- conspirator exception as Small clearly had not withdrawn from the conspiracy and was trying to keep it concealed so it could still be carried out. See United States v. Esacove,

(5th Cir. 1991); United States v. Broussard,

(5th Cir. 1996).

3 described as plainly incriminatory of Gauthier. Nevertheless, it

is clear that any error in admitting statements 5 and 6 was

harmless beyond a reasonable doubt, as the prosecution’s other

evidence (indeed, its evidence apart from any of the statements)

was not simply adequate but was indeed overwhelming and compelling,

any Bruton vulnerable portion of statements 5 and 6 was essentially

cumulative, and neither defendant presented any evidence. See

Nutall,

; United States v. Cartwright,

(5th Cir. 1993).2

Finally, the district court did not abuse its discretion when

it determined that Gauthier was not entitled to a reduction in her

offense level because she was not a minor or minimal participant.

United States v. Posada-Rios,

(5th Cir. 1998).

The district court’s loss calculation, based upon the entire value

of the estate of John Waits, Jr., is plausible in light of the

record as a whole, and the district court did not err by refusing

the defendants the benefit of a three-level reduction in their base

offense level pursuant to U.S.S.G. § 2X1.1. See United States v.

2 We observe that in her statement of issues on appeal Gauthier lists denial of her motion for severance and of her motion for mistrial. Neither issue, however, is otherwise actually briefed. Those issues are hence deemed abandoned. Moreover, each is wholly without merit. The motion to sever was not filed until after voir dire was completed and the jury had been selected, and was hence untimely and waived. See United States v. Palmer,

(5th Cir. 1997). The motion for mistrial was predicated on the admission of statement 1; for the reasons above set out, there was no error in the admission of statement 1.

4 Oates,

(5th Cir. 1997).

We affirm the convictions and sentences of both Gauthier and

Small.

AFFIRMED.

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