USA v. Lerma, No. 07-41187 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-41187 Summary Calendar July 23, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JOE LUIS LERMA Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:07-CR-41-ALL Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Joe Luis Lerma appeals his jury conviction for Medicare and Medicaid fraud. He argues that the district court abused its discretion in denying his motion for mistrial following the testimony of Jennifer Allen, which, he contends, gave the jury the impression that he had committed crimes or bad acts not alleged in the indictment. Lerma is entitled to a new trial only [if], after a review of the entire record, it appears that there is a significant possibility that the prejudicial * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41187 evidence had a substantial impact on the jury verdict. United States v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008), petition for cert. filed, (June 2, 2008) (No. 071512). The prejudicial effect of Allen s testimony was rendered harmless by the district court s curative jury instructions; Lerma s lack of credibility, as evidenced by his own contradictory testimony; and the overwhelming evidence of his guilt. The denial of Lerma s motion for mistrial was therefore not an abuse of discretion. See id. AFFIRMED. 2
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