Case: 09-30742 Document: 00511293321 Page: 1 Date Filed: 11/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 15, 2010
No. 09-30742 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee,
v.
KERN CARVER BERNARD WILSON; DURWANDA ELIZABETH MORGAN
HEINRICH,
Defendants - Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CR-128
Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
For these challenged convictions for bribery of public officials during
reconstruction in the aftermath of Hurricane Katrina, primarily at issue is
whether one of the defendants, Kern Wilson, qualifies as a “public official”
within the meaning of the bribery statute. Error is also claimed for the
restriction placed on cross-examination of a Government-witness co-conspirator,
and three trial evidentiary rulings. AFFIRMED.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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I.
The bribery and conspiracy at issue concerns the bid process for the
enlargement and reconstruction of the Lake Cataouatche Levee, a project located
south of New Orleans and part of post-Katrina reconstruction projects
supervised by the United States Army Corps of Engineers (USACE). In
September 2005, soon after Katrina, Wilson, a retired Army officer and civil
engineer, moved to New Orleans, seeking work as a recovery consultant on such
projects.
In July 2006, after a brief stint with an emergency-relief consortium,
Wilson joined Integrated Logistical Support, Inc. Engineering (ILSI), working
under contract for USACE. Wilson’s work concerned projects related to
construction of embankment protection along coastal waterways. It was while
working earlier with the above-referenced emergency-relief consortium that
Wilson met defendant Elizabeth Heinrich, a supplier of dirt and sand to various
construction projects. Wilson and Heinrich became friends and romantically
involved.
In addition, soon after joining ILSI, Wilson met Raul Miranda, an engineer
who, inter alia, assisted USACE in evaluating and reviewing bids for the Lake
Cataouatche project. Part of Miranda’s work entailed identifying deficiencies
with the bid proposals for USACE’s contract-selection committee.
Through their work together, Wilson and Miranda became friends; their
desks were next to each other; and Miranda rented a duplex directly above
Wilson’s apartment. Heinrich met Miranda during her visits to Wilson’s
apartment.
Heinrich was seeking work with USACE and made well-known her
interest in obtaining a contract on a USACE project. Her goal was to qualify as
a sub-contractor for the Lake Cataouatche project (the project), furnishing sand
and gravel to the prime contractor working the levee construction. During one
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of her visits to Wilson’s apartment, Heinrich approached Miranda for
information: she asked him to identify the prime contractor qualified to win the
Lake Cataouatche contract. This would inform her which contractor to approach
in her efforts to win a sub-contract.
USACE’s bid process for the project operated on a “best-value approach”.
For it, USACE assigned value to factors besides price (e.g., technical approach,
scheduling) and awarded the contract to the proposal deemed best overall value.
Unlike the low-bid process, where bids are typically made open to the public, the
best-value approach is not so disclosed. Instead, the bids are kept sealed and
only after the proposals are evaluated for addressing specific considerations
related to the project are contractors given an opportunity to address any
deficiencies and revise their proposals.
To prevent contractors from gaining unfair advantage during such bid
process, USACE requires all engineers, whether Government employees or
Government contract employees like Wilson and Miranda, to sign a Procurement
Integrity Act (PIA) statement. The statement informs its signatories that
source-selection and bid-proposal information constitute “proprietary
government information” and must be kept confidential. Wilson and Miranda
signed this PIA statement.
Following a tip from Miranda, Heinrich decided to support a proposal from
Manson Gulf, LLC, one of the prime contractors bidding on the project. Miranda
agreed to provide Heinrich and Wilson with information necessary for Manson
Gulf to correct technical deficiencies in its bid. In addition, Miranda made clear
he expected payment for the confidential information he was relaying to
Heinrich about that bid. Heinrich, Miranda, and Wilson agreed Miranda and
Wilson would each receive $0.25 per cubic yard of fill material sold by Heinrich
to Manson Gulf for the project.
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Following their agreement, and after Manson Gulf submitted its Lake
Cataouatche bid to USACE, Heinrich contacted Mayeux, the head of Manson
Gulf’s levee division. Heinrich told Mayeux his bid had flaws and she could help
him correct them. Heinrich then obtained information from Miranda about that
bid. On multiple occasions between 25 September and 3 October 2006, Heinrich,
Miranda, and Wilson met to discuss the summary of technical deficiencies in
Manson Gulf’s proposal. On some occasions, Wilson would obtain the technical
information from Miranda at work and relay it to Heinrich that evening.
Between 28 September and 2 October 2006, Heinrich contacted Mayeux via
telephone, fax, and e-mail, with information identifying technical deficiencies
in his proposal and solutions to address them. Mayeux then used Heinrich’s
suggestions to respond to questions during Manson Gulf’s oral presentation to
USACE’s source-selection committee. According to Miranda’s trial testimony,
he had fed some of those questions to that committee, knowing they would help
Manson Gulf’s proposal.
In the light of this provided data, Mayeux suspected Heinrich had obtained
her information from an inside source at USACE. Mayeux informed USACE,
which then contacted federal law enforcement. At the behest of the Army’s
Criminal Investigative Division (CID), Mayeux recorded conversations with
Heinrich in which she acknowledged having an inside source at USACE. In that
regard, she even told Mayeux at one of these meetings, when he advised her to
remain while he briefly left the room, “don’t bring the FBI [back] with you”. CID
intervened and brought the conspirators’ activities to an end. Miranda
cooperated with Government investigators; pleaded guilty to bribery, in violation
of 18 U.S.C. § 201(b)(2)(B); and received, inter alia, four-months’ imprisonment.
Pursuant to his plea agreement, Miranda agreed to testify at trial against
Wilson and Heinrich.
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Heinrich was indicted on: one count of conspiracy to commit bribery, in
violation of 18 U.S.C. § 371; and two bribery counts (one each for Wilson and
Miranda), in violation of 18 U.S.C. § 201(b)(1)(B). Wilson was indicted on: one
count of conspiracy to commit bribery, in violation of 18 U.S.C. § 371; and one
bribery count, in violation of 18 U.S.C. § 201(b)(2)(B). Following a jury trial in
2009, they were convicted on all counts. Heinrich and Wilson were sentenced,
inter alia, to 60 and 70 months’ imprisonment, respectively.
II.
Although Wilson and Heinrich present several claims, Heinrich does not
challenge her bribery conviction concerning Miranda. At issue are: the district
court’s restriction of Miranda’s cross-examination; its ruling Wilson was a
“public official” within the meaning of the bribery statute and, therefore, not
submitting this “public official” question to the jury; and three trial evidentiary
rulings.
A.
Regarding the limitation on Miranda’s cross-examination, in claimed
violation of the Sixth Amendment’s Confrontation Clause, defendants assert the
district court improperly blocked them from establishing Miranda’s lack of
credibility and motive to lie, by curtailing questions about the detail and scope
of his plea agreement. Such claimed violations are reviewed de novo; if no Sixth
Amendment violation exists, the cross-examination limitation is reviewed for
abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir.
2006).
The Sixth Amendment guarantees a criminal defendant the right to cross-
examine witnesses testifying against him. E.g., Davis v. Alaska, 415 U.S. 308,
315 (1974). This right, of course, is not unlimited, see Delaware v. Van Arsdall,
475 U.S. 673, 679-80 (1986); and it is not infringed provided defendant is able
to expose facts from which the jury could draw inferences as to the witness’
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reliability, see United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). To show
the alternative abuse of discretion, defendant must establish clear prejudice, so
that “a reasonable jury might have had a significantly different impression of the
witness’[] credibility if defense counsel had been allowed to pursue the
questioning”. Id. at 548.
At issue is whether the district court improperly curtailed cross-
examination on concrete details of Miranda’s plea agreement. During his cross-
examination, jurors learned: Miranda had reached a plea agreement with the
Government; in exchange for pleading guilty to one count, the Government
would not charge him with additional counts; and, in exchange for pleading
guilty, the Government would limit Miranda’s sentence under the Sentencing
Guidelines.
When defense counsel asked about the reduced Guideline sentencing-
range specified in that plea agreement, however, the district court ruled:
All I’m going to let you do is ask him what his
understanding [is], if he has one, as to what sentence
he’s going to get because of his Plea Agreement and if
he expects or hopes to get a reduced sentence because
of his testimony, and that’s it, and let’s get off of this
Plea Agreement.
Defendants contend this was error because jurors were left unaware of the
magnitude of the benefit extended Miranda as the result of his plea agreement;
they maintain this benefit was so significant that jurors would have discredited
Miranda’s testimony, or at least this benefit would have generated a different
impression of his credibility.
For the reasons that follow, the curtailment of Miranda’s cross-
examination was neither in violation of the Sixth Amendment nor an abuse of
discretion. Up to the point of the district court’s limiting Miranda’s cross-
examination, the jurors were made aware of critical pieces of information:
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Miranda did not have a plea agreement when he first met with Agents; Miranda
and the Government agreed to the charges to which he would plead; Miranda
was charged only with bribery; the Government agreed not to charge him for
other crimes he committed prior to his guilty plea; he was not charged with lying
to Agents on 5 October 2006 (when first interviewed by them concerning the
project), even though every lie brought the possibility of a five-year sentence; and
he was an uncharged member of the conspiracy. Subsequently, the court
instructed the jury that Miranda’s testimony must be “received with caution and
weighed with great care”.
Defendants are incorrect in insisting jurors were entitled to know the
“magnitude of the benefit”made available to Miranda. The Confrontation Clause
guarantees only “an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish”. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis
in original). Jurors were made more than well aware of the potential bias
associated with Miranda’s testimony.
Moreover, had the district court permitted cross-examination of Miranda’s
plea-agreement and corresponding Guideline sentencing-range, it would have
improperly revealed to jurors the Guideline-range Heinrich and Wilson faced.
See Pope v. United States, 298 F.2d 507, 508 (5th Cir. 1962) (informing jurors of
matters relating to defendant’s sentence opens door to compromised verdicts and
confuses issues to be decided). Additionally, revealing that range risked
unnecessarily confusing the jury, and one of the purposes of limiting cross-
examination is to avoid that. United States v. Hitt, 473 F.3d 146, 156-57 (5th
Cir. 2006) (trial court retains wide discretion to limit cross-examination based
upon concerns of prejudice and confusion). Rather than enter into a complex
discussion about the mechanics of the advisory Sentencing Guidelines, the
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district court was correct to avoid confusing jurors, as well as avoid revelation
of prejudicial information concerning Wilson’s and Heinrich’s possible sentences.
Defendants’ reliance upon United States v. Chandler, 326 F.3d 210, 221-23
(3d Cir. 2003) (holding prohibited cross-examination significantly inhibited
defendant’s right to cross-examine witness’ motivation to lie because jurors left
unaware of the magnitude of the sentence reduction), is misplaced; our court’s
opinion in Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008) is not in alignment with
Chandler. Instead, Burbank involved a state court that improperly prevented
the defense from questioning a principle witness about the existence of her plea
agreement. Id. at 356. Here, defendants were not permitted to explore the
details of the possible Guideline sentencing-range Miranda faced; but, unlike in
Burbank, they were permitted to question Miranda about the existence of his
plea agreement. Defense counsel were also able to question Miranda about his
motives for entering the plea agreement, which included the possibility he might
receive a decreased sentence by cooperating with the Government.
The testimony elicited was sufficient to make jurors aware of Miranda’s
possible motives for testifying against Wilson and Heinrich, and defendants have
failed to show reasonable jurors would have received a significantly different
impression of Miranda’s credibility had the exact Guideline sentencing-range
been exposed. See Davis, 393 F.3d at 548. In sum, the jury was given an
opportunity to form a thorough opinion regarding Miranda’s motive or
credibility. Jimenez, 464 F.3d at 562.
B.
Defendants base error on the district court’s instructing the jury that
Wilson was a “public official” within the meaning of the bribery statute. They
assert: Wilson did not fit within the statutory definition because he was not an
officer or employee of the United States and his involvement in the conspiracy
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was unrelated to his work with USACE; and “public official”, as an element of
18 U.S.C. § 201, must be determined by a jury.
Along that line, the district court granted the Government’s contested
motion in limine, prohibiting defendants from challenging Wilson’s public-official
status. Similarly, in their motions for judgment of acquittal, which the district
court denied, defendants contended the Government presented no evidence of
corruption concerning Wilson’s official decision-making duties and functions.
Finally, over defendants’ objection, the court instructed the jury that Wilson and
Miranda were “public officials”.
1.
A question of statutory interpretation is, of course, reviewed de novo. E.g.,
United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008). The offenses for
bribery involving public officials is governed by 18 U.S.C. § 201. For that
purpose, “public official” is defined in § 201(a)(1) as follows:
Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has
qualified, or an officer or employee or person acting for
or on behalf of the United States, or any department,
agency or branch of Government thereof, including the
District of Columbia, in any official function, under or
by authority of any such department, agency, or branch
of Government, or a juror;
18 U.S.C. § 201(a)(1). At issue is whether Wilson’s position as an employee of
ISLI, under contract with USACE, qualified him as a public official for purposes
of the bribery statute, 18 U.S.C. § 201(a)(1), (b)(1)(B), (b)(2)(B).
In addition to the charged conspiracy, Heinrich was charged with bribing
Miranda (Count 2) and Wilson (Count 3), in violation of 18 U.S.C. § 201(b)(1)(B);
Wilson, with soliciting and accepting a bribe, in violation of 18 U.S.C. §
201(b)(2)(B). Section 201(b)(1), involving Heinrich, states:
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Whoever--
(1) directly or indirectly, corruptly gives, offers or
promises anything of value to any public official or
person who has been selected to be a public official, or
offers or promises any public official or any person who
has been selected to be a public official to give anything
of value to any other person or entity, with intent–
(A) to influence any official act; or
(B) to influence such public official or person who has
been selected to be a public official to commit or aid in
committing, or collude in, or allow, any fraud, or make
opportunity for the commission of any fraud, on the
United States; or
(C) to induce such public official or such person who has
been selected to be a public official to do or omit to do
any act in violation of the lawful duty of such official or
person;
commits a federal offense. 18 U.S.C. § 201(b). Similarly, § 201(b)(2), involving
Wilson, provides:
Whoever--
being a public official or person selected to be a public
official, directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything
of value personally or for any other person or entity, in
return for:
(A) being influenced in the performance of any official
act;
(B) being influenced to commit or aid in committing, or
to collude in, or allow, any fraud, or make opportunity
for the commission of any fraud, on the United States;
or
(C) being induced to do or omit to do any act in violation
of the official duty of such official or person;
commits a federal offense. 18 U.S.C. § 201(b)(2).
As shown above, an individual hired as a contract employee by a federal
agency can qualify as a “public official” under 18 U.S.C. § 201(a)(1). See United
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States v. Thomas, 240 F.3d 445, 448 (5th Cir. 2001) (prison guard qualified as a
“public official”, even though he was employed by a private company contracted
by INS). Relying upon Supreme Court precedent from United States v. Dixson,
465 U.S. 482, 496-97 (1984), as well as case law outside our circuit, our court
observed in Thomas: “Because the officers were charged with abiding by federal
guidelines . . . , they ‘assumed the quintessentially official role of administering
a social service program established by . . . Congress.’” Thomas, 240 F.3d at 447
(quoting Dixson, 465 U.S. at 497). The prison guard in Thomas was held to be
a “public official” because he “occupied a position of public trust with official
federal responsibilities, because he acted on behalf of the United States under
the authority of a federal agency which had contracted with his employer”. Id.
at 448 (citing United States v. Neville, 82 F.3d 1101, 1106 (D.C. Cir. 1996)); see
also United States v. Kenney, 185 F.3d 1217, 1221-23 (11th Cir. 1999) (employee
of engineering firm contracted to the Air Force, tasked with procuring and
approving materials and equipment, qualified as a “public official” for purposes
of 18 U.S.C. § 201(a)(1)).
Defendants take a more narrow position; they contend Wilson cannot
qualify as a “public official” because the nature of the bribery occurred outside
of the scope of his contractual duties with USACE. That is, he had no official
duties related to the project; and, because the bribery scheme involved a project
outside of his official duties with USACE, he cannot qualify as a public official
under the bribery statute.
We disagree. For the reasons that follow, the project’s being outside
Wilson’s scope of official duties is of no consequence to his being a “public
official” for purposes of 18 U.S.C. § 201.
First, the definitional section of § 201(a), i.e., the definition of “public
official” for purposes of the Act, imposes no requirement that a bribed “employee”
be acting within his official functions to effect a bribe. United States v. Gjieli,
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717 F.2d 968, 972 (6th Cir. 1983). “The focus of this section is . . . not upon . . .
the bribed individual’s ability to effect a result.” Id. at 976. The bribery statute
applies, “regardless of whether . . . the acts to be accomplished are within the
scope of the actual lawful duties of the bribed public official and regardless of
whether the briber has correctly perceived the precise scope of the official’s
lawful duties”. Id.; see also United States v. Evans, 572 F.2d 455, 481 (5th Cir.
1978) (bribed public official “incorrect in asserting that the government was
required to prove that the unlawful compensation was earmarked for a
particular matter then pending before [defendant] and over which he had
authority”, in context of §201(g)).
Second, Congress intended the bribery statute to be applied broadly. See
United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir. 1988) (“[I]t is clear
that Congress has cast a broad net . . . .”); United States v. Romano, 879 F.2d
1056, 1060 (2d Cir. 1989) (“The [Supreme] Court stressed that the bribery
statute was drafted with broad jurisdictional language . . . to reach all people
performing activities for the federal government, regardless of the form of
federal authority.” (emphasis added)). Instead of a “cramped reading”, § 201(a)
is “accurately characterized as a comprehensive statute applicable to all persons
performing activities for or on behalf of the United States”. Dixson, 465 U.S. at
496.
Wilson’s job carried with it “a significant measure of public trust, which
[is] . . . the touchstone for determining whether an individual is a public official”.
Neville, 82 F.3d at 1106 (citing Dixson, 465 U.S. at 496). As a construction
manager for waterway improvements, he was an integral part of USACE’s post-
Katrina rebuilding efforts. And, needless to say, this position of public trust
gave Wilson proximity to the illegal activity. He was a critical vessel through
which Miranda and Heinrich moved confidential information from USACE to
Manson Gulf, and his employment placed him at a critical juncture to effectuate
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the bribery scheme: his desk was directly adjacent to Miranda, they spoke of
their scheme at their office; Wilson used his USACE computer to download and
transfer files; and he passed confidential information and computer data to and
from Miranda while he was engaged at work. Simply stated, his position
enabled him to become a key part of this criminal activity.
2.
In this regard, defendants contend the district court erred by instructing
the jury that Miranda and Wilson were “public officials”. They claim the issue
was instead a factual matter for the jury. See United States v. Gaudin, 515 U.S.
506, 522-23 (1995) (“[A] criminal defendant [has] the right to have a jury
determine . . . his guilt of every element of the crime . . . .”).
It is well established that questions of law are issues typically not
dependant “upon the probative value of the evidence” and are therefore decided
by the court; questions of fact are submitted to the jury. United States v.
Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988). Two circuits have determined that
whether a defendant is a public official subject to 18 U.S.C. § 201 is a question
of law. See United States v. Hang, 75 F.3d 1275, 1279 (8th Cir. 1996) (holding
determination of public-official status is question of law); United States v.
Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990). Similarly, in reserving judgment
on whether “public official” is question of law or fact, a third circuit affirmed a
jury instruction which provided: “The term ‘public official’ thus includes an
employee of a private corporation who acts for or on behalf of the federal
government pursuant to a contract.” Kenney, 185 F.3d at 1223. There, the jury
was also instructed that it needed only to find that defendant “possessed some
degree of official responsibility for carrying out a federal program or policy” in
order to qualify as a “public official” pursuant to § 201. Id.
In any event, for purposes of deciding this issue, we need not decide
whether a defendant’s qualification as a “public official” is always a question of
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law. On this record, it was not reversible error for the district court to instruct
the jury that Wilson and Miranda were public officials.
Along this line, there was no factual dispute for a jury to decide.
Defendants never asserted that Wilson and Miranda were not contractors
working for USACE. In fact, Wilson testified at trial that he had been a contract
consultant working for USACE. Additionally, Wilson and Miranda did not
dispute they were contract consultants for USACE at the time their criminal
activity occurred. Any disputes by defendants were purely questions of statutory
interpretation–a question of law, not fact. Because the term “public official”
includes an employee of a private corporation who acts on behalf of the
Government pursuant to a federal contract, and because all parties agreed on
the contractual nature of Miranda’s and Wilson’s employment, there was no
question of fact for the jury to decide on that point.
Similarly, Wilson’s insistence it was for the jury to decide whether
Miranda intended to interfere with USACE’s bidding process in his capacity as
a public official is also a legal, not a factual, issue. As our court stated in United
States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002), whether a person qualifies
as a public officer hinges upon the person’s official responsibilities with the
Government, not whether the person intended to act as a “public official” within
the nature of the bribery scheme.
C.
Wilson challenges three trial evidentiary rulings. He contests the district
court’s: permitting lay opinion testimony from a Government witness on
technical computer information; not permitting expert testimony by a defense
witness regarding Government computer operations; and prohibiting several
character witnesses from testifying at trial on Wilson’s lack of motivation by
financial reward.
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A decision to admit or exclude evidence is reviewed for abuse of discretion.
United States v. Cantu, 167 F.3d 198, 203 (5th Cir.1999); see F ED. R. E VID. 103.
“A trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” United States v.
Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v.
Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)); see F ED. R. E VID. 103(a) (error
cannot be based upon exclusion of evidence unless party’s substantial rights are
affected).
1.
CID Agent Clayton, assigned to investigate the bribery scheme, testified
about information he obtained from USACE e-mail accounts of the persons
working on the project’s source-selection committee. He also testified about his
review of Wilson’s USACE e-mail account. The import of Agent Clayton’s
testimony was Wilson’s attempt to conceal the content of his sent e-mails
containing confidential information about the project. Agent Clayton testified
to his review of the e-mail inboxes of Wilson and everyone in USACE’s source-
selection committee; he determined, based upon Wilson’s empty sent-box, that
Wilson “deleted the sent folder of all the e-mails prior to [4 October 2006]”.
Wilson challenges this testimony, claiming it had to be introduced as expert
opinion.
“The case law is not completely clear on where to draw the line between
expert and lay testimony.” United States v. Caldwell, 586 F.3d 338, 348 (5th Cir.
2009). While it is true testimony requiring specialized training and experience
should be admitted as expert testimony, see Doddy v. Oxy USA, Inc., 101 F.3d
448, 460-61 (5th Cir. 1996), “[t]he trend in the circuits seems to turn on whether
the testimony falls within the realm of knowledge of the average lay person”,
Caldwell, 586 F.3d at 348. In other words, for this issue, testimony about a
computer may suggest technical expertise, but that does not necessarily mean
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such testimony requires satisfying the standard for expert testimony. See also
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005) (“A
mathematical calculation well within the ability of anyone with a grade-school
education is . . . more aptly characterized as a lay opinion . . . .”).
Agent Clayton’s testimony is closer to lay, than expert, opinion. He
testified he was not a forensic examiner, he did not use forensic software in
reviewing the e-mails, and his computer background was limited to “a normal
computer user of Microsoft Office products”. It was obvious from both his
background and the nature of his testimony that his examination of Wilson’s e-
mail account did not require “scientific, technical or other specialized
knowledge”, F ED. R. E VID. 702; instead, his testimony fell “within the realm of
knowledge of the average lay person”, Caldwell, 586 F.3d at 348.
In short, Agent Clayton’s testimony was based on reasoning familiar in
everyday life. Yanez Sosa, 513 F.3d at 200. Thus, the district court did not
abuse its discretion in admitting it.
2.
In a related issue, Wilson contends the district court erred in refusing to
qualify as an expert witness a defense witness in the field of general technology
information systems. Wilson proffered the witness in rebuttal to Agent
Clayton’s testimony and to testify that Wilson’s e-mail could not be deleted from
the server, even if deleted at the user’s computer. The proffered expert, Stroud,
was an expert in Microsoft Outlook, but was unfamiliar with USACE’s system
or retention policies and had no personal experience with a federal agency.
Moreover, Stroud informed the court it was impossible for him to testify on
whether Wilson intentionally deleted e-mails from his desktop or laptop
computers.
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No. 09-30742
a.
For obvious reasons, “district courts are given ‘wide latitude in
determining the admissibility of expert testimony, and the discretion of the trial
judge . . . will not be disturbed on appeal unless manifestly erroneous’”. United
States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Watkins v. Telsmith,
Inc., 121 F.3d 984, 988 (5th Cir.1997)). Before a district court allows a witness
to testify as an expert, it must be assured the proffered witness is qualified by
virtue of his “‘knowledge, skill, experience, training or education’”. Cooks, 589
F.3d at 179 (quoting F ED. R. E VID. 702). “A district court should refuse to allow
an expert witness to testify if it finds that the witness is not qualified to testify
in a particular field or on a given subject.” Cooks, 589 F.3d at 179 (citing Wilson
v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)).
There was no manifest error in not allowing Stroud to testify as an expert
witness. He lacked experience with federal agencies, was unfamiliar with
USACE’s system and policies, and stated he could not testify as to whether
Wilson intentionally deleted his e-mail files. Moreover, even if Stroud had
testified about USACE’s Outlook server, the relevant issue was not whether the
e-mails were backed-up on a USACE server; rather, it was whether Wilson had
previously deleted the e-mails from the sent-box on his computer, a fact Wilson
had admitted.
b.
And, as discussed supra, even assuming the district court erred by denying
such expert-witness testimony, we must decide whether the error was harmless:
“affirming the judgment unless the ruling affected a substantial right of the
complaining party”. United States v. Norris, 217 F.3d 262, 268 (5th Cir. 2000);
see F ED. R. E VID . 103(a). Whether an error affects a substantial right of the
defendant depends upon “‘whether the trier of fact would have found the
defendant guilty beyond a reasonable doubt with the additional evidence
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No. 09-30742
inserted’”. United States v. Tucker, 345 F.3d 320, 327 (5th Cir. 2003) (quoting
United States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989)).
Because of the substantial evidence presented by the Government
unrelated to Wilson’s e-mails, any error pertaining to the admissibility of
Stroud’s expert testimony was harmless. There was already sufficient evidence
to support Wilson’s collusion with Heinrich and Miranda. Cooks, 589 F.3d at
180.
3.
Wilson’s final contention is that the district court erred by excluding
pertinent character witnesses. Only upon rare instances, and with a “clear
showing of prejudicial abuse of discretion”, will we reverse a district court’s
limiting character witnesses. United States v. Gray, 105 F.3d 956, 963 (5th Cir.
1997) (quoting Michelson v. United States, 335 U.S. 469, 480 (1948)).
Of the six character witnesses permitted to testify to Wilson’s reputation
for honesty and integrity, only two were permitted to testify to their belief that
Wilson was not substantially motivated by financial profit, even though the
other four witnesses had known Wilson for significant periods of time. In other
words, Wilson maintains the district court committed reversible error because,
of the six character witnesses permitted to testify, the only two allowed to testify
as to Wilson’s lack of motive for financial profit had known him the shortest
period of time.
The district court did not abuse its discretion; Wilson has not made the
requisite showing of prejudice. The district court placed no limitation on the
jury’s consideration of any of the character witnesses; the instructions charged
jurors to “consider such evidence along with all the other evidence in the case”.
Moreover, the instructions informed jurors that character evidence “may give
rise to a reasonable doubt, since you may think it improbable that a person of
good character in respect to those traits would commit such a crime”.
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No. 09-30742
Additionally, the Government asked relatively few questions of the character
witnesses.
Wilson’s reliance upon United States v. John, 309 F.3d 298 (5th Cir. 2002),
is misplaced. In John, the district court committed reversible error because it
failed to instruct the jury that it could consider evidence of defendant’s good
character; John does not hold (as Wilson suggests) that a district court commits
reversible error by limiting the number of character witnesses. In John, the
district court permitted defendant to introduce several witnesses to testify to
defendant’s good character, but denied defendant’s request for a jury instruction
regarding character. John, 309 F.3d at 300. Here, the district court not only
permitted the introduction of evidence that would establish Wilson’s character
as a law-abiding citizen, but also properly instructed the jury that it could
consider evidence of Wilson’s good character.
Given the district court’s broad discretion, see United States v. Parziale,
947 F.2d 123, 129 (5th Cir. 1991), together with the fact that the two character
witnesses who did testify as Wilson intended had worked with him in the
months preceding his employment with USACE, and that three of the other four
witnesses broke their association with Wilson before he moved to New Orleans,
Wilson was not prejudiced by the district court’s ruling. Moreover, Wilson
argued in his closing that he lacked motive for financial profit. There is simply
no reason to believe Wilson’s verdict would have been different had four more of
his character witnesses testified to his motivation in participating in the Katrina
clean-up.
III.
For the foregoing reasons, the judgments are AFFIRMED.
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