United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 29, 2006
Charles R. Fulbruge III
No. 05-51138 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN KARL LEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 3:04-CR-1555-ALL
Before JONES, Chief Judge, and DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
John Karl Lee appeals his conviction and restitution on
three counts of mail fraud, 18 U.S.C. § 1341, and three counts of
making false statements to obtain federal employees’ compensation,
18 U.S.C. § 1920. Finding no reversible error, we AFFIRM.
John Karl Lee, an active duty serviceman during Operation
Desert Storm in 1990-91, was convicted for mail fraud and false
statements he made to obtain disability benefits for alleged post-
traumatic stress disorder incurred in his military service. Lee
had received $229,429.89 in monthly monetary disbursements between
*
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this opinion should not be published and is not precedent except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.
April 1996 and March 2003, while misrepresenting both that he was
married (after his divorce) and that he had no other employment.
Lee was sentenced to six concurrent 24-month terms, two
years’ supervised release, a $172,000 fine, $229,429.89 in restitu-
tion, forfeiture of $157,936.25, and $600 in special assessments.
On appeal, he raises several trial errors and challenges the amount
of restitution.
I. DISCUSSION
A. Admission of the Vehicle Theft Testimony
Lee asserts that the testimony by the Army investigator
that Lee had stolen a Chevy Suburban while on a patrol in Iraq
during Desert Storm is extrinsic to the charged offenses,
inadmissible character evidence, and unfairly prejudicial. This
contention may be correct. To establish the admissibility of this
evidence as “intrinsic” to the charged offenses, the Government had
to prove that the events in 1991 and his fraudulent Office of
Worker’s Compensation Program (“OWCP”) disability claims years
later were “inextricably intertwined” incidents and are part of the
same criminal transaction. See United States v. Morgan, 117 F.3d
849, 860 (5th Cir. 1997) (uncharged offense must arise out of same
transaction as the charged offense to avoid proscription of Federal
Rule of Evidence 404(b)). Nonetheless, in light of the substantial
body of inculpatory evidence apart from the theft testimony, the
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error was harmless and caused no prejudice to Lee. See United
States v. Buck, 324 F.3d 786, 789 (5th Cir. 2003).
B. District Court’s Instructions on Texas Law
Lee alleges that he was denied due process and a fair
trial when the district judge impermissibly testified as a witness
in violation of Federal Rule of Evidence 605 and “impeached” a
“pivotal” defense witness.
Alicia Carlos, the filing room supervisor in the El Paso
County District Clerk’s Office, testified, in order to rebut the
Government’s position, that since Lee had waived service of his
divorce decree, there was no possibility that her office could have
sent him a copy of it. In response to Carlos’s testimony, the
district judge instructed on and read to the jury TEXAS RULE OF CIVIL
PROCEDURE 119a, which requires the County Clerk to mail a certified
copy of a divorce decree to any party who waived service of
process. Lee characterizes the instruction as judicial testimony
in violation of FEDERAL RULE OF EVIDENCE 605 because it allegedly
created the impression that the judge was directing the jury to
assume that Lee had received a copy of the divorce decree.
The jury instruction at issue is, however, not akin to
the improper fact-based testimonial statements that Rule 605
prohibits. The instant situation is more appropriately analyzed
within the scope of caselaw defining the district court’s “power of
comment and the inherent limitations on this power.” United States
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v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989). Thus, it is well
established that a trial judge may facilitate a jury’s
understanding of the evidence by questioning witnesses, by
eliciting facts not yet adduced by the parties, or through
explanation and commentary. United States v. Reyes, 227 F.3d 263,
265 (5th Cir. 2000); FED. R. EVID. 614. On appeal, the issue is
whether the disputed judicial behavior “was so prejudicial that it
denied [the defendant] a fair, as opposed to a perfect, trial.”
United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998) (internal
quotation marks omitted). The district court’s action must be
“qualitatively and quantitatively substantial” to merit a finding
of reversible error. United States v. Munoz, 150 F.3d 401, 414
(5th Cir. 1998). Because Lee did not object to the court’s
instruction at trial, we review only for plain error. United
States v. Hernandez-Guevara, 162 F.3d 863, 875 (5th Cir. 1998).
The district court’s Rule 119a instruction was not
plainly erroneous and did not deprive Lee of a fair trial. It did
not impermissibly insinuate that the jury should disbelieve
Carlos’s testimony, nor did it provide any guidance as to how the
jury should interpret Carlos’s testimony. Cf. United States v.
Nickl, 427 F.3d 1286, 1292-93 (10th Cir. 2005); Paiva, 892 F.2d at
158. The judge intervened only to disabuse the jury of the
witness’s incorrect assertion that there was no possibility that
the El Paso District Clerk mailed divorce decrees to individuals
who have waived service of process. This single instruction, made
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in the course of a nine-day trial featuring twenty-five witnesses,
does not constitute error, much less prejudicial or plain error.
See United States v. Hefferon, 314 F.3d 211, 221 (5th Cir. 2002).
C. Denial of Compulsory Process Claim
Lee next contends that the exclusion as a witness of
Carol Holmes, a supervisor at the District Clerk’s office, deprived
him of his Sixth Amendment right to compulsory process. Holmes’s
testimony was intended to be probative of whether Lee received the
decree by mail because, unlike Carlos, Holmes was employed at the
Clerk’s Office at the same time when documentation of Lee’s divorce
proceeding was processed.
A criminal defendant must demonstrate that the excluded
testimony was “both material and favorable to his defense.”
“[M]ore than the mere absence of testimony is necessary to
establish a violation” of the right to compulsory process. United
States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440,
3446 (1982); Janecka v. Cockrell, 301 F.3d 316, 326 (5th Cir.
2002). Here, the salient points of Holmes’s testimony had
previously been put before the jury by Carlos. Any further
testimony by Holmes that the Clerk’s Office did not comply with
Rule 119a in 1998 would have been duplicative and immaterial to
Lee’s defense. The court did not err.
D. Calculation of Restitution
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Lee alleges that the district court erred in ordering
restitution pursuant to the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, for the total amount of disbursements
he received starting in 1996, instead of limiting the amount to the
disbursements traceable to the offenses alleged in the indictment.
We review challenges to the legality of an award under the MVRA
de novo and then determine whether the district court abused its
discretion in calculating the amount awarded. United States v.
Adams, 363 F.3d 363, 365 (5th Cir. 2004).
Lee’s claim is meritless. In order to convict Lee of the
mail fraud counts, the Government necessarily proved a scheme to
defraud in addition to the specific fraudulent misrepresentations
he made on the OWCP forms alleged in the indictment. See 18 U.S.C.
§ 1341. “[W]here a fraudulent scheme is an element of the convic-
tion, the court may award restitution for ‘actions pursuant to that
scheme.’” United States v. Cothran, 302 F.3d 279, 289 (5th Cir.
2002) (quoting United States v. Stouffer, 986 F.2d 916, 928 (5th
Cir. 1993)). The temporal scope of the criminal behavior and the
specific acts charged in the indictment define the parameters of
the fraudulent scheme for purposes of determining restitution under
the MVRA. See Cothran, 302 F.3d at 288. Count One of the
indictment states that “[o]n or about April 6, 1994, the Defendant
. . . made material false and fraudulent misrepresentations that
[the Defendant’s] Post Traumatic Stress Disorder was the result of
having been held captive as a prisoner of war in Iraq in 1991.”
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The indictment’s description of the fraudulent scheme charged
empowered the district court to include the total amount of OWCP
disbursements paid as a result of the erroneous diagnosis of total
disability that Lee procured through fraudulent misrepresentations.
In so doing, the district court adopted the recommen-
dations contained in Lee’s PSR, which, under U.S.S.G. § 5E1.1 and
18 U.S.C. § 3663A, determined that Lee’s willful misrepresentations
to the OWCP began on April 13, 1994, and that the appropriate
measure of restitution was the total loss incurred from that date,
namely, $229,429.89. The jury, conversely, rendered a forfeiture
verdict of $165,997.50, which only accounts for disbursements made
in response to the fraudulent misrepresentations alleged as overt
acts in the indictment. But, according to the plain language of 18
U.S.C. § 3663A, the court, not the jury, ultimately determines the
amount of restitution appropriate to the offense. In awarding
restitution for the total amount of the disbursements Lee procured
in the course of his fraudulent conduct, the court did not act
contrary to law or abuse its discretion.
CONCLUSION
For the foregoing reasons, we find no reversible error in
the decision below and AFFIRM.
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