United States v. Norris

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-30689

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES A. NORRIS, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Louisiana, Monroe

June 26, 2000

Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant James A. Norris, Jr., (Norris) was convicted

after a jury trial of four counts of making false declarations in

violation of 18 U.S.C. § 1623, sentenced to thirty-three months’

imprisonment and three years’ supervised release, and ordered to pay

$490,000 in restitution. Norris appeals his convictions and sentences,

arguing that the district court erred by admitting a videotape re-

creation and testimony by the government’s expert witness, by ordering

Norris to pay restitution, and by enhancing his sentence for substantial

interference with the administration of justice. We agree with Norris
that the district court erred in ordering restitution, but reject his

other attacks on his convictions and sentences. Accordingly, we affirm

in part and reverse in part.

Facts and Proceedings Below

In 1989, Norris served as the district attorney for Ouachita and

Morehouse Parishes in Louisiana and was also a partner in the West

Monroe law firm of Johnson & Placke. A dispute over business decisions

arose between Norris and his law partners, culminating in June 1989 with

Norris disbursing $500,000 from the law partnership’s money market

accounts. In August 1989, Norris’s law partners filed a state civil

suit against him, seeking restoration of the disbursed funds and

additional damages.

On February 9, 1994, Norris withdrew $500,000 in cash–5,000 $100

bills--from his personal accounts at Louisiana National Bank and placed

it in a bank safe deposit box. Nearly eight months later, on September

30, 1994, his former law partners obtained a judgment, awarding them

$540,000 plus prejudgment interest, amounting in all to approximately

$800,000, in their state action against him.1 The next day, Norris

withdrew all the cash, approximately $500,000, from his safe deposit

1
Norris ultimately appealed, and on November 8, 1995 the judgment
was affirmed by the Louisiana Court of Appeals for the Second Circuit,
Johnson & Placke v. Norris, 665 So.2d 183 (table) (La. App. 2d Cir.
1995); the Louisiana Supreme Court on February 2, 1996 denied Norris’s
application for writs, Johnson & Placke v. Norris, 666 So.2d 1098 (La.
1996).

2
box.2

In December 1994, Norris’s former law partners sought to execute

on their judgment through state court proceedings. Norris testified at

a judgment debtor examination that he had “spent” the money he had

deposited in and subsequently removed from the safe deposit box, though

he did not specify how he had spent the money. Attempting to collect

on their judgment, Norris’s former law partners filed an involuntary

bankruptcy proceeding against him on January 30, 1995. On March 30,

1995, Norris testified under oath in an ancillary bankruptcy proceeding

under Federal Bankruptcy Rule 2004, declaring under oath that on October

1, 1994 he had incinerated the some 4,900 $100 bills that he had

withdrawn from the bank safe deposit box on October 1, 1994 by pouring

gasoline on the money and burning it all in a metal trash barrel at his

residence. On April 5, 1995, Norris appeared before the bankruptcy

court for a hearing on his motion to dismiss the involuntary bankruptcy

petition. At this hearing, Norris repeated under oath his previous

statement about burning the cash. During another Rule 2004 ancillary

bankruptcy proceeding held on May 1, 1995, Norris reiterated under oath

that he had burned all the money. Norris also explained his use of the

term “spent” at the December 1994 state judgment debtor examination as

an attempt to convey that the money was “gone” or “burned.”

Finally, on May 11, 1995, Norris testified before the bankruptcy

2
According to Norris, he had previously withdrawn and spent between
$5,000 and $10,000 of the money on living expenses.

3
court at a trial conducted pursuant to the bankruptcy trustee’s motion

for turnover, asking the court to order Norris to deliver certain assets

to the trustee, including $500,000 that he withdrew from his bank safe

deposit box. At this trial, Norris repeated under oath his earlier

statements that he no longer possessed the cash because he had burned

it all in a trash barrel at his residence. The bankruptcy court did not

believe Norris’s testimony and, on June 13, 1995, ordered him to turn

over the cash to the bankruptcy trustee. Norris refused.

On July 21, 1995, the bankruptcy court conducted a hearing on the

trustee’s motion for sanctions and civil contempt against Norris. The

bankruptcy court filed a report on August 14, 1995, holding Norris in

contempt of court for failing to deliver the cash to the trustee and

recommending that Norris be incarcerated until he turned over the cash.

On January 31, 1996, a district court adopted the bankruptcy court’s

recommendation and held Norris in civil contempt, ordering him to be

incarcerated until he produced the funds. Norris appealed the contempt

order to this Court, and we affirmed in an unpublished opinion. In re

Norris, No. 96-30146 (5th Cir. Apr. 11, 1997) (per curiam). Every month

during his incarceration, Norris was brought before the bankruptcy court

and asked to reveal the location of the cash and thereby lift the

contempt order. On each occasion, Norris maintained that he had burned

the money. Norris remained imprisoned until March 19, 1997–the date of

his arraignment for his instant perjury offenses.

On February 2, 1997, a grand jury returned an indictment charging

4
Norris with four counts of false declarations, all in violation of 18

U.S.C. § 16233, related to the four instances–March 30, April 5, May 1

3
18 U.S.C. § 1623 states as follows:
“(a) Whoever under oath (or in any declaration,
certificate, verification, or statement under penalty of
perjury as permitted under section 1746 of title 28, United
States Code) in any proceeding before or ancillary to any
court or grand jury of the United States knowingly makes any
false material declaration or makes or uses any other
information, including any book, paper, document, record,
recording, or other material, knowing the same to contain any
false material declaration, shall be fined under this title
or imprisoned not more than five years, or both.
(b) This section is applicable whether the conduct
occurred within or without the United States.
(c) An indictment or information for violation of this
section alleging that, in any proceedings before or ancillary
to any court or grand jury of the United States, the
defendant under oath has knowingly made two or more
declarations, which are inconsistent to the degree that one
of them is necessarily false, need not specify which
declaration is false if—
(1) each declaration was material to the point in
question, and
(2) each declaration was made within the period of
the statute of limitations for the offense charged
under this section.
In any prosecution under this section, the falsity of a
declaration set forth in the indictment or information shall
be established sufficient for conviction by proof that the
defendant while under oath made irreconcilably contradictory
declarations material to the point in question in any
proceeding before or ancillary to any court or grand jury.
It shall be a defense to an indictment or information made
pursuant to the first sentence of this subsection that the
defendant at the time he made each declaration believed the
declaration was true.
(d) Where, in the same continuous court or grand jury
proceeding in which a declaration is made, the person making
the declaration admits such declaration to be false, such
admission shall bar prosecution under this section if, at the
time the admission is made, the declaration has not
substantially affected the proceeding, or it has not become
manifest that such falsity has been or will be exposed.
(e) Proof beyond a reasonable doubt under this section

5
and May 11, 1994--during the bankruptcy proceedings in which he

testified that he had burned approximately $490,000 in cash. Norris

then filed a motion to dismiss the indictment on the basis that the

prosecution violated the Double Jeopardy Clause of the United States

Constitution as he had already been punished for the offenses charged

in the indictment by being incarcerated pursuant to the civil contempt

order. The district court denied Norris’s motion to dismiss, and this

Court affirmed in an unpublished opinion. United States v. Norris, No.

97-30812 (5th Cir. June 9, 1998), cert. denied, 119 S.Ct. 360 (1998).

The government sought to prove the perjury charges against Norris

at trial, in part, through a videotape of, and testimony relating to,

the Department of Alcohol, Tobacco, and Firearms (ATF) re-creation of

the burning of the currency as Norris had described it in his

declarations during his bankruptcy. In particular, the government

intended the re-creation to demonstrate that most of the cash could not

have burned under Norris’s description of the incident, thereby

establishing that Norris did not in fact burn all or substantially all

the currency as he had testified to under oath and before the bankruptcy

court.

Before trial, Norris filed a motion in limine to exclude the re-

enactment evidence by the government as irrelevant and prejudicial under

is sufficient for conviction. It shall not be necessary that
such proof be made by any particular number of witnesses or
by documentary or other type of evidence.”

6
Federal Rules of Evidence 401,4 403,5 and 703.6 The district court

conducted a hearing, after which it ruled that the re-enactment evidence

was provisionally admissible. The charges against Norris proceeded to

trial in March 1999. At trial, Norris filed another motion to exclude

the re-enactment videotape and testimony relating to it, this time on

the ground that this evidence was not reliable under Daubert v. Merrell

Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The district court

overruled Norris’s objection, reasoning that Daubert’s teachings did not

apply because Daubert only applied in determining whether an expert

would be qualified to testify. The district court, however, concluded

that the ATF’s re-enactment accurately represented the events as Norris

described them. Accordingly, the district court determined that the

government’s evidence was both reliable and relevant.

4
Federal Rule of Evidence 401 states:
“‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.”
5
Federal Rule of Evidence 403 reads:
“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
6
Federal Rule of Evidence 703 provides:
“The facts or data in the particular case upon which an
expert bases an opinion or inferences may be those perceived
by or make known to the expert at or before the hearing. If
of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.”

7
 At trial, the government introduced over Norris’s objections the

re-enactment videotape and the testimony of ATF Agent Dennis Keith

Constantino’s (Agent Constantino). The district court permitted Agent

Constantino to testify as an expert in fire investigation. Agent

Constantino testified that he had re-enacted the steps Norris allegedly

took when he burned the cash at his residence on October 1, 1994. Agent

Constantino conducted the re-creation on February 4, 1997 at 11:30 a.m.

in Gaithersburg, Maryland, at the Department of Commerce’s National

Institute for Standards and Technology. The Bureau of Engraving and

Printing provided Agent Constantino with 4,950 uncirculated $5 bills,

and he placed them in a five-gallon plastic container, as Norris claimed

to have done. Agent Constantino then poured one and three-fourths

gallons of gasoline into the plastic container. After the gasoline and

the currency remained in the plastic container for approximately fifteen

minutes, Agent Constantino tossed the contents of the plastic container

into a brand-new fifty-five gallon steel trash barrel. The gasoline was

then lit on fire with an electric match, and the currency and gasoline

burned for five minutes. After the five minutes expired, Agent

Constantino extinguished the fire by dumping the contents of a fifty-

pound bag of corn feed, or deer corn, into the barrel, as Norris had

stated he had done. Agent Constantino then allowed the barrel to cool

for two to three minutes, before examining the barrel and its contents.

First, he noticed that much of the interior paint on the barrel had

burned off, which occurred within the first couple of minutes of the

8
fire. Turning his attention to the currency, Agent Constantino observed

that only about ten percent of the bills had been either damaged or

destroyed. After completing the re-enactment, Agent Constantino spent

approximately twenty minutes burning the undamaged bills, as the Bureau

of Engraving and Printing requested that all the currency be destroyed.

As Agent Constantino admitted, the re-creation was not an exact

duplication of Norris’s alleged burning of the currency. First, the re-

creation occurred in a different location at a different time of

year–February in Maryland7 as opposed to October in Louisiana.

Moreover, as a slight drizzle came down while gasoline was being poured

on the currency in the plastic bucket, Agent Constantino performed the

burning portion of the experiment under cover with a ten-foot ceiling,

while Norris claimed to have burned the money without substantial cover.

Second, Agent Constantino used 4,950 $5 bills, and Norris stated that

he burned approximately 4,950 $100 bills. A $100 bill weighs

approximately eight-to-nine percent less than a $5 bill. In addition,

although Norris’s testimony does not reveal the wear of the bills he

allegedly incinerated, Agent Constantino used newly-minted, uncirculated

currency. Third, the barrel used by Agent Constantino was a brand-new

one, while Norris’s was used and likely would have exhibited some wear

and contained some residue material.8 Fourth, Agent Constantino ignited

7
Agent Constantino testified that it was forty-seven degrees
fahrenheit with a slight wind when he conducted the re-creation.
8
Robert S. Arnold, a chemical laboratory manager at an engineering
consulting firm, Engineering and Fire Investigations, testified that his

9
the re-creation with an electric match; in contrast, Norris asserted

that he lit a kitchen match and tossed it into the barrel. Fifth, when

placing the currency in the five-gallon plastic container, Agent

Constantino stacked many of the bills, while Norris’s statements were

equivocal as to the portion of bills that were stacked as opposed to

fanned out. Finally, Agent Constantino poured one-and-three-fourths

gallons of gasoline. In Norris’s various statements, the amount of

gasoline ranges from one-half to one-and-three-fourths gallons. Agent

Constantino chose the highest figure to provide for the maximum burn,

thereby giving Norris the benefit of the doubt. In all instances in

which Norris’s testimony contained ambiguities or inconsistencies on a

particular step in his alleged process of burning the currency,

including the duration of the burn, Agent Constantino erred, if at all,

in favor of a hotter, longer burn. Agent Constantino concluded that

Norris’s “recipe” could not have burned more than a small portion of the

cash and that any variations in the re-creation resulted in only a

“minimal” difference between the amount of currency burned in the re-

enactment and the amount that would be burned under Norris’s

description.

Following a two-day trial, the jury convicted Norris on all four

counts. Before sentencing, the Probation Office submitted its

analysis of the two barrels removed from Norris’s residence revealed
that, if there was a fire in either of them, it was of extremely short
duration (less than 30 seconds) and was not intense enough to burn the
paint on their exterior, thus further establishing that the burning of
the currency could not have occurred as Norris testified it did.

10
Presentence Investigation Report (PSR) for Norris’s sentencing. The PSR

recommended that Norris should be ordered to pay approximately $490,000

in restitution to his former law partners and that Norris’s offense

level should be enhanced by three levels pursuant to U.S.S.G. §

2J1.3(b)(2) for substantial interference with the administration of

justice. After reviewing the PSR, Norris objected to it arguing, inter

alia, that his former law partners were not victims of his perjury

offense and, therefore, were not entitled to restitution. Norris also

asserted that his offense level should not be increased under U.S.S.G.

§ 2J1.3(b)(2), because his allegedly false statements did not

substantially interfere with the administration of justice.

On June 18, 1999, after a sentencing hearing, the district court

overruled Norris’s objections. The district court concluded that

Norris’s former law partners were victims of his false statements and

that Norris’s perjury substantially interfered with the bankruptcy

court’s proceedings and caused additional expenditure of court resources

in the contempt hearings. The district court sentenced Norris to

thirty-three months’ imprisonment9, three years’ supervised release, and

9
The PSR calculated Norris’s as follows. The base offense level
was 12. See U.S.S.G. § 2J1.3(a). A three-level increase in the offense
level was imposed because his offense resulted in substantial
interference with the administration of justice. See U.S.S.G. §
2J1.3(b)(2). Because Norris committed 4 offenses of the same offense
level, 4 offense levels were also added. See U.S.S.G. § 3D1.4.
Accordingly, Norris’s total offense level was 19, and his criminal
history category was I, resulting in a guideline range of 30-37 months’
imprisonment. See U.S.S.G. Ch. 5, Part A.
In the judgment of conviction, the district court adopted the PSR’s

11
a special assessment of $400 and ordered him to pay $490,000 in

restitution10. Norris now appeals.

Discussion

On appeal, Norris asserts that the district court committed the

following errors: (1) admitting the re-enactment video and Agent

Constantino’s testimony; (2) ordering him to pay restitution to his

former law partners; and (3) increasing his offense level for

substantial interference with the administration of justice under

U.S.S.G. § 2J1.3(b)(2). We address these issues in that order.

I Admissibility of the Government’s Evidence

Norris argues that the district court erred in admitting the

videotape re-creation and Agent Constantino’s testimony relating to the

re-creation. Norris contests neither the relevancy of the re-creation

and Agent Constantino’s testimony nor Agent Constantino’s qualification

as an expert in fire investigation. Instead, Norris focuses on the

reliability of the evidence, challenging the admission of the re-

factual determinations and guideline application, listing a total
offense level of 19 and a criminal history category of I. However, the
district court noted a resulting guideline range of 27-33 months’
imprisonment. No party complains of this error, and we consider it
merely to be typographical. Moreover, the district court sentenced
Norris to 33 months’ imprisonment, which falls within the appropriate
range of 30-37 months.
10
Before his perjury trial, Norris settled the 1989 state civil
action brought against him by his former law partners. The district
court correctly noted that 18 U.S.C. § 3664(j)(2) entitles Norris to a
credit toward his restitution order of any funds he proves his former
law partners receive under the settlement agreement. See United States
v. Shinebaum, 136 F.3d 443, 449 (5th Cir. 1998), cert. denied, 119 S.Ct.
1808 (1999).

12
creation and Agent Constantino’s testimony without requiring the

establishment of a proper foundation under Daubert. The district court

rejected Norris’s objection to the evidence and concluded that Daubert

did not apply to re-creation evidence. However, the district court, in

deciding to admit the evidence, did find that the re-creation was

“substantially similar” and thus was reliable and relevant.

We review the admission of expert evidence for abuse of discretion.

See Moore v. Ashland Chem., Inc., 151 F.3d 269, 274 (5th Cir. 1998) (en

banc), cert. denied, 119 S.Ct. 1454 (1999) (citing General Elec. Co. v.

Joiner, 118 S.Ct. 512, 517 (1997)). In other words, “the discretion of

the trial judge and his or her decision will not be disturbed on appeal

unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984,

988 (5th Cir. 1997) (internal quotations and citations omitted). If we

find an abuse of discretion in admitting the evidence, we consider any

error under the harmless error doctrine, affirming the judgment unless

the ruling affected a substantial right of the complaining party. See

United States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998), cert. denied,

119 S.Ct. 1795 (1999) (citing United States v. Skipper, 74 F.3d 608, 612

(5th Cir. 1996)). We conclude that, although the district court

erroneously determined that the principles of Daubert did not apply to

the re-creation and Agent Constantino’s testimony, the district court

did not err in admitting the evidence.

Under Daubert, the district court conducts a “preliminary

13
assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue.” Daubert,

113 S.Ct. at 2796; see FED. R. EVID. 70211. This “gate-keeping”

obligation on the part of the district court applies to all types of

expert testimony, not just scientific testimony. See Kuhmo Tire Co.,

Ltd. v. Carmichael, 119 S.Ct. 1167, 1174 (1999) (holding that Daubert’s

“basic gatekeeping obligation . . . applies to all expert testimony”).

Many factors may bear on this inquiry, including whether a theory or

technique can be or has been tested, has been subjected to peer review,

has received general acceptance, and the technique’s known or potential

error rate See Daubert, 113 S.Ct. at 2796-97. Daubert makes clear that

these four factors are non-exclusive and “do not constitute a

‘definitive checklist or test.’” Kuhmo, 119 S.Ct. at 1175 (quoting

Daubert, 113 S.Ct. at 2796). “[W]hether Daubert’s suggested indicia of

reliability apply to any given testimony depends on the nature of the

issue at hand, the witness’s particular expertise, and the subject of

the testimony.” Skidmore v. Precision Printing and Packaging, Inc., 188

F.3d 606, 618 (5th Cir. 1999). Regardless of the factors considered or

11
Federal Rule of Evidence 702 states:
“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.”

14
the test employed, “the objective is to ensure the reliability and

relevance of the expert testimony.” Tanner v. Westbrook, 174 F.3d 542,

547 (5th Cir. 1999) (citations omitted). Moreover, we afford the

district court “the same kind of latitude in deciding how to test an

expert’s reliability, and to decide whether or when special briefing or

other proceedings are needed to investigate reliability, as it enjoys

when it decides whether or not that expert’s relevant testimony is

reliable.” Kuhmo, 119 S.Ct. at 1176.

As the Supreme Court explained in Kuhmo, Daubert’s gate-keeping

obligation applies to all expert testimony, and the district court erred

in concluding that the videotape re-creation and Agent Constantino’s

testimony about the re-creation did not trigger a Daubert inquiry. See

Robinson v. Missouri Pac. R.R. Co., 16 F.3d 1083, 1088-89 (10th Cir.

1994) (stating that a video re-creation of an accident by an expert

witness and his testimony is subject to Daubert’s gate-keeping

function). We find, however, that this error was substantially only in

form or nomenclature, as the district court analyzed the reliability of

the government’s evidence, thus in substance essentially performing its

gate-keeping role under Daubert and Kuhmo.

Norris argues that the re-creation and Agent Constantino’s

deductions from it should have been excluded, because there was no

protocol followed during the re-creation, no theory or manuals were

relied upon, no error rate was known, there was no independent

validation of the re-creation, and the re-creation was only performed

15
once. In the absence of these factors, Norris concludes that the re-

creation cannot meet Daubert’s requirement for reliability. However,

“[t]he test of reliability is flexible and bends according to the

particular circumstances of the testimony at issue.” Tanner, 174 F.3d

at 547. The relevant issue is whether Agent Constantino could reliably

draw a conclusion as to whether Norris’s “recipe” would in fact cause

all or substantially all the bills to burn up. See Kuhmo, 119 S.Ct. at

1177. In making this evaluation, Agent Constantino re-created the

events as Norris described them in his testimony before the bankruptcy

court. Norris argued before the district court that the re-creation

deviated from the alleged actual event in some respects: (1) the

climate; (2) the use of $5, instead of $100, bills; (3) the placement

of the currency in stacks, as opposed to fanned out; (4) the fact that

the $5 bills were unused and freshly minted; and (5) the use of an

electric match, instead of a kitchen match. Despite these deviations,

which Agent Constantino testified were minor, the district court

admitted the evidence, finding that the re-creation was “substantially

similar” to the alleged events as Norris described them–a standard this

Court and other Courts of Appeals have consistently employed when

considering evidence of this character. See Guillory v. Domtar Indus.

Inc., 95 F.3d 1320, 1330-31 (5th Cir. 1996); Williams v. Briggs Co., 62

F.3d 703, 707-08 (5th Cir. 1995); Barnes v. General Motors Corp., 547

F.2d 275, 277 (5th Cir. 1977); see also McKnight v. Johnson Controls,

Inc., 36 F.3d 1396, 1403-04 (8th Cir. 1994); Fusco v. General Motors

16
Corp., 11 F.3d 259, 263-64 (1st Cir. 1993); Four Corners Helicopters v.

Turbomeca, S.A., 979 F.2d 1434, 1442 (10th Cir. 1992) (all holding that

if an experiment purports to simulate actual events, it will be

admissible if made under conditions similar to those that are the

subject of the litigation). “As a general rule, the district court has

wide discretion to admit evidence of experiments conducted under

substantially similar conditions.” Barnes, 547 F.2d at 277. Agent

Constantino used approximately the same number of bills, amount of fuel,

and type of containers Norris allegedly used. In addition, Agent

Constantino soaked the bills in the gasoline and allowed the fire to

continue for at least the same period of time as Norris claimed he did.

Agent Constantino also extinguished the fire with the same amount of

deer corn. Moreover, some of the variations resulted from

inconsistencies in Norris’s various statements before the bankruptcy

court, and Agent Constantino consistently chose among these variations

in favor of a longer, hotter burn, thereby giving Norris the benefit of

any variation. Therefore, we conclude that the district court did not

abuse its discretion in determining that the re-creation was

“substantially similar,” as the conditions need not be precisely

reproduced, but they must only be so nearly the same as to provide a

fair comparison.

By making a finding of “substantial similarity,” the district court

effectively conducted a Daubert inquiry by ensuring that the evidence

was relevant and reliable, despite not expressly addressing the four

17
non-exclusive factors listed in Daubert or those suggested by Norris.

Daubert’s list of factors “neither necessarily nor exclusively applies

to all experts or in every case.” Kuhmo, 119 S.Ct. at 1171. Moreover,

we note that Norris presented no evidence, expert or otherwise,

indicating either that Norris could have burned all or substantially all

the currency as he had described doing it or that had the reenactment

not involved the above noted differences from Norris’s description of

what he did it might well have resulted in burning up substantially all

of the currency. While Norris’s expert did comment on the

differences–e.g., that lighter bills would burn faster than heavier

ones, as would “fanned” rather than “stacked” bills–he made no attempt

whatever to even estimate the approximate extent to which those

differences would influence the ultimate result. Nor did he ever opine

either that the reenactment was unreliable as evidence that Norris’s

version of the events would not have resulted in burning up most of the

currency or that Norris’s version of the events likely would have burned

up most of the currency. Norris’s own testimony at trial was not to the

contrary. Indeed, on direct examination Norris testified that “after

seeing” the video of the reenactment he realized that “there may have

been some unburned money in there [the 55 gallon can] that . . . [he]

didn’t see” but that he “didn’t think it was at the time.” This was the

central theme of the defense at trial, from opening statement through

closing argument–namely that whether or not substantially all the

18
currency had burned Norris honestly thought it had at the time.12

Although the district court erroneously stated that Daubert’s

teachings did not apply to the videotape re-creation and Agent

Constantino’s testimony, under the circumstances of this case the

district court did not abuse its discretion in admitting the evidence,

because it in substance conducted an inquiry into the relevancy and

reliability of the evidence. Therefore, Norris’s challenge fails.

II Restitution

Norris next argues that the district court erred in finding that

his former law partners were victims of his perjury offenses and thus

ordering him to pay them $490,000 in restitution. Norris asserts that

false statements in judicial proceedings generally do not cause economic

losses and that the losses sustained by his former law partners are not

traceable to his perjured statements. We agree and vacate the order of

12
Norris’s testimony was that the burn lasted about 30 seconds to
one or two minutes, he then poured the 50 pounds of deer corn in the
barrel, which extinguished the fire, looked in the barrel, could see
nothing but corn despite the use of a shovel, and then gently set the
barrel on its side, looked in and still could see nothing other than
deer corn, none of which (nor anything else) had come out of the barrel.
His testimony noted that his setting the barrel down gently on its side,
with none of its contents spilled, was different from the reenactment
in which the barrel, after the fire was extinguished, was dropped the
last some 18 inches in the process of being put on its side and was
handled so as to empty onto the ground all the deer corn and unburned
money. Norris’s expert testified that this “was the greatest
difference” between the reenactment and Norris’s description of the
events and “was a dramatic, dramatic difference.” The expert also
testified to the effect that currency soaked in gasoline might tend to
stick to the bottom of the barrel. Norris testified that after he set
the barrel upright again he did not subsequently look in it before his
private garbage service emptied the barrel during the following week in
the course of their normal operations.

19
restitution.

“We review the legality of the district court’s order of

restitution de novo.” United States v. Hughey, 147 F.3d 423, 436 (5th

Cir.), cert. denied, 119 S.Ct. 569 (1998) (citing United States v.

Chaney, 964 F.2d 437, 451 (5th Cir. 1992)). “Once we have determined

that an award of restitution is permitted by the appropriate law, we

review the propriety of a particular award for an abuse of discretion.”

Id.

In considering whether the district court erred in ordering

restitution, we must determine whether Norris’s former law partners were

victims of Norris’s perjury under 18 U.S.C. § 3663. Section

3663(a)(1)(B)(ii)(2) provides that:

“the term ‘victim’ means a person directly and proximately
harmed as a result of the commission of an offense for which
restitution may be ordered including, in the case of an
offense that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly harmed by
the defendant’s criminal conduct in the course of the scheme,
conspiracy, or pattern.” 18 U.S.C. § 3663(a)(1)(B)(ii)(2).

As a scheme, conspiracy, or pattern of criminal activity is not an

element of Norris’s perjury offenses, his former law partners must have

been “directly and proximately harmed as a result of” his perjury for

the order of restitution to be proper. See United States v. Glinsey,

209 F.3d 386, 394 (5th Cir. 2000) (“Under 18 U.S.C. § 3663(a)(1)(A), a

sentencing court may order restitution if . . . a loss was sustained by

the victim as a result of an offense.”); see also United States v.

Henoud, 81 F.3d 484, 488 (4th Cir. 1996) (“A proper restitution award

20
must be limited to the losses caused by the specific conduct of which

the defendant is convicted.”). We conclude that Norris’s former law

partners suffered no losses as a result of Norris’s false statements

before the bankruptcy court and, therefore, vacate the restitution

order.

The purpose of a restitution order is to put the victim “in the

same position as if the illegal activity had not occurred.” United

States v. Campbell, 106 F.3d 64, 70 (5th Cir. 1997). Norris’s

statements that he burned the currency did not place his former law

partners in any worse position than if he had not made them, because no

evidence suggests that the bankruptcy trustee, Norris’s former law

partners, the bankruptcy court, or the authorities, actually believed

Norris’s claim that he incinerated approximately $490,000 in cash. In

fact, it is plain that the opposite is true. Shortly after Norris made

these statements, the bankruptcy trustee filed motions for turnover,

sanctions, and civil contempt against Norris to pressure him into

revealing the truth about what happened to the money. Norris’s former

law partners, as creditors in the bankruptcy proceeding, supported the

trustee’s motions, and the bankruptcy court ruled in favor of the

trustee on each of the motions. The bankruptcy court explicitly found

that Norris had fabricated his story of burning the currency. No party

before the bankruptcy court, including Norris’s former law partners,

detrimentally relied on this information. Norris’s assertions that he

burned the cash therefore did not cause any losses. Our holding does

21
not foreclose the possibility of imposing restitution for losses

sustained by a victim of perjury; we simply find no basis for on it on

the record before us. See United States v. Broughton, 71 F.3d 1143,

1148 & n.3 (4th Cir. 1995) (reversing restitution order against a

defendant convicted of perjury before a grand jury where the perjury was

intended to conceal the defendant’s previously committed fraudulent

business conduct, though recognizing the possibility of a restitution

order to a victim of perjury).13

We conclude that Norris’s former law partners were not victims of

Norris’s perjury, as they suffered no loss resulting from his false

statements during the bankruptcy proceedings. Accordingly, we reverse

and vacate the district court’s restitution order. See Campbell, 106

F.3d at 70 (reversing and vacating a restitution order, without a remand

to the district court).

III Application of U.S.S.G. § 2J1.3(b)(2)

13
In support of its position that the district court’s restitution
order was proper, the government cites United States v. Pepper, 51 F.3d
469 (5th Cir. 1995). Pepper had defrauded numerous persons in an
investment scheme and then filed a petition for bankruptcy from which
he received a discharge. See id. at 471. Pepper’s dischargeable debts
included at least thirteen loans that investors had made to him. Pepper
was later indicted and convicted on numerous counts of mail and wire
fraud, and the district court ordered Pepper to pay $155,560 in
restitution to the victims of his fraud. Unlike the present appeal,
Pepper did not contend that his investors were not victims of his
fraudulent activities. Instead, Pepper argued that the district court
could not order restitution because the debts of some of his victims
were discharged in bankruptcy. See id. at 473. We disagreed,
concluding that “Pepper’s bankruptcy discharge does nothing to relieve
the loss suffered by the victims of his scheme.” Id. at 474. Our
holding in Pepper does not resolve the issue presented by Norris.

22
 Norris contends that the district court erred in increasing his

offense level by three levels pursuant to section 2J1.3(b)(2), which

provides for an enhanced sentence if the defendant’s offense

substantially interfered with the administration of justice. Norris

does not contest the district court’s finding that substantial resources

were actually expended. Instead, Norris argues that the enhancement

does not apply to his offense, because it is intended to apply only to

a perjury offense causing increased costs in the investigation and

prosecution of another offense, not the instant perjury conviction.

Norris therefore asserts that, as there was no offense other than his

false declarations, the enhancement cannot apply. We are unpersuaded

by Norris’s contention that he is ineligible for the enhancement, as his

argument overlooks the damage his perjury inflicted on the proceedings

before the bankruptcy court which we hold constitutes a sufficient basis

for applying the enhancement.

We review the district court’s application of the sentencing

guidelines de novo and its findings of fact for clear error. See United

States v. Harrington, 82 F.3d 83, 86 (5th Cir. 1996). We afford due

deference to the district court’s application of the guidelines to the

facts. See id. Section 2J1.3(b)(2) provides that “[i]f the perjury,

subornation of perjury, or witness bribery resulted in substantial

interference with the administration of justice, increase by 3 levels.”

U.S.S.G. § 2J1.3(b)(2). Application note 1 to section 2J1.3 explains:

“‘Substantial interference with the administration of

23
 justice’ includes a premature or improper termination of a
felony investigation; an indictment, verdict, or any judicial
determination based upon perjury, false testimony, or other
false evidence; or the unnecessary expenditure of substantial
governmental or court resources.” U.S.S.G. § 2J1.3,
Application Note 1.

“The government need not particularize a specific number of hours

expended by government employees” to sustain the application of section

2J1.3(b)(2)’s enhancement. United States v. Jones, 900 F.2d 512, 522

(2d Cir. 1992); see United States v. Tackett, 193 F.3d 880, 887 (6th

Cir. 1999); United States v. Sinclair, 109 F.3d 1527, 1540 (10th Cir.

1997). Several Courts of Appeals have held that the expenses associated

with the underlying perjury offense should not form the sole basis for

an enhanced sentence under section 2J1.3(b)(2). See Sinclair, 109 F.3d

at 1539; United States v. Duran, 41 F.3d 540, 546 (9th Cir. 1994);

Jones, 900 F.2d at 522 (all holding that section 2J1.3(b)(2)’s

enhancement does not apply when the government fails to identify any

expenses in addition to the costs of bringing the defendant to trial for

the perjury offense). We agree and conclude that the expenses incurred

with the investigation and prosecution of Norris’s instant perjury

offenses may not form the sole basis for applying section 2J1.3(b)(2)’s

enhancement. Otherwise, every perjury conviction would carry this

enhancement. However, the district court’s decision to apply the

enhancement to Norris’s offense level was not predicated solely on the

expenditure of government and court resources in prosecuting him for

perjury.

24
 The PSR and the Probation Office’s response to Norris’s objections

to the PSR, in supporting the application of section 2J1.3(b)(2)’s

three-level enhancement, rely on his indictment and conviction for

perjury and on the effect his perjury had on “the Bankruptcy Court’s

ability to administer justice as required on behalf of rightful

creditors from whom [Norris] wrongfully withheld assets.” In reviewing

the latter ground for the enhancement’s application, we must consider

whether the unnecessary expenditure of substantial government or court

resources in the bankruptcy context may trigger section 2J1.3(b)(2)’s

enhancement and whether Norris’s false declarations before the

bankruptcy court caused the unnecessary expenditure of government or

court resources.

The application of section 2J1.3(b)(2)’s enhancement for false

declarations causing the expenditure of resources in a bankruptcy

proceeding presents an issue of first impression in this Court. Neither

section 2J1.3's language nor its commentary distinguishes between

perjury in the criminal context and perjury in civil or bankruptcy

proceedings. See United States v. Holland, 22 F.3d 1040, 1046-48 & n.11

(11th Cir. 1994) (holding that the sentencing guideline governing

perjury cases, section 2J1.3, applies to perjury committed in civil, as

well as criminal, proceedings). Other courts have held that a defendant

convicted for perjury committed in a non-criminal proceeding may be

eligible for enhanced sentencing under section 2J1.3(b)(2)’s provisions.

See United States v. Weissman, 195 F.3d 96, 98-100 (2d Cir. 1999) (per

25
curiam) (considering the additional time spent by the Permanent

Subcommittee of the United States Senate Committee of Governmental

Affairs as a basis for section 2J1.3(b)(2)’s enhancement); United States

v. Kocsak, 1997 WL 610457, at *3 (N.D. Ill. Sept. 19, 1997) (applying

section 2J1.3(b)(2)’s three-level enhancement when the defendant

committed perjury in a civil lawsuit); see also United States v. Kaster,

139 F.3d 902 (table), 1998 WL 78995, at **2 (7th Cir. Feb. 19, 1998)

(per curiam) (unpublished opinion) (noting, without reviewing, the

defendant’s receiving an enhanced sentence under section 2J1.3(b)(2) for

substantial interference with the administration of justice based on his

false declaration before a bankruptcy court). We agree, concluding that

perjury impeding the administration of justice in non-criminal

proceedings may trigger section 2J1.3(b)(2)’s enhancement. See Holland,

22 F.3d at 1047 (“Perjury, regardless of the setting, is a serious

offense that results in incalculable harm to the functioning and

integrity of the legal system as well as to private individuals.”).

We now address whether Norris’s false declarations caused the

unnecessary expenditure of substantial governmental or court resources.

The Sentencing Guidelines do not define the term “substantial.”

However, Norris was the primary figure in resolving the involuntary

bankruptcy proceeding filed against him, and his false statements under

oath interfered with the bankruptcy court’s ability to adjudicate his

creditors’ claims and dispose of his assets. His perjury also resulted

in the bankruptcy trustee’s filing motions for turnover, sanctions, and

26
civil contempt in order to amass Norris’s assets for the benefit of his

creditors. In addition, the bankruptcy court held hearings on many of

these motions and ultimately incarcerated Norris. Moreover, the court

brought Norris before it on a monthly basis to request that he state

what actually happened to the money he claimed to have burned. In

applying section 2J1.3(b)(2)’s enhancement for substantial interference

with the administration of justice, the Sixth Circuit noted that “if a

person is the only source of important information, [the] active

concealment of this information will almost certainly change the course

of the proceedings, making the investigation more difficult and costly,

and hampering the truth-seeking function of government agents.”

Tackett, 193 F.3d at 887. Other courts agree with this proposition.

See Sinclair, 109 F.3d at 1539-40; United States v. Bradach, 949 F.2d

1461, 1463 (7th Cir. 1991); Jones, 900 F.2d at 522. “Accordingly, where

a defendant actively conceals important evidence of which [he or] she

is the only source, a court may infer that the defendant’s interference

with the administration of justice was substantial.” Tackett, 193 F.3d

at 887. Because only Norris knew what actually happened to the currency

he alleged to have incinerated, his false declarations fall within this

category where substantial interference may be inferred.

The district court’s findings also support the application of the

enhancement. In considering Norris’s objection to the application of

section 2J1.3(b)(2)’s enhancement at the sentencing hearing, the

district court expressly found that Norris’s false declarations caused

27
the unnecessary expenditure of governmental and court resources during

his involuntary bankruptcy proceedings.14 Moreover, the district court,

at the sentencing hearing and in its judgment of conviction,

specifically referenced the PSR, which “‘generally bears sufficient

indicia of reliability to be construed as evidence by the trial judge

in making the factual determinations required by the sentencing

guidelines.’” United States v. Sanders, 942 F.2d 894, 898 (5th Cir.

1991) (quoting United States v. Alaro, 919 F.2d 962, 966 (5th Cir.

1990)). Because Norris has not established that the district court’s

finding that his perjury caused the unnecessary expenditure of

substantial governmental or court resources is clearly erroneous, his

claim fails.

Conclusion

For the foregoing reasons, we reverse and vacate the district

court’s restitution order, and affirm Norris’s convictions and sentences

in all other respects.

AFFIRMED IN PART; REVERSED AND VACATED IN PART.

14
At Norris’s sentencing hearing, the district court stated:
“As to your objection number two, you emphasized the
objection as cost. I, frankly when I read the presentence
report, before I read the thing I never thought in terms of
money. I thought of the fact that there was substantial
interference with the administration of justice through the
bankruptcy courts, as well as requiring monthly appearances
during the time he was in jail for civil contempt.”

28