USA v. Kern Wilson, et al

Filing

UNPUBLISHED OPINION FILED. [09-30742 Affirmed ] Judge: RHB , Judge: CES , Judge: LHS Mandate pull date is 12/06/2010 for Appellant Durwanda Elizabeth Heinrich and Appellant Kern Carver Bernard Wilson [09-30742]

USA v. Kern Wilson,Caale: 09-30742 et s

Document: 00511293321 Page: 1 Date Filed: 11/15/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 15, 2010 N o . 09-30742 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee, v. K E R N CARVER BERNARD WILSON; DURWANDA ELIZABETH MORGAN H E IN R IC H , Defendants - Appellants.

A p p e a ls from the United States District Court for the Eastern District of Louisiana U S D C No. 2:08-CR-128

B e fo r e BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges. P E R CURIAM:* F o r these challenged convictions for bribery of public officials during r e c o n s tr u c t io n in the aftermath of Hurricane Katrina, primarily at issue is w h e t h e r one of the defendants, Kern Wilson, qualifies as a "public official" w it h in the meaning of the bribery statute. Error is also claimed for the

restriction placed on cross-examination of a Government-witness co-conspirator, a n d 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

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No. 09-30742 I. The bribery and conspiracy at issue concerns the bid process for the en la rgem e n t and reconstruction of the Lake Cataouatche Levee, a project located s o u th of New Orleans and part of post-Katrina reconstruction projects s u p e r v is e d by the United States Army Corps of Engineers (USACE). In

S e p t e m b e r 2005, soon after Katrina, Wilson, a retired Army officer and civil e n g in e e r , moved to New Orleans, seeking work as a recovery consultant on such p r o je c ts . In July 2006, after a brief stint with an emergency-relief consortium, W ils o n joined Integrated Logistical Support, Inc. Engineering (ILSI), working u n d e r contract for USACE. Wilson's work concerned projects related to

c o n s t r u c t io n of embankment protection along coastal waterways. It was while w o r k in g earlier with the above-referenced emergency-relief consortium that W ils o n met defendant Elizabeth Heinrich, a supplier of dirt and sand to various c o n s t r u c t io n projects. Wilson and Heinrich became friends and romantically in v o lv e d . In addition, soon after joining ILSI, Wilson met Raul Miranda, an engineer w h o , inter alia, assisted USACE in evaluating and reviewing bids for the Lake C a t a o u a tc h e project. Part of Miranda's work entailed identifying deficiencies w it h the bid proposals for USACE's contract-selection committee. Through their work together, Wilson and Miranda became friends; their d e s k s were next to each other; and Miranda rented a duplex directly above W ils o n 's apartment. a p a rtm en t. Heinrich was seeking work with USACE and made well-known her in t e r e s t 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 a n d gravel to the prime contractor working the levee construction. During one 2 Heinrich met Miranda during her visits to Wilson's

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No. 09-30742 o f her visits to Wilson's apartment, Heinrich approached Miranda for in fo r m a t io n : she asked him to identify the prime contractor qualified to win the L a k e Cataouatche contract. This would inform her which contractor to approach in her efforts to win a sub-contract. U S A C E '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, s c h e d u lin g ) 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 b e s t -v a lu e approach is not so disclosed. Instead, the bids are kept sealed and o n ly after the proposals are evaluated for addressing specific considerations r e la t e d to the project are contractors given an opportunity to address any d e fic ie n c ie s and revise their proposals. To prevent contractors from gaining unfair advantage during such bid p r o c e s s , USACE requires all engineers, whether Government employees or G o v e r n m e n t contract employees like Wilson and Miranda, to sign a Procurement I n t e g r it y Act (PIA) statement. s o u rc e -s e l e c tio n and The statement informs its signatories that information constitute "proprietary

bid-proposal

g o v e r n m e n t information" and must be kept confidential. Wilson and Miranda s ig n e d this PIA statement. Following a tip from Miranda, Heinrich decided to support a proposal from M a n s o n Gulf, LLC, one of the prime contractors bidding on the project. Miranda a g r e e d to provide Heinrich and Wilson with information necessary for Manson G u lf to correct technical deficiencies in its bid. In addition, Miranda made clear h e expected payment for the confidential information he was relaying to H e in r ic h about that bid. Heinrich, Miranda, and Wilson agreed Miranda and W ils o n would each receive $0.25 per cubic yard of fill material sold by Heinrich t o Manson Gulf for the project.

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No. 09-30742 F o llo w in g their agreement, and after Manson Gulf submitted its Lake C a t a o u a tc h e bid to USACE, Heinrich contacted Mayeux, the head of Manson G u lf's levee division. Heinrich told Mayeux his bid had flaws and she could help h im correct them. Heinrich then obtained information from Miranda about that b id . On multiple occasions between 25 September and 3 October 2006, Heinrich, M ir a n d a , and Wilson met to discuss the summary of technical deficiencies in M a n s o n Gulf's proposal. On some occasions, Wilson would obtain the technical in fo r m a t io n from Miranda at work and relay it to Heinrich that evening. Between 28 September and 2 October 2006, Heinrich contacted Mayeux via t e le p h o n e , fax, and e-mail, with information identifying technical deficiencies in his proposal and solutions to address them. Mayeux then used Heinrich's s u g g e s t io n s to respond to questions during Manson Gulf's oral presentation to U S A C E 's source-selection committee. According to Miranda's trial testimony, h e had fed some of those questions to that committee, knowing they would help M a n s o n Gulf's proposal. In the light of this provided data, Mayeux suspected Heinrich had obtained h e r information from an inside source at USACE. Mayeux informed USACE, w h ic h then contacted federal law enforcement. At the behest of the Army's C r im in a l Investigative Division (CID), Mayeux recorded conversations with H e in r ic h in which she acknowledged having an inside source at USACE. In that r e g a r d , she even told Mayeux at one of these meetings, when he advised her to r e m a in while he briefly left the room, "don't bring the FBI [back] with you". CID in t e r v e n e d and brought the conspirators' activities to an end. Miranda

c o o p e r a t e d with Government investigators; pleaded guilty to bribery, in violation o f 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 W ils o n and Heinrich.

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No. 09-30742 H e in r ic h was indicted on: one count of conspiracy to commit bribery, in v io la t io n of 18 U.S.C. § 371; and two bribery counts (one each for Wilson and M ir a n d a ), in violation of 18 U.S.C. § 201(b)(1)(B). Wilson was indicted on: one c o u n t of conspiracy to commit bribery, in violation of 18 U.S.C. § 371; and one b r ib e r y count, in violation of 18 U.S.C. § 201(b)(2)(B). Following a jury trial in 2 0 0 9 , they were convicted on all counts. Heinrich and Wilson were sentenced, in te r alia, to 60 and 70 months' imprisonment, respectively. II. A lt h o u g h Wilson and Heinrich present several claims, Heinrich does not c h a lle n g e her bribery conviction concerning Miranda. At issue are: the district c o u r t's restriction of Miranda's cross-examination; its ruling Wilson was a " p u b lic official" within the meaning of the bribery statute and, therefore, not s u b m it t in g this "public official" question to the jury; and three trial evidentiary r u lin g s . A. R e g a r d in g the limitation on Miranda's cross-examination, in claimed v io la t io n of the Sixth Amendment's Confrontation Clause, defendants assert the d is t r ic t court improperly blocked them from establishing Miranda's lack of c r e d ib ilit y and motive to lie, by curtailing questions about the detail and scope o f his plea agreement. Such claimed violations are reviewed de novo; if no Sixth A m e n d m e n t violation exists, the cross-examination limitation is reviewed for a b u s e of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2 0 0 6 ). The Sixth Amendment guarantees a criminal defendant the right to crosse x a m in e witnesses testifying against him. E.g., Davis v. Alaska, 415 U.S. 308, 3 1 5 (1974). This right, of course, is not unlimited, see Delaware v. Van Arsdall, 4 7 5 U.S. 673, 679-80 (1986); and it is not infringed provided defendant is able t o expose facts from which the jury could draw inferences as to the witness' 5

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No. 09-30742 r e lia b ilit y , see United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). To show t h e alternative abuse of discretion, defendant must establish clear prejudice, so t h a t "a reasonable jury might have had a significantly different impression of the w it n e s s '[] credibility if defense counsel had been allowed to pursue the q u e s t io n in g ". Id. at 548. At issue is whether the district court improperly curtailed crosse x a m in a t io n on concrete details of Miranda's plea agreement. During his crosse x a m in a t io n , jurors learned: Miranda had reached a plea agreement with the G o v e r n m e n t ; in exchange for pleading guilty to one count, the Government w o u ld not charge him with additional counts; and, in exchange for pleading g u ilt y , the Government would limit Miranda's sentence under the Sentencing G u id e lin e s . When defense counsel asked about the reduced Guideline sentencingr a n g e specified in that plea agreement, however, the district court ruled: All I'm going to let you do is ask him what his u n d e r s t a n d in g [is], if he has one, as to what sentence h e 's going to get because of his Plea Agreement and if h e expects or hopes to get a reduced sentence because o f his testimony, and that's it, and let's get off of this P le a Agreement. D e fe n d a n t s contend this was error because jurors were left unaware of the m a g n it u d e of the benefit extended Miranda as the result of his plea agreement; t h e y maintain this benefit was so significant that jurors would have discredited M ir a n d a 's testimony, or at least this benefit would have generated a different im p r e s s io n of his credibility. For the reasons that follow, the curtailment of Miranda's crosse x a m in a t io n was neither in violation of the Sixth Amendment nor an abuse of d is c r e t io n . Up to the point of the district court's limiting Miranda's crosse x a m in a t io n , the jurors were made aware of critical pieces of information:

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No. 09-30742 M ir a n d a did not have a plea agreement when he first met with Agents; Miranda a n d the Government agreed to the charges to which he would plead; Miranda w a s charged only with bribery; the Government agreed not to charge him for o t h e r crimes he committed prior to his guilty plea; he was not charged with lying t o Agents on 5 October 2006 (when first interviewed by them concerning the p r o je c t), even though every lie brought the possibility of a five-year sentence; and h e was an uncharged member of the conspiracy. Subsequently, the court

in s t r u c t e d the jury that Miranda's testimony must be "received with caution and w e ig h e d with great care". Defendants are incorrect in insisting jurors were entitled to know the "m a gn itu d e of the benefit"made available to Miranda. The Confrontation Clause g u a r a n t e e s only "an opportunity for effective cross-examination, not crosse x a m in a t io n that is effective in whatever way, and to whatever extent, the d e fe n s e 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 a s s o c ia t e d with Miranda's testimony. Moreover, had the district court permitted cross-examination of Miranda's p le a -a g r e e m e n t and corresponding Guideline sentencing-range, it would have im p r o p e r ly 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 m atte r s relating to defendant's sentence opens door to compromised verdicts and c o n fu s e s issues to be decided). Additionally, revealing that range risked

u n n e c e s s a r ily confusing the jury, and one of the purposes of limiting crosse x a m in a t io n is to avoid that. United States v. Hitt, 473 F.3d 146, 156-57 (5th C ir . 2006) (trial court retains wide discretion to limit cross-examination based u p o n concerns of prejudice and confusion). Rather than enter into a complex d is c u s s io n about the mechanics of the advisory Sentencing Guidelines, the

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No. 09-30742 d is t r ic t court was correct to avoid confusing jurors, as well as avoid revelation of prejudicial information concerning Wilson's and Heinrich's possible sentences. D e fe n d a n t s ' reliance upon United States v. Chandler, 326 F.3d 210, 221-23 (3 d Cir. 2003) (holding prohibited cross-examination significantly inhibited d e fe n d a n t 's right to cross-examine witness' motivation to lie because jurors left u n a w a r e of the magnitude of the sentence reduction), is misplaced; our court's o p in io n in Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008) is not in alignment with C h a n d le r . Instead, Burbank involved a state court that improperly prevented t h e defense from questioning a principle witness about the existence of her plea a g r e e m e n t. Id. at 356. Here, defendants were not permitted to explore the

d e t a ils of the possible Guideline sentencing-range Miranda faced; but, unlike in B u r b a n k , they were permitted to question Miranda about the existence of his p le a agreement. Defense counsel were also able to question Miranda about his m o t iv e s for entering the plea agreement, which included the possibility he might r e c e iv e a decreased sentence by cooperating with the Government. The testimony elicited was sufficient to make jurors aware of Miranda's p o s s ib le motives for testifying against Wilson and Heinrich, and defendants have fa ile d to show reasonable jurors would have received a significantly different im p r e s s io n of Miranda's credibility had the exact Guideline sentencing-range b e e n exposed. See Davis, 393 F.3d at 548. In sum, the jury was given an o p p o r t u n it y to form a thorough opinion regarding Miranda's motive or c r e d ib ilit y . Jimenez, 464 F.3d at 562. B. Defendants base error on the district court's instructing the jury that W ils o n was a "public official" within the meaning of the bribery statute. They a s s e r t : Wilson did not fit within the statutory definition because he was not an o ffic e r or employee of the United States and his involvement in the conspiracy

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No. 09-30742 w a s unrelated to his work with USACE; and "public official", as an element of 1 8 U.S.C. § 201, must be determined by a jury. Along that line, the district court granted the Government's contested m o t io n in limine, prohibiting defendants from challenging Wilson's public-official s t a t u s . Similarly, in their motions for judgment of acquittal, which the district c o u r t denied, defendants contended the Government presented no evidence of c o r r u p tio n concerning Wilson's official decision-making duties and functions. Finally, over defendants' objection, the court instructed the jury that Wilson and M ir a n d a were "public officials". 1. A question of statutory interpretation is, of course, reviewed de novo. E.g., U n ite d States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008). The offenses for b r ib e r y involving public officials is governed by 18 U.S.C. § 201. For that p u r p o s e , "public official" is defined in § 201(a)(1) as follows: Member of Congress, Delegate, or Resident C o m m is s io n e r , either before or after such official has q u a lifie d , or an officer or employee or person acting for o r on behalf of the United States, or any department, a g e n c y or branch of Government thereof, including the D is t r ic t of Columbia, in any official function, under or b y authority of any such department, agency, or branch o f Government, or a juror; 18 U.S.C. § 201(a)(1). At issue is whether Wilson's position as an employee of I S L I , under contract with USACE, qualified him as a public official for purposes o f 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 M ir a n d a (Count 2) and Wilson (Count 3), in violation of 18 U.S.C. § 201(b)(1)(B); W ils o n , with soliciting and accepting a bribe, in violation of 18 U.S.C. § 2 0 1 (b )(2 )(B ). Section 201(b)(1), involving Heinrich, states:

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No. 09-30742

W h o ev e r -(1 ) directly or indirectly, corruptly gives, offers or p r o m is e s anything of value to any public official or p e r s o n who has been selected to be a public official, or o ffe r s or promises any public official or any person who h a s been selected to be a public official to give anything o f 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 b e e n selected to be a public official to commit or aid in c o m m it t in g , or collude in, or allow, any fraud, or make o p p o r t u n it y for the commission of any fraud, on the U n it e d States; or (C) to induce such public official or such person who has b e e n selected to be a public official to do or omit to do a n y act in violation of the lawful duty of such official or p erson ; c o m m it s a federal offense. 18 U.S.C. § 201(b). Similarly, § 201(b)(2), involving W ils o n , provides: Whoever-b e in g a public official or person selected to be a public o ffic ia l, directly or indirectly, corruptly demands, seeks, re c e iv e s , accepts, or agrees to receive or accept anything o f value personally or for any other person or entity, in r e t u r n for: (A) being influenced in the performance of any official a ct; (B) being influenced to commit or aid in committing, or t o collude in, or allow, any fraud, or make opportunity fo r the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation o f the official duty of such official or person; commits a federal offense. 18 U.S.C. § 201(b)(2). A s shown above, an individual hired as a contract employee by a federal a g e n c y can qualify as a "public official" under 18 U.S.C. § 201(a)(1). See United 10

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No. 09-30742 S ta te s v. Thomas, 240 F.3d 445, 448 (5th Cir. 2001) (prison guard qualified as a " p u b lic official", even though he was employed by a private company contracted b y INS). Relying upon Supreme Court precedent from United States v. Dixson, 4 6 5 U.S. 482, 496-97 (1984), as well as case law outside our circuit, our court o b s e r v e d in Thomas: "Because the officers were charged with abiding by federal g u id e lin e s . . . , they `assumed the quintessentially official role of administering a social service program established by . . . Congress.'" Thomas, 240 F.3d at 447 (q u o tin g 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 fe d e r a l responsibilities, because he acted on behalf of the United States under t h e authority of a federal agency which had contracted with his employer". Id. a t 448 (citing United States v. Neville, 82 F.3d 1101, 1106 (D.C. Cir. 1996)); see a ls o United States v. Kenney, 185 F.3d 1217, 1221-23 (11th Cir. 1999) (employee o f engineering firm contracted to the Air Force, tasked with procuring and a p p r o v in g materials and equipment, qualified as a "public official" for purposes o f 18 U.S.C. § 201(a)(1)). D e fe n d a n t s take a more narrow position; they contend Wilson cannot q u a lify as a "public official" because the nature of the bribery occurred outside o f the scope of his contractual duties with USACE. That is, he had no official d u t ie s related to the project; and, because the bribery scheme involved a project o u ts id e of his official duties with USACE, he cannot qualify as a public official u n d e r the bribery statute. We disagree. For the reasons that follow, the project's being outside W ils o n 's scope of official duties is of no consequence to his being a "public o ffic ia l" for purposes of 18 U.S.C. § 201. First, the definitional section of § 201(a), i.e., the definition of "public o ffic ia l" for purposes of the Act, imposes no requirement that a bribed "employee" b e acting within his official functions to effect a bribe. United States v. Gjieli, 11

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No. 09-30742 7 1 7 F.2d 968, 972 (6th Cir. 1983). "The focus of this section is . . . not upon . . . t h e bribed individual's ability to effect a result." Id. at 976. The bribery statute a p p lie s , "regardless of whether . . . the acts to be accomplished are within the s c o p e of the actual lawful duties of the bribed public official and regardless of w h e t h e r the briber has correctly perceived the precise scope of the official's la w fu l duties". Id.; see also United States v. Evans, 572 F.2d 455, 481 (5th Cir. 1 9 7 8 ) (bribed public official "incorrect in asserting that the government was r e q u ir e d to prove that the unlawful compensation was earmarked for a p a r tic u la r matter then pending before [defendant] and over which he had a u t h o r it y " , in context of §201(g)). Second, Congress intended the bribery statute to be applied broadly. See U n ite d States v. Westmoreland, 841 F.2d 572, 577 (5th Cir. 1988) ("[I]t is clear t h a t Congress has cast a broad net . . . ."); United States v. Romano, 879 F.2d 1 0 5 6 , 1060 (2d Cir. 1989) ("The [Supreme] Court stressed that the bribery s t a t u t e was drafted with broad jurisdictional language . . . to reach all people p e r fo r m in g activities for the federal government, regardless of the form of fe d e r a l authority." (emphasis added)). Instead of a "cramped reading", § 201(a) is "accurately characterized as a comprehensive statute applicable to all persons p e r fo r m in g 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 m a n a g e r for waterway improvements, he was an integral part of USACE's postK a t r in a rebuilding efforts. And, needless to say, this position of public trust g a v e Wilson proximity to the illegal activity. He was a critical vessel through w h ic h Miranda and Heinrich moved confidential information from USACE to M a n s o n Gulf, and his employment placed him at a critical juncture to effectuate 12

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No. 09-30742 t h e bribery scheme: his desk was directly adjacent to Miranda, they spoke of t h e ir scheme at their office; Wilson used his USACE computer to download and t r a n s fe r files; and he passed confidential information and computer data to and fr o m Miranda while he was engaged at work. Simply stated, his position

e n a b le d him to become a key part of this criminal activity. 2. I n this regard, defendants contend the district court erred by instructing t h e jury that Miranda and Wilson were "public officials". They claim the issue w a s instead a factual matter for the jury. See United States v. Gaudin, 515 U.S. 5 0 6 , 522-23 (1995) ("[A] criminal defendant [has] the right to have a jury d e t e r m in e . . . his guilt of every element of the crime . . . ."). It is well established that questions of law are issues typically not d e p e n d a n t "upon the probative value of the evidence" and are therefore decided b y the court; questions of fact are submitted to the jury. United States v.

V id a u r e , 861 F.2d 1337, 1340 (5th Cir. 1988). Two circuits have determined that w h e t h e r a defendant is a public official subject to 18 U.S.C. § 201 is a question o f law. See United States v. Hang, 75 F.3d 1275, 1279 (8th Cir. 1996) (holding d e t e r m in a t io n of public-official status is question of law); United States v. M a d e o y , 912 F.2d 1486, 1494 (D.C. Cir. 1990). Similarly, in reserving judgment o n whether "public official" is question of law or fact, a third circuit affirmed a ju r y instruction which provided: "The term `public official' thus includes an e m p lo y e e of a private corporation who acts for or on behalf of the federal g o v e r n m e n t pursuant to a contract." Kenney, 185 F.3d at 1223. There, the jury w a s also instructed that it needed only to find that defendant "possessed some d e g r e e of official responsibility for carrying out a federal program or policy" in o r d e r to qualify as a "public official" pursuant to § 201. Id. In any event, for purposes of deciding this issue, we need not decide w h e t h e r a defendant's qualification as a "public official" is always a question of 13

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No. 09-30742 la w . On this record, it was not reversible error for the district court to instruct t h e 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 w o r k in g for USACE. In fact, Wilson testified at trial that he had been a contract c o n s u lt a n t working for USACE. Additionally, Wilson and Miranda did not d is p u t e they were contract consultants for USACE at the time their criminal a c t iv ity occurred. Any disputes by defendants were purely questions of statutory in t e r p r e t a t io n ­ a question of law, not fact. Because the term "public official" in c lu d e s an employee of a private corporation who acts on behalf of the G o v e r n m e n t pursuant to a federal contract, and because all parties agreed on t h e contractual nature of Miranda's and Wilson's employment, there was no q u e s t io n of fact for the jury to decide on that point. Similarly, Wilson's insistence it was for the jury to decide whether M ir a n d a 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 S ta te s v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002), whether a person qualifies a s a public officer hinges upon the person's official responsibilities with the G o v e r n m e n t , not whether the person intended to act as a "public official" within t h e nature of the bribery scheme. C. W ils o n challenges three trial evidentiary rulings. He contests the district c o u r t 's : permitting lay opinion testimony from a Government witness on

t e c h n i c a l computer information; not permitting expert testimony by a defense w it n e s s regarding Government computer operations; and prohibiting several c h a r a c t e r witnesses from testifying at trial on Wilson's lack of motivation by fin a n c ia l reward.

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No. 09-30742 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 FED. R. EVID. 103. "A trial court abuses its discretion when its ruling is based on an erroneous view o f the law or a clearly erroneous assessment of the evidence." United States v. Y a n e z Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v. R a g s d a le , 426 F.3d 765, 774 (5th Cir. 2005)); see FED. R. EVID. 103(a) (error c a n n o t be based upon exclusion of evidence unless party's substantial rights are a ffe c te d ). 1. CID Agent Clayton, assigned to investigate the bribery scheme, testified a b o u t information he obtained from USACE e-mail accounts of the persons w o r k in g on the project's source-selection committee. He also testified about his r e v ie w of Wilson's USACE e-mail account. The import of Agent Clayton's

t e s t im o n y was Wilson's attempt to conceal the content of his sent e-mails c o n t a in in g confidential information about the project. Agent Clayton testified t o his review of the e-mail inboxes of Wilson and everyone in USACE's sources e le c t io n committee; he determined, based upon Wilson's empty sent-box, that W ils o n "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 o p in io n . "The case law is not completely clear on where to draw the line between e x p e r t and lay testimony." United States v. Caldwell, 586 F.3d 338, 348 (5th Cir. 2 0 0 9 ). While it is true testimony requiring specialized training and experience s h o u ld be admitted as expert testimony, see Doddy v. Oxy USA, Inc., 101 F.3d 4 4 8 , 460-61 (5th Cir. 1996), "[t]he trend in the circuits seems to turn on whether t h e testimony falls within the realm of knowledge of the average lay person", C a ld w e ll, 586 F.3d at 348. In other words, for this issue, testimony about a c o m p u te r may suggest technical expertise, but that does not necessarily mean 15

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No. 09-30742 s u c h testimony requires satisfying the standard for expert testimony. See also B r y a n t v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005) ("A m a t h e m a t ic a l calculation well within the ability of anyone with a grade-school e d u c a t io n is . . . more aptly characterized as a lay opinion . . . ."). A g e n t Clayton's testimony is closer to lay, than expert, opinion. He

t e s t ifie d he was not a forensic examiner, he did not use forensic software in r e v ie w in g the e-mails, and his computer background was limited to "a normal c o m p u te r user of Microsoft Office products". It was obvious from both his

b a c k g r o u n d and the nature of his testimony that his examination of Wilson's em a il account did not require "scientific, technical or other specialized k n o w le d g e " , FED. R. EVID. 702; instead, his testimony fell "within the realm of k n o w le d g e of the average lay person", Caldwell, 586 F.3d at 348. In short, Agent Clayton's testimony was based on reasoning familiar in e v e r y d a y life. Yanez Sosa, 513 F.3d at 200. Thus, the district court did not a b u s e its discretion in admitting it. 2. I n a related issue, Wilson contends the district court erred in refusing to q u a lify as an expert witness a defense witness in the field of general technology in fo r m a t io n systems. Wilson proffered the witness in rebuttal to Agent

C la y t o n 's testimony and to testify that Wilson's e-mail could not be deleted from t h e server, even if deleted at the user's computer. The proffered expert, Stroud, w a s an expert in Microsoft Outlook, but was unfamiliar with USACE's system o r retention policies and had no personal experience with a federal agency. Moreover, Stroud informed the court it was impossible for him to testify on w h e t h e r Wilson intentionally deleted e-mails from his desktop or laptop c o m p u te r s .

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No. 09-30742 a. F o r obvious reasons, "district courts are given `wide latitude in d e t e r m in in g the admissibility of expert testimony, and the discretion of the trial ju d g e . . . will not be disturbed on appeal unless manifestly erroneous'". United S ta te s v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Watkins v. Telsmith, I n c ., 121 F.3d 984, 988 (5th Cir.1997)). Before a district court allows a witness t o testify as an expert, it must be assured the proffered witness is qualified by v ir t u e of his "`knowledge, skill, experience, training or education'". Cooks, 589 F .3 d at 179 (quoting FED. R. EVID. 702). "A district court should refuse to allow a n 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 w itn e s s . He lacked experience with federal agencies, was unfamiliar with

U S A C E 's system and policies, and stated he could not testify as to whether W ils o n intentionally deleted his e-mail files. Moreover, even if Stroud had t e s t ifie d about USACE's Outlook server, the relevant issue was not whether the e -m a ils were backed-up on a USACE server; rather, it was whether Wilson had p r e v io u s ly deleted the e-mails from the sent-box on his computer, a fact Wilson h a d admitted. b. A n d , as discussed supra, even assuming the district court erred by denying s u c h expert-witness testimony, we must decide whether the error was harmless: "affirming the judgment unless the ruling affected a substantial right of the c o m p la in in g party". United States v. Norris, 217 F.3d 262, 268 (5th Cir. 2000); s e e FED. R. EVID. 103(a). Whether an error affects a substantial right of the d e fe n d a n t depends upon "`whether the trier of fact would have found the d e fe n d a n t guilty beyond a reasonable doubt with the additional evidence 17

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No. 09-30742 in s e r t e d '" . United States v. Tucker, 345 F.3d 320, 327 (5th Cir. 2003) (quoting U n ite d States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989)). Because of the substantial evidence presented by the Government u n r e la t e d to Wilson's e-mails, any error pertaining to the admissibility of S t r o u d 's expert testimony was harmless. There was already sufficient evidence t o support Wilson's collusion with Heinrich and Miranda. Cooks, 589 F.3d at 180. 3. W ils o n 's final contention is that the district court erred by excluding p e r t in e n t character witnesses. Only upon rare instances, and with a "clear s h o w in g of prejudicial abuse of discretion", will we reverse a district court's lim it in g character witnesses. United States v. Gray, 105 F.3d 956, 963 (5th Cir. 1 9 9 7 ) (quoting Michelson v. United States, 335 U.S. 469, 480 (1948)). Of the six character witnesses permitted to testify to Wilson's reputation fo r honesty and integrity, only two were permitted to testify to their belief that W ils o n was not substantially motivated by financial profit, even though the o t h e r four witnesses had known Wilson for significant periods of time. In other w o r d s , Wilson maintains the district court committed reversible error because, o f the six character witnesses permitted to testify, the only two allowed to testify a s to Wilson's lack of motive for financial profit had known him the shortest p e r io d of time. The district court did not abuse its discretion; Wilson has not made the r e q u is it e showing of prejudice. The district court placed no limitation on the ju r y 's consideration of any of the character witnesses; the instructions charged ju r o r s to "consider such evidence along with all the other evidence in the case". Moreover, the instructions informed jurors that character evidence "may give r is e to a reasonable doubt, since you may think it improbable that a person of g o o d character in respect to those traits would commit such a crime". 18

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No. 09-30742 A d d it io n a lly , the Government asked relatively few questions of the character w itn e s s e s . 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 fa ile d to instruct the jury that it could consider evidence of defendant's good c h a r a c t e r ; John does not hold (as Wilson suggests) that a district court commits r e v e r s ib le error by limiting the number of character witnesses. In John, the d i s t r ic t court permitted defendant to introduce several witnesses to testify to d e fe n d a n t 's good character, but denied defendant's request for a jury instruction r e g a r d in g character. John, 309 F.3d at 300. Here, the district court not only p e r m it t e d the introduction of evidence that would establish Wilson's character a s a law-abiding citizen, but also properly instructed the jury that it could c o n s id e r evidence of Wilson's good character. Given the district court's broad discretion, see United States v. Parziale, 9 4 7 F.2d 123, 129 (5th Cir. 1991), together with the fact that the two character w it n e s s e s who did testify as Wilson intended had worked with him in the m o n th s preceding his employment with USACE, and that three of the other four w it n e s s e s broke their association with Wilson before he moved to New Orleans, W ils o n was not prejudiced by the district court's ruling. Moreover, Wilson a r g u e d in his closing that he lacked motive for financial profit. There is simply n o reason to believe Wilson's verdict would have been different had four more of h is character witnesses testified to his motivation in participating in the Katrina c le a n -u p . III. F o r the foregoing reasons, the judgments are AFFIRMED.

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