United States v. Lee , 211 F. App'x 322 ( 2006 )


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  •                                                         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    this opinion should not be published and is not precedent except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
    2
    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
    3
    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
    4
    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
    5
    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.”
    6
    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.
    7