United States v. Ronda Nixon

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0324p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 09-5979

v.

,

>

-

Defendant-Appellant. -

RONDA NIXON,

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Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 0:08-cr-11-1—David L. Bunning, District Judge.

Argued: July 25, 2012

Decided and Filed: September 11, 2012

Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Annie L. Owens, WILMER CUTLER PICKERING HALE AND DORR

LLP, Washington, D.C., for Appellant. Paul McCaffrey, UNITED STATES

ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Annie L.

Owens, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C.,

for Appellant. Paul McCaffrey, Charles P. Wisdom, Jr., UNITED STATES

ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Ronda Nixon worked as a bookkeeper

for a small law firm in Kentucky. She used her access to the firm’s bank accounts and

credit card to pay for personal expenses that were not authorized by the firm’s two

attorneys. Because of her misuse of the firm’s funds, Nixon was charged with eleven

counts of wire fraud, two counts of bank fraud, three counts of aggravated identity theft,

1

No. 09-5979 United States v. Nixon Page 2

and one count of using an unauthorized access device. Following a jury trial, she was

convicted on all 17 counts and sentenced to 54 months in prison.

Nixon now appeals, arguing that (1) the trial was rife with erroneous evidentiary

rulings that prevented her from receiving a fair trial, and (2) there was insufficient

evidence to support her conviction for using an unauthorized access device (Count 17).

For the reasons set forth below, we AFFIRM the district court’s judgment as to Counts

1 through 16, REVERSE the judgment as to Count 17, and REMAND the case for

resentencing.

I. BACKGROUND

Nixon worked at Pruitt & Thorner Law Offices in Catlettsburg, Kentucky from

2004 to 2007. An elderly attorney, Garis Pruitt, owned the firm and practiced with his

daughter, Lisa Pruitt Thorner Brandenburg. Nixon started as a legal secretary, but

eventually became the firm’s paralegal and bookkeeper. As the bookkeeper, Nixon paid

the firm’s bills, kept track of the firm’s finances in a general ledger, and purchased office

supplies. To pay for the firm’s expenses, she had authorized access to the firm’s

financial accounts, had the authority to sign checks for the firm, and was a signatory on

the firm’s American Express credit card. Pruitt relied on Nixon to review the firm’s

monthly account and to manage the cash flow into, out of, and between the accounts.

He testified that Nixon was never authorized to write herself checks from the firm’s bank

accounts at Community Trust Bank (other than for her own salary) or to use firm funds

for personal expenses.

According to Pruitt and Brandenburg, Nixon abused her authority. In June 2007,

just after Nixon left the firm to attend law school, Pruitt was hospitalized for a month

due to surgery and treatment for prostate cancer. Pruitt returned home to recuperate in

mid-July, at which time he received a call from Community Trust Bank. The bank

informed him that he was delinquent in paying back his line of credit, a line of credit that

he had thought was paid off by Nixon some time ago. This call led to an investigation

into the firm’s finances by Pruitt and Brandenburg, and eventually by Robert Rufus,

No. 09-5979 United States v. Nixon Page 3

Ph.D., a forensic accountant. The investigation uncovered that Nixon had made

thousands of dollars of personal charges on the firm’s credit card and had borrowed

thousands more from American Express Bank, all of which was unauthorized according

to the testimony of Pruitt and Brandenburg.

Nixon was a Mary Kay cosmetics consultant in her spare time. The undisputed

evidence demonstrated that Nixon made charges on the firm’s American Express credit

card to deposit money in her personal ProPay account with Mary Kay. ProPay is an

online company that enables Mary Kay consultants to accept payment from credit cards

when selling cosmetics. To charge a client’s credit card through ProPay, a consultant

logs into her ProPay account online and enters the client’s credit card information and

the amount of the charge. ProPay then charges the client’s credit card the amount

specified and deposits that amount, minus ProPay’s transaction fee, into the consultant’s

ProPay account. The consultant can withdraw or transfer cash from her ProPay account

as needed, just as one can do with a typical checking account. As a security precaution,

ProPay does not allow a consultant to charge any credit card more than $350 at a time

and allows no more than $1,000 in charges in any one calendar month.

Nixon used her ProPay account to make eight $350 charges and three

$300 charges to the firm’s American Express credit card between March and June 2007.

Pruitt and Brandenburg testified that they never approved these charges or any of the

other personal charges that Nixon had made with the credit card. Nixon used the credit

card, for example, to pay for services at a local salon, to book a plane ticket to Las

Vegas, to purchase items at Walmart, and to pay off her undergraduate student loan.

In addition, Pruitt and Brandenburg claim that Nixon borrowed funds on behalf

of the firm without their permission. First, she borrowed an unspecified amount from

an existing $50,000 line of credit at Community Trust Bank. Nixon then opened a line

of credit with American Express Bank FSB. She borrowed $19,500 from that line of

credit by writing two checks, one for $10,000 and another for $9,500. These checks

were deposited in the firm’s checking account, allegedly to cover up Nixon’s

unauthorized use of the firm’s credit card. The checks purportedly bore Pruitt’s

No. 09-5979 United States v. Nixon Page 4

signature, but Pruitt testified that he had no knowledge of the American Express Bank

line of credit and that he never authorized Nixon to write the two checks.

Pruitt eventually informed the United States Attorney’s Office of Nixon’s

actions, which brought the Federal Bureau of Investigation (FBI) into the case. Shortly

thereafter, Nixon was indicted on eleven counts of wire fraud, in violation of 18 U.S.C.

§ 1343 (one count for each credit card charge that ended up in her ProPay account), two

counts of bank fraud, in violation of 18 U.S.C. § 1344 (one count for each of the two

checks written from the American Express Bank line of credit), three counts of

aggravated identity theft, in violation of 18 U.S.C. § 1028A (one count for using Pruitt’s

social security number and signature to set up and use the account at American Express

Bank and two counts for each of the checks that she forged in Pruitt’s name), and one

count of using an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2)

(for charging more than $1,000 on the firm’s credit card without authorization).

Following a trial, the jury convicted her on all counts. Nixon was subsequently

sentenced to 54 months of imprisonment, to be followed by five years of supervised

release, and ordered to pay $55,236.30 in restitution. This timely appeal followed.

II. ANALYSIS

A. Opinion testimony of expert witnesses Benjamin Egan and Robert Rufus

In her first challenge to her convictions, Nixon argues that FBI special agent

Benjamin Egan and forensic accountant Robert Rufus testified impermissibly as

“expert[s] in lay witness[es’] clothing.” See United States v. White, 492 F.3d 380, 401

(6th Cir. 2007) (internal quotation marks omitted). Opinion testimony of lay witnesses

is strictly limited under Rule 701 of the Federal Rules of Evidence:

If a witness is not testifying as an expert, testimony in the form of an

opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and

No. 09-5979 United States v. Nixon Page 5

(c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702 [(the rule on expert testimony)].

Fed. R. Evid. 701. This Rule was redrafted in 2000

to foreclose lay witness testimony “based on scientific, technical, or other

specialized knowledge”—testimony more properly given by a qualified

expert. In amending the Rule, the drafters intended to preclude a party

from surreptitiously circumventing “the reliability requirements set forth

in Rule 702 [of the Federal Rules of Evidence] through the simple

expedient of proffering an expert in lay witness clothing” and to “ensure

that a party will not evade the expert witness disclosure requirements

. . . .”

White, 492 F.3d at 400-01 (alterations omitted) (quoting Fed. R. Evid. 701 advisory

committee’s note).

1. Standard of review

We generally review the district court’s determinations relating to the

admissibility of opinion testimony under the abuse-of-discretion standard. Id. at 398.

If, however, no objection is made to the testimony at trial, then the court’s rulings are

subject to the more deferential plain-error standard of review. United States v. Johnson,

488 F.3d 690, 697 (6th Cir. 2007). To obtain relief under this latter standard, the party

challenging the evidentiary ruling must show that (1) there was an error that (2) was

plain, (3) affected a substantial right, and (4) seriously affected the fairness, integrity,

or public reputation of the judicial proceedings. United States v. Martin, 520 F.3d 656,

658 (6th Cir. 2008).

Nixon concedes that the district court’s admission of Egan’s opinion testimony

and Rufus’s report are both subject to plain-error review because her counsel did not

object to the admission of either during the trial. But she contends that her counsel did

properly object when Rufus tried to offer his opinions at trial without being qualified as

an expert witness. The government counters that Nixon’s counsel failed to preserve this

objection as well.

No. 09-5979 United States v. Nixon Page 6

When Rufus began testifying about the typical behavior of a person who

embezzles, Nixon’s counsel objected: “I don’t think he’s qualified to be able to make

a generalization as to who commits fraud and things of that effect yet.” The district

court then told the prosecutor: “If you want to follow this line of questioning, perhaps

you need to go ahead and offer [Rufus] and then if [Nixon’s counsel] wants to voir dire

[Rufus’s] qualifications, he can.” Following that directive, the prosecutor asked Rufus

to detail his certifications in forensic accounting. Nixon’s counsel made no further

objections to Rufus’s testimony.

Rule 103(b) of the Federal Rules of Evidence provides that “[o]nce the court

rules definitively on the record—either before or at trial—a party need not renew an

objection . . . to preserve a claim of error for appeal.” This court has elaborated on the

Rule by stating that “if the [district] court’s ruling is in any way qualified or conditional,

the burden is on counsel to [again] raise objection to preserve [the] error.” United States

v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). Because the district court made no

definitive ruling about Rufus’s testimony—e.g., “sustained” or “overruled”—but instead

suggested a procedure for the prosecutor to follow to elicit opinion testimony from

Rufus, Nixon’s counsel had an obligation to reiterate the objection in order to preserve

it for appeal. We will therefore review the admission of Rufus’s testimony, like the

admission of his report and Egan’s testimony, under the plain-error standard.

2. Egan’s and Rufus’s testimony

Egan is an FBI financial-crimes investigator who was assigned to investigate

Nixon’s case. As to the content of Egan’s testimony, the government concedes that,

[t]o a limited extent, Egan . . . offered opinions. He opined that, based

on his review of financial statements, Nixon transferred funds from the

trust account to the checking account in order to pay credit card bills that

could not otherwise have been paid with checking account funds.

Similarly, based on Nixon’s confession to him, he confirmed his belief

that she stole money from Pruitt.

(Citations omitted.) But the government contends that “the vast majority” of Egan’s

testimony was factual.

No. 09-5979 United States v. Nixon Page 7

Rufus, on the other hand, is a forensic accountant who was hired by Pruitt to

investigate Nixon’s accounting activities after Pruitt discovered charges to the firm’s

American Express credit card that he contended were unauthorized. According to Rufus,

“[f]orensic accounting is the science where you combine investigative and accounting

skills together. . . . It’s a very comprehensive analysis.” Rufus’s own investigative

report was admitted into evidence, and he testified as to the conclusions in that report,

including that Nixon “converted to her own personal use the firm’s lawful money,

employing four different methods of embezzlement.” The government concedes that

“Rufus clearly gave expert opinion testimony under Federal Rule of Evidence 702 on

multiple occasions.”

But the fact that Egan and Rufus offered testimony stemming from both their

personal knowledge and their specialized knowledge is not necessarily improper. Under

Rule 702, a witness may give expert testimony only if the witness has the proper

qualifications to do so. But a witness may also testify as both a fact witness and an

expert witness so long as there is either a cautionary jury instruction regarding the

witness’s dual roles or a clear demarcation between the witness’s fact testimony and

expert-opinion testimony. United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir.

2006). Nixon argues that the district court erred in (1) permitting Egan and Rufus to

offer their opinions despite not being formally qualified as experts, (2) admitting the

legal conclusions of the two men, and (3) failing to instruct the jury as to the dual nature

of their testimony (to the extent that their opinion testimony was admissible).

a. Egan’s and Rufus’s qualifications to give expert

opinion testimony

Turning to Nixon’s first argument, she correctly notes that the district court did

not issue a formal ruling that either Egan or Rufus was qualified as an expert witness.

But “the district court’s failure to make specific findings” regarding the reliability of

expert testimony “does not itself require that we vacate the jury’s verdict.” Mike’s Train

House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006). “If a witness’s

qualifications are obvious, we have found that there is no need to formally qualify him

No. 09-5979 United States v. Nixon Page 8

as an expert.” United States v. Cobb, 397 F. App’x 128, 139 (6th Cir. 2010). This court

has also held that the proper procedure to rule on the qualifications of an expert witness

is not, “in the presence of the jury, [to] declare that a witness is qualified as an expert or

to render an expert opinion.” United States v. Johnson, 488 F.3d 690, 697 (6th Cir.

2007) (internal quotation marks omitted). “Instead, the proponent of the witness should

pose qualifying and foundational questions and proceed to elicit opinion testimony. If

the opponent objects, the court should rule on the objection, allowing the objector to

pose voir dire questions to the witness’s qualifications if necessary and requested.” Id.

at 698.

The government in this case argues that Egan’s qualifications as a special agent

charged with investigating financial crimes were “obvious,” and therefore the district

court did not have to conduct a formal inquiry, sua sponte, into his ability to give an

expert opinion. But Egan testified that he had been a special agent for the FBI only since

August 2007, just four months before he began working on Nixon’s case. Prior to

joining the FBI, Egan was an auditor for Deloitte & Touche, a national accounting firm.

Although his qualifications could have been stronger, he had a background and training

in the field of financial investigations, and he testified that he had handled 20 to 30 cases

before Nixon’s. Any weaknesses in his qualifications would thus go to the weight rather

than the admissibility of his opinion testimony. See First Tenn. Bank Nat’l Ass’n v.

Barreto, 268 F.3d 319, 333 (6th Cir. 2001) (holding that a lending expert’s unfamiliarity

with “some aspects” of lender-borrower relationships “merely affected the weight and

credibility of his testimony, not its admissibility”). Indeed, Nixon’s counsel cross-

examined Egan on his lack of experience.

And even if Egan were not qualified to give an expert opinion, admitting his

testimony was not so egregious a mistake as to constitute plain error. Egan had over 70

pages of testimony and very few of his statements arguably constituted expert-opinion

testimony.

As for Rufus’s opinion testimony, the district court clearly followed the

procedure suggested in Johnson for qualifying Rufus as an expert. The prosecutor

No. 09-5979 United States v. Nixon Page 9

initially had Rufus discuss his background, including his Ph.D. in business

administration with a concentration in accounting, the four years that he had worked for

the Internal Revenue Service, and the 24 years that he had run his own accounting firm,

Rufus & Rufus Accounting Corp. Rufus also testified that he taught forensic accounting

and performed “a lot of fraud research” during his directorship at the University of

Charleston’s Forensic Institute. After Rufus detailed his professional background, the

prosecutor asked Rufus if he could identify behavior that was typical of employees who

embezzled from their employers. At that point counsel for Nixon raised an objection to

Rufus’s opinion testimony, and the following colloquy occurred:

[NIXON’S COUNSEL]: Your Honor, I’m going to object to this right

now, because I don’t think [Rufus is] qualified to be able to make a

generalization as to who commits fraud and things of that effect yet.

THE COURT: If you want to follow this line of questioning, perhaps

you need to go ahead and offer him and then if he wants to voir dire his

qualifications, he can.

[THE PROSECUTOR]: Sure.

THE WITNESS: Do you want to get to my certifications as well?

Q. Sure, let’s do that. Go through your certifications.

A. As I mentioned earlier, I’m a certified public accountant, have been

since 1981. I’m a certified evaluation analyst and have been [since] 1996.

I’m a credited fraud investigator, a certified cost analyst. I’m also

certified in financial forensics, and I’m also a licensed private

investigator.

Q. Let me ask you, all this experience, did you use it in an investigation

involving Miss Ronda Nixon?

A. I did, yes.

Nixon’s counsel did not object to any of Rufus’s opinion testimony following

this colloquy, nor did her counsel choose to voir dire Rufus. So even though the district

court never explicitly ruled that Rufus had the appropriate qualifications to offer his

opinion on matters concerning fraud and embezzlement, the proper procedure for

qualifying Rufus was used and, based on Rufus’s comprehensive experience in the field

and the lack of further objection from Nixon’s attorney, such a ruling may be inferred.

No. 09-5979 United States v. Nixon Page 10

See United States v. Johnson, 488 F.3d 690, 697-98 (6th Cir. 2007) (holding that the

district court should issue rulings on objections to opinion testimony rather than formally

declare the witness an expert in the presence of the jury).

Nixon alternatively argues that even if Rufus has the proper expert qualifications,

the government failed to demonstrate that his conclusions were a product of principles

and methods reliably applied to the facts of the case as required by Rule 702 of the

Federal Rules of Evidence. She fails to adequately explain, however, why she believes

that Rufus’s application of forensic accounting methodology was unreliable. To

conclude that the district court committed plain error, we need more than bald assertions

that the expert testimony was unreliable, especially when the expert seems otherwise

exceedingly well-qualified.

b. Egan’s and Rufus’s purported legal conclusions

Nixon next asserts that both Egan’s and Rufus’s opinion testimony included legal

conclusions that were inadmissible because they were “not helpful to the jury within the

meaning of Rule 701” of the Federal Rules of Evidence. See Torres v. Cnty. of Oakland,

758 F.2d 147, 150 (6th Cir. 1985) (“Under Rule 701 and 702, opinions must be helpful

to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time.”

(quoting Fed. R. Evid. 701 advisory committee’s note)). She argues that Egan should

not have been permitted to testify that Nixon “stole money” from Pruitt, that she

“forged” Pruitt’s signature on the two checks written from the American Express Bank

line of credit, or that her actions were in furtherance of a “scheme.” Similarly, Nixon

contends that the district court plainly erred by permitting Rufus to use the terms

“conversion,” “embezzlement,” and “scheme” in his testimony and report.

“The problem with testimony containing a legal conclusion is in conveying the

witness’[s] unexpressed, and perhaps erroneous, legal standards to the jury. This

invades the province of the court to determine the applicable law and to instruct the jury

as to that law.” Torres, 758 F.2d at 150 (brackets and internal quotation marks omitted).

But this legal-conclusion prohibition must be balanced with Rule 704(a) of the Federal

Rules of Evidence, which provides that “[a]n opinion is not objectionable just because

No. 09-5979 United States v. Nixon Page 11

it embraces an ultimate issue.” Accordingly, district courts have a “wide,” but not

unlimited, “degree of discretion in admitting or excluding testimony [that] arguably

contains a legal conclusion.” Torres, 758 F.2d at 150.

To ascertain whether a witness’s testimony contains a legal conclusion, we must

“determine whether the terms used by the witness have a separate, distinct and

specialized meaning in the law different from that present in the vernacular.” Id. at 151.

A factor in that determination is whether the question posed to the witness or the

witness’s response tracks the language of the applicable statute. Id. Here, the terms

“conversion,” “embezzlement,” “forged,” and “stole” are not used in defining the crimes

that Nixon is charged with. See 18 U.S.C. §§ 1028, 1028A, 1343-44. The word

“scheme,” however, does appear in 18 U.S.C. §§ 1343 and 1344—the statutes

prohibiting wire and bank fraud, respectively—both of which refer to a scheme or

artifice to defraud or obtain money by false pretenses.

But Nixon does not assert that the word “scheme” has a separate, distinct, and

specialized meaning under §§ 1343 and 1344. And the jury instructions in this case did

not contain a definition of the term, indicating that the jurors were to apply its common

meaning rather than a special legal meaning. See United States v. Sheffey, 57 F.3d 1419,

1426 (6th Cir. 1995) (“[J]ury instructions are carefully drafted and crafted to rely upon

terms commonly used and understood in the vernacular.”). Moreover, Nixon’s own

counsel used the term “scheme” in several questions that he posed to Egan and Nixon.

Under these circumstances, we cannot say that the district court plainly erred by

allowing Egan and Rufus to use the term “scheme” in their testimony. See id.

(explaining that “the central holding of Torres” is that “if an opinion question posed to

a lay witness does not involve terms with a separate, distinct and specialized meaning

in the law different from that present in the vernacular, then the witness may answer it

over the objection that it calls for a legal conclusion”); see also United States v. Tolbert,

8 F. App’x 372, 379 (6th Cir. 2001) (holding that the use of the term “carjacking” by the

prosecutor and witnesses was not improper because the term “was used in the vernacular

as a short-hand description of the event” at issue, “ha[d] no separate, distinct and

No. 09-5979 United States v. Nixon Page 12

specialized meaning in the law,” and was “not even used within the text of the statute”

prohibiting the theft of a motor vehicle).

c. The district court’s failure to give a cautionary

instruction

Turning now to the question of whether the district court plainly erred by failing

to give a cautionary instruction as to the dual nature of Egan’s and Rufus’s testimony,

the government concedes that, with respect to Egan’s testimony, the court plainly erred.

This court in United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006), held that the

failure to give a cautionary instruction when a law-enforcement officer testifies as both

an expert and a fact witness, without a clear demarcation between the roles, constitutes

plain error. Id. at 744-45. But the government contends that because Rufus was not a

law-enforcement officer, the court did not plainly err in failing to give such an

instruction as to his testimony. Regardless, the government argues that in neither case

was the failure to give the instruction so prejudicial as to warrant a new trial.

We conclude that the district court did plainly err in failing to give a cautionary

instruction as to the testimony of both men. Even though Rufus was not a law-

enforcement officer per se, he was an investigator performing forensic work and

therefore fell within the functional scope of Lopez-Medina’s holding. See id. at 745

(“We conclude that permitting police officers to testify as experts in their own

investigations and give opinion testimony on the significance of evidence they have

collected, absent any cautionary instruction, threatens the fairness, integrity, and public

reputation of judicial proceedings, regardless of whether the defendant is actually

innocent.”)

The question then becomes whether this error was harmless. A harmless error

is one that “does not affect [a defendant’s] substantial rights.” Fed. R. Crim. P. 52(a).

This court has interpreted Rule 52(a) to require remand for a new trial if we determine

“that it was more probable than not that the error materially affected the verdict.” United

States v. Martinez, 588 F.3d 301, 312 (6th Cir. 2009). “In determining whether the error

No. 09-5979 United States v. Nixon Page 13

prejudiced the defendant, we examine the entire record.” United States v. Branham,

97 F.3d 835, 851 (6th Cir. 1996).

This court held in Lopez-Medina that the failure to give a cautionary instruction

in combination with the improper admission of mug shots and criminal histories of

Lopez-Medina’s acquaintances required that his conviction be vacated. 461 F.3d at 749.

But the finding of prejudice in that case was based primarily on the improper admission

of the mug shots and criminal histories, with the court noting that the jury-instruction

error merely “buttresse[d] [the] conclusion of prejudice.” Id.

In this case, because so little of Egan’s testimony constituted an opinion and, in

contrast, so much of Rufus’s testimony did, they each had a great imbalance in their

“dual roles.” There was thus very little mixing of lay and expert testimony by the same

witness, so the jury was unlikely to be confused as to their dual roles. In addition, the

evidence against Nixon was overwhelming. She admitted that she conducted the

transactions in question, so her defense was essentially that she had permission to

borrow most of the funds and had planned to pay Pruitt back. According to Nixon, Pruitt

simply forgot that he had authorized many of her personal charges. Nixon conceded,

however, that she did not fully discharge her debts to Pruitt and that she failed to get

authorization for some of the transactions.

Moreover, in the fact portions of Egan’s and Rufus’s testimony, they both

testified to confessions that Nixon had made to them individually. Egan, for example,

testified that Nixon signed a handwritten statement declaring: “I took money from Garis

[Pruitt] through the American Express credit card by making false charges. I also took

$19,500 from [the] American Express line of credit to help pay the credit card

expenses.” She did not object to the admission of this statement at trial or on appeal.

Egan also testified that Nixon admitted to him that the personal transactions at issue

were unauthorized. Rufus similarly testified that Nixon “acknowledged to me [that] she

had made some unauthorized credit card charges and willfully took money within her

control. . . . She then went on to state the only real issue in her mind was how much.”

Because of the weight of the other evidence against Nixon, the failure to give a

No. 09-5979 United States v. Nixon Page 14

cautionary instruction was not likely to have materially affected the verdict. We

therefore decline to vacate the district court’s judgment on this ground.

B. Admission of Government Exhibit 19

In Nixon’s second challenge to the judgment, she asserts that Government

Exhibit 19 was erroneously admitted. The exhibit, a spreadsheet containing Nixon’s

ProPay account records, was used to demonstrate that Nixon made 11 unauthorized

charges on the firm’s American Express credit card that resulted in deposits to her

ProPay account. David England, the manager of the fraud-resolutions department at

ProPay, testified about the activity in Nixon’s ProPay account during the period that she

was employed at the firm. He explained that ProPay stores all information for individual

accounts in an electronic database located in Utah. ProPay does not issue periodic

account statements to its customers, so when Nixon’s account information was

subpoenaed by the government, England utilized database-querying software to retrieve

Nixon’s account information.

When England entered Nixon’s account number into the querying software, the

account data were displayed in a spreadsheet on his computer screen. Exhibit 19 is the

printed screen shot of that spreadsheet. The exhibit shows the following information

pertaining to Nixon’s account: the date and time of each transaction, descriptions of

those transactions, the amounts of those transactions, and the balance of the account

following each transaction. Exhibit 19 was admitted under the business-record

exception to the hearsay rule as set forth in Rule 803(6) of the Federal Rules of

Evidence.

Nixon claims that the district court erred in admitting Exhibit 19 into evidence.

According to the government, Nixon is correct in her assertion that the district court

committed an “obvious error” by admitting Exhibit 19 under the business-records

exception to the hearsay rule. The government argues, however, that Exhibit 19 was

admissible under Rule 1006 of the Federal Rules of Evidence, which provides that a

party “may use a summary” of “voluminous writings . . . that cannot be conveniently

examined in court.”

No. 09-5979 United States v. Nixon Page 15

Despite the government’s concession, we conclude that the district court neither

made an obvious error nor abused its discretion in admitting Exhibit 19 under the

business-record exception. See United States v. Cunningham, 679 F.3d 355, 382

(6th Cir. 2012) (“A district court’s evidentiary rulings will generally not be reversed

unless the court abused its discretion.”). A document may be admitted under Rule

803(6) if it satisfies four requirements: (1) it was “made in the course of regularly

conducted business activities;” (2) it was “kept in the regular course of business;”

(3) “the regular practice of that business must have been to have made the [document]”;

and (4) the document was “made by a person with knowledge of the transaction or from

information transmitted by a person with knowledge.” Cobbins v. Tenn. Dep’t of

Transp., 566 F.3d 582, 588 (6th Cir. 2009). The advisory committee to the Federal

Rules of Evidence made the following pertinent remarks about dealing with the

admission of electronically stored data under Rule 803(6):

The form which the “record” may assume under the rule is described

broadly as a “memorandum, report, record, or data compilation, in any

form.” The expression “data compilation” is used as broadly descriptive

of any means of storing information other than the conventional words

and figures in written or documentary form. It includes, but is by no

means limited to, electronic computer storage. The term is borrowed

from revised Rule 34(a) of the Rules of Civil Procedure.

Fed. R. Evid. 803 advisory committee’s note.

Both Nixon and the government agreed that because England printed the

document that became Exhibit 19 in response to a subpoena, Exhibit 19 was created for

the purposes of litigation and not as a part of ProPay’s regularly conducted business

activities. But they overlooked the fact that all the information on Exhibit 19 was kept

in ProPay’s electronic database. England had to print out the records pertaining to

Nixon in order to produce them for the subpoena, but the electronic version of those

records were created and kept in the regular course and practice of ProPay’s business

operations.

Although there is an argument to be made that Exhibit 19 is a summary under

Rule 1006 and not a business record, a similar argument has already been rejected by

No. 09-5979 United States v. Nixon Page 16

this court. In United States v. Moon, 513 F.3d 527 (6th Cir. 2008), Moon challenged the

district court’s admission of printouts of electronically stored purchase records from

several pharmaceutical companies that documented Moon’s purchases of their products.

Moon argued that these records were inadmissible as summaries under Rule 1006. But

this court held that the printouts were business records, not summaries, noting that “Rule

803(6) specifically allows the admission of data compilation in any form.” Id. at 545

(internal quotation marks omitted).

The court in Moon relied on the reasoning of United States v. Russo, 480 F.2d

1228 (6th Cir. 1973), for its holding. In Russo, a doctor accused of defrauding an

insurance company by billing for procedures not performed on patients objected to the

admission of the printout of a 1967 annual statistical survey created by Blue Shield of

Michigan. The district court found that the survey was a business record. This court

affirmed the ruling, holding that “once the reliability and trustworthiness of the

information put into the computer has been established, the computer printouts should

be received as evidence of the transactions covered by the input.” Id. at 1240. The

testimony at trial showed that the survey was regularly kept and maintained in electronic

form and “the computer printout is just a presentation in structured and comprehensible

form of a mass of individual items.” Id. This court held that “it is immaterial that the

printout itself was not prepared until 11 months after the close of the year 1967.” Id.

England testified that the electronic records pertaining to Nixon, like those in

Moon and Russo, were kept in the regular course of business and maintained in a reliable

and secure computer database. Had they been produced in their electronic form, they

would clearly be admissible under the business-record exception. Moon and Russo hold

that the simple act of printing out the electronically stored records does not change their

status for admissibility. The district court, therefore, did not err in admitting Exhibit 19.

C. Exclusion of testimony about Pruitt’s forgetfulness

Nixon’s third challenge addresses the district court’s exclusion of defense

witness Michael Curtis’s testimony. Generally, we review the exclusion of testimony,

like other evidentiary rulings, under the abuse-of-discretion standard. United States v.

No. 09-5979 United States v. Nixon Page 17

Hanna, 661 F.3d 271, 288 (6th Cir. 2011). “An abuse of discretion occurs when the

lower court relies on clearly erroneous findings of fact, or when it improperly applies the

law or uses an erroneous legal standard.” United States v. Heavrin, 330 F.3d 723, 727

(6th Cir. 2003) (internal quotation marks omitted). At trial, Nixon testified that Pruitt

had authorized several of her personal charges on the firm’s American Express credit

card and on the line of credit with American Express Bank, but that he had forgotten that

he had done so as a result of his advanced age and his health issues. As support for her

defense, Nixon offered the testimony of Michael Curtis, an attorney and longtime

colleague of Pruitt. She claims that Curtis would have testified that Pruitt forgot Curtis’s

name at a deposition unrelated to this case that occurred a short time before Nixon’s

trial.

The district court, however, ruled that Curtis’s proposed testimony was barred

by Rule 608(b) of the Federal Rules of Evidence, which prohibits the admission of

extrinsic evidence to prove “[s]pecific instances of a witness’s conduct in order to attack

or support the witness’s character for truthfulness.” Fed. R. Evid. 608(b). Such reliance

on Rule 608(b) was mistaken, as the government concedes, because Rule 608 applies

only to extrinsic evidence that impeaches a witness’s character for truthfulness, but

“leaves the admissibility of extrinsic evidence offered for other grounds of impeachment

(such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules

402 and 403.” Fed. R. Evid. 608 advisory committee’s note.

The government argues that the exclusion of Curtis’s testimony was nevertheless

proper under Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) provides that

“[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character,” except that in criminal cases such evidence “may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Nixon, on the other hand, contends that Curtis’s testimony was admissible under

Rules 404(a)(2)(B) and 405(b) of the Federal Rules of Evidence. Rule 404(a)(2)(B)

No. 09-5979 United States v. Nixon Page 18

permits a defendant in a criminal case to “offer evidence of an alleged victim’s pertinent

trait.” And Rule 405(b) provides that “[w]hen a person’s . . . character trait is an

essential element of a charge, claim, or defense, the . . . trait may also be proved by

relevant specific instances of the person’s conduct.” Because Nixon never raised either

Rule at trial as a basis for admitting Curtis’s testimony, the government argues that the

district court’s failure to admit the testimony should be reviewed under the plain-error

standard. We need not decide whether the plain-error standard of review applies here,

however, because we conclude that the district court’s decision withstands attack even

under the less-deferential abuse-of-discretion standard.

We disagree with both the district court’s conclusion and the parties’ assertion

that forgetfulness is a character trait. Although this court has never ruled on the issue,

other circuits have determined that the term “character trait” does not encompass a

witness’s memory or mental capacity. See United States v. Cortez, 935 F.2d 135, 138-39

n.3 (8th Cir. 1991) (“We do not believe that Rule 404(a)(1) encompasses slowness to

answer, forgetfulness, or poor ability to express oneself . . . .”); see also United States

v. West, 670 F.2d 675, 682 (7th Cir. 1982) (noting that although Rule 404(a)(1) does not

define the term “character trait,” the term more properly references “elements of one’s

disposition, such as honesty, temperance, or peacefulness,” rather than one’s

“intelligence” (internal quotation marks omitted)), overruled on other grounds by United

States v. Green, 258 F.3d 683 (7th Cir 2001). We find our sister circuits’ analysis on

this issue persuasive, and thus conclude that forgetfulness is not a character trait.

Nonetheless, we agree with the district court’s decision to exclude Curtis’s

testimony because his testimony was irrelevant. See U.S. Postal Serv. v. Nat’l Ass’n of

Letter Carriers, 330 F.3d 747, 750 (6th Cir. 2003) (“We may affirm a decision of the

district court if correct for any reason, including one not considered below.”); see also

Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”). “Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid.

401.

No. 09-5979 United States v. Nixon Page 19

In this case, the quality of Pruitt’s memory at or around the time that Nixon made

the transactions (March to June 2007) was certainly a fact of consequence. But Curtis

could testify as to Pruitt’s memory only in the time period immediately before Nixon’s

trial (May 2010), nearly three years after the last transaction was made. In addition,

Curtis’s proposed testimony was not going to show a pattern of Pruitt’s forgetfulness,

but only that Pruitt had a single memory lapse that was unrelated to any financial or

business transaction. Accordingly, we conclude that Curtis’s testimony about an isolated

incident three years after the time period at issue was irrelevant. The district court,

therefore, did not err in excluding the testimony.

D. Constructive amendment to or variance from the superseding indictment

Nixon’s fourth challenge asserts that her trial was tainted by a constructive

amendment to—or, alternatively, a variance from—the superseding indictment when the

government presented evidence purportedly outside the scope of the crimes charged.

Nixon argues that the combination of that evidence with an ambiguous jury instruction

allowed the jury to convict her of crimes that were not charged in the indictment. She

concedes that this issue should be reviewed under the plain-error standard because her

counsel never objected to the evidence or to the jury instruction below.

“The Fifth Amendment guarantees that an accused be tried only on those

offenses presented in an indictment and returned by a grand jury.” United States v.

Manning, 142 F.3d 336, 339 (6th Cir. 1998). A constructive amendment occurs

when the terms of the indictment are in effect altered by the presentation

of evidence and jury instructions which modify essential elements of the

offense charged such that there is a substantial likelihood that the

defendant may have been convicted of an offense other than the one

charged in the indictment.

United States v. Siemaszko, 612 F.3d 450, 469-70 (6th Cir. 2010) (internal quotation

marks omitted). Nixon “bears the burden of establishing that a constructive amendment

has occurred.” See id. at 469. “[C]onstructive amendments are considered per se

No. 09-5979 United States v. Nixon Page 20

prejudicial and are reversible error.” United States v. Budd, 496 F.3d 517, 521 (6th Cir.

2007).

A variance, on the other hand, is a violation of the Sixth Amendment right of a

defendant “[i]n all criminal prosecutions . . . to be informed of the nature and cause of

the accusation.” U.S. Const. amend. VI. “In contrast to an amendment, a variance

occurs when the charging terms are unchanged, but the evidence at a trial proves facts

materially different from those alleged in the indictment.” United States v. Nance,

481 F.3d 882, 886 (6th Cir. 2007) (internal quotation marks omitted). “A variance is not

reversible error unless the defendant demonstrates prejudice.” Id. But if a variance is

“serious enough, it becomes a constructive amendment.” Budd, 496 F.3d at 521

(emphasis in original). This situation occurs “only when the variance creates a

substantial likelihood that a defendant may have been convicted of an offense other than

that charged by the grand jury.” Nance, 481 F.3d at 886 (internal quotation marks

omitted).

As her specific basis for asserting that a constructive amendment or variance

occurred, Nixon argues that the government improperly presented evidence about several

checks from the firm’s Community Trust Bank account that she allegedly altered or

otherwise illegitimately issued, even though she was never charged with any bank fraud

stemming from checks drawn on that account. Nixon was accused of fraud only with

respect to the firm’s account with the American Express Bank. She claims that the

evidentiary error coupled with the jury instruction on the two bank-fraud counts (Counts

12 and 13) constituted a constructive amendment or variance. The district court charged

the jury with the following instruction on Counts 12 and 13:

The defendant is charged in Counts 12 and 13 of the indictment with the

crime of bank fraud in violation of federal law. For you to find the

defendant guilty of bank fraud, you must find that the government has

proved each and every one of the following elements beyond a

reasonable doubt.

One, that the defendant knowingly executed a scheme to defraud a

financial institution to obtain money by means of false or fraudulent

pretenses, representations or promises.

No. 09-5979 United States v. Nixon Page 21

Two, that the scheme included a material representation or

concealment of a material fact.

Three, that the defendant had the intent to defraud.

Four, that the financial institution was federally insured.

Because the “financial institution” was never specified, Nixon contends that the jury

could have erroneously convicted her on Counts 12 and 13 due to the checks that she

wrote from the Community Trust Bank account.

This assertion is without merit, however, because the jurors were given a copy

of the superseding indictment when they deliberated. The superseding indictment states

that Counts 12 and 13 stem from Nixon’s unauthorized withdrawal of money by check

from the American Express Bank line of credit. A chart contained in the superseding

indictment shows that Count 12 involves the withdrawal of $10,000 from the American

Express Bank on January 12, 2007 and Count 13 involves the withdrawal of $9,500 from

the American Express Bank on February 21, 2007. There was no evidence presented at

trial showing that these amounts were withdrawn from the Community Trust Bank on

those dates, but there was ample testimony and more than one exhibit demonstrating that

Nixon cashed checks from the American Express Bank on those dates in the exact

amounts set forth in the superseding indictment.

Moreover, an element of the bank fraud charged in Counts 12 and 13 is that the

bank must be federally insured. Only the American Express Bank was proven to be

federally insured. There was no evidence presented at trial as to the insured status of the

Community Trust Bank. The likelihood that the jury was confused as to which bank was

the “financial institution” referred to in the instructions for Counts 12 and 13 was thus

exceedingly low. Nixon has therefore failed to demonstrate that the district court

committed plain error by admitting testimony about the Community Trust Bank checks

and neglecting to specify the “financial institution” in the jury instructions.

No. 09-5979 United States v. Nixon Page 22

E. “Unauthorized access device”

Nixon’s final challenge relates to her conviction on one count of using an

unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2) (Count 17), for her

improper use of the firm’s American Express credit card. The government concedes that

it failed to present evidence at trial that the card was an “unauthorized access device.”

The term is defined under the statute as “any access device that is lost, stolen, expired,

revoked, cancelled, or obtained with intent to defraud.” 18 U.S.C. § 1029(e)(3)

(emphasis added).

Key to the charged offense is that the intent to defraud be present both when the

“access device” is obtained and when it is later used. United States v. Tunning, 69 F.3d

107, 113 (6th Cir. 1995). Here, the uncontradicted proof established that Pruitt had

authorized Nixon to obtain the American Express credit card for his firm’s use. Because

there was no proof at trial that Nixon had the intent to defraud Pruitt or the firm at the

time she obtained the credit card (as opposed to her later unauthorized use of the card),

the government did not prove an essential element of the crime. The government

therefore concedes that the judgment on Count 17 must be reversed and the case

remanded for resentencing.

III. CONCLUSION

Although we agree that the trial in this case was not perfect, we abide by the

Supreme Court’s edict that “[a] defendant is entitled to a fair trial but not a perfect one,

for there are no perfect trials.” Brown v. United States, 411 U.S. 223, 231-32 (1973)

(internal quotation marks omitted). For all the reasons set forth above, we therefore

AFFIRM the district court’s judgment as to Counts 1 through 16, REVERSE the

judgment as to Count 17, and REMAND the case for resentencing.