Petition for Writ of Certiorari — Harms v. United States (No. 06-990)

9 Supreme Court, US.

06-990 JAN 12 2007

No. _OPFICE OF THE CLERK

IN THE

Supreme Court of the United States

MICHAEL LEE HARMS, PETITIONER

Uv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

SHIRLEY BACCUS-LOBEL

Counsel of Record

LAW OFFICES OF

SHIRLEY BACCUS-LOBEL

A Professional Corporation

The Oaks, 2929 Carlisle

Suite 250

Dallas, Texas 75204

214.220.8460

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CURRY & TAYLOR @ WASH D.C. @ (202) 393-414) ¢ USSCINFO.COM

1

QUESTIONS PRESENTED

1. | Whether the pervasive misapplication of federal

rules of evidence to exclude relevant documents and

testimony which corroborated petitioner’s trial testimony

in this false statement prosecution deprived him of the

right to trial by jury and the “meaningful opportunity to

present a complete defense” secured by the Constitution’s

Due Process Clause of the Fifth Amendment and the

Compulsory Process aiid Confrontation Clauses of the

Sixth Amendment.

2. Whether the admission of testimony, unrelated to

voluminous documents, by a non-expert “summary”

witness, with no personal knowledge of the matters at

issue, is authorized by the federal rules of evidence.

i

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page

CASES

BLAKELY V. WASHINGTON, 542 U.S. 296 (2004)... ceseeeee 11

BRYAN V. UNITED STATES, 524 U.S. 184, 191 (1998).............. 13

CALIFORNIA V. TROMBETTA, 467 U.S. 479 485 (1984)........... 11

CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (7978) uc cessseneees 12

CRANE V. KENTUCKY, 476 U.S. 683, 690 (1986)...........cccceeees 11

CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004) ....0....cceceeeeees 7

DAVIS V. ALASKA, 415 U.S. 308 (1974) .......cccsccccscsssssssecssessseeeses 7

DELAWARE V. VAN ARSDALL, 475 U.S. 6738, 679

ARS mE Eee ear ee eet Oem RON 12

EDWARDS V. UNITED STATES, 312 U.S. 478, 482

SUIT ihcinecechicilsiseicicies ech ecilihatebaikeibi in beebaiaipaeaiigealiaaiddid 10

GREEN V. GEORGIA, 442 U.S. 95 (1979) ......sccccccscsesreserecsessenee 12

HOLMES V. SOUTH CAROLINA, 547 U.S. __, 1268.

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RATZLAF V. UNITED STATES, 510 U.S. 135 (1994)............0000. 13

UNITED STATES V. BIEGANOWSKI, 313 F.3D 264, 275

Ie i IED aiccisa cee ahaieininsheseabachececliciaelasctipibesiaaaiiidiiaminatitanaie 12

UNITED STATES V. BOOKER, 543 U.S. 220, 289 (2005)....... an

UNITED STATES V. BURR, 25 F. CAS. 187 .csccsscsssecscssecsseecsveenes 11

Ww

UNITED STATES V. BURR, 25 F. CAS, 30 ........cesscsscesscescrseesees 11

UNITED STATES V. COLEMAN, 78 F.3D 154, 156 (5TH

CI: Fe sitiscsvieinlceshiaissecipaiacanclebeschdiiais Riadhbanancoeansabodiaeadetiediniiaa 15

UNITED STATES V. GARCIA, 27 F.3D 1009, 1014 (5TH

RITE HITE asic cescicssaicchilbilasniiersaseonsaiabbeciadlinisedsiebiaiabiiaaabasniaipladidis 16

UNITED STATES V. GRIFFIN, 324 F.3D 330, 360 (STH

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UNITED STATES V. LEON, 468 U.S. 897, 907 (1984)... esses 19

UNITED STATES V. NAVARRO, 169 F.3D 228, 233 (5TH

SPIE: FE iviiccses nirdeiccemieccis opomdaebenicaatebeacouamea wma 15

UNITED STATES V. POMPONIO, 429 U.S. 10, 12 (1976)........... 13

UNITED STATES V. ROYAL, 972 F.2D 648, (5TH CIR.

CO niciiionisctcenatiactedeobdipisdebatzaaeiiacelaedessleiatiginadaaiiabdanaesisainaimaia 15

UNITED STATES V. WALTERS, 351 F.3D 159.000... eesseeseeeeeees 15

WASHINGTON V. TEXAS, 388 U.S. 14, 19 (1967) 00. eee 9

STATUTES

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1

In the

Supreme Court of the United States

No. 06-___

MICHAEL LEE HARMS

Petitioner,

¥o

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of

certiorari to review the judgment of the United States —

Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The court of appeals affirmed the conviction (Jones,

C.J., dissenting) but reversed and remanded for re-

sentencing (Jones, C.J., concurring). The opinion of the

court of appeals (Pet. App. la-26a) is reported at 442

F.3d 367. The court treated the request for rehearing

en banc as a petition for rehearing and denied the

2

petition, and also denied the petition for rehearing en

banc (Jones, C.J., dissenting from the denial of

rehearing en banc ) (Pet. App. 27a).

JURISDICTION

The order denying Petitioner’s request for rehearing

en banc, and treating that request as a petition for

rehearing and denying the petition for rehearing, was

entered on October 18, 2006. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

The Sixth Amendment to the Constitution provides:

“In all criminal prosecutions, the accused shall

enjoy the right... toa... trial, by an impartial

jury. ..; * * * to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor * *

* OY

The Fifth Amendment provides: “No person

shall be . .. deprived of life, liberty, or property,

without due process of law; * * * .”

Rule 602, F.R.Evid., provides:

“A witness may not testify to a matter unless

evidence is introduced sufficient to support a

finding that the witness has personal knowledge

of the matter. [subject to an exception for Rule

703, relating to opinion testimony by expert

witnesses ].”

3

Rule 1006, F.R.Evid., provides: “The contents of

voluminous writings, recordings, or photographs

which cannot conveniently be examined in court

may | »resented in the form of a chart,

summar, or calculation. * * *.”

STATEMENT

Following a jury trial in the Northern District of

Texas, petitioner was convicted of having used the U.S.

mails fraudulently to obtain workers’ compensation

benefits (3 counts), in violation of 18 U.S.C. 1341, and

false statements in connection with the receipt of those

benefits, in violation of 18 U.S.C. 1920 (8 counts).

Petitioner appealed his convictions, invoking the

jurisdiction of the court of appeals pursuant to 28

U.S.C. 1291 and 18 U.S.C. 3742. His convictions were

affirmed by a divided panel (Jones, C.J., dissenting),

but his sentence was set aside in a unanimous decision

and the cause was remanded for re-sentencing. 442

F.3d 367; Pet. App. 18a-23a.

Petitioner was an air traffic controller with the

Federal Aviation Administration [FAA]. He was

injured on the job when his chair fell apart and

collapsed. He received government workers’

compensation benefits until his return to work. The

allegation of fraud was based upon petitioner’s

submission of Department of Labor [DOL] forms (Form

1032) to its office of Workers’ Compensation Programs

[OWCP] (C.A. Br. at 3-5; Pet. App. 28a-39a).’

‘Excerpts from petitioner’s principal brief in the court of appeals

(from the Statement at pages 3-9, and from the Argument at pages

14-17) are included in the appendix.

4

The evidence adduced at trial showed that while

receiving workers’ compensation benefits, petitioner

continued his involvement with a charitable enterprise,

Challenge Air, with which he had been involved for

many years, piloting and overseeing maintenance of the

airplane but receiving no compensation, only

reimbursement for expenses. The evidence also

showed that he piloted on occasion, albeit without

compensation, for Hall Airways in order to fulfill his

pilot hour requirements and also for rehabilitation

purposes. The principal of Hall became involved with

Challenge Air’s activities, and also made charitable

contributions to Challenge at petitioner’s suggestion.

For a brief period at the latter stages before he

succeeded in returning to work as an air traffic

controller, petitioner, who occasionally piloted for IFL

but deferred discussion of income until his retirement

from FAA was resolved, accepted a loan from IF'L’s

owner and used the money to retire some indebtedness

(C.A. Br. 3-9; Pet. App. at 28a-34a).

The non-disclosure on the form 1032's of funds

received during the period of time petitioner received

workers’ compensation benefits was the basis for the

claim of fraud. The indictment had been amended to

substitute the term “funds” for “compensation.” Then,

on the eve of trial, the government withdrew most of its

proposed exhibits and announced that it would not try

to prove that the money petitioner received was

compensation for employment but merely that he had

received funds. The district court overruled

petitioner’s objection that this shifted the burden of

proof. Earlier, the court had denied petitioner’s motion

to dismiss on the ground that this change in the

charging language of the indictment resulted in a

5

failure to state an offense. Petitioner challenged these

rulings on appeal. The court of appeals characterized

petitioner’s claim as immateriality (of the alleged false

statements) as a matter of law and rejected these

claims of error on appeal. 442 F.3d at 372-373; Pet. App.

6a.

Chief Judge Jones, however, saw the issue differently:

petitioner “reasonably contends” that OWCP was only

interested in compensation, 1.e., receipt of funds for

work performed that would potentially offset the

worker’s federal benefits.” 442 F.3d at 381; Pet. App.

22a. The distinction was important because petitioner

had received expense reimbursements from Challenge

Air, and “the government never tackled [petitioner’s]

proof that he received only reimbursements for

expenses from Challenge.” 442 F.3d at 381; Pet. App.

23a.

As the dissent also observed [442 F.3d at 381; Pet.

App. 22a):

This prosecution was brought to prove that

[petitioner] was failing to report outside

compensation while he received federal workers’

compensation after an injury suffered on the job

as an air traffic controller. It is, in my view, a

very close case, because [petitioner] was

clearly trying to steer within the letter of the

reporting requirements while keeping afloat the

charitable enterprise Challenge Air. His defense

thus centered around the contention that he

received only reimbursement of expenses that

he incurred at Amber for the benefit of

Challenge Air; reimbursement of expenses is not

6

compensation for work performed, nor is it

“volunteer work for compensation.” [emphasis

added |

Petitioner testified at trial about his injury, his efforts

to return to work, and to a very limited extent (due to

the constraints of the trial court’s rulings) the FAA and

DOL’s knowledge that he was flying aircraft.

However, the documentary evidence which would have

corroborated his representations in this regard was

excluded in its entirety and cross-examination about

whether DOL actually reviewed or relied on the 1032

forms was excluded as irrelevant (C.A. Br. at 15-17;

Pet. App. 35a-39a).

The panel majority rejected petitioner’s claims of

error with respect to the trial court’s exclusion of his

evidence, finding no abuse of discretion. 442 F.3d at

377; Pet. App. 14a-16a. The Chief Judge disagreed and

dissented from affirmance of the conviction (442 F.3d at

381; Pet. App. 22a):

A rational jury could have _ found

reasonable doubt about the government’s

case. What turned the tide, I believe, were

three significant rulings. First, the court

allowed the government to prove only that

[petitioner] received “funds,” not compensation

for work performed, from Challenge. Second,

the court refused to admit numerous exhibits—

other government forms-showing that

[petitioner] never concealed his aviation

activities from either the Department of Labor

or the FAA or his treating physicians. This

evidence was relevant to [petitioner’s] state of

7

mind when he filled out the forms at issue here.

Third, the court refused to admit medical

evidence concerning [petitioner’s] disability,

stating that it would confuse the jury and invite

a verdict based on sympathy.

REASONS FOR GRANTING THE PETITION

1. The Fifth Circuit’s published decision in this case

conflicts with longstanding Supreme Court precedent,

most recently Holmes v. South Carolina, 547 U.S. __,

126 8. Ct. 1727 (2006), affirming the right of an accused

to present a complete defense. The decision also

conflicts with this Court’s substantial body of precedent

upholding the right of the accused to challenge the

prosecution’s case through cross-examination of its

witness. E.g., Crawford v. Washington, 541 U.S. 36

(2004), Davis v. Alaska, 415 U.S. 308 (1974). A

substantial impairment of these rights also abridges the

right to trial by jury by excluding from the jury’s

consideration evidence it should have in order fairly

and accurately to make the determination entrusted to

it.

The issue arises in a context important to the current

administration of justice. Prosecutions for false

statement on government forms have skyrocketed in

the past two decades. The burden of proof in such

prosecutions is considerably eased to the extent that a

non-contextual examination of the allegedly false

document is achieved, as is increasingly the case, a

phenomenon any seasoned federal criminal trial lawyer

will recognize.

In this case, the two-member majority affirmed the

8

district court’s exclusion of documentary evidence

which would have corroborated petitioner's trial

testimony that

° contrary to the government’s position, there was

no concealment from DOL of his_ piloting

activities;

. he had made repeated efforts to return to work

as an air traffic controller; and

° his injury was serious even though it did not

prohibit his flying an airplane.

Petitioner also was foreclosed from challenging the

government’s claim, through a government witness’

testimony, that the allegedly false statements were

material. His effort on cross-examination to

demonstrate that the forms were not actually relied

upon or reviewed was simply squelched.

This case therefore presents a narrow question

regarding application of the important principle

articulated in Holmes and previous decisions of this

Court. It does not augur for an unwieldy principle

which would infringe upon trial court’s discretion with

respect to evidentiary rulings. Here, the accused

testified in a false statement prosecution which relied

on government forms, but was foreclosed from

corroborating his testimony with unquestionably

authentic (mostly government) records which were

directly related to his defense. This was, as the dissent

observed, “a very close case” and “{w]hat turned the

tide” were the trial court’s “significant rulings,”

including its “refus|al] to admit numerous exhibits -

other government forms - showing that [petitioner|

never concealed his aviation activities from either the

9

Department of Labors or the FAA or his treating

physicians|,]” as well as “medical evidence concerning

[petitioner’s] disability, stating that it would confuse

the jury and invite a verdict based on sympathy” (442

F.3d at 381; Pet. App. 23a) (footnote added).

Furthermore, the district court inexplicably

constrained petitioner’s cross-examination regarding

those documents (the form 1032's) introduced by the

government, allowing testimony that they were

material and then foreclosing petiticaer’s attempt on

cross-examination to show DOL actually had not relied

on the forms at all!

In upholding the fundamental right to present a

complete defense, this Court, over time, has dealt with

and rejected the application of evidence rules to

prevent presentation of a complete defense, most

recently in Holmes v. South Carolina, supra. There,

the petitioner’s effort to demonstrate that a third party

had instead committed the offense was improperly

foreclosed on the basis of the strength of the

prosecution’s evidence. In Washington v. Texas, 388

U.S. 14, 19 (1967), the Court found that the rule which

provided that accomplices were incompetent to testify

for one another abridged the Sixth Amendment’s

compulsory process clause:

The right to offer the testimony of witnesses and

to compel their attendance, if necessary, is in

plain terms the right to present a defense, the

right to present the defendant’s version of the

The panel majority held that petitioner’s disclosures to the FAA

could not be “imputed” to the DOL. 442 F.3d at 377; Pet. App. at

15a.

10

facts as well as the prosecution’s to the jury so

it may decide where the truth lies. Just as an

accused has the right to confront’ the

prosecution’s witnesses for the purpose of

challenging their testimony, he has the right to

present his own witnesses to establish a defense.

[emphasis added]

Thus, this Court stressed that the accused’s

fundamental right to trial by jury depends in no small

measure upon the exercise of other important rights

secured by the Constitution, including the rights of

confrontation and compulsory process.

Edwards v. United States, 312 U.S. 473, 482 (1941),

although specifically addressing a plea in bar which

claimed an immunity from prosecution, explicated the

truth-finding function underlying the right of an

accused to present a defense:

The refusal to permit the accused to prove his

defense may prove trivial when the facts are

developed. Procedural errors often are. But

procedure is the skeleton which forms and

supports the whole structure of a case. The lack

of a bone mars the symmetry of the body. The

parties must be given an opportunity to

plead and prove their contentions or else

the impression of the judge arising from

sources outside the record dominates

results. The requirement that allegations must

be supported by evidence tested by cross-

examination protects against falsehood. The

opportunity to assert rights through pleading

and testimony is essential to their successful

11

protection. Infringement of that opportunity is

forbidden. [footnote omitted; emphasis added}

In other words, when a party is not permitted to

complete his case, the power to decide shifts from the

jury to the judge (and his predilections). But, as a

matter of constitutional principle, the jury is the

decision-maker. “The right [to trial by jury] is no mere

procedural formality, but a fundamental reservation of

power in our constitutional structure.” Blakely v.

Washington, 542 U.S. 296 (2004). “We have always

trusted juries to sort through complex facts in various

areas of law.” United States v. Booker, 543 U.S. 220,

289 (2005) (Stevens, J., dissenting in part).

“Whether rooted directly in the Due Process Clause .

or in the Compulsory Process or Confrontation

Clauses of the Sixth Amendment, the Constitution

guaranties criminal defendants ‘a meaningful

opportunity to present a complete defense.’ ” Holmes v.

South Carolina, supra, 126 8.Ct. at 1731, citing Crane

v. Kentucky, 476 U.S. 6838, 690 (1986) (quoting

California v. Trombetta, 467 U.S. 479 485 (1984)

(citations omitted).

That the right of compulsory process applies not

merely to witnesses but also to documents has been

clear since Aaron Burr subpoenaed letters sent to

President Jefferson and Justice John Marshall

overruled government objections to the production of

mere documents. United States v. Burr, 25 F. Cas. 30

(No. 14692 D) (C.C.D. Va. 1807); United States v. Burr,

25 F.. Cas. 187 (no. 14, 694) (C.C.D. Va. 1807).

While certainly courts may, consistent with

12

constitutional strictures, “exclude evidence that is

‘repetitive ..., only marginally relevant’ or poses an

undue risk of ‘harassment, prejudice, [or] confusion of

the issues|,|’ ” Holmes, supra, 126 S.Ct. at 17382, citing

Crane at 689-690 (quoting Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986), the serial, erroneous, and

arbitrary application of (or failure to apply) the rules of

evidence is no less inimical to the principles embodied

in the Sixth Amendment than was the specific rule

addressed in Holmes. This has been clear at least since

Chambers v. Mississippi, 410 U.S. 284 (1973), which

involved application of a hearsay rule of general

application.

In Chambers, the defendant was foreclosed by

application of a “voucher” rule from impeaching a

witness with hearsay, the witness’ confession to the

crime. This Court held that “where constitutional

rights directly affecting the ascertainment of guilt are

implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice.” 419 U.S.

at 302. See also, Green v. Georgia, 442 U.S. 95 (1979).

Here, petitioner was charged by the government, his

employer, with mail fraud and false statement. An

essential element of mail fraud, as the panel majority

acknowledged, is “the specific intent to defraud.” 442

F.3d at 372; Pet. App. 5a (citing United States v.

Bieganowski, 313 F.3d 264, 275 (5'" Cir. 2002). And ina

prosecution under 18 U.S.C. 1920, “the Government

must show that the defendant: (1) knowingly and

willfully, (2) falsified, concealed, or covered up a

material fact, or made a false, fictitious, or fraudulent

statement or representation, or made or used a false

statement or report knowing the same to contain any

13

false, fictitious, or fraudulent statement or entry, (3) in

connection with the application for or receipt of

compensation or other benefit or payment” (442 F.3d at

372; Pet. App. 6a ( emphasis added). “Willfully” is “a

word of many meanings” and its correct interpretation

depends upon its context, to be sure. Bryan v. United

States, 524 U.S. 184, 191 (1998) (quoting in part Ses v.

United States, 317 U.S. 492, 497 (1943)). Whatever may

be the precise meaning of “willfully” in this statutory

context, it unquestionably is a strong mental element

rightfully requiring a searching examination of an

accused’s intent. E.g., United States v. Pomponio, 429

US. 10, 12 (1976); Ratzlaf v. United States, 510 U.S. 1385

(1994). No such searching inquiry can occur in a non-

contextual examination of a government form. Yet, a

non-contextual examination of the form was the

government’s acknowledged goal in this prosecution,

and that goal was largely achieved.

The trial court’s rulings excluding relevant, intrinsic

evidence constituted error which infringed upon

petitioner’s right to have the jury determine his fate

after presentation of a complete defense. He was

prevented from fully demonstrating the extent of the

injury which was the basis for his workers’

compensation claim. Unable to tell the full story and

place his conduct in context, as the law not merely

permits but requires, petitioner was unable fully to

defend himself. Serious injury or disability and flying

airplanes are counterintuitive and yet even

permanently disabled persons fly aircraft. It was

therefore particularly important that petitioner

demonstrate that his disability was real.

The government was also allowed to suggest that

14

petitioner concealed his flying activities, and he was not

permitted to counter this suggestion with documentary

corroboration of his disclosure of those activities to the

doctors who treated and evaluated him and who in turn

routinely disclosed such information to DOL. An

activity which is known, even open and notorious, is

hardly consisten: with a claim of concealment.

After petitioner was injured, he was told he should

retire on permanent, total disability, but he was

determined to return to work and used aircraft flying

as a means of rehabilitation, as well as a means to

accumulate his requisite pilot hours. But petitioner was

foreclosed from telling the full story of his efforts to

return to work at the FAA, efforts both logically

inconsistent with a scheme to defraud and reflective of

a state of mind which does not comport with the specific

intent to defraud which was an essential element of

these offenses. After all, one engaged in a scheme to

defraud does not ordinarily try to dismantle the

infrastructure which sustains the scheme. Yet, this is

precisely what petitioner sought to do - return to work

which, of course, would end his workers’ compensation

benefits.

Petitioner was prepared to show that he lacked any

intent to deceive and that the answers on the forms

were neither false, nor material because his employer,

the FAA, was fully aware of his flying as were his

doctors and, indeed, the DOL. The trial court

inexplicably and repeatedly sustained the government’s

objections to the introduction of evidence imputing

knowledge of petitioner’s activities to these agencies.

When petitioner attempted to introduce relevant,

admissible, and necessary evidence which would have

15

established a defense — evidence which would have

illustrated his constant and faithful efforts to return to

work — the court rejected it.

“All relevant evidence is admissible .. .” [Rule 402,

F.R.Evid.}] unless some compelling basis for its

exclusion is shown. Rule 403, F.R.Evid. Other than the

prosecution’s desire to have the allegedly false forms

evaluated in a vacuum, there was no reason for the

exclusion of appellant’s proffered evidence. The extent

of his injury was very important, given the

government’s reliance on his flying activities to suggest

that he was not really disabled. His attempt to go back

to work revealed the opposite of a scheme to defraud,

for once he returned to work the alleged fraud would

cease. The claimed materiality of the forms could

hardly withstand scrutiny if, in reality, no attention was

paid to them. And disclosure of his flying activities to

doctors who routinely report to DOL contradicts the

government’s allegation of concealment.

Furthermore, intrinsic evidence — and surely the

medical evidence concerning the very injury at issue in

the subject WC claim, the FAA and DOL’s knowledge

of his flying, and his efforts to return to work are

intrinsic to the WC claim at issue - is admissible. It

provides the “context of events” “so that the fact finder

may evaluate all the circumstances under which the

defendant acted.” United States v. Walters, 351 F.3d

159 at n..2 (5" Cir. 2003), citing United States v.

Coleman, 78 F.3d 154, 156 (5 Cir. 1996), and United

States v. Royal, 972 F.2d 643, (5 Cir. 1992). See, also,

United States v. Griffin, 324 F.3d 330, 360 (5 Cir.

2003); United States v. Navarro, 169 F.3d 228, 233 (5

Cir. 1999); United States v. Garcia, 27 F.3d 1009, 1014

16

(5'" Cir. 1994).

The arbitrary and unfounded application here of

evidentiary rules to constrain so severely the right to

present a complete defense and fully to exercise the

right to trial by jury is consistent with a growing

prosecutional trend aimed at achieving the non-

contextual examination of allegedly fraudulent

documents. The published decision of the panel

majority promotes that unworthy goal. This Court

should hear this case in order to address these

important issues and an unfortunate and growing

phenomenon hostile to the right of an accused to

present a complete defense.

This federal criminal trial fell below minimal

constitutional standards of compulsory _ process,

confrontation, due process, and indeed simple fairness.

We recognize that error, even pervasive error, does not

alone warrant this Court’s attention. Where, however,

serious and pervasive error rests upon repeated

misapplication of the federal rules of evidence to

exclude a defendant’s efforts to make his case and

corroborate his testimony, and meaningfully to

challenge the prosecution’s evidentiary claims with

respect to the essential eclements (e.g., materiality),

review is warranted in order to uphold the important

right to present a complete defense.

“Here the district court apparently excluded the bulk

of |petitioner’s] evidence on grounds of relevancy.” 442

F.3d at 376; Pet. App. 14a. This serial misapplication of

the federal rules of evidence is every bit as deplorable

as were the wrongly applied State rules of evidence in

Holmes, Chambers, and Washington v. Texas.

17

Petitioner was required to challenge his government

(indeed, his employer) with his hands tied behind his

back. He could claim the FAA and DOL knew he was

flying; he could assert that his medical condition

involved serious injury in nowise inconsistent with

piloting; he could insist that he made repeated efforts to

return to work; and generally claim good faith and

innocent intent. But he was not permitted to

corroborate those claims with documentary evidence.

Nor was he permitted to challenge his employer’s claim

of materiality by efforts on cross-examination to reveal

that there was no actual reliance upon or review of the

forms which were alleged to have contained false

statements. These circumstances and the implications

for the federal system of criminal justice warrant

review by this Court.

2. The court of appeals’ decision also contravenes the

Federal Rules of Evidence and endorses a practice

which undermines the truth-finding function in federal

criminal trials.

The current use of the summary witness in federal

criminal trials represents considerable backsliding

from the reliability which the personal knowledge

requirement of Rule 602, F.R.Evid. is designed to

assure. Needless to say, it impinges as well upon the

interests secured by the Confrontation Clause, for it is

difficult indeed meaningfully to cross examine a witness

with no personal knowledge concerning the events he

has been called upon to relate to the jury.

For some period of time, federal district and appellate

courts have ignored the constraints of Rules 602 and

1006 by permitting, fairly routinely, testimony by

persons with no personal knowledge about the

18

matters on trial. F.R. Evid. Rule 602 requires that any

witness (other than an expert) have personal

knowledge of the matter concerning which she testifies.

A so-called “summary” witness may testify at trial but

only to present the contents of “voluminous writings,

recordings, or photographs which cannot conveniently

be examined in court.” Rule 1006.

Here, the government’s case-in-chief was presented

in less than two days by four witnesses in cddition to

the “summary” witness (an employee of the U.S.

Attorney’s office) whose “testimony summarized the

Government’s evidence relating to |petitioner’s| receipt

of funds from Charter [sic] Air, Amber Aviation, Hall

Airlines and IFL, * * * [and] explained the contents of

the time-line [chart].” 442 F.3d at 376; Pet. App. 12a-

13a."

As stated, Rule 602 prohibits testimony by a person

who has no personal knowledge of the events at issue,

except for experts. Rule 703. So-called “summary”

evidence is permitted by the rules solely to summarize

the contents of voluminous materials which cannot

conveniently be examined in court. Rule 1006.

Notwithstanding these clear constraints, the vanishing

‘The DOL witness presented by the government had no personal

knowledge of the workers’ compensation claim and little familiarity

with the file. DOI. witnesses who had processed the claim were

not called as witnesses by the government. One FAA witness, the

person with the greatest familiarity with the claim and who knew

DOI, knew about petitioner's piloting activities, was called by the

defense, although much of her testimony was restricted. The

Challenge Air witness had not been employed there during much

of the relevant time period. The two witnesses from Hall and IF'L

did have personal knowledge about the matters at issue.

19

federal criminal trial‘ all too often includes presentation

by the government of a “summary” witness who

recounts trial evidence and/or discusses documents

without any of the perils cross examination and

challenges to credibility present for persons with

actual knowledge of the matters at issue in the trial.

Some have called such summary testimony “closing

argument under oath.” Others point out that is permits

a well-spoken and highly presentable government

agent or employee to “pitch” the government’s case

even though the person lacks any personal knowledge

and therefore is not a witness. )

The unfortunate and recurring use by prosecutors of

summary witnesses is inimical to the “criminal justice

system’s truth-finding function.” United States v. Leon,

468 U.S. 897, 907 (1984).

The panel here ignored the above limitations imposed

by federal rules, stating instead [442 F.3d at 376; Pet.

App. at 13a]:

After reviewing the Government’s exhibits and

Hager’s testimony, we believe the district court

did not abuse its discretion in permitting

Hager’s summary testimony. The evidence at

issue presented an appreciable degree of

complexity and the district court gave a limiting

instruction to the jury. * * * The time-line and

Hager’s testimony were supported by other

evidence and we find neither to have been

inconsistent with the other evidence presented.

* “The Vanishing Trial,” ABA Journal, Vol. 88 at 24 (October

2002).

20

linternal citations omitted]

This latter observation bears repeating: the panel

bootstrapped its conclusion that the “summary” was

appropriate by noting that the “summary” witness’

testimony was supported by other evidence. But the

testimony of a summary witness is not evidence. How

could it be? It merely recounts evidence. It reviews

evidence. Such testimony lacks an essential foundation,

personal knowledge. And, yet, when - as here - the

very presentable government “summary” witness

testifies, that testimony becomes evidence to the jury

(as it did for the circuit judges here), even though it is

no such thing.

As Professors Wright and Gold have observed:

In terms of substance, |Rule 602] embodies one

of the most fundamental tenets of a rational

system of evidence law; testimony should be

reliable and, thus, must be based on the

perceptions of the witness rather’ than

conjecture or second-hand information. [footnote

omitted |

Wright and Gold, Federal Practice and Procedure:

Evidence § 6021 at page 187 (1990 ed.). “In terms of

history, the personal knowledge requirement is one of

the best established of evidentiary principles, with

roots in medieval law.” /d. (footnote omitted).

This case is a paradigm of the unauthorized use of a

summary witness. There were no voluminous records.

The government’s presentation of evidence consisted of

four (4) witnesses and lasted less than two days. The

21

unauthorized and undesirable practice of using

summary witnesses in criminal cases, particularly in

view of the impact upon the accused’s right of

confrontation, is an issue of fundamental importance to

the administration of justice which warrants review by

this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

SHIRLEY BACCUS-LOBEL

(Counsel of Record)

LAW OFFICES OF

SHIRLEY BACCUS-LOBEL

A Professional Corporation

The Oaks, 2929 Carlisle

Suite 250

Dallas, Texas 75204

214.220.8460

la

(any footnotes trail end of each document)

No. 04-10631

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE HARMS,

Defendant-Appellant.

March 6, 2006, Filed

COUNSEL: For UNITED STATES OF AMERICA,

Plaintiff - Appellee: Lynn V Hastings, Assistant US

Attorney, US Attorney's Office, Northern District of

Texas, Dallas, TX.

For MICHAEL LEE HARMS, Defendant - Appellant:

Stephen Cass Weiland, Robert Allen Hawkins, Patton

Boggs, Dallas, TX.

JUDGES: Before JONES, Chief Judge, and DAVIS

and GARZA, Circuit Judges. EDITH H. JONES, Chief

Judge, concurring in part and dissenting in part.

OPINION BY: EMILIO M. GARZA

OPINION: EMILIO M. GARZA, Circuit Judge:

A jury convicted Michael Lee Harms of three counts of

mail fraud and three counts of perjury in connection

2a

with the receipt of workers' compensation benefits. The

district court sentenced him to 33 months imprisonment

and ordered restitution of $ 354,389.61. Harms's appeal

challenges the sufficiency of the indictment and the

evidence against him, the prosecution's use of summary

evidence, exclusion of defense evidence, and the denial

of his motion for mistrial. He also appeals his sentence.

I

Harms suffered a back injury in 1996 while employed

‘by the Federal Aviation Administration (FAA) as an

air traffic controller. Unable to return to work, he

began receiving workers’ compensation benefits from

the Office of Workers' Compensation Programs, an

office of the Department of Labor (DOL). Except

during an unsuccessful attempt to return to work in

1997, Harms continued to receive benefits until he

returned to work in February 2002. As required by

federal regulation, Harms periodically provided to the

DOL a "Form 1032," a questionnaire regarding a

recipient's employment, business, and related activities.

These forms instructed Harms to disclose, among other

things: (1) all employment for which he received a

salary, wages, income, sales commissions, piecework, or

payment of any kind; (2) all self-employment or

involvement in business’ enterprises, including

managing or overseeing a business of any kind; (3) any

work or ownership interest in any business enterprise,

even if the business lost money or performed duties for

which he was not paid; (4) and any volunteer work for

which any form of monetary or in-kind compensation

was received. The forms cautioned that false or evasive

answers might result in forfeiture of compensation

benefits, civil liability, and criminal prosecution.

3a

While receiving workers' compensation benefits, Harms

served on the board of directors for Challenge Air for

Kids ("Challenge Air"), a non-profit organization. He

also served as president, chief executive office, and part

owner of Amber Aviation, Inc. ("Amber Aviation"), a

for-profit corporation closely associated with Challenge

Air. Harms also flew planes for IFL Group ("IF'L") and

Hall Airways, Inc. ("Hall Airways"), two charter airline

companies. He failed to disclose any of these activities

on the 1032 forms he submitted to the DOL.

In 2003, Harms was charged with three counts of mail

fraud, a violation of 18 U.S.C. § 1341,! and three counts

of perjury for the purpose of obtaining workers’

compensation benefits, a violation of 18 U.S.C. § 1920,

based on 1032 forms Harms submitted to the DOL via

the United States Postal Service in 1999, 2000, and

2001.

A jury convicted Harms on all six counts. The

presentence report (PSR) calculated the amount of loss

for sentencing purposes as $ 354,389.61, the amount

paid to Harms between February 1997 and March 2002.

The PSR also increased Harms's offense level for

obstruction of justice, finding that Harms had concealed

or destroyed subpoenaed documents and instructed

others to do likewise. The jury made no factual findings

regarding amount of loss or obstruction of justice.

Harms objected to the loss calculation, the obstruction

of justice enhancement, the amount of restitution, and

the use of the 2003 edition of the Sentencing Guidelines.

The district court overruled these objections and

sentenced Harms to 33 months imprisonment, the

bottom of the applicable Guideline range, and ordered

restitution of benefits received.

4a

I]

Harms claims that the superseding indictment* was

deficient. In the mail fraud counts, the indictment

alleged that Harms engaged in a scheme to defraud the

government by working as a pilot for Hall Airways,

having Hall Airways give checks to Challenge Air in

the amount of his pay, and having Challenge Air pay

funds to the defendant. The indictment further alleged

that Harms worked for IFL and had IF L's owner pay

him in a lump sum, which Harms endorsed over to his

father so that his father could send funds in the same

amount to pay Harms's credit card bill. Finally, the mail

fraud counts alleged that Harms served on the board of

Challenge Air and as president and CEO of Amber

Aviation and failed to disclose any of these facts in the

1032 forms he mailed to the DOL. Similarly, in the

perjury counts, the superseding indictment alleged that

Harms "falsified, concealed and covered up his true

employment status, involvement in __ business

enterprises of volunteer work for compensation" in the

1032 forms. Specifically, the indictment alleged that

Harms failed to disclose in his 1999 and 2000 forms that:

(1) he was employed as a pilot at Hall Airways; (2) acted

as president and CEO of Amber Aviation; (3) was a

member of the Challenge Air board of directors; and (4)

received funds from Challenge Air and Amber

Aviation. With respect to the 2001 form, the indictment

additionally alleged that Harms failed to disclose that

he was an employee of IFL. Harms contends that the

indictment fails to state an offense for either mail fraud

or perjury because it alleges that he received "funds"

from Charter Air and Amber Aviation rather than

alleging that he received "compensation."* Thus, he

argues, the indictment effectively shifted the burden to

5a

him to prove that the funds he received were

"reimbursements" rather than compensation.

We review the sufficiency of an indictment de novo.

United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004).

"An indictment is sufficient if it contains the elements of

the charged offense, fairly informs the defendant of the

charges against him, and ensures that there is no risk of

future prosecutions for the same offense." United States

v. Sims. Bros. Constr., Inc., 277 F.3d 734, 741 (5th Cir.

2001). We are not concerned with whether the

indictment could have been better framed, or whether

it invokes a particular "ritual of words," but whether it

conforms to the minimal standards required by the

Constitution. United States v. Wilson, 884 F.2d 174, 179

(5th Cir. 1989). Thus, an exact recitation of an element

of the charged crime is not required, provided the

indictment as a whole "fairly imports" the element. Jd.

To prove the offense of mail fraud under § 1341, the

Government must show "(1) a scheme to defraud; (2)

use of the mails to execute that scheme; and (3) the

specific intent to defraud.” United States v.

Bieganowski, 313 F.3d 264, 275 (5th Cir. 2002). The

Government must also prove that the scheme to

defraud involved a materially false statement. Jd. A

statement is material if its has a natural tendency to

influence, or is capable of influencing, the decision of the

decision-making body to which it was addressed.

United States v. Brown, 303 F.3d 582, 601 (5th Cir.

2002) (citing United States v. Gaudin, 515 U.S. 506, 509,

1158. Ct. 2310, 132 L. Ed. 2d 444 (1995)).

To prove that the offense of perjury for purposes of

fraudulently obtaining federal workers' compensation

6a

benefits, the Government must show that the

defendant: (1) knowingly and willfully, (2) falsified,

concealed, or covered up a material fact, or made a

false, fictitious, or fraudulent statement or

representation, or made or used a false statement or

report knowing the same to contain any false, fictitious,

or fraudulent statement or entry, (3) in connection with

the application for or receipt of compensation or other

benefit or payment. 18 U.S.C. § 1920. Like mail fraud, a

perjury charge under § 1920 requires a showing of

materiality. See United States v. Henry, 164 F.3d 1304,

1308 (10th Cir. 1999) (considering, in an appeal from a

conviction under § 1920, whether the government had

proven that the defendant's false statements were

material).

Harms's argument appears to be _ that the

misstatements alleged by the Government are

immaterial as a matter of law and that the superseding

indictment thus fails to allege a necessary element of

the crimes for which he was charged -- material

misstatements. We decline to find the superseding

indictment constitutionally deficient. Whether a

misstatement is material is generally an issue of fact for

the jury to decide. See United States v. Ferro, 252 F.3d

964, 968 (8th Cir. 2001) (stating that materiality is an

issue for the jury and that "so long as the indictment

contains a facially sufficient allegation of materiality,

federal criminal procedure does not provide for a pre-

trial determination of sufficiency of the evidence."

(quotation omitted)); United States v. DeSantis, 134

F.3d 760, 764 (6th Cir. 1998) ("unless no reasonable

mind could find a statement or omission to be material,

criminal trial must submit the issue to the jury") (citing

Gaudin, 515 U.S. at 511).

Ta

The 1032 forms Harms completed require wide-ranging

disclosure. The instructions require disclosure of "ALL

self-employment or involvement in __ business

enterprise." This includes "managing and/or overseeing

a business of any kind." Recipients must also disclose

"ANY work or ownership interest in any business

enterprise." Even if the recipient was not paid for those

duties, he or she "must show as rate of pay what it

would have cost the employer or organization to hire

someone to perform the work or duties." In addition to

such employment, recipients must disclose “any

volunteer work for which ANY FORM of monetary or

in-kind compensation was received." In view of the

extensive disclosures required by the 1032 forms, the

indictment in this case alleges a collection of facts that,

at least on their face, might be material. With respect to

the August 1999 and March 2000 1032 forms, the

perjury counts of the indictment allege that Harms

failed to disclose the following "material facts": (1) that

he was employed as a pilot at Hall; (2) acted as

president and chief executive office of Amber Aviation;

(3) was a member of the Challenge Air Board of

Directors; and (4) received funds from Challenge Air

and Amber Aviation. With respect to the 1032 form

Harms filed in March 2001, the indictment alleges that

Harms omitted the same material facts, as well as his

employment as a pilot by IFL. These counts further

incorporate the mail fraud counts' allegations. The

indictment alleges that these facts were material

because "form 1032 required that information provided

be truthful and complete and further required

disclosure of any employment, self-employment,

volunteer work for payment and any involvement in a

business enterprise."

Sa

The Government has met its burden of identifying the

facts it claims were material and alleging why those

facts were material. Cf. United States v. Pirro, 212 F.3d

86, 93 (2d Cir. 2000) (holding that an indictment failed

to sufficiently allege a material falsehood or omission

amounting to a material falsehood because the

indictment failed to allege what facts made the omission

material). Contrary to Harms's assertion, the burden of

proof to show the materiality of the facts alleged in the

indictment remained with the Government. Whether or

not that burden was satisfied is a question of

evidentiary sufficiency, discussed in part III, infra.

Because a reasonable jury could find the omissions

alleged by the indictment to be material, we hold that

the indictment sufficiently alleged materiality and

therefore met the minimum standards required by the

Constitution.

III

Harms also argues that the evidence produced by the

Government is insufficient to sustain his convictions.

Harms's_ sufficiency of the evidence challenge

essentially reframes his insufficient indictment claim,

claiming that the Government failed to satisfy its

burden on the issue of materiality. Specifically, he

contends that the Government failed to prove that his

failure to disclose his involvement with Challenge Air,

Amber Aviation, Hall Airways, and IFL were material

facts.

In assessing a challenge to the sufficiency of the

evidence in a criminal trial, we ask whether, viewing

the evidence in the light most favorable to the

Government, a reasonable trier of fact could find that

9a

the evidence establishes guilt beyond a reasonable

doubt. United States v. Villarreal, 324 F.3d 319, 322

(5th Cir. 2003). "All reasonable inferences must be

drawn, and all credibility determinations made, in the

light most favorable to the verdict." Jd. "The evidence

need not exclude every reasonable hypothesis of

innocence and the jury is free to choose among

reasonable interpretations of the evidence." United

States v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004)

(citing-United States v. Perrien, 274 F.3d 936, 939-40

(5th Cir. 2001)).

After carefully reviewing the record in this case, we are

satisfied that, viewing the evidence in the light most

favorable to the Government, a reasonable trier of fact

could conclude that the Government proved beyond a

reasonable doubt that Harms concealed material facts.

Joshua Hall, the former president of Hall Airways,

testified that Harms agreed to work for him as a

contract pilot in 1998. Hall testified that Harms told

him he was not able to receive income because he was

"on disability," and asked Hall to donate what would

have been his pay to Challenge Air and Amber

Aviation.® Hall testified that he would not have written

the checks but for Harms's work for the company. It is

uncontested that Harms served on the board of

directors of Challenge Air and as president and chief

executive officer of Amber Aviation and received

payments from both. The Government also introduced

evidence that Harms received 25 hours of free flying

time on the Amber airplane and reimbursement for

expenses incurred in connection with his activities.

Harms's forms also did not show what it would have

cost to hire someone to perform the work done by

Harms.

10a

IFL president Michael Church testified that Harms

was an IF'L employee. He testified that Harms told him

he was retiring from the FAA and could not accept any

compensation until after his paperwork was final, but

that Harms did not tell him of his disability. Church

testified that there was an agreement that Harms

would start receiving pay after his retirement became

effective. Church also testified that he made a "loan" to

Harms, but did not expect to get the money back, that

he would not have given Harms more than he had

earned as pay, and that he always intended that Harms

receive the money that he had earned as a pilot. Martha

Wale, vice-president of IF'L, testified that IF'L paid

Harms $ 13,000 on October 1, 2001 and that, at the time,

Harms was owed approximately $ 13,365 in salary.

Wale also testified that she did not consider the

payment a loan and did not expect it to be repaid. The

Government also introduced evidence that Harms

received a $ 13,000 check from IF L and endorsed the

check over to his father, Gerald Harms, who then wrote

a check for $ 13,000 payable to his son's (Harms's)

credit card account.

Frances Memmolo, district director of the Division of

Federal Employees’ Compensation in Dallas, Texas,

testified about the DOL's use of 1032 forms, stating

that affirmative answers to the questions on the 1032

form result in the claims examiner conducting a more

thorough investigation of the case. Memmolo further

testified that the DOL does not have the resources to

verify the answers on the 1032 forms, and_ that

recipients are therefore warned on the forms that they

"are supposed to be reporting the truth and we have to

accept what they tell us." Finally, Memmolo testified

that affirmative answers to the 1032 forms questions

lla

could result in changes to the recipient's status.

Considering the evidence produced at trial, including

Memmolo's testimony and the terms of the 1032 forms

themselves, and drawing all reasonable inferences in

favor of the Government, a reasonable trier of fact

could conclude that Harms failed to disclose material

information as charged in the superseding indictment.

IV

Harms also claims that the district court erred by

admitting a time-line chart comparing the dates and

payments Harms received to the dates of Harms's 1032

forms and Harms's activities while receiving benefits,

along with the accompanying testimony of Government’

witness Tom Hager. Admission of evidence, including

summaries and summary testimony, is reviewed for

abuse of discretion. United States v. Buck, 324 F.3d 786,

790 (5th Cir. 2003). An error in the admission of

evidence is excused "unless it had substantial and

injurious effect or influence in determining the jury's

verdict." Jd. "The admission of organization charts and

summary evidence is governed by Federal Rules of

Evidence 611(a) and 1006." United States v. Taylor, 210

F.3d 311, 315 (5th Cir. 2000). "Allowing the use of charts

as ‘pedagogical’ devices intended to present the

government's version of the case is within the bounds of

the trial court's discretion to control the presentation of

evidence under Rule 611(a)." Jd. "Such charts are not

admitted into evidence and should not go to the jury

room absent consent of the parties." Jd. If a summary or

chart is introduced solely as a pedagogical device, the

court should instruct the jury that the chart or

summary is not to be considered as evidence, but only

as an aid in evaluating evidence. Buck, 324 F.3d at 791.

12a

"In contrast, Rule 1006 applies to summary charts

based on evidence previously admitted but which is so

voluminous that in-court review by the jury would be

inconvenient." Taylor, 210 F.3d at 315. "For complex

cases, we have [also] allowed summary witnesses in a

limited capacity." United States v. Fullwood, 342 F.3d

409, 413 (5th Cir. 2003). We have cautioned, however,

that "while such witnesses may be appropriate for

summarizing voluminous records. . . rebuttal testimony

by an advocate summarizing and organizing the case for

the jury constitutes a very different phenomenon, not

justified by the Federal Rules of Evidence or our

precedent." /d. at 414.

Prior to trial, the Government offered the time-line

under Rule 1006. Harms objected to its admission into

evidence, but not to its use for demonstrative purposes.

The court stated that it would allow the exhibit to be

used for demonstrative purposes. The court later

instructed the jury as follows: "You'll recall that certain

charts and summaries were received as demonstrative

evidence. Charts and summaries are valid only to the

extent that they accurately reflect the underlying

supporting evidence." Although the court's reference to

"demonstrative evidence" is imprecise, the record

shows that the time line was never admitted into

evidence or allowed into the jury room. Further, when

the jury asked if it could use the time line, the court

replied that the summary was not in evidence and was

“only for demonstrative purposes."

Hager's testimony summarized the Government's

evidence relating to Harms's receipt of funds from

Charter Air, Amber Aviation, Hall Airways, and IFL.

His testimony also summarized evidence that Harms

13a

received a $ 13,000 check from IFL and endorsed the

check over to his father, Gerald Harms, who then wrote

a check for $ 13,000 payable to his son's VISA account.

Finally, Hager explained the contents of the time-line.

After reviewing the Government's exhibits and Hager's

testimony, we believe the district court did not abuse

its discretion in permitting MHager's summary

testimony. The evidence at issue presented an

appreciable degree of complexity and the district court

gave a limiting instruction to the jury. Cf. United States

v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995) (use of

summary witness not reversible error where merely

cumulative of substantive evidence); United States v.

Winn, 948 F.2d 145, 157-58 (5th Cir. 1991) (use of

summary chart and testimony not reversible error

where prejudice neutralized by instruction). The time-

line and Hager's testimony were supported by other

evidence and we find neither to have been inconsistent

with the other evidence presented. Cf. Buck, 324 F.3d

at 791 (holding admission of pedagogical chart into

evidence to be harmless where the chart was supported

by and accurately summarized other evidence). Finally,

we are not persuaded that MHager's testimony

implicates the concerns we expressed in Fullwood

about the use of summary testimony as "rebuttal

testimony by an advocate summarizing and organizing

the case for the jury .. . [or] a substitute for, or a

supplement to, closing argument." Fullwood, 342 F.3d

at 414. Harms has failed to show an abuse of discretion

or a violation of his substantial rights in the use of the

time-line or admission of Hager's testimony.

V

14a

Harms also claims that the district court erred in

excluding defense exhibits and in limiting cross-

examination relating to his injury, the DOL's reliance

on his statements, and the FAA's and DOL's

knowledge that he was piloting airplanes. He concedes

that the court permitted him to testify regarding each

of these facts, but claims that the exclusion of

documentary evidence supporting his testimony was

nonetheless prejudicial. The district court apparently

excluded the bulk of this evidence on grounds of

relevancy. Harms contends that evidence concerning

his injury was relevant because it would have provided

a "context of events" for the jury to evaluate his actions.

He also argues that evidence of his efforts to return to

work was relevant to whether he intended to defraud,

and that his disclosure of his flying activities to doctors

who provided reports to the DOL contradicted the

Government's allegation of concealment.

We review the exclusion of evidence for abuse of

discretion. Buck, 324 F.3d at 790. "Relevant evidence'

means evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence." FED.

R. EVID. 401. Rulings limiting the scope or extent of

cross-examination are also committed to the sound

discretion of the trial court. United States v. Barksdale-

Contreras, 972 F.2d 111, 115 (5th Cir. 1992). "If we find

an abuse of discretion in admitting or excluding

evidence, we next review the error under the harmless

error doctrine, affirming the judgment unless the ruling

affected the substantial rights of the complaining

party." Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581,

584 (5th Cir. 2003).

15a

The district court did not commit reversible error in

excluding evidence relating to the extent of Harms's

injuries and Harms's rehabilitation efforts. Even if

Harms's evidence met the minimum threshold of

relevancy, its exclusion was harmless because it could

not have affected the jury's determination any of the

charged counts. Cf. United States v. Tucker, 345 F.3d

320, 326-27 (5th Cir. 2003) (" the necessary inquiry is

whether the trier of fact would have found the

defendant guilty beyond a reasonable doubt with the

additional evidence inserted"). The jury was not

required to determine whether Harms actually suffered

an injury or the extent of that injury, or artificially

prolonged his absence from work, but whether he

engaged in a scheme to defraud by concealing material

information in the 1032 forms submitted to the DOL.

Harms's evidence regarding a tangential fact could not

have affected the jury's verdict in this case. Neither did

the court commit reversible error in excluding evidence

of what FAA employees knew about Harms's activities.

Generally, "notice or actual knowledge of one United

States government agency will not be imputed to

another agency." United States Small Bus. Admin. v.

Bridges, 894 F.2d 108, 112 (5th Cir. 1990).°

Harms has also not shown reversible error in the

exclusion of doctors' reports referencing Harms's flying

during the period he was collecting workers’

compensation benefits. The June 1999 report mentions

in passing only that Harms was “able to fly in the right

seat but is not doing any left-seat flying." A January

2001 letter states that he was working as a pilot on a

volunteer basis. Even if this evidence was relevant to

his intent, Harms has not shown reversible error. The

trial court permitted Harms to testify both that he told

16a

his doctors about his flying and that he believed the

doctors were forwarding that information to the DOL.

We are not persuaded that the exclusion of these

reports violated his substantial rights notwithstanding

his testimony to the same effect.

Harms also contends that the trial court erred in

denying his motion for mistrial after the prosecutor

stated during closing rebuttal that "there's no evidence

whatsoever of a broken back." Harms objected to the

remark after the conclusion of closing argument and out

of the jury's presence. He is entitled to relief "only if he

can show, in the context of the trial, that the remarks

amounted to plain error." See United States v. Caucet,

635 F.2d 441, 448 (5th Cir. 1981). To establish plain

error, he must show that the error is clear or obvious

and that the comments, "taken as a whole in the context

of the entire case, substantially prejudiced [his] rights."

United States v. Montemayor, 684 F.2d 1118, 1124 (5th

Cir. 1982). "Plain error may be recognized only if the

error is so obvious that the failure to notice it would

seriously affect the fairness, integrity, or public

reputation of judicial proceedings and result in a

miscarriage of justice." /d. (internal quotation omitted).

Harms makes no argument under the plain-error

standard. While the prosecutor's statement appears to

have been neither warranted nor relevant, Harms has

not shown that a comment on an essentially irrelevant

matter substantially prejudiced his rights or resulted in

a miscarriage of justice.

VI

iinally, Harms appeals his sentence. Renewing

objections made before the district court, he claims that

17a

the court erred by (1) imposing a_ sentencing

enhancement for obstruction of justice; (2)

miscalculating the amount of loss for sentencing

purposes and the amount of restitution; and (3)

applying the 2003 rather than the 2000 version of the

Sentencing Guidelines.

A

Harms argues that the increase for obstruction of

justice was unsupported by the facts. We review the

district court's factual findings with respect to

sentencing under the Guidelines for clear error. United

States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.

2005) ("Post-Booker, we continue to apply the same

standard of review to claims of erroneous fact-finding

with respect to the application of adjustments, i.e., we

review for clear error." (citations omitted)). There is no

clear error if the district court's finding is plausible in

light of the record as a whole. United States v.

Edwards, 303 F.3d 606, 645 (5th Cir. 2002). We give

deference to the credibility determinations of the

district court. United States v. Perez, 217 F.3d 323, 331

(5th Cir. 2000).

Section 8C1.1 of the Guidelines provides for an

increased offense level if "the defendant willfully

obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the course

of the investigation, prosecution, or sentencing of the

instant offense of conviction." U.S.S.G. § 3C1.1(A)

(2003). Trial testimony indicated that Harms concealed

at least one subpoenaed document relevant to his work

for Challenge Air, and that he told a Challenge Air

executive to deny that the document existed and to

18a

destroy any similar document. The PSR also reported

that Harms wrote a back-dated check to IF'L in order

to make it appear that he was repaying a loan from IF L

rather than receiving a salary. This was corroborated

by testimony from Hall, who stated that Harms showed

concern about the IFL money and asked him about the

date when government investigators began to ask

about Harms's employment. Given this evidence, the

trial court's conclusion that Harms obstructed justice is

plausible in light of the record as a whole. Accordingly,

we find no reversible error in the sentencing increase.

B

Harms also claims that the district court: (1) violated

the Ex Post Facto Clause of the Constitution by

applying the 2003 version of the Sentencing Guidelines,

resulting in a harsher sentence than would have been

imposed under the Guidelines in effect at the time of his

crimes; (2) miscalculated the amount of loss for

sentencing purposes; and (3) miscalculated the amount

of restitution. We do not reach Harms's Ex Post Facto

claim because we find that the court incorrectly

calculated the amount of loss for sentencing purposes

under either version of the Guidelines.’

In cases involving fraud, the defendant's sentencing

range under the Guidelines is calculated based on the

amount of loss resulting from the fraud. “Although the

determination of loss is a factual finding reviewed for

clear error, the court's choice of the method by which

losses are determined involves an application of the

sentencing guidelines, which is reviewed de novo."

United States v. Deavours, 219 F.3d 400, 402 (5th Cir.

2000). Harms claims that the district court erred in

19a

calculating the amount of loss as the total amount of

benefits Harms received during the period covered by

his false statements. He contends that the amount of

loss should not include any benefits to which he would

have been entitled absent fraud. We agree.

In United States v. Henry, the Tenth Circuit, applying

pre-amendment Guidelines, adopted the Government's

approach, defining the amount of loss as "the amount of

the benefits obtained,’ not the amount of benefits

obtained minus the amount that would have been

obtained if no false statement had been made." 164 F.3d

1304, 1310 (10th Cir. 1999) (quoting 18 U.S.C. § 1920).

The court cited the Seventh Circuit's statement in

United States v. Brothers that "if a claimant submits a

false 1032 statement he forfeits the entire disability

benefit even if he would have been entitled to a reduced

benefit if he had submitted an accurate form." 955 F.2d

493, 495 (7th Cir. 1993).°

The Fourth Circuit rejected Henry's approach in

United States v. Dawkins, 202 F.3d 711 (4th Cir. 2000).

The Dawkins court distinguished the amount of loss for

sentencing purposes from the amount of forfeiture of

benefits obtained through false statements, explaining

that

even if automatic forfeiture of the entire voucher

amount were required as a result of the false statement,

this does not mean that the amount forfeited by a

defendant constitutes a loss to the Government for

guidelines purposes. Forfeiture is a penalty imposed on

a criminal independent of any loss to the crime victim.

As Chief Judge Wilkinson recently explained, the

“procedures for forfeiture are set forth in a

20a

comprehensive statutory framework of their own, one

which is separate and apart from the sentencing

guidelines."

Dawkins, 202 F.3d at 714-15 (quoting United States v.

Weinberger, 91 F.3d 642, 644 (4th Cir. 1996)). The

Dawkins court relied on the Fourth Circuit's previous

decision in United States v. Parsons, 109 F.3d 1002 (4th

Cir. 1997). In Parsons, the court reasoned that "loss" for

purposes of the Guidelines was "the actual, intended, or

probable loss to the victims." The loss itself (whether

the actual or intended loss) is limited to the tangible

economic loss of the victim." Jd. at 1004. The court

noted that amount of loss generally did not include

interest accrued, and that loss is generally calculated

not as the entire amount involved in the fraudulent

scheme but rather as the amount paid minus the value

received. /d. (citing, inter alia, United States v.

Chatterji, 46 F.3d 1336, 1839-41 (4th Cir. 1995) (victim

of fraud who received full value for his money suffered

no loss)). Thus, the court concluded, amount of loss

should be limited to the amount fraudulently obtained

in excess of the amount to which the defendant was

lawfully entitled. Parsons, 109 F.3d at 1005. Relying on

Parsons, the Dawkins court concluded that the amount

of loss should be calculated as "the difference between

the amount of benefits Dawkins actually received and

the amount he would have received had he truthfully

and accurately completed the 1032 forms." Dawkins,

202 F.3d at 715.

For the reasons explained in Dawkins and Parsons, we

are persuaded that the Fourth Circuit is correct in

distinguishing the amount of forfeiture from the

amount of loss and in calculating the amount of loss

2la

based on the amount of excess benefits received as a

result of fraud. This result appears even clearer under

the 2003 version of the Guidelines applied by the

district court, which contains a special guideline for

cases involving government benefits providing that the

"loss shall be considered to be not less than the value of

the benefits obtained by unintended recipients or

diverted to unintended uses, as the case may be."

U.SS.G. § 2B1.1(n.3(F ii) (2003). For example, "if the

defendant was the intended recipient of food stamps

having a value of $ 100 but fraudulently received food

stamps having a total value of $ 150, loss is $ 50." Id.

Thus, we conclude that the district court misapplied the

Guidelines by calculating Harms's sentence based on

the total benefits received. See United States v. Urias-

Escobar, 281 F.3d 165, 167 (5th Cir. 2002) (Guidelines

commentary are given controlling weight unless plainly

erroneous or inconsistent with the Guidelines). Instead,

the amount of loss is the difference between the amount

the defendant actually received and the amount he

would have received absent the fraud.

By contrast, we reject Harms's assertion that the

district court erred in ordering restitution of all the

benefits Harms received. The plain language of 20

C.F.R. § 10.529(a) provides that "if an employee

knowingly omits or understates any earnings or work

activity in making a report, he or she shall forfeit the

right to compensation with respect to any period for

which the report is required." See also Brothers, 955

F.2d at 495 ("If a claimant submits a false 1032

statement he forfeits the entire disability benefit even

if he would have been entitled to a reduced benefit if he

had submitted an accurate 1032 form."); Dawkins, 202

F.3d at 714-15 (distinguishing between amount of

22a

forfeiture for purposes of restitution and amount of loss

for purposes of sentencing). Thus, the district court did

not err in ordering restitution of all the benefits Harms

received.

Vil

For the forgoing reasons we AFFIRM Harms's

conviction, VACATE the sentence, and REMAND for

further proceedings not inconsistent with this opinion.

CONCUR BY: EDITH H. JONES (in Part)

DISSENT BY: EDITH H. JONES (In Part)

DISSENT: EDITH H. JONES, Chief Judge,

concurring in part and dissenting in part:

This prosecution was brought to prove that Michael

Harms was failing to report outside compensation while

he received federal workers' compensation after an

injury suffered on the job as an air traffic controller. It

is, in my view, a very close case, because Harms was

clearly trying to steer within the letter of the reporting

requirements while keeping afloat the charitable

enterprise Challenge Air. His defense thus centered

around the contention that he _ received only

reimbursement of expenses that he incurred at Amber

for the benefit of Challenge Air; reimbursement of

expenses is not compensation for work performed, nor

is it "volunteer work for compensation." The Office of

Workers' Compensation Programs, he _ reasonably

contends, was only interested in compensation, i.e.,

receipt of funds for work performed that would

potentially offset the worker's federal benefits.

23a

Harms took the stand in his own defense, as did his

retired minister father. While there was considerable

competing testimony about the nature of some of the

payments Harms received, the government never

tackled Harms's proof that he _ received only

reimbursements for expenses from Challenge. A

rational jury could have found reasonable doubt about

the government's case. What turned the tide, I believe,

were three significant rulings. First, the court allowed

the government to prove only that Harms received

"funds," not compensation for work performed, from

Challenge. Second, the court refused to admit

numerous exhibits--other government forms--showing

that Harms never concealed his aviation activities from

either the Department of Labor or the FAA or his

treating physicians. This evidence was relevant to

Harms's state of mind when he filled out the forms at

issue here. Third, the court refused to admit medical

evidence concerning Harms's disability, stating that it

would confuse the jury and invite a verdict based on

sympathy. The prejudice to Harms from this refusal

was compounded when the government lawyer

outrageously implied, in her closing rebuttal argument,

that Harms's disability was fake. There was no

justification for the government's blatant attempt to

poison the well in this way--unless it, too, doubted the

strength of its case on the evidence before the jury.

Based on these trial errors, I would vacate the

conviction and remand for a new trial. Accordingly, I

respectfully dissent from the affirmance of the

conviction, but I concur with the decision to remand for

resentencing.

24a

~-------+------ Footnotes ---------------

nl Section 1841 provides in part:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises . . ., for the purpose of

executing such scheme or artifice or attempting so to

do, places in any post office or authorized depository for

mail matter, any matter or thing whatever to be sent or

delivered by the Postal Service, or deposits or causes to

be deposited any matter or thing whatever to be sent

or delivered by any private or commercial interstate

carrier, or takes or receives therefrom, any such matter

or thing, or knowingly causes to be delivered by mail or

such carrier according to the direction thereon, or at

the place at which it is directed to be delivered by the

person to whom it is addressed, any such matter or

thing, shall be fined under this title or imprisoned not

more than 20 years, or both.

‘18 U.S.C. § 1341.

n2 Section 1920 provides:

Whoever knowingly and willfully falsifies, conceals, or

covers up a material fact, or makes a false, fictitious, or

fraudulent statement or representation, or makes or

uses a false statement or report knowing the same to

contain any false, fictitious, or fraudulent statement or

entry in connection with the application for or receipt of

compensation or other benefit or payment under

subchapter I or III of chapter &1 of title 5, shall be

guilty of perjury ....

25a

18 U.S.C. § 1920.

n3 Unless otherwise specified, all references to the

indictment are to the superseding indictment.

n4 The original indictment used the word

"compensation" instead of "funds" in reference to the

money Harms received from Challenge Air.

nd Hall also testified that Hall Airways paid Harms's

son on several occasions to wash the company planes

with "a garden hose and a bucket of water," the only

time the company washed its planes. Hall made the

checks out to Harms's son, but delivered them to

Harms. Other testimony indicated that Harms

deposited these checks into his bank account. Harms

claimed he deposited the checks into his account only

because his son did not have a bank account.

Hall further testified that Harms helped arrange a

"jump-seat agreement" between Hall Airways and

Southwest Airlines that permitted Hall Airways

employees, including Harms, to fly for free on

Southwest Airlines planes. Hall testified that, as a

condition of such agreements, the flights must be for

personal rather than business use

n6 For the same reason, the district court did not err in

instructing the jury that knowledge of one government

agency should not be imputed to another. "A district

court has broad discretion in framing the instructions to

the jury and this Court will not reverse unless the

instructions taken as a whole do not correctly reflect

the issues and law." United States v. McKinney, 53 F.3d

664, 676 (5th Cir. 1995).

26a

n7 "A sentencing court must apply the version of the

sentencing guidelines effective at the time of

sentencing unless application of that version would

violate the Ex Post Facto Clause of the Constitution."

United States v. Kimler, 167 F.3d 889, 893 (5th Cir.

1999). An Ex Post Facto Clause violation occurs when

application of a current Guidelines results in a harsher

penalty than would application of the Guidelines in

place at the time of the offense. Jd. Post-2000 versions

of the Sentencing Guidelines fold former § 2F1.1,

addressing offenses involving fraud or deceit, into

current § 2B1.1, addressing basic economic offenses. In

at least some cases, application of § 2B1.] would result

in a harsher sentence than application of former §

2F'1.1. We do not reach the Ex Post Facto issue in this

case, however, because, for the reasons discussed infra,

we hold that the district court misapplied the

Guidelines in determining the "amount of loss" for

sentencing purposes.

n8 This court adopted a similar position in an

unpublished case, United States v. Wheeler, 79 Fed.

Appx. 656, 2003 WL 22469741 (5th Cir. 2003). In

Wheeler, we held that the defendants, recipients of

federal disaster relief payments, “intended to receive as

much disaster relief as they could, hence, they should

be charged with the full amount for sentencing.” 79 Fed.

Appx. 656, [WL] at *7. Both Wheeler and Henry

involved application of the pre-amendment Guidelines.

The Guidelines were amended in 2001 to revise the

special rule on determining loss in cases involving

government program benefits. Accordingly, we need

not express an opinion on whether Wheeler and Henry

were correct at the time.

27a

Filed: 10/18/2006

No. 04-10631

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE HARMS,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas, Dallas

ON PETITION FOR REHEARING EN BANC

Before Jones, Chief Judge, Davis and Garza, Circuit

Judges.*

Per Curiam

Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

requested that the court be polled on Rehearing EN

banc (Fed. R. App. P. and 5" Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

Footnote

*Chief Judge Jones dissents from the denial of

Rehearing En Banc.

28a

No. 04-10631

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Appellee,

v.

MICHAEL LEE HARMS, Appellant.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS DALLAS DIVISION

BRIEF FOR APPELLANT

Cass Weiland

Texas Bar No. 21081300

Robert A. Hawkins

Texas Bar No. 00796726

2001 Ross Avenue,

Suite 3000

Dallas, Texas 75201

214/758-1500

214/758-1550

Shirley Baccus-Lobe]

Texas Bar No. 01488000

The Oaks .

2929 Carlisle, Suite 250

Dallas, Texas 75204

(214) 220 8460

(214) 969-9060

November 3, 2004

ATTORNEYS FOR APPELLANT

29a

*

Following a jury trial, appellant was convicted of

having used the U.S. mails to fraudulently obtain

workers’ compensation benefits (counts 1-3), in

violation of 18 U.S.C. 1341, and perjury in connection

with the receipt of workers' compensation benefits, in

violation of 18 U.S.C. 1920 (counts 4-6) (Vol. 1 at 90;

Vol. 9).! He was sentenced to 33 months' imprisonment,

a $640 special assessment, and three (3) years'

supervised release; he was also ordered to pay

restitution in the total amount of the workers’

compensation received, $354,389.61 (Vol. 2 at 351; Vol.

10).

B. Statement of the Facts

Appellant served as an air traffic controller with the

Federal Aviation Administration (FAA). On November

25, 1996, he was taken by ambulance to the hospital

following a back injury sustained when his chair

collapsed (fell apart) at work (Vol. 5 at 122-123; Vol. 7 at

109-110, 177-153; G.Ex.1). The FAA's injury

compensation specialist (Metz) provided notice of his

injury to the Office of Workers’ Compensation

Programs (OWCP), the agency of the U.S . Department

of Labor (DOL) which adjudicates and administers all

injured federal civilian employee workers'

compensation (WC} claims (Vol. 5 at 73,104,123; Vol. 7

at 104-111; Vol. 8 at 42-44, G.Ex. 1). The notice provided

a description of the event, witnesses to the event, the

name and address of the initial attending physician, and

the injury specialist's preliminary evaluation (G.Ex.1).

At DOL, the matter was assigned to a claims

administrator (Muse) who evaluated the report and the

medical information and made the determination to pay

30a

the costs of the injury as well as compensation until, if

ever, appellant was able to return to work.’ In order for

the compensation to continue, periodic medical reports

are required (Vol. 5 at 62-64; Vol. 7 at 104-111). It was

rare for a person totally disabled to return to work

(Vol. 8 at 49). Thus, appellant's return to the job was

the exception, attributable in large measure to his

efforts to rehabilitate himself and to return to his job

(Vol. 7 at 112, 115-116, 122,187). The critical, if not

dispositive factor determining whether an employee

may return to work is clearance from the primary

physician (Vol. 5 at 67-68, 107, 108; Vol. 7 at 116-118;

Vol. 8 at 44-45). When the primary physician releases

the person to work, DOL sends the person to another

doctor for a second opinion (Vol. 8 at 45-46). In the

wake of a traumatic injury, the employee receives a

regular salary for 45 days and after that, if unable to

return to work, two-thirds or three-fourths of his

salary, depending upon whether there are dependents.

The compensation is not subject to federal income tax

(Vol. 5 at 64-65).

Once a year, the OWCP mails a questionnaire (a Form

1032) for the injured employee to report whether the

disability is ongoing, to report earnings from

employment during the previous fifteen (15) months,

and to report any change in the status of the employee's

dependents (Vol. 5 at 65-66, 69, 80-81, 84-85, 91-91).

Appellant received and answered these questionnaires

before returning to work in February of 2002. In each

of the forms specified in the counts of the indictment,

appellant answered that he had no earnings from

employment (including self-employment) during the

previous fifteen (15) months (with the exception of

modest rental income) (Vol. 5 at 79-81, 93-97, 101-102;

3la

G.Ex-2 (form mailed 7-13-99 and signed by appellant 5-

2-99), G. Ex.4 (form mailed 3-6-00 and signed by

appellant 3-27-00), G.Ex.5 (form mailed 3-1-01 and

signed 3-26-01)).

In addition to being an air traffic controller, appellant

was also a licensed pilot (Vol. at 166-167). Rick Amber,

a disabled former military pilot who was injured in

Vietnam when his plane crashed, founded Challenge

Air for Kids (Challenge), a charity which organized

events for terminally ill and disabled children, the focus

of which was allowing them to fly. Appellant provided

piloting and other volunteer services for Challenge and

eventually served on its board of directors. He

continued to do so during the period he was unable to

work as an air traffic controller (Vol. 5 at 12-13, 22-25,

29-30, 189-190; Vol. 6 at 16-18,48, 67-70; Vol. 7 at 67-67-

68, 70-71, 124-125, 183-184; Vol. 8 at 2-4, 9, 11-12, 15).

In 1997, Rick Amber passed away, but Challenge

continued, although the board's professional volunteer

membership initiated certain changes. (Vol. 5 at 21-23,

27; Vol. 6 at 18-23). During a Challenge board meeting,

appellant was made president and CEO of Amber

Aviation (Amber). He was elected to this "figurehead"

position because he was absent from the board meeting

due to surgery and the rest of the board "voiunteered"

him (Vol. 5 at 23; Vol. 7 at 127, 196, 223).

Rick Amber had formed Amber Aviation (a Challenge

subsidiary) to own the airplane Challenge used to fly

the children, believing this would create a liability

shield for Challenge in the event of an accident and

contemplating as well that Amber might generate

revenue from activities such as flight instruction (Vol. 5

32a

at 18-20; Vol. 7 at 127-128). On a volunteer basis,

appellant oversaw maintenance of the airplane (Vol. 6

at 47; Vol. 8 at 34). Amber did not function as an entity

independent of Challenge and, indeed, Amber had no

business and was not distinct from the charity (Vol. 5 at

21-23; Vol. 6 at 17-18, 21, 38-39; Vol. 7 at 51, 95-97, 127-

129, 146). On recommendation of one of the attorneys on

the Challenge board (an aviation law specialist), Amber

was being dissolved because the board determined that

it did not serve to shield Challenge from liability (Vol. 5

at 18-20, 21-23, 27; Vol. 6 at 138-16; Vol. 7 at 128-129).

Challenge and Amber were considered by the board

and others as the same entity (Vol. 4 at 180; Vol. 6 at 48;

Vol. 7 at 93-94, 96-97,154-155, 233-234, 263, 265, 271-272;

Vol. 7 at 25, 37-38, 46, 51; Vol. 5 at 38-34).

Appellant received no remuneration from Challenge or

Amber (Vol. 7 at 185-186; Vol. 5 at 37). The Challenge

board did reimburse expenses incurred by appellant

over a period of several years on behalf of Challenge

and Amber (Vol. 7 at 24, 26, 31 36,40,43-45,49-50,52-

54,61-63,75-76,78, 80-81,83,129-131,233-237 265-266; Vol.

8 at 33-37).

In addition to occasional flights for Challenge,

appellant, principally in order to advance his

rehabilitation, also sporadically flew flights which he

could tolerate physically for Hall Airways (Hall), after

his injury and before he was cleared to return to work

as a controller for the FAA (Vol. 4 at 183; Vol. 7 at 191-

192). When the owner of Hall learned appellant was a

pilot and first asked him to fly, appellant told him that

he was recovering from a broken back and had had to

learn to walk again. At that time, appellant walked bent

over and used a cane (Vol. 5 at 5; Vol. 7 at 73-74).

33a

Appellant told Hall that if he did fly, he could not be

paid because he was on disability from his job (Vol. 4 at

179; Vol. 7 at 189-191). The owner of the company

testified that appellant never became an employee of

Hall, never received a paycheck, and was never paid

compensation in any form for flying for Hall (Vol. 5 at 5-

6; Vol. 7 at 185-186). Appellant received only

reimbursement for expenses incurred (Vol. 5 at 6-7, 10 -

11; Vol. 7 at 223-226). After meeting appellant, the

owner of Hall also became involved in supporting

Challenge (Vol. 5 at 12-13). Although appellant did not

accept payment for his flights for Hall, he did suggest

that Hall instead donate money to the charity, and he

did so, in the total amount of $5,000.00-$6,000.00 (Vol. 4

at 180; Vol. 5 at 6).

In February 2000, appellant went to visit the FAA's

injury compensation specialist (Metz), who had handled

the WC claim initially, and requested to go back to

work as an air traffic controller (Vol. 7 at 112, 115, 122,

192-193). The specialist spoke with both DOL, including

OWCP, and the FAA air traffic control supervisors in

an effort to return appellant to work, but DOL declined

because appellant had not been cleared to return to

work by the primary physician. The FAA specialist also

advised DOL that appellant was flying airplanes and

that the air traffic managers wanted appellant back at

work but, again, DOL declined because he had not yet

been cleared by the "medicals." (Vol. 7 at 115-121).

In late 2000 and early 2001, appellant spent

considerable time in Michigan assisting a sister in

caring for another sister who was disabled. During this

period, he responded to a magazine advertisement for

pilots and began making short flights for IFL in

o4a

Michigan and, later between Tulsa and Dallas (Vol. 5 at

191; Vol. 7 at 197-201). According to IFL's owner,

appellant asked not to be paid for his services until his

retirement from the FAA was complete,’ but he (the

owner) asked appellant to accept a loan and he did,

although the owner also testified that he' did not expect

the loan to be repaid. (Vol. 4 at 120-121, 124-125, 128,

166-168).

Appellant gave the loan check he received from IF'L to

his father to repay a loan from his parents for the

purpose of refurbishing a house he owned and was

trying to sell (Vol. 5 at 190, 198; D. Exs. 152, 153, 154,

156). His father, however, urged appellant to defer

repayment of the loan to him and address instead his

outstanding credit card indebtedness. Appellant agreed

and therefore his father used the $13,000 check for

payment on appellant's credit card bill (Vol. 6 at 4-5).

Once the house sold, appellant repaid the loan from! his

parents (Vol. 7 at 210). Appellant repaid the IFL loan

but his check bounced because a payment which was to

have covered that repayment was delayed (Vol. 4 at

130-131, 145-146, 149-150; Vol. 7 at 207-209).

a6 OE

ARGUMENT

Il. THE EXCLUSION OF RELEVANT DEFENSE

EVIDENCE DEPRIVED APPELLANT OF A FAIR

TRIAL

A. Standard of Review

This Court reviews trial court rulings on the

admissibility of proffered evidence according to the

abuse of discretion standard. E.g., United States v.

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Katz, 178 F.3d 368 (5th Cir. 1999); United States v.

Pace, 10 F.3d 1106, 1115 (5th Cir. 1993). However,

"[tlhe review of erroneous evidentiary rulings in

criminal trials, is necessarily heightened." United States

v Nutall, 180 F.3d 182 (5th Cir. 1999). Moreover,

because the exclusion of defense evidence may impair

the fundamental right to present a defense, it is subject

to constitutional constraints embodied in_ the

Compulsory Process and the Due Process Clauses of

the United States Constitution. F.g., Taylor v. Illinois,

484 U.S. 400, 408-409, 108 S.Ct. 646, 98 L.Ed.2d 798

(1988); Chambers v. Mississippi, 410 U.S. 284, 298-302,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v

Texas, 388 U.S. 14, 19, 87S. Ct. 1920, 1923, 18 L.Ed.2d

1019 (1967).

B. Argument and Authorities

e The court below required the parties to submit their

exhibits and objections for its review prior to trial. At a

pretrial hearing, the court ruled on the admissibility of

exhibits -- without the benefit of hearing any evidence.

Of some 160+ documentary exhibits readied for trial by

appellant, the court admitted approximately twenty-six

(26). This was due primarily to the court's premature

and erroneous determination of relevancy in response

to wholesale government objections and_ the

government's improper use of motions in limine. (Vol. 2

at 159-166, 230-249; Vol. 3 at 12-26, 30-42,45-46,51-60).

These rulings for which appellant was permitted a

running objection (Vol. 3 at 41) persisted throughout

trial;

eVol. 5 at 116-117 (appellant foreclosed from asking

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whether the forms were actually reviewed or relied

upon, during the cross-examination of DOL witness,

who had just testified that the alleged "false

statements" were material);

eVol. 5 at 116 (appellant re-urges the pertinent medical

records, D.Exs. 41-109, but the court reiterates its

exclusion on grounds of relevancy);

eVol. 5 at 192 (testimony that appellant was

recuperating from back surgery at the time he flew for

IF L, refused with this caveat from the court: "we’re not

going to decide this case on sympathy."). Vol. 7 at 7

(The court reiterates that the medical records are not

admissible and also states: "I don't see the relevance of

his trying to get his job back");

eVol. 7 at 7-11 (The court concludes that it is not

relevant that the FAA knew he was flying; it is only

relevant if DOL knew);

eVol. 7 at 2-5 (court instructs counsel not to inquire

about appellant's work ethic);

eVol. 7 at 5-8 (government objects that evidence of

appellant's efforts to get his job back has been ruled

inadmissible and is misleading , confusing and takes the

jury's eyes "off the form"; court asks wliy it is relevant);

eVol. 7 at 119 (court excludes Metz’ memos to DOL

about the WC claim as having nothing to do with the

charges);

eVol. 7 at 194-195 (objection sustained to defendant's

testimony that he told the doctors he was flying and

that this was reflected in the reports);

eVol. 7 at 267 and Vol. 8 at 70-71 (testimony about

medical releases to work refused after government has

inquired about medical releases to work);

eVol. 8 at 40-42 (court adheres to earlier rulings

excluding the medical evidence, the Metz memos, and

appellant's single, proferred summary exhibit, a

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timeline).

The following fairly typifies the evidentiary rulings in

the case:

"Q. And every year don't they -- don't they fill out a

little checklist every year to indicate that they have

received the form?

A. The 1032?

Q. Yes, ma'am.

A. They are supposed to make sure that they have one

returned every year.

Q. Okay. And do they know whether such checklists

were executed in this case?

A. I don't have any direct knowledge of it, no.

Q. Would -- would that checklist typically also indicate

whether the claims examiner had current medical

information on file? [GOVERNMENT COUNSEL]:

Your Honor -- excuse me -- may we approach the

bench?

(Discussion at the bench with all counsel present.)

(GOVERNMENT COUNSEL]: The checklist that he's

referring to has been excluded by the court. He's

offered it previously and the court has excluded it.

THE COURT: Which exhibit?

[DEFENSE COUNSEL]: There's one -- there's three

of them. THE COURT: Did I exclude them?

[DEFENSE COUNSEL]: But I was just asking her

some questions about what they're used for.

THE COURT: It's been excluded. I don't understand

what all this is about. I -- I am close to instructing the

jury most of your questions have had nothing to do with

this lawsuit.

[DEFENSE COUNSEL]: If they won't let him come

back to work -THE COURT: What's that got to do with

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whether he lied or not? [DEFENSE COUNSEL]: He

was trying to came back to work.

THE COURT: What's that got to do with whether he

lied, whether he filed a false statement?

[DEFENSE COUNSEL]: Because it's not material.

They knew he was trying to come back to work. They

knew he was flying -

THE COURT: I don't follow that. I don't follow that. At

any rate - [DEFENSE COUNSEL]: Could I ask her if

the file indicates that they knew that he was flying

airplanes?

IGOVERNMENT COUNSEL|: That's also been

excluded by the court.

THE COURT: I don't remember whether it was

excluded but I don't know what it's got to do with

anything.

[DEFENSE COUNSEL|: Because, judge, if -- if -- if he

-- if they knew he was flying and they didn't make any -

- any inquiry, then it wasn't material that he was flying.

A handicapped person can fly an airplane, and the jury

needs to hear that.

THE COURT: I still don't see what that has to do with

what he's charged with here, so, no, I'll refuse that.

You can have your exception.

IGOVERNMENT COUNSEL]: May we have an

instruction to defense counsel not to refer any further

in front of the jury to items that have been excluded by

the court?

THE COURT: Well, he'll follow that." (Vol. 5 at 117-

120).

Although appellant was permitted to testify about his

injury, his efforts to return to work, and to a very

limited extent the FAA and DOL 's knowledge that he

was flying aircraft (Vol. 7 at 177-153, 193-194), the

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documentary evidence which would have corroborated

his representations in this regard was excluded in its

entirety (e.g., Def. Exs. 41-65, 68, 74, 76, 80, 81, 83-102;

e.g., Vol. 5 at 116-120, 192; Vol. 7 at 2-11, 119 194-195,

267; Vol. 8 at 40-42, 70-71), and cross-examination about

whether DOL actually reviewed or relied on the forms

was excluded as irrelevant (Vol. 5 at 116-117).

Footnotes

Vol. 1" refers to Volume One of the Record on Appeal.

Volume 3 is the transcript of the pre-trial conference.

Volumes 4 through 9 of the record on appeal contain the

transcript of trial proceedings. "Supp. R." is the

transcript of the sentencing. "RE." refers to the record

excerpts.

“Neither Muse nor any other claims examiner, nor Metz

(who handled the claim for FAA initially), were called

in the government's case-in-chief. Metz was called as a

defense witness.

® According to the office manager, "[hJe asked us not to

issue any payroll checks until he cleared up his

situation" (Vol. 4 at 168). Excluded defense evidence

would have demonstrated that even though he had

been released for partial duty by a DOL doctor at the

end of 2000, but DOL had not acted to restore him to

work because there was no release from the primary

physician at that time (R.E. at 152)(Dr. Selod)(Vol. 8 at

138).