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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2041%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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

EA EERIE i ORS TIALS TERT II A CS. SS NEE A ET EIS EAE AAT
| ARES SOT ANCE I NEIL LENE LG LE SEES SI RB DIE LEELE SEAS LNT EERIE LLA SENET INSEAD AAAS AEE
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
EFT IONS PUTED onesccsocincssevicetssenssinterseeieasicienialabinnasiile i
SRA OP RTT veciiciiasstinsiictcnuiitsedasceeicheatitieiiietdeieaanala iii
CURRIE TI isercesiosscscsssinhscnaeiicapiseneninesiish iain aadariatia a eas 1
FURST acitisctnesasiemnistintittienstaiasinitiniiidasesiadidicaieatdatti iia iil alae 2
RELEVANT PROVISIONS INVOLVED .......ccccccccoscsoseseccccsssoscocssoees 2
SOT AA TUCO icdicisicnssienisehtintithinibadeditinaemaniiiinnssiispicabaniidiiaiimmniiaiidaslieaeaed 3
REASONS FOR GRANTING THE PETITION. ..........c-csccceeesesseseseeeees 7
CTR IN ciccsricccecrivcnsinaisiresnrteniciineitacaehaieitbipamdehicaiciiaicacadaliiaitieaesacadal 21
APPENDIX
Fee Cer ee Cte CIN oincccstnstosiniiintnenrenesatiinniciaianid la
CDrabee Cmte TEA scsscscccasicitttchnscniesisciriaiiaiaticisstamnituaaseas 27a

Excerpts from Appellant’s Principal Brief in the
U.S. Court of Appeals for the Fifth Circuit ......ccccccsessseeees 28a

vit

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.

Ey ee IU setickcitejeabiciacsiseacisindenidinieitopoubbennnrauionecdenitiin 7, 9,11, 12
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

a is SMITE T ssoscdiincenadedasancosekcaipumeusdiiacbmindanaapbadannendatepanieiaelimmenidien 15
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
GE irc SEN hacidesercsidutinsnlosiecorderhsaniapisinbinbiaaiadanmaninaiaaat 3
FO RAs CU Scinicdintcsavaiutabietinssapeivisinduitetigncadacieumsnaaaeblinia: 3,12
SURE E IA Js Wee svi deswisicbia niecotsisarumecdiecohitentsentaaindespinsaiaaaaan 3
I EF Asa Th SME Ds ickiss vanschnrcspesiiepoiciutasetasthatbiadesebeimiiganstaueedioie 2

BEET TAN SIN cencsisiscsvnsicsistieccenassnnisnssunipecrenbestapeipletiabaamaatiadaes 3

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.

35a

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

36a

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

37a
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

38a
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

39a

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2041%3A1. Public record. Not legal advice.