United States Court of Appeals

for the Fifth Circuit

No. 19-50830

United States of America, 

Plaintiff—Appellee,

versus

Michael Herman; Cynthia Herman, 

Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:17-CR-301

Before Dennis, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Appellants Michael and Cynthia Herman owned and operated three 

restaurants in Texas. In early 2013, the Internal Revenue Service initiated an 

undercover operation to determine whether the Hermans’ business tax 

returns understated gross receipts and whether the Hermans claimed

personal expenses as business expenses on those returns. Following a fourday trial, a jury convicted the Hermans on one count of conspiracy to defraud 

the United States. The jury also convicted Michael of five counts and 

Cynthia of two counts of willfully filing false tax returns. The Hermanstimely 

appealed.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2021

Lyle W. Cayce

Clerk

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On appeal, the Hermans argue that the district court erred when it 

excluded defense exhibits, excluded the Hermans’ expert witness’s 

testimony, and limited the Hermans’ cross-examination of two Government 

witnesses. In addition, they argue that the district court’s cumulative errors 

deprived them of a fair trial. Separately, Cynthia also argues that Count One 

of the indictment was legally insufficient. For the reasons articulated below, 

we AFFIRM.

I.

Michael and Cynthia Herman, husband and wife, owned and operated 

three restaurants in Bastrop County, Texas: Cindy’s Gone Hog Wild, 

Cindy’s Downtown, and Hassler Brothers Steakhouse. Michael is a retired 

medic from the Houston Fire Department with an M.B.A. in marketing, and 

Cynthia is a former secretary with a high school degree. Both worked in and 

actively managed the restaurants.

A. IRS Investigation

The Internal Revenue Service (“IRS”) has a program called the 

Business Opportunity Project, which is designed to identify businesses that 

underreport income. Through this program, the IRS initiated an undercover 

investigation of the Hermans in early 2013. The IRS investigated the 

Hermans because they had listed one of their restaurants, Cindy’s Gone Hog 

Wild, for sale at an asking price that appeared high compared to its reported 

gross receipts. IRS Special Agent Daniel Vela assumed the identity of 

“Daniel Ramirez” and posed as an interested buyer. Over the course of the 

investigation, Agent Vela had three in-person meetings with the Hermans on 

May 9, 2013; May 30, 2013; and August 8, 2013. He also had phone 

conversations and exchanged text messages with Michael. Agent Vela was 

“wired” for all the meetings and phone conversations, and he recorded 10 

hours and 14 minutes of video and audio clips.

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During the undercover investigation, Michael and Cynthia made 

various statements to Agent Vela that suggested they did not include all the 

cash receipts generated by their restaurants on their financial reports and tax 

returns. For example, Michael told Agent Vela: “Because, you know, the 

cash, that’s something that . . . you can deal with and, and never has to make 

it to the bank.” The Hermans also suggested they used business funds to pay 

for their personal expenses. For example, Michael told Agent Vela: “[T]he 

IRS is not going to allow us to run this business the way we were running it. 

Paying our house, paying our utility, paying our car notes, paying everything 

without us showing we were making something.”

The Hermans’ account of their interactions with Agent Vela as 

“Daniel Ramirez” is that he was a “sleazy buyer” who “repeatedly” asked 

about “unreported cash.” They argue that any inculpatory statements they 

made were because they were trying to respond favorably to an interested 

buyer and sell their restaurant. The Hermans point to various exculpatory 

statements they also made to Agent Vela, including: “what you do with [the 

cash flow] is your business,” and “we’ve put every dime in the bank to make 

sure our business stays solid and solvent.”

After the undercover operation, the IRS executed search warrants on 

the Hermans’ home and three restaurants. IRS Special Agent Daniel Fannin 

became the lead agent coordinating the investigation. He concluded that the 

Hermans had not deposited all cash into their bank accounts and had paid 

personal expenses with business funds.

B. Procedural History

In 2017, a grand jury indicted Michael and Cynthia with one count of 

conspiring to defraud the United States in violation of 18 U.S.C. § 371 (Count 

One) and separate counts of willfully filing materially false tax returns in 

violation of 26 U.S.C. § 7206(1) (Counts Two through Seven). Counts Two 

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through Four pertained to personal tax returns and charged both Michael and 

Cynthia; Counts Five through Seven pertained to corporate tax returns and 

charged only Michael because only he signed those returns.

In 2019, Michael and Cynthia proceeded to trial, at which neither 

testified. After a four-day trial, the jury convicted both defendants on the 

conspiracy count (Count One), convicted Michael on five false return counts 

(Counts Two, Three, and Five through Seven), and convicted Cynthia on 

two false return counts (Counts Two and Three). Both Hermans were 

acquitted on one false return count for their 2012 personal tax returns(Count 

Four).

The district court sentenced Michael to 21 months’ imprisonment 

followed by three years of supervised release. The district court sentenced 

Cynthia to five years’ probation. Both were ordered to pay $157,719 in 

restitution to the IRS.

II.

The Hermans first argue that the district court erred when it excluded 

(1) certain audio recording excerpts of their conversations with IRS Agent 

Vela and (2) a transcript of the recorded conversations redacted to show only 

Agent Vela’s questions.1

1 We reject the Government’s contention that the Hermans waived their challenge 

to some of the excluded recordings. A litigant waives an issue if she or he “fails to 

adequately brief it.” United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). The 

Hermans specifically identify the excluded exhibits, provide record citations and 

arguments as to why they were erroneously excluded, and cite legal authority to support 

their arguments. See FED. R. APP. P. 28(a)(8)(A).

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A. Defense Exhibits

Before trial, the Government provided the Hermans with 16 audio 

clips it intended to play at trial totaling about 25 minutes of recorded 

conversations between the Hermans and Agent Vela (Government Exhibits 

57A through 57P). In response, the Hermans provided the Government with 

18 supplemental audio clips totaling an additional 43 minutes of conversation 

pulled from the same set of recordings(Defense Exhibits 32A through 32O).2

In urging the district court to admit their 18 supplemental audio clips, 

the Hermans relied on Federal Rule of Evidence 106. Premised on fairness, 

Rule 106 allows a party to introduce the remainder of a written or recorded 

statement when its adversary has selectively introduced another portion of 

that writing or recorded statement in a way that creates a misleading 

impression. See FED. R. EVID. 106. The Hermans asserted that their 

proffered clips provided necessary context for the jury, arguing that the 

Government had cherry-picked recordings of their incriminating statements 

but left out clips in which they made contradictory statements or clips in 

which Agent Vela prompted them to make the incriminating statements. 

The Government objected to the supplemental recordings as inadmissible 

hearsay, arguing that the Hermans were attempting to use their own out-ofcourt statements to establish certain facts and mitigate other damaging 

admissions without testifying at trial. In addition, the Government argued 

that Rule 106 was inapplicable because many of the clips the Hermans had 

moved to introduce were not made during the same conversation—or even 

the same day—as the inculpating statements they sought to mitigate.

2 Defense Exhibits 31A through 31R (audio recordings) correspond with Defense 

Exhibits 32A through 32O (transcripts). This opinion will refer to the transcripts in the 32 

series.

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The district court ruled that the Hermans could present supplemental 

audio recording clips on cross-examination as long as they were recorded on 

the same date and were about the same subject matter as the Government’s 

audio recordings. At trial, during the cross-examination of Agent Vela, the 

Hermans moved to admit 15 supplemental audio recordings into evidence. 

The district court denied their motion.

3

On appeal, Michael argues that the district court erred by excluding 

13 of the audio recordings, while Cynthia argues error for only ten of the 

excluded recordings. Cynthia also asserts that the district court erroneously

excluded a 35-page redacted transcript of recorded conversations that 

contained only the undercover agent’s questions to the Hermans. This 

redacted transcript contains Agent Vela’s questions from all his meetings and 

phone calls with the Hermans. Cynthia explains that the redacted transcript 

addressed the Government’s hearsay objections by removing the Hermans’ 

statements and leaving only Agent Vela’s questions and showed Agent Vela 

repeatedly asked questions about unreported cash in order to inculpate the 

Hermans.

B. Standard of Review

We review the district court’s exclusion of the Hermans’ exhibits as 

an evidentiary ruling for abuse of discretion, United States v. Branch, 91 F.3d 

699, 727 (5th Cir. 1996), subject to harmless error review, United States v. 

Portillo, 969 F.3d 144, 177 (5th Cir. 2020). “A district court abuses its 

discretion if it bases its decision on an error of law or a clearly erroneous 

assessment of the evidence.” Portillo, 969 F.3d at 168 (quoting United States 

v. Insaulgarat, 378 F.3d 456, 464 (5th Cir. 2004)). For an evidentiary ruling 

3 Nevertheless, it is notable that on recross-examination of Agent Vela, the district 

court allowed the defense to use two of their proffered audio clips.

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to constitute reversible error, it must have affected the defendant’s 

“substantial right.” FED. R. EVID. 103(a); see United States v. Sanders, 343 

F.3d 511, 519 (5th Cir. 2003). “Error is harmless if, in light of the whole 

record, the contested evidence did not contribute to the verdict.” United 

States v. Dixon, 185 F.3d 393, 398 (5th Cir. 1999).

The Hermans dispute the applicable standard of review. They argue 

that that the district court’s exclusion of their exhibits violated their Sixth 

Amendment rights to confront witnesses and present a complete defense,

and they urge us to review the district court’s ruling de novo, subject to 

harmless error review. United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 

2008). We reject this argument for two reasons.

First, our court has held that “[n]either the Constitution nor Rule 106 

. . . requires the admission of the entire statement once any portion is 

admitted in a criminal prosecution.” Branch, 91 F.3d at 729 (citations 

omitted). Nor does applying Rule 106 to “require[] that a defendant 

demonstrate with particularity the unfairness in the selective admission of his 

. . . statement[s]” violate a defendant’s constitutional rights. Id.

In addition, before the district court, the Hermans repeatedly relied 

on Rule 106, not the Sixth Amendment or any non-hearsay admissibility 

argument,4 to argue that the audio recordings should be admitted into 

evidence. While Michael’s counsel did suggest, pretrial, that exclusion of the 

recordings would violate the Hermans’ “constitutional rights,” he never 

particularized this concern and, specifically, he did not invoke the Sixth 

Amendment. Given the Hermans’ prior reliance on the evidentiary rules and 

4 Cf. Daniel J. Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule of 

Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 MINN. L. REV. 901

(2020) (giving an overview of federal court application of Rule 106 and the possibility of 

future revision to encompass the full breadth of the common law rule of completeness).

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their failure to make contemporaneous objections based on the Constitution, 

their attempts to recast their argument as a constitutional violation on appeal 

appear to be a post hoc recharacterization to obtain a more favorable standard 

of review, which we reject. Cf. Hadwani v. Gonzales, 445 F.3d 798, 801 (5th 

Cir. 2006) (per curiam) (rejecting a petitioner’s “constitutional claim” 

because it was “an abuse of discretion argument [cloaked] in constitutional 

garb” in an immigration law context (alteration in original) (quoting TorresAguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001))).

C. Discussion

Federal Rule of Evidence 106, which “partially codifies” the common 

law rule of completeness,5 “guards against admission into evidence of 

truncated statements likely to present an out-of-context picture to the jury.” 

United States v. Jones, 663 F.2d 567, 571 (5th Cir. 1981). Rule 106 provides:

If a party introduces all or part of a writing or recorded 

statement, an adverse party may require the introduction, at 

that time, of any other part—or any other writing or recorded 

statement—that in fairness ought to be considered at the same 

time.

5 The “rule of completeness” is a common law principle of evidence that was 

designed to address two concerns. First, the rule addresses the “concern that the court not 

be misled because portions of a statement are taken out of context.” Beech Aircraft Corp. v. 

Rainey, 488 U.S. 153, 171 n.14 (1988). Second, “the rule has also addressed the danger that 

an out-of-context statement may create such prejudice that it is impossible to repair by a 

subsequent presentation of additional material.” Id. (emphasis omitted). The rule 

alleviates this concern by allowing the additional material to be “considered 

contemporaneously” with the out-of-context statement. Id. at 172 (quoting FED. R.

EVID. 106). “Federal Rule 106 formally codifies the completeness doctrine only as to 

‘writings or recorded statement[s],’” not as to conversations or other oral statements. 

DAVID P. LEONARD & RICHARD D. FRIEDMAN, THE NEW WIGMORE:

SELECTED RULES OF LIMITED ADMISSIBILITY, § 5.7.3 n.40 (3d ed. 2020).

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FED. R. EVID. 106. Rule 106 requires the introduction of a writing or 

recorded statement only when the omitted portion is “necessary to qualify, 

explain, or place into context the portion already introduced,” and we 

analyze each of the excluded defense exhibits under this standard. Branch, 

91 F.3d at 728 (quoting United States v. Pendas-Martinez, 845 F.2d 938, 944 

(11th Cir. 1988)). While Rule 106 “encourages completeness in writings or 

recordings, it restricts a requirement of completeness by the qualification that 

the portion sought to be admitted must be relevant to the issues, and only the 

parts which qualify or explain the subject matter of the portion offered by the 

opponent need be admitted.” United States v. Crosby, 713 F.2d 1066, 1074 

(5th Cir. 1983). Rule 106 permits a party to correct an incomplete and

misleading impression created by the introduction of part of a writing or 

recorded statement; it does not permit a party to introduce writings or 

recorded statements to affirmatively advance their own, alternative theory of 

the case. Branch, 91 F.3d at 731; see also Capra & Richter, supra note 4, at 

913–14.

1. Defense Exhibit 32A

In Defense Exhibit 32A, the Hermans describe the origin of the name 

of one of their restaurants, Cindy’s Gone Hog Wild, and explain that the 

restaurant is famous “around the world.” Michael does not identify a 

misleading impression created by Government evidence or a corresponding 

Government Exhibit that 32A is “necessary to qualify, explain, or place into 

context.” The information contained in 32A has not been shown to be 

related to the Government’s allegations against the Hermans or its theory of 

the case. Thus, the district court did not err in excluding this exhibit.

2. Defense Exhibit 32B

In Defense Exhibit 32B, the Hermans tell Agent Vela that they started 

using a payroll service because they tried and failed to do payroll on their own. 

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The Hermans argue that 32B is necessary context for Government Exhibit 

57B, in which they tell Agent Vela how Pacesetter, their payroll service, 

works.6 The Government alleged that there were people on the Hermans’ 

payroll who did not belong on the payroll. At most, 32B shows that the 

Hermans decided to outsource their business’s payroll function when they 

were unable to perform it themselves. But 32B does not show that the 

Hermans had no involvement in payroll after it was outsourced. The district 

court did not abuse its discretion in deeming 32B not to be “necessary to 

qualify, explain, or place [57B] into context.”

3. Defense Exhibit 32C

In Defense Exhibit 32C, Michael tells Agent Vela that he and Cynthia 

each take a “small salary” and “anything left at the end of the year.” The 

Hermans argue that 32C is necessary context for Government Exhibit 57C, 

in which Michael tells Agent Vela that the Hermans’ business creates 

hundreds of thousands of dollars in “cash flow” and that “in 2008” the 

business was “paying for everything,” including the Hermans’ “cars” and 

“house.” The conversation in 32C is not about 2008; rather it is about the 

present time when the conversation was taking place: 2013. The district 

court did not abuse its discretion in deeming 32C not to be “necessary to 

qualify, explain, or place [57C] into context.”

4. Defense Exhibit 32D

In Defense Exhibit 32D, Agent Vela asks about getting more money 

out of the business, and Michael responds by discussing profit margins and 

investing more in marketing. The Hermans argue that 32D is necessary 

6 In their briefing, the Hermans identify a corresponding government exhibit for 

most of the proffered defense exhibits. We conduct our Rule 106 analysis based on these 

pairs of documents identified by the parties.

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context for Government Exhibit 57A, in which Michael states that the 

Hermans receive “$800 a month cash [from gaming machines] that’s just

. . . it’s whatever you’re going to do with that.” Michael’s discussion of

margins and marketing with Agent Vela does not “qualify, explain, or place 

into context” the fact that the Hermans made $800 per month in cash from 

the gaming machines in their restaurant.

5. Defense Exhibit 32E

In Defense Exhibit 32E, Cynthia and Michael invite Agent Vela to 

attend “Bike Night” at Cindy’s Gone Hog Wild, an event for which the 

Hermans “partner[]” with the Cowboy Harley-Davidson motorcycle club. 

The Hermans explain that the bikers “love[]” the restaurant and the place 

will be “frickin’ packed.” Michael does not identify a corresponding 

Government Exhibit. 32E shows that the Hermans considered themselves to 

have a thriving business based on local motorcycle club members’ patronage. 

This is not related to the Government’s allegations against the Hermans and 

thus has not been shown to be “necessary to qualify, explain, or place [a 

Government exhibit] into context.”

6. Defense Exhibit 32F

In Defense Exhibit 32F, Michael states: “All our cash deposits go 

through that bank.” The Hermans argue that 32F is necessary context for 

Government Exhibit 57A, in which Michael states that the Hermans receive 

“$800 a month cash [from gaming machines] that’s just . . . it’s whatever 

you’re going to do with that.” The Government’s exhibit implies that the 

Hermans did not deposit all of their cash into a bank. The Hermans’ exhibit 

suggests that they did. The Hermans’ exhibit, therefore, corrects the 

misimpression the Government’s exhibit alone creates, and the district court 

erred in excluding Defense Exhibit 32F.

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“[I]n light of the whole record,” however, this error was harmless. 

Dixon, 185 F.3d at 398. At trial, the Government established that, during the 

five-year period at issue, the total cash sales reflected in the Hermans’ pointof-sale system, in addition to the cash generated from gaming machines, 

exceeded the amount of cash the Hermans deposited into their business bank 

accounts by at least $570,000. Even without Michael’s statement about 

“$800 a month cash” from gaming machines, the jury had ample “basis to 

convict the defendants” based on the unreported cash sales reflected in the 

point-of-sale system alone. Portillo, 969 F.3d at 177.

7. Defense Exhibit 32G

In Defense Exhibit 32G, Michael tells Agent Vela that if Agent Vela 

“need[s]” “[a]nything else” he can “put a release together” and “forward 

it on to [the Hermans’] CPA.” The Hermans argue that 32G is necessary 

context for Government Exhibit 57C, in which Michael tells Agent Vela that 

the Hermans’ business creates hundreds of thousands of dollars in “cash 

flow” and that “in 2008” the business was “paying for everything,” 

including the Hermans’ “cars” and “house.” Cynthia characterizes 32G as 

Michael “telling Agent Vela to contact [the Hermans’] CPA.” But we read 

32G as an offer that Agent Vela can talk to the Hermans’ CPA through the 

Hermans and after Agent Vela signs a release. Regardless, the Hermans have 

not shown how Michael’s statement that “in 2008” the business “was 

paying for . . . everything” creates a misleading impression and therefore 

have not shown 32G to be “necessary to qualify, explain, or place [57C] into 

context.”

8. Defense Exhibit 32H

In Defense Exhibit 32H, Michael explains he is setting up a portable 

point-of-sale system for beer sales made at “beer troughs,” ice buckets set 

up away from the main bar where customers could order beer and food. The 

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Hermans argue that 32H is necessary context for Government Exhibit 52G, 

in which Cynthia states “there’s not going to be a paper trail” of cash sales 

and Michael also later states, “And if you’re looking for trail of cash, uh, 

that’s not going to exist.”

While the Government’s exhibit may create the general impression 

that the Hermans did not keep any record of cash sales, the Hermans’ exhibit 

does not alter that impression. 32H shows only that the Hermans were 

setting up a portable point-of-sale system at a beer trough on the day the 

conversation was recorded—a single transactional point that does not

“qualify, explain, or place into context” the Hermans’ broader accounting 

practices discussed in the Government’s exhibit.

9. Defense Exhibit 32I

In Defense Exhibit 32I, when discussing the point-of-sales system, 

Agent Vela asks, “How can you like, um, manipulate the sales a little bit, you 

know, so you have the right inventory and your numbers don’t get all screwed 

up?” to which Michael responds, “What do you mean? I don’t follow what 

you’re saying.” The Hermans argue that 32I is necessary context for 

Government Exhibit 57I, in which Agent Vela asks whether cash “gets rung 

up in the point of sales system,” and Michael answers, “There’s ways to 

manipulate that and to where it just doesn’t even . . . doesn’t happen.”

The Hermans argue that Agent Vela’s question in 32I introduces the 

concept of “manipulat[ing]” the point-of-sale system into their 

conversation. We agree. Agent Vela’s question prompted Michael, shortly 

thereafter, to characterize the point-of-sale system to appeal to a prospective 

buyer, including using the exact phrasing that Agent Vela had used earlier. 

Thus it does “qualify, explain, or place into context” Michael’s later 

statement for the jury. Consequently, the district court erred in excluding 

Defense Exhibit 32I.

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But this error was harmless. Our review of the record does not show 

that Michael’s statement “permeate[d] the record” or was even “a crucial 

part of the government’s case.” Portillo, 969 F.3d at 177 (alteration in 

original) (quoting United States v. Westmoreland, 841 F.2d 572, 579 (5th Cir. 

1988)). The Government did not rely on Michael’s statement about 

“manipulat[ing]” the point-of-sale system in its opening, closing, or rebuttal 

arguments at trial. Further, given the powerful other evidence the 

Government introduced at trial—including evidence of $94,000 of personal 

expenses paid with business funds and evidence that the Hermans did not tell 

their accountant about $570,000 made from sales in cash—the jury had 

ample other “bas[e]s to convict the defendants.” Id.

10. Defense Exhibit 32J

In Defense Exhibit 32J, Michael tells Agent Vela that “what you do 

with [the cash flow] is your business” but that he and Cynthia “put every 

dime in the bank to make sure [their] business stays solid and solvent.” 

Michael also states, “The cash flow’s there. . . . [T]he reason why I don’t 

pull, you know, the cash out of it is because I got behind the eight ball.” The 

Hermans argue that 32J is necessary context for Government Exhibit 57K, in 

which Agent Vela asks whether he can assume that he can “add in another 

seventy-five hundred dollars a . . . month that, you know, doesn’t get rung up 

and I can add it to my calculations” to which Michael answers, “Yes . . . . 

Seventy-five hundred and ten thousand dollars.”

Michael’s statement to Agent Vela that “what you do with [the cash 

flow] is your business” is one of his opening, unprompted remarks in their 

phone call. The conversation progresses over multiple topics, and it pivots 

when Agent Vela asks if “the gross receipts . . . are really better than what 

they are on paper,” which Vela says would “change[] everything.” Vela then 

asks Michael what the “true sales or gross receipts” of the business are, and 

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twice asks what sales aren’t “rung up” in calculating the restaurant’s gross 

receipts, before asking the question about seventy-five hundred dollars. 

Michael’s statement in 32J is not a response to and would not contextualize 

the portion of their conversation in 57K about “ringing up” cash sales.

32J also includes Michael’s statements that he is “not into” “fraud” 

and “deception,” and that he and Cynthia operated their business with 

“character and integrity.” Michael argues that these statements show he 

was running an honest business, and that his statements that he and Cynthia 

“put every dime in the bank to make sure [their] business stays solid and 

solvent,” and “the reason I don’t pull cash out of the business is because I 

got behind the eight ball,” were necessary to provide context for his later 

statement that Agent Vela could “add in another seventy-five hundred 

dollars a . . . month [in cash] that . . . doesn’t get rung up.” These statements, 

however, do not place the admitted portion of 57K into context to correct a 

distorted and misleading impression so much as they seek to separately 

provide an alternate narrative, which is not within the current restrictive 

scope and purpose of Rule 106. Branch, 91 F.3d at 731; see also Capra & 

Richter, supra note 4, at 913–14.

11. Defense Exhibit 32K

In Defense Exhibit 32K, Michael explains to Agent Vela that the 

Hermans are in debt because of a fire at the restaurant that “knocked [him] 

in the dirt” and made him “g[e]t behind the eight ball.”7

 Michael does not 

7 In December 2010, Cindy’s Gone Hog Wild was destroyed in a fire. In their 

conversations with Agent Vela, the Hermans shared that they were “in the middle of 

litigation” with their insurance company but had taken out high-interest loans to keep the 

business afloat until the insurance company paid out their claims. Michael explained to 

Agent Vela that he was “behind the eight ball” (i.e., in debt) from the fire, which is why he 

was interested in selling the restaurant.

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identify a corresponding Government Exhibit. 32K provides a rationale as to 

why the Hermans would have deposited all their cash into the bank: they were 

in debt from a recent fire at their restaurant and were trying to keep their 

business solvent. This provides broad context for their case, but Michael has

not shown that it “qualif[ies], explain[s], or place[s] into context” any 

specific Government allegation.

12. Defense Exhibit 32L

In Defense Exhibit 32L, Michael offers to show Agent Vela his tax 

returns. The Hermans argue that 32L is necessary context for Government 

Exhibit 57M, in which Michael shows Agent Vela “20 grand” in cash “from 

this past week,” stating “I just haven’t been to the bank.” The Hermans 

have not shown how Michael’s offer to show Agent Vela tax returns 

(reflecting previous years’ financials) “qualif[ies], explain[s], or place[s] into 

context” having tens of thousands of dollars of cash in his office.

13. Defense Exhibit 32O

In Defense Exhibit 32O, Michael tells Agent Vela that he and Cynthia 

draw a small salary (“almost 800 bucks a month between both of us”) once 

a month. The Hermans argue that 32O is necessary context for Government 

Exhibit 57P, in which Michael explains that beer sales result in large volumes 

of cash. The Hermans have not shown how the fact that they draw only a 

small salary for themselves “qualif[ies], explain[s], or place[s] into context”

the fact that beer sales in their restaurants generate large volumes of cash.

14. Defense Exhibit 139

Cynthia alleges that the district court erred in excluding Defense 

Exhibit 139, a 35-page redacted transcript of recorded conversations that 

contained only Agent Vela’s questions to the Hermans. Cynthia argues that 

the redacted transcriptshowed the probing nature of Agent Vela’s questions. 

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This high-level argument does not meet Branch’s standard that Defense 

Exhibit 139 is “necessary to qualify, explain, or place into context” another 

portion of the recorded conversation that is “already introduced.” Branch, 

91 F.3d at 728. 

In sum, we find no reversible error in the district court’s exclusion of 

the proffered defense exhibits.

III.

The Hermans next argue that the district court erred when it barred 

expert testimony from William Brown, a forensic accountant. 

A. Defense Expert Testimony

The Hermans sought to call William Brown, CPA and forensic 

accountant, as an expert witness at trial. Brown intended to testify about two 

topics: revenue and expenses. As to revenue, Brown would testify that the 

Government had overstated actual gross receipts of both Cindy’s Gone Hog 

Wild and Cindy’s Downtown by $409,000 because it had failed to deduct 

non-income items like loans and bank transfers. As to expenses, Brown 

would testify that he had identified about 400 transactions totaling $94,000

that could constitute business expenses paid from personal accounts, which 

he opined “should be considered as well as some sort of mitigating factor.” 

Brown did not intend to testify as to the Government’s main allegations 

against the Hermans: whether they had $570,000 worth of undeposited cash 

receipts or whether the personal expenses they paid through their business 

were, in fact, not personal expenses. Over the Hermans’ objections, 

ultimately, the district court excluded Brown’s testimony in its entirety as 

both irrelevant and confusing to the jury. Importantly, however, the district 

court deferred this assessment until trial, after the Government’s evidence 

was complete and the defense was able to proffer Brown directly as to his 

intended testimony.

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On appeal, Cynthia argues that the district court incorrectly 

concluded that Brown’s testimony was irrelevant, and the erroneous 

exclusion deprived her of “necessary evidence of her mental state.” She 

argues that by showing the jury that $409,000 in gross receipts were 

inadvertently included in their tax returns (which would have increased their 

tax liability) and that she frequently paid for business expenses with personal 

funds, the jury could have concluded that the Hermans were not trying to 

willfully conspire to defraud the United States but rather that they were just

bad at bookkeeping. Michael makes the same argument but frames it as a 

constitutional claim.8

B. Standard of Review

This court reviews “the district court’s decision to exclude expert 

witness testimony under an abuse of discretion standard, and the ruling will 

not be disturbed on appeal unless it is manifestly erroneous.” United States v. 

Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013) (emphasis added) (internal 

quotation marks omitted) (quoting United States v. Valencia, 600 F.3d 389, 

423 (5th Cir. 2010)).

8 Michael argues that the district court’s exclusion of Brown’s testimony violated 

his Sixth Amendment right to present a complete defense. The Supreme Court has 

recognized that the Constitution guarantees criminal defendants “a meaningful 

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) 

(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). But the Constitution also 

“leaves to the judges who must make these decisions ‘wide latitude’ to exclude evidence 

that is ‘repetitive . . . , only marginally relevant’ or poses an undue risk of ‘harassment, 

prejudice, [or] confusion of the issues.’” Id. at 689–90 (alterations in original) (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Further, as this court has recognized, 

the Supreme Court’s “cases typically focus on categorical prohibitions of certain evidence 

and not discretionary decisions to exclude evidence under general and otherwise 

uncontroversial rules.” Caldwell v. Davis, 757 F. App’x 336, 339 (5th Cir. 2018) (per 

curiam) (unpublished).

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C. Discussion

The district court excluded Brown’s testimony both as irrelevant and

as confusing to the jury. Under Federal Rule of Evidence 702, district courts 

act as gatekeepers to determine the relevance and reliability of expert 

testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). 

Federal Rule of Evidence 403 allows district courts to “exclude relevant 

evidence if its probative value is substantially outweighed by a danger of . . . 

misleading the jury.” FED. R. EVID. 403.

The Hermans argue that Brown’s testimony was relevant to two 

issues: their intent and materiality. Regarding intent, to convict for 

conspiracy under Count One, the Government needed to prove that the 

Hermans had “knowledge of the unlawful objective and voluntary agreement 

to join the conspiracy,” United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 

2010), and to convict under the remaining counts for filing false tax returns 

(Counts Two through Seven), the Government needed to prove that the 

Hermans acted “willfully,” 26 U.S.C. § 7206(1).

Regarding materiality, to convict under Counts Two through Seven, 

the Government needed to prove that the Hermans filed a tax return that 

they did “not believe to be true and correct as to every material matter.” 26 

U.S.C. § 7206(1). A false statement on a tax return is material if it has “a 

natural tendency to influence, or [is] capable of influencing, the decision of 

the [IRS].” Neder v. United States, 527 U.S. 1, 16 (1999) (first alteration in 

original) (quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)). This 

court has held that failing to report gross receipts is a material 

misrepresentation that can establish liability for filing false returns. United 

States v. Holladay, 566 F.2d 1018, 1020 (5th Cir. 1978) (per curiam).

In making its case to the jury, the Government relied on and 

repeatedly emphasized two facts: (1) through their restaurants, the Hermans 

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made $570,000 in cash that they did not deposit into the bank, did not tell 

their accountant about, and did not report on their taxes; and (2) the 

Hermans paid about $94,000 of personal expenses using business funds. 

Brown proffered that he would have testified about two different facts:

(1) the Hermans’ accountant, Greg Peden,9 had overstated gross receipts on 

the Hermans’ tax forms by $409,000 for the period between 2007 and 2012 

by failing to deduct non-income items like loans and bank transfers; and (2)

the Hermans paid about $94,000 in business expenses using personal funds.

First, the unreported cash, emphasized by the Government, and the 

overstated gross receipts, offered by the Hermans through Brown, are not 

related. Brown’s testimony would have related to errors that Peden made in 

preparing defendants’ tax returns—errors unrelated to the Hermans’ failure 

to fully disclose their cash receipts. Indeed, this is the reason that the district 

court excluded Brown’s testimony on this point: “[Brown’s recomputation 

of gross receipts] doesn’t bear upon at all on the issues of whether or not the 

Hermans failed to include cash receipts that the businesses have received on 

the appropriate returns.” Because Brown’s testimony about overstated 

gross receipts did not relate to the Government’s allegations, the Hermans’ 

argument that Brown’s testimony was probative as to their intent or 

materiality is without merit. 

9 Greg Peden, CPA, was the Hermans’ accountant since the late 1980s. Peden 

generated the Hermans’ financial statements, prepared the business tax returnsfor Cindy’s 

Gone Hog Wild, and prepared the Hermans’ individual tax returns. Peden prepared the 

tax returns that led to the Hermans’ indictment. He testified at the Hermans’ trial but was 

not charged with any crimes. Peden primarily relied on the Hermans’ bank statements to 

prepare financial statements and tax returns for the Hermans. It was Peden’s 

understanding that all of the revenues from the Hermans’ businesses were deposited into 

their bank accounts.

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Second, paying personal expenses using business funds, emphasized 

by the Government, and paying business expenses using personal funds, 

offered by the Hermans through Brown, do seem to be related in that they

are flip sides of the same coin—the Hermans sometimes paid business 

expenses with personal funds and sometimes paid personal expenses with 

business funds. The Hermans argue that such bookkeeping errors could have 

raised doubts as to whether they conspired to defraud the United States; the 

jury could have considered this testimony and concluded that the Hermans 

were not trying to willfully conspire to defraud the United States but rather 

their tax returns were incorrect because of the Hermans’ “ignorance, 

inattention, and poor bookkeeping.” In response, the Government argues 

that simply because the Hermans paid some business expenses with personal 

funds does not negate the evidence that establishes that the Hermans 

willfully paid personal expenses with business funds: the Hermans placed 

their childcare provider on the restaurants’ payroll and labeled personal 

expenses, such as maintenance of their home pool, with accounting codes for 

specific categories of business expenses.10

The fact that the Hermans paid for some business expenses using 

personal funds does not negate the fact that they paid for personal expenses 

using business funds. However, as the Hermans’ argue, it is plausible that 

the jury could have considered Brown’s testimony and inferred that the 

Hermans were incompetent bookkeepers, which could tend to negate the 

“knowledge” element of 18 U.S.C. § 371, Coleman, 609 F.3d at 704, and the 

“willful” element of 26 U.S.C. § 7206(1). The Supreme Court’s decision in

10 To assist Peden in his preparation of their financial statements and tax returns, 

the Hermans used a coding system on their checks. The Hermans put a code on each check 

to show its purpose, and Peden then used the codes to enter amounts onto a balance sheet. 

The Hermans elected to code their checks themselves to reduce fees they paid to Peden’s 

firm.

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Cheek v. United States, 498 U.S. 192 (1991), lends some credence to the 

Hermans’ argument. In Cheek, the Court held that, in the tax context, 

“willfulness . . . requires the Government to prove that the law imposed a 

duty on the defendant, that the defendant knew of this duty, and that he 

voluntarily and intentionally violated that duty.” Cheek, 498 U.S. at 201. 

The Court also held that a defendant’s good-faith belief that she was not 

violating the law need not be “objectively reasonable” to negate willfulness. 

Id. at 203. While instructive, however, Cheek is not on point because the 

Hermans are not claiming ignorance of the tax laws but rather that they made 

many mistakes in their efforts to comply with tax law.

Even if Brown’s testimony regarding the Hermans’ payment of 

business expenses with personal funds were relevant, such testimony had the 

potential to confuse the jury. The Government put on evidence that the 

Hermans paid $94,000 in personal expenses from business funds: “In total, 

between 2007 and 2012, defendants’ businesses paid more than $94,000 in 

personal expenses—$50,376 in wages for their nanny, $19,528 toward 

defendants’ residential electric bills, $5,274 toward their personal water bills, 

$7,049 toward defendants’ personal propane bills, $4,564 on their residential 

mortgage, and $1,458 toward defendants’ pool service.” Brown would have 

testified that the Hermans paid approximately $94,000—coincidentally, the 

same amount—in business expenses from their personal funds. But any 

probative value of Brown’s testimony would have been substantially 

outweighed by the risk of confusing the jury. FED. R. EVID. 403. The jury 

may have considered these two $94,000 amounts as cancelling each other 

out. Or the jury may have considered Brown’s analysis to be a recomputation 

of the Hermans’ tax deficiency, which the jury might have viewed as 

important but was actually irrelevant to the case. Indeed, Brown 

acknowledged on cross-examination in voir dire during his proffer, that his 

testimony would not have gone to whether the Hermans were depositing all 

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of their cash receipts, whether Agent Fannin’s work was correct regarding 

whether the Hermans had $570,000 worth of undeposited cash receipts, or 

whether the personal expenses that the Hermans paid through their business 

were, in fact, not personal expenses.

For the above reasons, and because of our deference to district courts’

evidentiary rulings, we find that the district court did not err in excluding

Brown’s testimony regarding the Hermans’ overstated gross receipts and 

payment of personal expenses with business funds. 

IV.

The Hermans next argue that the district court erred when it limited

cross-examination of two Government witnesses—Greg Peden, the 

Hermans’ accountant, and Agent Fannin11— about errors Peden made in 

violation of their Sixth Amendment confrontation rights.

“This court reviews claims of Sixth Amendment Confrontation 

Clause violations de novo and subject to a harmless-error analysis.” United 

States v. Gentry, 941 F.3d 767, 781 (5th Cir. 2019). “Once the Confrontation 

Clause of the Sixth Amendment has been satisfied, limitation of crossexamination is reviewed for abuse of discretion.” Id. (quoting United States 

v. Roussel, 705 F.3d 184, 194 (5th Cir. 2013)).

The Confrontation Clause provides that “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” U.S. CONST. amend. VI. The “primary interest” 

the Confrontation Clause secures is “the right of cross-examination.” Davis 

11 The Government argues that the Hermans waived this issue on appeal by 

inadequately briefing it. Both of the Hermansstate their arguments and provide supporting 

record citations and legal authority. As in supra note 1, we find the Hermans adequately 

briefed this issue on appeal and reject the Government’s waiver argument. 

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v. Alaska, 415 U.S. 308, 315–16 (1974) (quoting Douglas v. Alabama, 380 U.S. 

415, 418 (1965)). However, “[t]he district court has ‘wide latitude insofar as 

the Confrontation Clause is concerned to impose reasonable limits on such 

cross-examination based on concerns about, among other things, harassment, 

prejudice, confusion of the issues, the witness’ safety, or interrogation that is 

repetitive or only marginally relevant.’” Skelton, 514 F.3d at 439 (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). To establish a 

Confrontation Clause violation, “the defendant need only show that ‘a 

reasonable jury might have received a significantly different impression of the 

witness’s credibility had defense counsel been permitted to pursue his 

proposed line of cross-examination.’” United States v. Templeton, 624 F.3d 

215, 223 (5th Cir. 2010) (quoting Skelton, 514 F.3d at 439). “The 

Confrontation Clause . . . is satisfied where defense counsel has been 

‘permitted to expose to the jury the facts from which jurors . . . could 

appropriately draw inferences relating to the reliability of the witness.’” 

United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (quoting Davis, 415 

U.S. at 318).

The Hermans argue that by limiting cross-examination of Peden and 

Agent Fannin regarding Peden’s accounting errors, the district court 

prevented them from exposing facts to the jury that might have allowed jurors 

to infer that the Hermans’ faulty tax returns were the result of negligence or 

carelessness rather than willfulness. This argument is without merit. As 

discussed, supra section III, any miscalculation Peden made as to gross 

receipts on the Hermans’ tax returns is irrelevant to the issue of whether the 

Hermans failed to report cash receipts. Peden prepared their financial 

statements and tax returns based on the Hermans’ bank statements, but the 

Hermans allegedly hid cash from Peden by not depositing it in the bank in the 

first place. So any errors Peden made are unrelated to the conduct—not 

depositing cash—on which the Government based its case against the 

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Hermans. The district court properly exercised its “wide latitude” and 

“impose[d] reasonable limits” on cross-examination based on “concerns 

about . . . confusion of the issues . . . [and] interrogation that is . . . only 

marginally relevant.” Skelton, 514 F.3d at 439. There was no Confrontation 

Clause violation in the district court’s limiting of cross-examination of Peden 

and Agent Fannin.

V. 

Cynthia argues that Count One of the indictment was legally 

insufficient. We review a preserved challenge to the sufficiency of the 

indictment de novo. United States v. Grant, 850 F.3d 209, 214 (5th Cir. 2017).

Count One charges Michael and Cynthia with violating 18 U.S.C.

§ 371. This statute criminalizes conspiracy (1) “to commit any offense 

against the United States” or (2) “to defraud the United States.” 18 U.S.C. 

§ 371. Count One charges the Hermans with violating the second clause, 

referred to as the “defraud clause.”

Cynthia argues that Count One of the indictment is legally insufficient 

because it failed to include an essential element: that “the alleged fraud be 

directed at a foreseeable government proceeding.” This is not a recognized 

element of § 371. Cynthia’s legal theory is that this court should extend a 

rule announced in a recent Supreme Court case, Marinello v. United States, 

138 S. Ct. 1101 (2018)—to convict under 26 U.S.C. § 7212(a)’s omnibus 

clause, the Government must show a “nexus” between the defendant’s 

conduct and a pending or reasonably foreseeable tax-related proceeding, such 

as an investigation or audit, id. at 1109–10—and apply it to § 371. We decline 

to apply Marinello’s nexus requirement to § 371’s defraud clause and 

accordingly hold that Count One charged all essential elements and was 

therefore legally sufficient.

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Supreme Court jurisprudence on § 371 is well settled. Nearly 100 

years ago, the Court considered the predecessor of § 371 and announced that 

“[t]o conspire to defraud the United States means primarily to cheat the 

government out of property or money, but it also means to interfere with or 

obstruct one of its lawful governmental functions by deceit, craft or trickery, 

or at least by means that are dishonest.” Hammerschmidt v. United States, 

265 U.S. 182, 188 (1924). Subsequent decisions have repeatedly reaffirmed 

Hammerschmidt’s construction of the defraud clause. E.g., Tanner v. United 

States, 483 U.S. 107, 128 (1987); Dennis v. United States, 384 U.S. 855, 861 

(1966); United States v. Scharton, 285 U.S. 518, 521 (1932). Our court has also 

repeatedly relied on Hammerschmidt and its progeny when considering 

conspiracies charged under the defraud clause. E.g., United States v. Martin, 

332 F.3d 827, 834 (5th Cir. 2003); United States v. Hopkins, 916 F.2d 207, 213 

(5th Cir. 1990); United States v. Haga, 821 F.2d 1036, 1038–41 (5th Cir. 1987).

The recent Supreme Court decision in Marinello v. United States lives 

in a separate vein of law. In Marinello, a jury convicted the defendant for 

violating, among other criminal tax statutes, the “omnibus clause” of 26 

U.S.C. § 7212(a), which criminalizes conduct that “corruptly or by force or 

threats of force . . . obstructs or impedes, or endeavors to obstruct or impede, 

the due administration of [the Internal Revenue Code].” At issue was the 

scope of the statutory phrase “due administration of [the Internal Revenue 

Code]” and whether it “cover[ed] routine administrative procedures that are 

near-universally applied to all taxpayers, such as the ordinary processing of 

income tax returns” or whether the phrase had a “narrower scope.” 138 S. 

Ct. at 1104. The defendant argued that the phrase should be interpreted to 

have a narrow scope that would require the Government to show that he had 

tried to interfere with a “‘pending IRS proceeding,’ such as a particular 

investigation.” Id. at 1105.

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The Supreme Court agreed with the defendant and announced a new 

rule: to convict under § 7212(a)’s omnibus clause, the Government must 

show a “nexus” between the defendant’s conduct and a pending or 

reasonably foreseeable tax-related proceeding, such as an investigation or 

audit. Id. at 1109–10. In reaching this decision, the Supreme Court 

considered § 7212(a)’s legislative history, id. at 1106–07; the broader context 

of the Internal Revenue Code, id. at 1107–08; and another Supreme Court 

case, United States v. Aguilar, 515 U.S. 593 (1995), that established a nexus 

requirement for the “similarly worded criminal statute” 18 U.S.C. § 1503(a), 

id. at 1105–06. The Marinello Court did not address, cite, or analogize to 18 

U.S.C. § 371 or Hammerschmidt and its progeny.

Cynthia’s only argument that Count One of the indictment is legally 

insufficient is that it failed to include the Marinello nexus requirement that 

“the alleged fraud be directed at a foreseeable government proceeding.” She 

advances plain text and policy arguments, but they are not persuasive.

First, Cynthia asserts that because § 371 criminalizes “obstruct[ion]

. . . of . . . lawful governmental functions by deceit,” Hammerschmidt, 265 

U.S. at 188, and because § 7212(a) criminalizes tax obstruction, the two 

statutes have “identical” “obstruction element[s].” This argument fails 

based on the plain text of § 7212(a) and § 371. Marinello turned on the 

interpretation of a statutory element that does not exist in and has no bearing 

on § 371. To violate the omnibus clause of § 7212(a), a defendant’s conduct 

must “obstruct . . . the due administration of [the Internal Revenue Code].” 

26 U.S.C. § 7212(a). This “due administration” element does not appear in

§ 371. Rather, 18 U.S.C. § 371 penalizes conduct that “defraud[s] the United 

States.”

Second, Cynthia asserts that the policy concerns that animated the 

Marinello Court—“deference to Congress and the need for fair warning”—

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“apply with equal force to a conspiracy to defraud by obstruction.” This is 

similarly unpersuasive. Regarding deference to Congress, the Marinello

Court examined the legislative history specific to § 7212, which bears little if 

any relevancy to the interpretation and application of § 371. Regarding the 

need for “fair warning,” the Marinello Court was concerned that interpreting 

§ 7212’s omnibus clause “as applying to all Code administration would 

potentially transform many, if not all” minor violations of IRS rules—such 

as “pay[ing] a babysitter $41 per week in cash without withholding taxes”—

into felonies for tax obstruction. Marinello, 138 S. Ct. at 1107–08. There is 

no similar risk of boundlessness in § 371 convictions. The Supreme Court 

has made it clear that violation of § 371’s defraud clause requires obstructing 

“lawful governmental functions by deceit, craft or trickery, or at least by 

means that are dishonest.” Hammerschmidt, 265 U.S. at 188.

Persuasively, the only two circuit courts that have considered 

extending the Marinello nexus requirement to § 371 have declined to do so. 

The Second Circuit announced that Marinello was “inapposite” when 

considering a § 371 conviction because “in that case, the Supreme Court 

analyzed 26 U.S.C. § 7212(a)’s unique text, context, and history—which are 

wholly unrelated to § 371’s defraud clause.” United States v. Atilla, 966 F.3d 

118, 131 (2d Cir. 2020). Similarly, the Eighth Circuit rejected Marinello as 

inapt because “the broad language in § 371 makes no reference to ‘the due 

administration [of the Internal Revenue Code].’” United States v. Flynn, 969 

F.3d 873, 879–80 (8th Cir. 2020) (alteration in original), cert. docketed, 20-

1129 (Feb. 17, 2021). Here, the district court declined to extend Marinello to 

the Hermans’ case for the same reason: “[t]he limitations on the substantive 

offense of 26 U.S.C. § 7212(a) do not apply to . . . conspiracies charged under 

the general conspiracy statute of 18 U.S.C. § 371.” United States v. Herman, 

No. AU-17-CR-301-XR, 2019 WL 1865284, at *2 (W.D. Tex. Apr. 24, 2019).

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In sum, we join our sister circuits in declining to extend the Marinello

nexus requirement to § 371’s defraud clause, and accordingly hold that Count 

One of the indictment is legally sufficient.

VI.

Finally, the Hermans argue that the cumulative effect of the district 

court’s trial errors requires the reversal of their convictions.

“A fair trial in a fair tribunal is a basic requirement of due process.” 

In re Murchison, 349 U.S. 133, 136 (1955). “[T]he cumulative error doctrine 

. . . provides that an aggregation of non-reversible errors (i.e., plain errors 

failing to necessitate reversal and harmless errors) can yield a denial of the 

constitutional right to a fair trial, which calls for reversal.” United States v. 

Munoz, 150 F.3d 401, 418 (5th Cir. 1998). “Cumulative error justifies 

reversal only when errors so fatally infect the trial that they violated the trial’s 

fundamental fairness.” United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 

2012) (en banc) (internal quotation marks omitted) (quoting United States v. 

Fields, 483 F.3d 313, 362 (5th Cir. 2007)). Put another way, “[t]he doctrine 

justifies reversal only in the unusual case in which synergistic or repetitive 

error violates the defendant’s constitutional right to a fair trial.” Id. This 

court has “repeatedly emphasized” that the cumulative error doctrine 

“necessitates reversal only in rare instances” and “the possibility of 

cumulative error is . . . practically never found persuasive.” Id. (quoting 

Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992) (en banc)).

Because we have found that the district court did not commit 

reversible error in any of the issues presented in this case, “there are no 

errors that we could aggregate to find cumulative error.” United States v. 

Eghobor, 812 F.3d 352, 361 (5th Cir. 2015).

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VII.

In conclusion, the district court did not reversibly err in its evidentiary 

rulings nor infringe on the Hermans’ Sixth Amendment rights to confront 

witnesses and present a complete defense, the indictment was legally 

sufficient, and there was no cumulative error requiring the reversal of the 

Hermans’ convictions. AFFIRMED.

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