Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60040

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM C. BRELAND, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:08-CR-85-1

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

PER CURIAM*

Defendant William C. Breland, Jr. appeals from a final judgment of

conviction entered by the United States District Court for the Southern District

of Mississippi for making a false claim to the Federal Emergency Management

Agency for Hurricane Katrina disaster relief benefits under 18 U.S.C. §§ 287 and

2, aiding and abetting another in making a false claim to FEMA for Hurricane

Katrina disaster relief benefits, making false statements to FEMA in violation

of 18 U.S.C. §§ 1001 and 2, theft of Government funds in excess of $1,000 under

United States Court of Appeals

Fifth Circuit

F I L E D

February 19, 2010

Charles R. Fulbruge III

Clerk

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No. 09-60040

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18 U.S.C. § 641, and three counts of mail fraud in violation of 18 U.S.C. §§ 1341

and 2. Breland challenges his convictions on the grounds that (1) the district

court committed reversible error by permitting the Government’s witness, Debra

Henry, to testify as a lay witness rather than as an expert witness, (2) Breland’s

Sixth Amendment right of confrontation was violated when the Government

failed to call as a witness the FEMA representative who took Breland’s

application over the phone, and (3) the evidence was factually insufficient to

support the convictions. For the reasons given below, we AFFIRM the district

court’s judgment.

I.

In December of 2004, Breland and his girlfriend, Amber Dungan, moved

from Arizona to the Mississippi Gulf Coast area. Between that date and the

landfall of Hurricane Katrina on August 29, 2005, Breland and Dungan moved

from place to place. For some time period during these months—the duration

of which was disputed at trial—Breland and Dungan stayed at the home owned

by Breland’s father at 4096 Olga Drive, Lot T, Pass Christian, Mississippi. In

September of 2005, Breland filed an application with FEMA for disaster relief

assistance for damages sustained to the home he claimed as his residence—4096

Olga Drive. Breland submitted his application information by telephone to a

FEMA agent, and his information was compiled in a file. As a result of his

application, FEMA awarded Breland $8,907.46 in disaster relief assistance:

$2,000 for expedited housing assistance, $2,358 for rental assistance, and

$4,549.46 for personal property loss. Breland also received a FEMA travel

trailer. 

Shortly thereafter, Breland’s father made a complaint to FEMA alleging

that Breland had fraudulently claimed to be living at the 4096 Olga Drive

residence at the time of Hurricane Katrina. According to Breland’s father,

Breland had stayed at the residence for a short period of time, but did not live

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3

at the address immediately prior to or during the time of Hurricane Katrina.

Following an investigation, Breland and co-Defendant Amber Dungan, were

charged in an eleven-count indictment for crimes relating to the alleged

fraudulent receipt of FEMA disaster relief benefits. 

In October of 2008, Breland and Dungan went to trial. The parties

contested whether Breland lived at the 4096 Olga Drive address prior to and at

the time of Hurricane Katrina, and whether this address was his “primary

residence” for the purpose of FEMA disaster relief eligibility. The Government

called as its first witness Debra Henry, a FEMA program specialist with twelve

years of experience, to testify about the policies and procedures followed by

FEMA at the time of Breland’s application. After a number of questions

concerning Henry’s years of experience and her specialized training, Henry was

asked to explain the legal basis for FEMA. At this point, Breland’s counsel

objected that Henry was providing expert testimony within the scope of Federal

Rule of Evidence 702, but the court did not rule on this objection and the

objection was never re-urged. Henry proceeded to testify about her role as a

registration intake specialist and the process FEMA used to take applications

for Hurricane Katrina relief. She also explained that to receive FEMA benefits,

applicants were required to prove, among other facts, that they lived in the

damaged home at the time of the disaster. 

After further questioning about FEMA’s procedures, the Government

moved to admit Government Exhibit 20, Breland’s FEMA application packet into

evidence under the business records exception to the hearsay rule pursuant to

Federal Rule of Evidence 803(6). Breland’s counsel objected that its admission

would deny Breland the right to confront his accuser because the records

contained hearsay, and he would not be able to cross-examine the FEMA

representative who recorded Breland’s information in the file. The objection was

overruled, and the application was admitted as a business record. 

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Following the admission of Breland’s application packet, Henry testified

about the process FEMA used to obtain the information in an applicant’s file.

She explained that when FEMA receives a Katrina disaster relief application

over the phone, the applicant is asked a series of questions from a designated

script, and each applicant is asked the same questions. Henry testified that

Breland’s file reflected that he provided 4096 Olga Drive as his address, and that

FEMA later identified this address as being Breland’s “primary residence.”

Henry testified that the Code of Federal Regulations defined primary residence

as where a person “resides for the majority of the year,” and that a showing of

“primary residence” was a mandatory criterion for receiving FEMA disaster

relief assistance. Henry further testified that the definition was not provided to

applicants upon registration, but that eligibility requirements were set out in the

copy of the “Help After a Disaster” Guide which each applicant received. The

Guide was admitted as Government Exhibit Four. 

Henry thereafter testified regarding the definition of “primary residence”

in the context of receiving FEMA disaster relief benefits, including which

representations made during Breland’s application intake would trigger his

eligibility for various forms of assistance. She also explained the significance of

certain factors critical to FEMA’s determination of eligibility for assistance, such

as the number of people residing in the home. On cross-examination, Breland’s

counsel brought forth further testimony from Henry on the topic of the definition

of “primary residence,” eliciting conflicting definitions and an admission that the

determination was not “black and white.” Breland’s counsel did not object to

any of Henry’s testimony regarding “primary residence” on the ground that it

exceeded the scope of proper lay witness testimony, and he did not move to strike

her responses on this subject on cross-examination.

Following Henry’s testimony, the Government called Jessica Duval,

Amanda McMahan, William Breland Sr., and FBI agent James Grunwald to

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5

testify about Breland’s residence prior to Hurricane Katrina. All testified that

Breland and Dungan did not live at 4096 Olga Drive continuously throughout

2005. The Defense called Breland’s uncle, Frank Patton, and Breland’s sister,

Angela Breland, to testify on his behalf. Both testified that Breland stayed at

4096 Olga Drive at various points during 2005, but that Breland also stayed

with various other people during that time period. Angela Breland testified that

Breland and Dungan had some personal property at the residence. At the close

of the three-day trial, Breland was convicted on all charges. In January of 2009,

he was sentenced to twenty-four months in prison and three years of supervised

release. He and Dungan were ordered to pay $29,619.66 jointly in restitution,

and Breland was ordered to pay a special assessment of $700.

II. 

A. Standard of Review

Breland argues that the district court erred in permitting Henry to testify

as to the meaning of the term “primary residence” when she had not been offered

or qualified as an expert. Before proceeding to the merits of the defendant’s

claim, we must first determine the proper standard of review. Both parties

suggested in briefing that “abuse of discretion” is the appropriate standard, but

our court “must consider the standard sua sponte because ‘no party has the

power to control our standard of review.’” United States v. Peltier, 505 F.3d 389,

391 n.1 (5th Cir. 2007) (quoting United States v. Vontsteen, 950 F.2d 1086, 1091

(5th Cir. 1992)). Where error is properly preserved by a timely objection, we

review a district court’s evidentiary rulings for abuse of discretion. See United

States v. Griffin, 324 F.3d 330, 347 (5th Cir. 2003). But where “the complaining

party failed to object at trial, we review only for plain error.” United States v.

Thompson, 454 F.3d 459, 464 (5th Cir. 2006). 

The record does not support Breland’s argument that he objected to the

testimony he now challenges on the basis of improper expert testimony. The

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6

Government first introduced the subject of “primary residence” by asking Henry

whether the definition of “primary residence” was given to FEMA applicants

during the telephone intake, and Henry responded that it was not given to the

applicants. The Government then asked Henry “What is FEMA’s definition of

primary residence?” Breland’s counsel objected, arguing that “[i]f [the

Government] didn’t give [the definition] to defendants, what difference would it

make what FEMA’s definition is?” Breland now contends that Henry’s response

and subsequent testimony should have been excluded as improper expert

witness testimony. Breland’s counsel objected to the relevance of the testimony,

not its characterization as impermissible expert testimony. Therefore, “our

review is only for plain error.” United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005). Breland’s counsel did make an objection based on impermissible

expert testimony much earlier in Henry’s testimony, when the government

asked “What is the legal basis for FEMA?,” but Breland does not challenge

Henry’s response to this question. Moreover, the court did not rule on this

objection, but stated that “I don’t know where she’s going with it. Let’s see.”

This statement indicated that the court needed to hear more of Henry’s

testimony before ruling on whether the objection could be sustained, but

Breland’s counsel did not reassert his objection when Henry testified about

FEMA’s definition of “primary residence.” In fact, Breland’s counsel never again

raised a Rule 702 objection throughout the remainder of her testimony.

 It is well-settled that a party must make a contemporaneous objection to

the disputed testimony, unless the court grants a continuing objection. C.P.

Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690, 696-97 (5th Cir. 2001); Bailey v.

S. Pac. Transp. Co., 613 F.2d 1385, 1389 (5th Cir. 1980) (per curiam); see United

States v. Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007) (finding error

preserved where the trial court granted defense counsel a “continuing objection

to [the] line of questions”). None was granted here, so we review for plain error.

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B. Analysis

Breland argues that the district court erred by (1) allowing Debra Henry

to testify as a lay witness when “[her] descriptions of her job duties support a

finding that she was an expert in the field of FEMA disaster relief assistance,”

and (2) admitting Henry’s testimony regarding the term “primary residence”—a

requirement for FEMA disaster relief defined in the Code of Federal

Regulations—on the ground that such testimony exceeds the scope of lay witness

testimony permissible under Federal Rule of Evidence 701. 

Rule 701 limits lay witness testimony to “those opinions or inferences

which are (a) rationally based on the perception of the witness, (b) helpful to a

clear understanding of the witness’ testimony or the determination of a fact in

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

within the scope of Rule 702.” Therefore, “any part of a witness’s opinion that

rests on scientific, technical, or specialized knowledge must be determined by

reference to Rule 702, not Rule 701.” United States v. Yanez Sosa, 513 F.3d 194,

200 (5th Cir. 2008). Our court has further clarified that the “distinction between

lay and expert witness testimony is that lay testimony ‘results from a process of

reasoning familiar in everyday life,’ while expert testimony ‘results from a

process of reasoning which can be mastered only by specialists in the field.’” Id.

(quoting Fed. R. Evid. 701, advisory committee’s note to 2000 amendments). 

Breland first argues that Henry testified as “an expert and specialist in

her field” without being offered as an expert rather than as a lay witness, as

demonstrated by Henry’s introductory testimony highlighting her experience

and training, her career as a program specialist, and her extensive credentials

in various aspects of FEMA procedural work. Henry’s qualifications have no

bearing on the admissibility of her testimony as a lay witness, as Rule 701 “does

not distinguish between expert and lay witnesses, but rather between expert and

lay testimony.” Fed. R. Evid. 701 advisory committee’s note. Henry’s

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 Had Breland’s counsel made proper objections to the disputed testimony and been 1

overruled, the ruling would then be treated as “the law of the case”—allowing Breland to

repeat and rebut the objectionable testimony while still preserving error. United States v.

Marshall, 762 F.2d 419, 425 (5th Cir. 1985). No such ruling was obtained, so the further

development of any impermissible expert testimony on cross-examination invited error into

the proceeding. “[W]here the injection of allegedly inadmissible evidence is attributable to the

action of the defense,” as it was in this case, “its introduction does not constitute reversible

8

introductory statements regarding her experience and training were used to

establish her personal knowledge of the FEMA policies and procedures about

which she later testified, and personal knowledge is a mandatory underpinning

of lay witness testimony. See Nat’l Hispanic Circus, Inc. v. Rex Trucking, Inc.,

414 F.3d 546, 550 (5th Cir. 2005). Breland here challenges the descriptive

testimony about Henry’s experience and training, not Henry’s opinions based

thereon. Henry’s introductory statements about her training and experience did

not automatically convert her testimony into expert testimony.

Second, Breland contends that the court erred by admitting Henry’s

testimony regarding the definition of “primary residence”—a mandatory

requirement for disaster relief assistance defined in the Code of Federal

Regulations. On direct examination, the Government asked Henry for “FEMA’s

definition” of the term “primary residence.” Henry responded that “the CFR

states that a primary residence is where a person resides for a majority of the

year.” Breland’s counsel made no objection to this statement. Later, on crossexamination, Henry gave conflicting definitions of the term “primary residence.”

Breland’s counsel pressed Henry further, posing various hypothetical questions

about whether certain persons could qualify for FEMA assistance when—for

various reasons—they were not actually occupying the home. Breland’s counsel

also elicited testimony from Henry stating that “[m]ost people would assume

primary residence is where you live.” These responses, elicited on crossexamination, more closely fit the definition of expert testimony than her directexamination testimony. Therefore, on this record, Breland has failed to 1

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No. 09-60040

error.” United States v. Martinez, 604 F.2d 361, 366 (5th Cir.1979) (citations omitted); see also

United States v. Caldwell, 586 F.3d 338, 348 (5th Cir. 2009) (finding no reversible error where

the “testimony elicited by the defense is closer to expert testimony than is the testimony of

which it complains”).

9

demonstrate that the admission of Henry’s response constituted clear error on the

part of the court. 

Breland’s argument fails for yet another reason. The FEMA “Help After

a Disaster” Guide, which was provided to all FEMA Hurricane Katrina relief

applicants, was admitted into evidence as Government Exhibit Four. The Guide

contained a detailed list of eligibility requirements for FEMA assistance.

Although the Guide did not mention “primary residence” by name, the Guide

required that the applicant’s home in the disaster area be that home in which the

applicant “usually live[s] and where [the applicant was] living at the time of the

disaster.” Because Henry’s testimony was cumulative of other admitted evidence,

he cannot show that the admission of this testimony constituted plain error.

III.

Breland also contends that his Sixth Amendment right of confrontation was

violated where the district court permitted the introduction of his FEMA file

without requiring the Government to produce the FEMA representative who took

his application over the phone. The Sixth Amendment requires 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. Alleged violations of the

Confrontation Clause of the Sixth Amendment are “reviewed de novo, but are

subject to a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465

(5th Cir. 2004). 

The Confrontation Clause of the Sixth Amendment excludes “testimonial”

out of court statements except where the witness is unavailable and the

defendant has had a prior opportunity to cross examine the witness. Crawford

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 The Declaration and Release form in the Guide required applicants to certify that “I 2

understand that, if I intentionally make false statements or conceal any information in an

attempt to obtain disaster aid, it is a violation of federal and state laws, which carry severe

criminal and civil penalties.” The form also informed applicants that information they

provided to FEMA could be given “to law enforcement agencies . . . where there may be a

violation or potential violation of the law.” 

10

v. Washington, 541 U.S. 36, 59 (2004). The Supreme Court has declared that a

statement is “testimonial” when it was made “under circumstances which would

lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 52 (citation omitted). The Government

here argues that presenting the FEMA representative who took Breland’s

application was unnecessary because the application was a business record.

Business records are “generally admissible absent confrontation . . .

because—having been created for the administration of an entity’s affairs and not

for the purpose of establishing or proving some fact at trial—they are not

testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539–40 (2009).

The Government contends that Breland’s application was a typical nontestimonial business record within the description set out in Melendez-Diaz.

Breland argues that the records are testimonial, and thus trigger the right to

confrontation, because they would “lead an objective witness reasonably to

believe that the statement would be available for use at later trial” because

telephone applicants were warned that providing false information could trigger

consequences. Specifically, Breland alleges that FEMA’s “Help After a Disaster”

Guide, which was provided to all applicants, warned that statements made in the

application could be used in a later trial against the applicant. The FEMA

2

records, although they do contain warnings pertaining to the applicant’s duty to

tell the truth, were business records created for the purpose of administering

federal disaster benefits swiftly and efficiently to those victims of Hurricane

Katrina who were eligible to receive assistance. The records are similar to the

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No. 09-60040

 Although Beets is an unpublished opinion which is not binding on this court, it is 3

persuasive authority and we adopt its reasoning. See 5th Cir. R. 47.5.4.

11

American Red Cross application in United States v. Beets. 242 F. App’x 968, 970 3

(5th Cir. 2007) (unpublished). In Beets, a case in which the defendant was

charged with fraudulently obtaining Red Cross benefits, we found no error where

the Government moved to admit the defendant’s Red Cross application without

the accompanying testimony of an American Red Cross employee. Id. Because

the Government was not proffering testimonial hearsay statements by the nontestifying witness, the court found no Confrontation Clause violation where the

application was admitted as a business record. Id. The Government did not offer

any hearsay statements from the intake representative in the instant case, so we

find no error in admitting the file without the testimony of the intake

representative.

Even if the information in Breland’s application could be considered

testimonial in nature, any error in failing to permit him to confront the intake

representative was harmless. Breland does not dispute the accuracy of the

information recorded by the FEMA intake representative, specifically that

Breland claimed to live at 4096 Olga Drive. Breland never argues that the intake

representative lied about this information, nor does he claim that this statement

was somehow recorded in error. Instead, Breland disputed at trial only FEMA’s

conclusion that 4096 Olga Drive was Breland’s “primary residence.” Breland

never claims to have made any statement regarding “primary residence” to the

representative who took his application information over the phone. Rather, both

parties agree that this conclusion was drawn from Breland’s statement that he

lived at the address — a statement he does not deny making — along with other

information provided in the application. Breland has demonstrated no injury

from being denied the opportunity to confront the intake representative, so

assuming arguendo that the district court erred, that error was harmless. 

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No. 09-60040

 A finding of “primary residence” may have been a definitive element in FEMA’s own 4

determination of who was qualified to receive benefits, but the definition of “primary

residence” was irrelevantto all but one of the counts upon which the defendant was convicted.

The sole exception was the count involving theft of government funds of more than $1,000, and

there was sufficient evidence apart from Henry’s testimony to convict on this count.

12

IV.

Breland argues that the district court erred in denying his Rule 29 motion

for judgment of acquittal, in which he argued that the evidence was factually

insufficient to support his conviction. In reviewing the sufficiency of the

evidence, we must “view the evidence and inferences drawn therefrom in the light

most favorable to the verdict, and we determine whether a rational jury could

have found the defendant guilty beyond a reasonable doubt.” United States v.

Mitchell, 484 F.3d 762, 768 (5th Cir. 2007) (citations omitted). Breland contends

that Henry’s inappropriate and conflicting testimony was the only testimony

offered to prove the definition of “primary residence,” and that Henry’s conflicting

definitions left the term in such a “state of uncertainty” that “it was impossible

for the jury to find that Mr. Breland acted with mens rea when he committed the

alleged fraud.” To the extent that the definition of primary residence was

relevant to the jury’s verdict, assuming arguendo that Breland’s contentions 4

about the testimonial definition of “primary residence” are correct, we find that

the listed eligibility requirements contained in FEMA’s “Help After a Disaster”

Guide admitted as Government Exhibit Four were sufficient to support the

conviction. 

CONCLUSION

Because Breland has not succeeded in making the showings necessary to

disturb the district court’s judgment, the judgment of the district court is

AFFIRMED.

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