IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30742

UNITED STATES OF AMERICA

Plaintiff - Appellee,

v.

KERN CARVER BERNARD WILSON; DURWANDA ELIZABETH MORGAN

HEINRICH,

Defendants - Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:08-CR-128

Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

For these challenged convictions for bribery of public officials during

reconstruction in the aftermath of Hurricane Katrina, primarily at issue is

whether one of the defendants, Kern Wilson, qualifies as a “public official”

within the meaning of the bribery statute. Error is also claimed for the

restriction placed on cross-examination of a Government-witness co-conspirator,

and three trial evidentiary rulings. AFFIRMED.

United States Court of Appeals

Fifth Circuit

F I L E D

November 15, 2010

Lyle W. Cayce

Clerk

 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.

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I.

The bribery and conspiracy at issue concerns the bid process for the

enlargement and reconstruction of the Lake Cataouatche Levee, a project located

south of New Orleans and part of post-Katrina reconstruction projects

supervised by the United States Army Corps of Engineers (USACE). In

September 2005, soon after Katrina, Wilson, a retired Army officer and civil

engineer, moved to New Orleans, seeking work as a recovery consultant on such

projects.

In July 2006, after a brief stint with an emergency-relief consortium,

Wilson joined Integrated Logistical Support, Inc. Engineering (ILSI), working

under contract for USACE. Wilson’s work concerned projects related to

construction of embankment protection along coastal waterways. It was while

working earlier with the above-referenced emergency-relief consortium that

Wilson met defendant Elizabeth Heinrich, a supplier of dirt and sand to various

construction projects. Wilson and Heinrich became friends and romantically

involved.

In addition, soon after joining ILSI, Wilson met Raul Miranda, an engineer

who, inter alia, assisted USACE in evaluating and reviewing bids for the Lake

Cataouatche project. Part of Miranda’s work entailed identifying deficiencies

with the bid proposals for USACE’s contract-selection committee.

Through their work together, Wilson and Miranda became friends; their

desks were next to each other; and Miranda rented a duplex directly above

Wilson’s apartment. Heinrich met Miranda during her visits to Wilson’s

apartment.

Heinrich was seeking work with USACE and made well-known her

interest in obtaining a contract on a USACE project. Her goal was to qualify as

a sub-contractor for the Lake Cataouatche project (the project), furnishing sand

and gravel to the prime contractor working the levee construction. During one

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of her visits to Wilson’s apartment, Heinrich approached Miranda for

information: she asked him to identify the prime contractor qualified to win the

Lake Cataouatche contract. This would inform her which contractor to approach

in her efforts to win a sub-contract.

USACE’s bid process for the project operated on a “best-value approach”.

For it, USACE assigned value to factors besides price (e.g., technical approach,

scheduling) and awarded the contract to the proposal deemed best overall value.

Unlike the low-bid process, where bids are typically made open to the public, the

best-value approach is not so disclosed. Instead, the bids are kept sealed and

only after the proposals are evaluated for addressing specific considerations

related to the project are contractors given an opportunity to address any

deficiencies and revise their proposals.

To prevent contractors from gaining unfair advantage during such bid

process, USACE requires all engineers, whether Government employees or

Government contract employees like Wilson and Miranda, to sign a Procurement

Integrity Act (PIA) statement. The statement informs its signatories that

source-selection and bid-proposal information constitute “proprietary

government information” and must be kept confidential. Wilson and Miranda

signed this PIA statement.

Following a tip from Miranda, Heinrich decided to support a proposal from

Manson Gulf, LLC, one of the prime contractors bidding on the project. Miranda

agreed to provide Heinrich and Wilson with information necessary for Manson

Gulf to correct technical deficiencies in its bid. In addition, Miranda made clear

he expected payment for the confidential information he was relaying to

Heinrich about that bid. Heinrich, Miranda, and Wilson agreed Miranda and

Wilson would each receive $0.25 per cubic yard of fill material sold by Heinrich

to Manson Gulf for the project.

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Following their agreement, and after Manson Gulf submitted its Lake

Cataouatche bid to USACE, Heinrich contacted Mayeux, the head of Manson

Gulf’s levee division. Heinrich told Mayeux his bid had flaws and she could help

him correct them. Heinrich then obtained information from Miranda about that

bid. On multiple occasions between 25 September and 3 October 2006, Heinrich,

Miranda, and Wilson met to discuss the summary of technical deficiencies in

Manson Gulf’s proposal. On some occasions, Wilson would obtain the technical

information from Miranda at work and relay it to Heinrich that evening.

Between 28 September and 2 October 2006, Heinrich contacted Mayeux via

telephone, fax, and e-mail, with information identifying technical deficiencies

in his proposal and solutions to address them. Mayeux then used Heinrich’s

suggestions to respond to questions during Manson Gulf’s oral presentation to

USACE’s source-selection committee. According to Miranda’s trial testimony,

he had fed some of those questions to that committee, knowing they would help

Manson Gulf’s proposal.

In the light of this provided data, Mayeux suspected Heinrich had obtained

her information from an inside source at USACE. Mayeux informed USACE,

which then contacted federal law enforcement. At the behest of the Army’s

Criminal Investigative Division (CID), Mayeux recorded conversations with

Heinrich in which she acknowledged having an inside source at USACE. In that

regard, she even told Mayeux at one of these meetings, when he advised her to

remain while he briefly left the room, “don’t bring the FBI [back] with you”. CID

intervened and brought the conspirators’ activities to an end. Miranda

cooperated with Government investigators; pleaded guilty to bribery, in violation

of 18 U.S.C. § 201(b)(2)(B); and received, inter alia, four-months’ imprisonment.

Pursuant to his plea agreement, Miranda agreed to testify at trial against

Wilson and Heinrich.

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Heinrich was indicted on: one count of conspiracy to commit bribery, in

violation of 18 U.S.C. § 371; and two bribery counts (one each for Wilson and

Miranda), in violation of 18 U.S.C. § 201(b)(1)(B). Wilson was indicted on: one

count of conspiracy to commit bribery, in violation of 18 U.S.C. § 371; and one

bribery count, in violation of 18 U.S.C. § 201(b)(2)(B). Following a jury trial in

2009, they were convicted on all counts. Heinrich and Wilson were sentenced,

inter alia, to 60 and 70 months’ imprisonment, respectively.

II.

Although Wilson and Heinrich present several claims, Heinrich does not

challenge her bribery conviction concerning Miranda. At issue are: the district

court’s restriction of Miranda’s cross-examination; its ruling Wilson was a

“public official” within the meaning of the bribery statute and, therefore, not

submitting this “public official” question to the jury; and three trial evidentiary

rulings.

A.

Regarding the limitation on Miranda’s cross-examination, in claimed

violation of the Sixth Amendment’s Confrontation Clause, defendants assert the

district court improperly blocked them from establishing Miranda’s lack of

credibility and motive to lie, by curtailing questions about the detail and scope

of his plea agreement. Such claimed violations are reviewed de novo; if no Sixth

Amendment violation exists, the cross-examination limitation is reviewed for

abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir.

2006).

The Sixth Amendment guarantees a criminal defendant the right to crossexamine witnesses testifying against him. E.g., Davis v. Alaska, 415 U.S. 308,

315 (1974). This right, of course, is not unlimited, see Delaware v. Van Arsdall,

475 U.S. 673, 679-80 (1986); and it is not infringed provided defendant is able

to expose facts from which the jury could draw inferences as to the witness’

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reliability, see United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). To show

the alternative abuse of discretion, defendant must establish clear prejudice, so

that “a reasonable jury might have had a significantly different impression of the

witness’[] credibility if defense counsel had been allowed to pursue the

questioning”. Id. at 548.

At issue is whether the district court improperly curtailed crossexamination on concrete details of Miranda’s plea agreement. During his crossexamination, jurors learned: Miranda had reached a plea agreement with the

Government; in exchange for pleading guilty to one count, the Government

would not charge him with additional counts; and, in exchange for pleading

guilty, the Government would limit Miranda’s sentence under the Sentencing

Guidelines.

When defense counsel asked about the reduced Guideline sentencingrange specified in that plea agreement, however, the district court ruled:

All I’m going to let you do is ask him what his

understanding [is], if he has one, as to what sentence

he’s going to get because of his Plea Agreement and if

he expects or hopes to get a reduced sentence because

of his testimony, and that’s it, and let’s get off of this

Plea Agreement.

Defendants contend this was error because jurors were left unaware of the

magnitude of the benefit extended Miranda as the result of his plea agreement;

they maintain this benefit was so significant that jurors would have discredited

Miranda’s testimony, or at least this benefit would have generated a different

impression of his credibility.

For the reasons that follow, the curtailment of Miranda’s crossexamination was neither in violation of the Sixth Amendment nor an abuse of

discretion. Up to the point of the district court’s limiting Miranda’s crossexamination, the jurors were made aware of critical pieces of information:

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Miranda did not have a plea agreement when he first met with Agents; Miranda

and the Government agreed to the charges to which he would plead; Miranda

was charged only with bribery; the Government agreed not to charge him for

other crimes he committed prior to his guilty plea; he was not charged with lying

to Agents on 5 October 2006 (when first interviewed by them concerning the

project), even though every lie brought the possibility of a five-year sentence; and

he was an uncharged member of the conspiracy. Subsequently, the court

instructed the jury that Miranda’s testimony must be “received with caution and

weighed with great care”.

Defendants are incorrect in insisting jurors were entitled to know the

“magnitude of the benefit”made available to Miranda. The Confrontation Clause

guarantees only “an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the

defense might wish”. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis

in original). Jurors were made more than well aware of the potential bias

associated with Miranda’s testimony.

Moreover, had the district court permitted cross-examination of Miranda’s

plea-agreement and corresponding Guideline sentencing-range, it would have

improperly revealed to jurors the Guideline-range Heinrich and Wilson faced.

See Pope v. United States, 298 F.2d 507, 508 (5th Cir. 1962) (informing jurors of

matters relating to defendant’s sentence opens door to compromised verdicts and

confuses issues to be decided). Additionally, revealing that range risked

unnecessarily confusing the jury, and one of the purposes of limiting crossexamination is to avoid that. United States v. Hitt, 473 F.3d 146, 156-57 (5th

Cir. 2006) (trial court retains wide discretion to limit cross-examination based

upon concerns of prejudice and confusion). Rather than enter into a complex

discussion about the mechanics of the advisory Sentencing Guidelines, the

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district court was correct to avoid confusing jurors, as well as avoid revelation

of prejudicial information concerning Wilson’s and Heinrich’s possible sentences.

Defendants’ reliance upon United States v. Chandler, 326 F.3d 210, 221-23

(3d Cir. 2003) (holding prohibited cross-examination significantly inhibited

defendant’s right to cross-examine witness’ motivation to lie because jurors left

unaware of the magnitude of the sentence reduction), is misplaced; our court’s

opinion in Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008) is not in alignment with

Chandler. Instead, Burbank involved a state court that improperly prevented

the defense from questioning a principle witness about the existence of her plea

agreement. Id. at 356. Here, defendants were not permitted to explore the

details of the possible Guideline sentencing-range Miranda faced; but, unlike in

Burbank, they were permitted to question Miranda about the existence of his

plea agreement. Defense counsel were also able to question Miranda about his

motives for entering the plea agreement, which included the possibility he might

receive a decreased sentence by cooperating with the Government.

The testimony elicited was sufficient to make jurors aware of Miranda’s

possible motives for testifying against Wilson and Heinrich, and defendants have

failed to show reasonable jurors would have received a significantly different

impression of Miranda’s credibility had the exact Guideline sentencing-range

been exposed. See Davis, 393 F.3d at 548. In sum, the jury was given an

opportunity to form a thorough opinion regarding Miranda’s motive or

credibility. Jimenez, 464 F.3d at 562.

B.

Defendants base error on the district court’s instructing the jury that

Wilson was a “public official” within the meaning of the bribery statute. They

assert: Wilson did not fit within the statutory definition because he was not an

officer or employee of the United States and his involvement in the conspiracy

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was unrelated to his work with USACE; and “public official”, as an element of

18 U.S.C. § 201, must be determined by a jury.

Along that line, the district court granted the Government’s contested

motion in limine, prohibiting defendants from challenging Wilson’s public-official

status. Similarly, in their motions for judgment of acquittal, which the district

court denied, defendants contended the Government presented no evidence of

corruption concerning Wilson’s official decision-making duties and functions.

Finally, over defendants’ objection, the court instructed the jury that Wilson and

Miranda were “public officials”.

1.

A question of statutory interpretation is, of course, reviewed de novo. E.g.,

United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008). The offenses for

bribery involving public officials is governed by 18 U.S.C. § 201. For that

purpose, “public official” is defined in § 201(a)(1) as follows:

Member of Congress, Delegate, or Resident

Commissioner, either before or after such official has

qualified, or an officer or employee or person acting for

or on behalf of the United States, or any department,

agency or branch of Government thereof, including the

District of Columbia, in any official function, under or

by authority of any such department, agency, or branch

of Government, or a juror;

18 U.S.C. § 201(a)(1). At issue is whether Wilson’s position as an employee of

ISLI, under contract with USACE, qualified him as a public official for purposes

of the bribery statute, 18 U.S.C. § 201(a)(1), (b)(1)(B), (b)(2)(B).

In addition to the charged conspiracy, Heinrich was charged with bribing

Miranda (Count 2) and Wilson (Count 3), in violation of 18 U.S.C. § 201(b)(1)(B);

Wilson, with soliciting and accepting a bribe, in violation of 18 U.S.C. §

201(b)(2)(B). Section 201(b)(1), involving Heinrich, states:

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Whoever--

(1) directly or indirectly, corruptly gives, offers or

promises anything of value to any public official or

person who has been selected to be a public official, or

offers or promises any public official or any person who

has been selected to be a public official to give anything

of value to any other person or entity, with intent–

(A) to influence any official act; or

(B) to influence such public official or person who has

been selected to be a public official to commit or aid in

committing, or collude in, or allow, any fraud, or make

opportunity for the commission of any fraud, on the

United States; or

(C) to induce such public official or such person who has

been selected to be a public official to do or omit to do

any act in violation of the lawful duty of such official or

person;

commits a federal offense. 18 U.S.C. § 201(b). Similarly, § 201(b)(2), involving

Wilson, provides:

Whoever--

being a public official or person selected to be a public

official, directly or indirectly, corruptly demands, seeks,

receives, accepts, or agrees to receive or accept anything

of value personally or for any other person or entity, in

return for:

(A) being influenced in the performance of any official

act;

(B) being influenced to commit or aid in committing, or

to collude in, or allow, any fraud, or make opportunity

for the commission of any fraud, on the United States;

or

(C) being induced to do or omit to do any act in violation

of the official duty of such official or person;

commits a federal offense. 18 U.S.C. § 201(b)(2).

As shown above, an individual hired as a contract employee by a federal

agency can qualify as a “public official” under 18 U.S.C. § 201(a)(1). See United

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States v. Thomas, 240 F.3d 445, 448 (5th Cir. 2001) (prison guard qualified as a

“public official”, even though he was employed by a private company contracted

by INS). Relying upon Supreme Court precedent from United States v. Dixson,

465 U.S. 482, 496-97 (1984), as well as case law outside our circuit, our court

observed in Thomas: “Because the officers were charged with abiding by federal

guidelines . . . , they ‘assumed the quintessentially official role of administering

a social service program established by . . . Congress.’” Thomas, 240 F.3d at 447

(quoting Dixson, 465 U.S. at 497). The prison guard in Thomas was held to be

a “public official” because he “occupied a position of public trust with official

federal responsibilities, because he acted on behalf of the United States under

the authority of a federal agency which had contracted with his employer”. Id.

at 448 (citing United States v. Neville, 82 F.3d 1101, 1106 (D.C. Cir. 1996)); see

also United States v. Kenney, 185 F.3d 1217, 1221-23 (11th Cir. 1999) (employee

of engineering firm contracted to the Air Force, tasked with procuring and

approving materials and equipment, qualified as a “public official” for purposes

of 18 U.S.C. § 201(a)(1)).

Defendants take a more narrow position; they contend Wilson cannot

qualify as a “public official” because the nature of the bribery occurred outside

of the scope of his contractual duties with USACE. That is, he had no official

duties related to the project; and, because the bribery scheme involved a project

outside of his official duties with USACE, he cannot qualify as a public official

under the bribery statute.

We disagree. For the reasons that follow, the project’s being outside

Wilson’s scope of official duties is of no consequence to his being a “public

official” for purposes of 18 U.S.C. § 201.

First, the definitional section of § 201(a), i.e., the definition of “public

official” for purposes of the Act, imposes no requirement that a bribed “employee”

be acting within his official functions to effect a bribe. United States v. Gjieli,

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717 F.2d 968, 972 (6th Cir. 1983). “The focus of this section is . . . not upon . . .

the bribed individual’s ability to effect a result.” Id. at 976. The bribery statute

applies, “regardless of whether . . . the acts to be accomplished are within the

scope of the actual lawful duties of the bribed public official and regardless of

whether the briber has correctly perceived the precise scope of the official’s

lawful duties”. Id.; see also United States v. Evans, 572 F.2d 455, 481 (5th Cir.

1978) (bribed public official “incorrect in asserting that the government was

required to prove that the unlawful compensation was earmarked for a

particular matter then pending before [defendant] and over which he had

authority”, in context of §201(g)).

Second, Congress intended the bribery statute to be applied broadly. See

United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir. 1988) (“[I]t is clear

that Congress has cast a broad net . . . .”); United States v. Romano, 879 F.2d

1056, 1060 (2d Cir. 1989) (“The [Supreme] Court stressed that the bribery

statute was drafted with broad jurisdictional language . . . to reach all people

performing activities for the federal government, regardless of the form of

federal authority.” (emphasis added)). Instead of a “cramped reading”, § 201(a)

is “accurately characterized as a comprehensive statute applicable to all persons

performing activities for or on behalf of the United States”. Dixson, 465 U.S. at

496.

Wilson’s job carried with it “a significant measure of public trust, which

[is] . . . the touchstone for determining whether an individual is a public official”.

Neville, 82 F.3d at 1106 (citing Dixson, 465 U.S. at 496). As a construction

manager for waterway improvements, he was an integral part of USACE’s postKatrina rebuilding efforts. And, needless to say, this position of public trust

gave Wilson proximity to the illegal activity. He was a critical vessel through

which Miranda and Heinrich moved confidential information from USACE to

Manson Gulf, and his employment placed him at a critical juncture to effectuate

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the bribery scheme: his desk was directly adjacent to Miranda, they spoke of

their scheme at their office; Wilson used his USACE computer to download and

transfer files; and he passed confidential information and computer data to and

from Miranda while he was engaged at work. Simply stated, his position

enabled him to become a key part of this criminal activity.

2.

In this regard, defendants contend the district court erred by instructing

the jury that Miranda and Wilson were “public officials”. They claim the issue

was instead a factual matter for the jury. See United States v. Gaudin, 515 U.S.

506, 522-23 (1995) (“[A] criminal defendant [has] the right to have a jury

determine . . . his guilt of every element of the crime . . . .”).

It is well established that questions of law are issues typically not

dependant “upon the probative value of the evidence” and are therefore decided

by the court; questions of fact are submitted to the jury. United States v.

Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988). Two circuits have determined that

whether a defendant is a public official subject to 18 U.S.C. § 201 is a question

of law. See United States v. Hang, 75 F.3d 1275, 1279 (8th Cir. 1996) (holding

determination of public-official status is question of law); United States v.

Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990). Similarly, in reserving judgment

on whether “public official” is question of law or fact, a third circuit affirmed a

jury instruction which provided: “The term ‘public official’ thus includes an

employee of a private corporation who acts for or on behalf of the federal

government pursuant to a contract.” Kenney, 185 F.3d at 1223. There, the jury

was also instructed that it needed only to find that defendant “possessed some

degree of official responsibility for carrying out a federal program or policy” in

order to qualify as a “public official” pursuant to § 201. Id.

In any event, for purposes of deciding this issue, we need not decide

whether a defendant’s qualification as a “public official” is always a question of

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law. On this record, it was not reversible error for the district court to instruct

the jury that Wilson and Miranda were public officials.

Along this line, there was no factual dispute for a jury to decide.

Defendants never asserted that Wilson and Miranda were not contractors

working for USACE. In fact, Wilson testified at trial that he had been a contract

consultant working for USACE. Additionally, Wilson and Miranda did not

dispute they were contract consultants for USACE at the time their criminal

activity occurred. Any disputes by defendants were purely questions of statutory

interpretation–a question of law, not fact. Because the term “public official”

includes an employee of a private corporation who acts on behalf of the

Government pursuant to a federal contract, and because all parties agreed on

the contractual nature of Miranda’s and Wilson’s employment, there was no

question of fact for the jury to decide on that point.

Similarly, Wilson’s insistence it was for the jury to decide whether

Miranda intended to interfere with USACE’s bidding process in his capacity as

a public official is also a legal, not a factual, issue. As our court stated in United

States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002), whether a person qualifies

as a public officer hinges upon the person’s official responsibilities with the

Government, not whether the person intended to act as a “public official” within

the nature of the bribery scheme.

C.

Wilson challenges three trial evidentiary rulings. He contests the district

court’s: permitting lay opinion testimony from a Government witness on

technical computer information; not permitting expert testimony by a defense

witness regarding Government computer operations; and prohibiting several

character witnesses from testifying at trial on Wilson’s lack of motivation by

financial reward.

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A decision to admit or exclude evidence is reviewed for abuse of discretion.

United States v. Cantu, 167 F.3d 198, 203 (5th Cir.1999); see FED. R. EVID. 103.

“A trial court abuses its discretion when its ruling is based on an erroneous view

of the law or a clearly erroneous assessment of the evidence.” United States v.

Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v.

Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)); see FED. R. EVID. 103(a) (error

cannot be based upon exclusion of evidence unless party’s substantial rights are

affected).

1.

CID Agent Clayton, assigned to investigate the bribery scheme, testified

about information he obtained from USACE e-mail accounts of the persons

working on the project’s source-selection committee. He also testified about his

review of Wilson’s USACE e-mail account. The import of Agent Clayton’s

testimony was Wilson’s attempt to conceal the content of his sent e-mails

containing confidential information about the project. Agent Clayton testified

to his review of the e-mail inboxes of Wilson and everyone in USACE’s sourceselection committee; he determined, based upon Wilson’s empty sent-box, that

Wilson “deleted the sent folder of all the e-mails prior to [4 October 2006]”.

Wilson challenges this testimony, claiming it had to be introduced as expert

opinion.

“The case law is not completely clear on where to draw the line between

expert and lay testimony.” United States v. Caldwell, 586 F.3d 338, 348 (5th Cir.

2009). While it is true testimony requiring specialized training and experience

should be admitted as expert testimony, see Doddy v. Oxy USA, Inc., 101 F.3d

448, 460-61 (5th Cir. 1996), “[t]he trend in the circuits seems to turn on whether

the testimony falls within the realm of knowledge of the average lay person”,

Caldwell, 586 F.3d at 348. In other words, for this issue, testimony about a

computer may suggest technical expertise, but that does not necessarily mean

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such testimony requires satisfying the standard for expert testimony. See also

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005) (“A

mathematical calculation well within the ability of anyone with a grade-school

education is . . . more aptly characterized as a lay opinion . . . .”).

Agent Clayton’s testimony is closer to lay, than expert, opinion. He

testified he was not a forensic examiner, he did not use forensic software in

reviewing the e-mails, and his computer background was limited to “a normal

computer user of Microsoft Office products”. It was obvious from both his

background and the nature of his testimony that his examination of Wilson’s email account did not require “scientific, technical or other specialized

knowledge”, FED. R. EVID. 702; instead, his testimony fell “within the realm of

knowledge of the average lay person”, Caldwell, 586 F.3d at 348.

In short, Agent Clayton’s testimony was based on reasoning familiar in

everyday life. Yanez Sosa, 513 F.3d at 200. Thus, the district court did not

abuse its discretion in admitting it.

2.

In a related issue, Wilson contends the district court erred in refusing to

qualify as an expert witness a defense witness in the field of general technology

information systems. Wilson proffered the witness in rebuttal to Agent

Clayton’s testimony and to testify that Wilson’s e-mail could not be deleted from

the server, even if deleted at the user’s computer. The proffered expert, Stroud,

was an expert in Microsoft Outlook, but was unfamiliar with USACE’s system

or retention policies and had no personal experience with a federal agency.

Moreover, Stroud informed the court it was impossible for him to testify on

whether Wilson intentionally deleted e-mails from his desktop or laptop

computers.

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a.

For obvious reasons, “district courts are given ‘wide latitude in

determining the admissibility of expert testimony, and the discretion of the trial

judge . . . will not be disturbed on appeal unless manifestly erroneous’”. United

States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Watkins v. Telsmith,

Inc., 121 F.3d 984, 988 (5th Cir.1997)). Before a district court allows a witness

to testify as an expert, it must be assured the proffered witness is qualified by

virtue of his “‘knowledge, skill, experience, training or education’”. Cooks, 589

F.3d at 179 (quoting FED. R. EVID. 702). “A district court should refuse to allow

an expert witness to testify if it finds that the witness is not qualified to testify

in a particular field or on a given subject.” Cooks, 589 F.3d at 179 (citing Wilson

v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)).

There was no manifest error in not allowing Stroud to testify as an expert

witness. He lacked experience with federal agencies, was unfamiliar with

USACE’s system and policies, and stated he could not testify as to whether

Wilson intentionally deleted his e-mail files. Moreover, even if Stroud had

testified about USACE’s Outlook server, the relevant issue was not whether the

e-mails were backed-up on a USACE server; rather, it was whether Wilson had

previously deleted the e-mails from the sent-box on his computer, a fact Wilson

had admitted.

b.

And, as discussed supra, even assuming the district court erred by denying

such expert-witness testimony, we must decide whether the error was harmless:

“affirming the judgment unless the ruling affected a substantial right of the

complaining party”. United States v. Norris, 217 F.3d 262, 268 (5th Cir. 2000);

see FED. R. EVID. 103(a). Whether an error affects a substantial right of the

defendant depends upon “‘whether the trier of fact would have found the

defendant guilty beyond a reasonable doubt with the additional evidence

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inserted’”. United States v. Tucker, 345 F.3d 320, 327 (5th Cir. 2003) (quoting

United States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989)).

Because of the substantial evidence presented by the Government

unrelated to Wilson’s e-mails, any error pertaining to the admissibility of

Stroud’s expert testimony was harmless. There was already sufficient evidence

to support Wilson’s collusion with Heinrich and Miranda. Cooks, 589 F.3d at

180.

3.

Wilson’s final contention is that the district court erred by excluding

pertinent character witnesses. Only upon rare instances, and with a “clear

showing of prejudicial abuse of discretion”, will we reverse a district court’s

limiting character witnesses. United States v. Gray, 105 F.3d 956, 963 (5th Cir.

1997) (quoting Michelson v. United States, 335 U.S. 469, 480 (1948)).

Of the six character witnesses permitted to testify to Wilson’s reputation

for honesty and integrity, only two were permitted to testify to their belief that

Wilson was not substantially motivated by financial profit, even though the

other four witnesses had known Wilson for significant periods of time. In other

words, Wilson maintains the district court committed reversible error because,

of the six character witnesses permitted to testify, the only two allowed to testify

as to Wilson’s lack of motive for financial profit had known him the shortest

period of time.

The district court did not abuse its discretion; Wilson has not made the

requisite showing of prejudice. The district court placed no limitation on the

jury’s consideration of any of the character witnesses; the instructions charged

jurors to “consider such evidence along with all the other evidence in the case”.

Moreover, the instructions informed jurors that character evidence “may give

rise to a reasonable doubt, since you may think it improbable that a person of

good character in respect to those traits would commit such a crime”.

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Additionally, the Government asked relatively few questions of the character

witnesses.

Wilson’s reliance upon United States v. John, 309 F.3d 298 (5th Cir. 2002),

is misplaced. In John, the district court committed reversible error because it

failed to instruct the jury that it could consider evidence of defendant’s good

character; John does not hold (as Wilson suggests) that a district court commits

reversible error by limiting the number of character witnesses. In John, the

district court permitted defendant to introduce several witnesses to testify to

defendant’s good character, but denied defendant’s request for a jury instruction

regarding character. John, 309 F.3d at 300. Here, the district court not only

permitted the introduction of evidence that would establish Wilson’s character

as a law-abiding citizen, but also properly instructed the jury that it could

consider evidence of Wilson’s good character.

Given the district court’s broad discretion, see United States v. Parziale,

947 F.2d 123, 129 (5th Cir. 1991), together with the fact that the two character

witnesses who did testify as Wilson intended had worked with him in the

months preceding his employment with USACE, and that three of the other four

witnesses broke their association with Wilson before he moved to New Orleans,

Wilson was not prejudiced by the district court’s ruling. Moreover, Wilson

argued in his closing that he lacked motive for financial profit. There is simply

no reason to believe Wilson’s verdict would have been different had four more of

his character witnesses testified to his motivation in participating in the Katrina

clean-up.

III.

For the foregoing reasons, the judgments are AFFIRMED.

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