     Case: 17-41047      Document: 00514568312         Page: 1    Date Filed: 07/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 17-41047                               FILED
                                  Summary Calendar                         July 24, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONALD ROY KELLY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CR-46-1


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Donald Roy Kelly, formerly a corrections officer at the LaSalle Detention
Facility in Texas appeals his convictions for providing a federal inmate with a
prohibited object, in violation of 18 U.S.C. § 1791(a)(1) (count one), and for
being a public official who accepted bribery, in violation of 18 U.S.C. § 201(b)(2)
(count two). He contends that the evidence was insufficient to establish his
guilt on either count of conviction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 17-41047

      We review Kelly’s insufficiency claims to determine whether, viewing the
evidence and the inferences that may be drawn from it in the light most
favorable to the verdict, any rational trier of fact could have found that the
essential elements of the crime were proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United States v. McCall,
553 F.3d 821, 830 (5th Cir. 2008). We do not review “the weight or credibility
of the evidence, including witness testimony,” but “accept all credibility choices
and reasonable inferences made by the jury that tend to support the verdict.”
United States v. Kuhrt, 788 F.3d 403, 413 (5th Cir. 2015).
      To obtain a conviction under § 1791(a)(1), the Government was required
to prove beyond a reasonable doubt that Kelly provided a prohibited object to
an inmate of a prison in violation of a statute or a rule.        See 18 U.S.C.
§ 1791(a)(1). Kelly asserts that no rational jury could have convicted him
under § 1791(a)(1) because any conversations between himself and the
prisoner who was discovered to be in possession of a contraband cellphone,
Juan Saenz-Tamez, were impossible as a matter of law. Relying on his own
testimony that he does not speak Spanish and that Saenz-Tamez could not
speak English, as well as Warden Lacy’s testimony that she never heard
Saenz-Tamez speak English, he urges that Saenz-Tamez’s testimony
admitting that he paid Kelly to bring him a cellphone in prison was incredible
as a matter of law and that, without it, the verdict on count one cannot stand.
      Although Saenz-Tamez testified at trial through an interpreter, the
evidence showed that he was also able to communicate in English. Saenz-
Tamez described conversations that he had with Kelly and with another
officer, Donald Turk, and he further described conversations that he overheard
between Kelly and Turk. Further, although Warden Lacy testified that she
personally never heard Saenz-Tamez speak English, she also stated that she



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                                  No. 17-41047

was alerted to the instant offense when a supervisor called to advise her that
Saenz-Tamez had asked for a cellphone charger in English. Additionally,
Saenz-Tamez and another witness, Ledarris Limbrick, testified that they had
exchanged text messages, and the records confirmed that Limbrick’s texts were
in English.
      Given this evidence, a rational jury could have believed that Saenz-
Tamez was able to communicate in English. The only contradictory testimony
was Kelly’s, denying that he spoke any Spanish or that Saenz-Tamez spoke
any English, but the jury was free to disregard that testimony and to instead
credit Saenz-Tamez’s, and this court will not revisit that credibility
determination, particularly where Kelly has not shown Saenz-Tamez’s
testimony was incredible as a matter of law. See Kuhrt, 788 F.3d at 413; see
also United States v. Chapman, 851 F.3d 363, 377 (5th Cir. 2017). Moreover,
Saenz-Tamez’s account of the events was corroborated by the testimony of
several other witnesses, including Turk, Limbrick, and Darwin Deon Barlow,
and by the physical evidence, including the phone and text records retrieved
by FBI Special Agent Michael Collier. When viewed in the light most favorable
to the Government, reasonable jurors could conclude that this evidence was
sufficient to establish that Kelly provided a prisoner with a prohibited object
in contravention of federal rules sufficient to support his conviction on count
one. See Jackson, 443 U.S. at 319; see also § 1791(a)(1).      To      prove     a
violation of the bribery statute as charged in count two, the Government was
required to establish that Kelly (1) was a public official who (2) directly or
indirectly, corruptly demanded, sought, received, accepted, or agreed to receive
or accept “anything of value personally or for any other person,” and (3) that
he did so in return for “being induced to do or omit to do any act in violation of
[his] official duty.” 18 U.S.C. § 201(b)(2). Kelly argues that the evidence was



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                                No. 17-41047

insufficient to show that he was a public official within the meaning of that
statute. He reasons that Warden Lacy’s testimony established that he worked
for a privately operated prison and thus proved that he was neither a federal
employee nor someone who acted under or by any federal authority.
      The federal bribery statute “has been accurately characterized as a
comprehensive statute applicable to all persons performing activities for or on
behalf of the United States, whatever the form of delegation of authority.”
Dixson v. United States, 465 U.S. 482, 496 (1984) (internal citations and
quotations omitted).    As he conceded at trial, Kelly’s employment as a
corrections officer at a private prison under contract with the U.S. Marshal’s
Office rendered him a “public official” for purposes of the statute. See United
States v. Thomas, 240 F.3d 445, 447-48 (5th Cir. 2001) (determining that a
prison guard employed at a facility under contract with the INS to be a “public
official” because he “occupied a position of public trust with official federal
responsibilities, [and] because he acted on behalf of the United States under
the authority of a federal agency which had contracted with his employer.”).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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