                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-13731         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 26, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                          D.C. Docket No. 2:11-cr-00039-WHA-TFM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff - Appellee,

                                           versus

BRADLEY HOWARD PEMBERTON,

llllllllllllllllllllllllllllllllllllllll                        Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                             (June 26, 2012)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
       Bradley Howard Pemberton appeals his 48-month total sentence, imposed at

the low end of the guideline range, after being found guilty by a jury for one count

of wire fraud, in violation of 18 U.S.C. § 1343, and one count of aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Pemberton

argues that the district court (1) violated his Fifth and Sixth Amendment rights

when it ruled that his mother could not testify to corroborate his alibi as it related

to a collateral matter and (2) erred in applying a four-level sentencing

enhancement for the amount of loss. After thorough review, we affirm

Pemberton’s conviction and sentence.

                                                I

       Pemberton, formerly a sergeant with the Montgomery Police Department,

was indicted by a federal grand jury for wire fraud and identity theft. The

indictment alleged that Pemberton used a police database—the Law Enforcement

Tactical System (LETS)—to obtain personal identifying information about the

victim, B.N.P.1 It alleged that, using this information, Pemberton applied for a

Discover credit card over the Internet using B.N.P.’s name, Social Security

Number, and date of birth. The address listed, however, was that of Pemberton. It



       1
        The victim was Bradley N. Pemberton, a distant relative of the defendant. For clarity,
we refer to the victim as B.N.P.

                                                2
further alleged that Pemberton used this Discover card to make payment on a

fraudulently obtained American Express card via a balance transfer.

      Prior to trial, Pemberton moved in limine to exclude evidence of

applications he allegedly made using the victim’s information for any credit card

other than the Discover card for which he had been indicted. The Government

responded that it had evidence that Pemberton used B.N.P.’s information to submit

an American Express card application from 2006 and an Advanta card application

from 2008. The Government argued that these prior acts were admissible under

Federal Rule of Evidence 404(b), and the district court agreed, denying

Pemberton’s motion to exclude evidence of those applications.

      At trial, the Government called U.S. Secret Service Special Agent Marcus

Shumack to testify about his investigation of Pemberton. During Agent

Shumack’s testimony, the Government played for the jury a recording of the

interview between Pemberton and two Secret Service agents. This interview

contained questions about, and the agents’ assertions regarding, the Discover,

American Express, and Advanta cards and applications. On cross-examination,

Pemberton introduced into evidence the Advanta card application, which did not

include B.N.P.’s identifying information. The application also reflected that it was

submitted from the Montgomery Police Department at approximately 8:00 p.m. on

                                         3
July 15, 2008. Pemberton then presented documentary evidence that he left work

at 3:00 p.m. that day and did not return. Agent Shumack responded that

Pemberton could have reentered the police station without his entry being logged

or recorded, though Shumack admitted that there existed no proof that Pemberton

was at the station that evening.

      Pemberton opted to testify in his own defense and denied having applied for

any credit cards with B.N.P.’s information. He explained regarding the Advanta

card that July 15 was his birthday, and that day he left work to spend time with his

family, including his mother, and did not return to the station that evening. During

this line of questioning, the Government objected that the Advanta card was

irrelevant, as it was not at that time contending that Pemberton submitted that

specific application. The district court did not sustain the objection but advised

Pemberton to finish that line of questioning.

      Pemberton next called his mother Rita to the stand to testify. When defense

counsel began ask her questions about the July 15 Advanta application, the

Government objected on the grounds that (1) Pemberton had introduced that

application and (2) the Advanta application was irrelevant because the

Government did not take the position that Pemberton had submitted it. Pemberton

argued that he raised the subject of the Advanta application because it was

                                          4
discussed in the video interrogation that was played for the jury. The district court

sustained the objection because the Government was not taking the position that

the Advanta application was relevant to the charges.

      After thirty-nine minutes of deliberation, the jury returned a guilty verdict

on both counts. Pemberton was sentenced to forty-eight months in prison. This

sentence included a four-level enhancement under U.S.S.G. § 2B1.1(b)(1)(C) for

an intended loss of $19,400, which represented the combined credit limit of the

Discover and American Express cards. Pemberton now appeals the exclusion of

his mother’s testimony and the four-level enhancement for the intended loss

amount.

                                         II

      Pemberton contends that the district court deprived him of his right to

present evidence in his favor, in violation of the Fifth and Sixth Amendments. We

typically review evidentiary rulings for an abuse of discretion. United States v.

Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). We review de novo whether

the exclusion of evidence violated a defendant’s constitutional rights. United

States v. Sarras, 575 F.3d 1191, 1209 n.24 (11th Cir. 2009). When a defendant

claims that exclusion of evidence violated his constitutional rights, we conduct a

two-step analysis. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004).

                                          5
We first look to whether a constitutional guarantee was violated, and we second

determine whether that error was harmless beyond a reasonable doubt. Id. at

1362–63.

                                         A

      “A criminal defendant’s right to present witnesses in his own defense during

a criminal trial lies at the core of the fifth and fourteenth amendment guarantees of

due process.” United States v. Ramos, 933 F.2d 968, 974 (11th Cir. 1991) (per

curiam). Our decision in Hurn articulated four circumstances where exclusion of

evidence may violate a defendant’s constitutional rights:

      First, a defendant must generally be permitted to introduce evidence
      directly pertaining to any of the actual elements of the charged
      offense or an affirmative defense. Second, a defendant must
      generally be permitted to introduce evidence pertaining to collateral
      matters that, through a reasonable chain of inferences, could make the
      existence of one or more of the elements of the charged offense or an
      affirmative defense more or less certain. Third, a defendant generally
      has the right to introduce evidence that is not itself tied to any of the
      elements of a crime or affirmative defense, but that could have a
      substantial impact on the credibility of an important government
      witness. Finally, a defendant must generally be permitted to
      introduce evidence that, while not directly or indirectly relevant to
      any of the elements of the charged events, nevertheless tends to place
      the story presented by the prosecution in a significantly different
      light, such that a reasonable jury might receive it differently.

368 F.3d at 1363 (footnote omitted).

      A thorough review of the record shows that the district court erred in

                                          6
excluding Rita’s testimony. Although the Advanta card application was a

collateral matter, its submission tended to show Pemberton’s intent to obtain the

Discover card charged in the indictment.2 See United States v. Sheffield, 992 F.2d

1164, 1170 (11th Cir. 1993) (finding error where the district court excluded

evidence relevant to the defendant’s state of mind). To obtain a conviction for

wire fraud, the Government had to prove Pemberton’s intent to participate in a

scheme to defraud, see 18 U.S.C. § 1343, and that mens rea element was made

more likely by the introduction of evidence that Pemberton had submitted the

Advanta application on a prior occasion. Because the collateral Advanta

application “bears a sufficiently close relationship to an element of the offense”

charged, it was error to exclude it. Hurn, 368 F.3d at 1364.

       Moreover, Rita’s testimony would have called into question a portion of

Agent Shumack’s testimony “such that a reasonable jury might receive it

differently.” Id. at 1363. On cross-examination, Agent Shumack opined that

Pemberton could have re-entered the Montgomery Police Department the night

that the Advanta application was submitted, despite the absence of documentary

evidence establishing his return. Pemberton sought to introduce Rita’s testimony


       2
        The Government took this position in response to Pemberton’s motion in limine,
explaining that it sought “to introduce the American Express and Advanta applications . . . to
show [Pemberton’s] intent to obtain the Discover card.”

                                                7
to undermine Agent Shumack’s assertion and to confirm Pemberton’s own story

that he presented on the witness stand.3 We thus find that the evidence should

have been admitted to counter the testimony of a Government witness.

       The Government argues that Pemberton invited any error because the

defense introduced the Advanta card application into evidence. Although it is

uncontested that Pemberton introduced the application into evidence, this

contention ignores that the Government was the first party to discuss the Advanta

card before the jury. The video interview between Pemberton and the agents

included accusations that Pemberton submitted the Advanta card, and the

Government never contested the Advanta application’s relevance while Agent

Shumack was cross-examined about the circumstances surrounding its submission.

Because the Government introduced discussion of the Advanta application in the

first instance through its video interview, the invited error doctrine does not apply.

                                                B

       We next turn to whether the error was harmless beyond a reasonable doubt.


       3
         In a footnote of its brief, the Government states that we cannot properly consider what
Rita’s testimony would have been due to the absence of a factual proffer to the district court. A
proffer is not required, though, when the substance of the testimony is apparent from the context.
See Fed. R. Evid. 103(a)(2). It is apparent that Rita’s testimony would have been offered to
confirm Pemberton’s location at the time the Advanta application was submitted, given that (1)
Pemberton testified he was with his mother at the time of that submission, (2) Pemberton called
her to testify in his favor, and (3) the objected-to questioning focused on the Advanta card.

                                                8
In assessing the impact of the erroneous exclusion of testimony here, we must

decide “whether we have a reasonable doubt that the result in [Pemberton’s] case

would have been the same had he been able to call [Rita] to the stand as a witness

on his behalf.” United States v. Hernandez, 141 F.3d 1042, 1050 (11th Cir. 1998).

In making that determination, we look to the avenues of inquiry and the probable

impact of those questions on the ultimate outcome. Id. After reviewing the trial

transcript and exhibits, we have no reasonable doubt that the jury would have

convicted Pemberton even if his mother had presented testimony to undermine the

allegation that he submitted the Advanta application.

      The strongest evidence supporting Pemberton’s conviction would have

remained unaffected by Rita’s testimony. The parties stipulated that the Discover

card application was submitted from IP address 68.207.194.56, which originated

in Elmore County, Alabama, where Pemberton lived. The Government presented

evidence of Pemberton’s LETS activity log,4 which showed that an inquiry into

the driver’s license and Social Security number of B.N.P. originated from that

same IP address just a short time before the Discover application was submitted.

The Government also presented testimony from Agent Rob Stuart, who explained

that (1) each officer sets his own LETS password; (2) the password must contain


      4
          Pemberton’s activity was tracked through his username, BP1043.

                                               9
at least one number, one letter, and a special character; and (3) the password must

be changed every sixty to ninety days. These safeguards helped the Government

to establish that Pemberton was the individual who logged into LETS, which in

turn implicates him in the submission of the fraudulent Discover card. None of

this evidence would have been disturbed by testimony about the Advanta

application.

      Additionally, the intent that the jury could infer from the fraudulently

obtained American Express card would not have been questioned by Rita’s

testimony. The scheme to defraud, as alleged in the indictment, implicated the

American Express card but was unrelated to the Advanta credit card. Finally, the

negative inferences the jury may have taken away from the mention of the

Advanta application during the recorded interview were largely undermined by

evidentiary submission of the application itself, which did not include the

identifying information of B.N.P. or Pemberton. Overall, the error was not

sufficient to create a reasonable doubt of Pemberton’s guilt, and we affirm his

conviction.

                                         III

      We review the district court’s amount-of-loss determination for clear error.

United States v. Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir. 2001) (per

                                         10
curiam). The government bears the burden of establishing the attributable loss by

a preponderance of the evidence. United States v. Dabbs, 134 F.3d 1071, 1081

(11th Cir. 1998). A district court may consider a defendant’s uncharged relevant

conduct at sentencing, provided the Government proves the conduct by a

preponderance of the evidence. United States v. Faust, 456 F.3d 1342, 1347 (11th

Cir. 2006).

      In calculating the loss, the general rule is that the loss is the greater of actual

or intended loss. U.S.S.G. § 2B1.1 cmt. 3(A). The Guidelines commentary

defines “actual loss” as the “reasonably foreseeable pecuniary harm that resulted

from the offense.” Id. cmt. 3(A)(i). “Intended loss” is defined as the “pecuniary

harm that was intended to result from the offense,” including “intended pecuniary

harm that would have been impossible or unlikely to occur.” Id. cmt. 3(A)(ii). We

have previously held that “once a defendant has gained access to a certain credit

line by fraudulently applying for credit cards, a district court does not err in

determining the amount of the intended loss as the total line of credit to which [the

d]efendant could have access.” Nosrati-Shamloo, 255 F.3d at 1291.

      The district court found that Pemberton fraudulently obtained the American

Express card and that the American Express card was relevant because Pemberton

transferred money between that and the Discover card. The court adopted the

                                          11
undisputed findings of the probation officer regarding the credit limits, and the

total intended loss was properly calculated to be $19,400. Because the court

correctly calculated the intended loss amount in accordance with binding

precedent, there is no clear error. Accordingly, we affirm Pemberton’s sentence.

      AFFIRMED.




                                         12
