     Case: 11-20323    Document: 00512146007       Page: 1   Date Filed: 02/18/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                     FILED
                                                                   February 18, 2013

                                   No. 11-20323                     Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff–Appellee,
v.

JOHN FLUELLEN HEARD, JR.; GARY LEE LAMBERT,

                                             Defendants–Appellants.



                 Appeals from the United States District Court
                      for the Southern District of Texas


Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.
OWEN, Circuit Judge:
      Appellees John Fluellen Heard, Jr. and Gary Lee Lambert were convicted
of conspiracy to defraud the United States by failing to pay and impeding the
IRS’s collection of employment taxes. Heard was also convicted of two counts of
tax evasion, one count of bribery of a public official, one count of willfully making
and subscribing to a false return, and one count of corrupt interference with
internal revenue laws. Both raise a number of challenges to their respective
convictions and sentences. We affirm.
                                         I
      Heard, a former police officer, has been in the private security business for
a number of years. Lambert is a certified public accountant (CPA). In the mid-
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                                  No. 11-20323

1980s, Heard started his own private-security company. Lambert allegedly
became associated with Heard a few years later when they incorporated a
company named Guardex, Inc. Between the years of 1988 and 2000, Heard,
Lambert, or both reincorporated and changed the name of Heard’s security
company multiple times. Over those years, Heard and Lambert were involved
in incorporating the following companies: Guardex, Inc. and Guardex II, Inc.,
which did business under the name Guardex; Probe Protection; Investigation,
Protection & Security, Inc., Industry Protection Services, Inc., and International
Private Security, all of which could use the acronym “IPS”; Beltran’s Security &
Investigation Agency, an El Paso company that Heard purchased and later
reincorporated; and Superior Protection, Inc. (SPI).       International Private
Security and Beltran were later merged into SPI. There was evidence that
Lambert handled payroll and accounting for Guardex, Probe, the various IPS
entities, and Beltran. He apparently was also the CFO of SPI from 1999 to 2000,
and he told an IRS agent that he remained a consultant for a period of time
thereafter.
      The Government alleged that over the course of eighteen years, Heard,
Lambert, and other defendants conspired to defraud the United States out of
millions of dollars in employment taxes withheld by Heard’s security companies.
Overall, the Government alleges that the companies failed to pay a substantial
sum in employment taxes, totaling over $5 million.             According to the
Government, the conspirators opened and closed all of these corporations,
changed company names, moved physical locations, used different versions of the
company names, signed documents with fictitious names, and used mail drops
to prevent the IRS from discovering the individuals operating these companies
and collecting the unpaid employment taxes. On appeal, neither Heard nor
Lambert challenges the existence of a conspiracy to defraud the United States.



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                                  No. 11-20323

      The Government presented evidence that Heard diverted funds from his
corporations to finance his lavish lifestyle, including purchasing a steer at the
Houston Livestock Show and Rodeo. There was evidence that Heard had his
employees cash corporate checks, often signed using a stamp with a fictitious
name made in the course of the conspiracy, and give the money to him. This
behavior formed the basis of the two tax evasion charges. The Government put
on evidence that Heard failed to report distributions from SPI in 2001 and 2003.
The Government has noted evidence that Heard filed false tax returns in other
years as well.
      The Government has also alleged that Heard bribed a public official,
Michael Czecholinski, an employee of Federal Protective Services who ensures
compliance with government contracts. It alleged that Heard provided an airline
ticket, lodging, the chance to play in a charity golf tournament, and future
employment to Czecholinski in exchange for Czecholinski providing a favorable
reference for SPI to a General Services Administration (GSA) contracting official
and providing pre-signed cards indicating that Heard’s security guards complied
with government contracts.
      After trial, Heard was sentenced to a total of 151 months in prison, three
years of supervised release, and ordered to pay almost $9 million in restitution,
jointly and severally with his wife, Janet Heard, who was also a defendant in the
case, and Lambert. Lambert was sentenced to 51 months in prison, three years
of supervised release, and was ordered to pay restitution of almost $2.5 million,
for which he is jointly and severally liable with Heard.
                                         II
      Heard raises two challenges to his conviction for bribery of a public official.
First, he argues that the evidence was insufficient to convict him of bribery
because there was no evidence of a quid pro quo. He argues that the evidence
was sufficient to convict him at most of providing an illegal gratuity to a public

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                                      No. 11-20323

official. Second, he argues that the district court erred in admitting the lay
opinion testimony of one of his former employees.
                                            A
       Heard was charged with both bribery of a public official in violation of 18
U.S.C. § 201(b)(1) and providing an illegal gratuity to a public official in violation
of 18 U.S.C. § 201(c)(1). The bribery statute, § 201(b)(1), makes it a crime to
“directly or indirectly, corruptly give[] . . . anything of value to any public official
. . . with intent . . . to influence any official act.” The illegal gratuity statute,
§ 201(c)(1), makes it a crime to “directly or indirectly give[] . . . anything of value
to any public official . . . for or because of any official act performed or to be
performed by such public official.” Bribery, in requiring that the defendant
intend to influence an official act, therefore requires “a quid pro quo—a specific
intent to give or receive something of value in exchange for an official act.”1 We
have held, at least in the context of a conviction for honest-services fraud
through bribery, that if a quid pro quo is required, it is not required that the
parties to the bribe have identified a particular official act, but only that the
Government “prove the ‘specific intent to give or receive something of value in
exchange for an official act’ to be performed sometime in the future.”2 An illegal
gratuity, on the other hand, does not require a quid pro quo because it does not
require the intent to influence any official act and can take the form of “a reward
for some future act that the public official will take (and may already have
determined to take), or for a past act that he has already taken.”3 An illegal


       1
        United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999); see also
United States v. Tomblin, 46 F.3d 1369, 1379 (5th Cir. 1995).
       2
        United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009) (quoting Sun-Diamond,
526 U.S. at 404-05) (assuming without deciding that Sun-Diamond applies in the context of
honest-services fraud through bribery)
       3
           Sun-Diamond, 526 U.S. at 405.

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                                       No. 11-20323

gratuity still requires a link between something of value and a specific official
act—it is not enough that the gratuity was given because of the official’s office.4
       Heard argues that his conviction for bribery should be reversed because
there was insufficient evidence for the jury to find the requisite quid pro
quo beyond a reasonable doubt. We review the denial of a motion for a judgment
of acquittal de novo.5           “A motion for acquittal should be granted if the
government fails to present evidence sufficient for a reasonable jury to have
found that each essential element of the offense was established beyond a
reasonable doubt.”6 We evaluate the evidence in the light most favorable to the
verdict.7
       There was sufficient evidence here for a reasonable jury to convict Heard.
There was evidence that while there were bids for government contracts pending
on which Czecholinski was listed as a reference, Heard had one of his employees,
William Lane, call Czecholinski to offer him a chance to play in a charity golf
tournament.           Czecholinski eventually accepted, and Heard paid for
Czhecholinski’s travel and lodging expenses and invited him to play in a golf
tournament with country singer Tracy Lawrence. Heard did the same thing a
year later. During the time between the two golf trips, Czecholinski gave SPI
a favorable recommendation on the pending contracts, but Lane testified that
SPI was not deserving of Czecholinski’s recommendations. The next year, Heard
again paid for Czecholinski to travel to play in the golf tournament. Lane


       4
           Id. at 405, 414.
       5
         United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (per curiam) (citing United
States v. Campbell, 52 F.3d 521, 522 (5th Cir. 1995) (per curiam)).
       6
        Id. (citing United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998) (per
curiam)).
       7
        United States v. McCauley, 253 F.3d 815, 818 (5th Cir. 2001) (citing United States v.
Odiodio, 244 F.3d 398, 400-01 (5th Cir. 2001)).

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                                         No. 11-20323

testified that he and Heard had previously discussed that Czecholinski could put
in a good word for them, and that in Lane’s opinion, by inviting Czecholinski to
play in the golf tournament, they were trying to get a favorable recommendation.
He said that he did not believe Czecholinski would have received anything if he
were not able to make recommendations for future contracts, and Heard never
paid for Lane’s expenses for a golf tournament as he did for Czecholinski. Once
Heard learned that he was under investigation, he falsely told a government
agent that Czecholinski had been on a business trip to Houston at the time of the
golf tournament, and Heard instructed Lane to tell Czecholinski to use this
“cover story.”
       Heard argues that the evidence of intent to influence Czecholinski is
circumstantial, and that the evidence adduced could support an innocent
explanation, such as the friendly relationship between Lane and Czecholinski.
We see no reason why direct evidence is required. Indeed, “[t]he official and the
payor need not state the quid pro quo in express terms, for otherwise the law’s
effect could be frustrated by knowing winks and nods.”8 Furthermore, although
the evidence adduced could support an innocent explanation, it does not compel
that conclusion. Viewing the evidence in the light most favorable to the verdict,
the jury could find the requisite quid pro quo.
       Heard also argues that in determining whether the evidence was
sufficient, we should draw an adverse inference against the Government because
of its failure to call Czecholinski as a witness. While we have previously applied
the missing-witness rule in reviewing a district court’s factual findings,9 Heard
has not pointed to any case in which we have disturbed a jury verdict because
of a party’s failure to call a witness. Heard neither argued for application of the

       8
        Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and
concurring in the judgment).
       9
           See United States v. Wilson, 322 F.3d 353, 363-64 (5th Cir. 2003).

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missing-witness rule in moving for a judgment of acquittal, nor requested that
the jury be given a missing-witness instruction. We therefore do not deem it
appropriate to apply the rule in reviewing the sufficiency of the evidence. Even
if Heard had sought application of the missing-witness rule below, we would not
apply it here. An adverse inference is not appropriate when the witness is
equally available to both parties.10 There is no indication that at the time of trial
Czecholinski still had any connection to the Government and no reason to expect
that his testimony, if given, would corroborate the Government’s theory of the
case.11     Indeed, according to the Government and not disputed by Heard,
Czecholinski had completed his term of probation and the statute of limitations
had expired at the time of trial. If Heard believed that Czecholinski’s testimony
would favor him, he was free to call Czecholinski.
       Heard also argues that Czecholinski was not performing an “official act”
when he gave a favorable recommendation. The definition of “official act” is
quite broad, encompassing “any decision or action on any question, matter,
cause, suit, proceeding or controversy, which may at any time be pending, or
which may by law be brought before any public official, in such official’s official
capacity, or in such official’s place of trust or profit.”12 We have recognized that
the definition is intended to “include any decision or action taken by a public
official in his capacity as such,” and official acts are “not limited to those within
the official’s specific authority.”13 In a somewhat similar situation, we held that

       10
            United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir. 1970).
       11
           See United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009) (holding that the
district court did not err in instructing the jury not to draw any adverse inferences from the
government’s failure to call a witness because the witness did not have a relationship with the
government such that one would expect him to give testimony in favor of the government).
       12
            18 U.S.C. § 201(a)(3).
       13
         United States v. Parker, 133 F.3d 322, 326 (5th Cir. 1998) (internal quotation marks
omitted).

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                                         No. 11-20323

a congressman was performing an official act when he attempted to use his
influence to get the Air Force to award a food-services contract to a private
contractor.14 Czecholinski, as a government employee in charge of assessing
SPI’s performance on government contracts, was in a similar position to
influence the award of future contracts to SPI. We therefore reject Heard’s
argument that Czecholinski was not performing an official act.
       Finally, we reject Heard’s argument that the jury necessarily found that
he did not act “corruptly” because, in addition to bribery, it found him guilty of
providing an illegal gratuity. Neither a corrupt intent nor the lack thereof is an
element of providing of an illegal gratuity, so the jury made no finding regarding
whether Heard acted corruptly in finding him guilty of that offense.
                                                B
       Heard argues that the district court erred in admitting Lane’s testimony
that he thought he and Heard were trying to get a good recommendation from
Czecholinski because it was inadmissible lay opinion testimony. We review
evidentiary rulings for abuse of discretion.15 If there was error, then the court
must determine whether the error affected the defendant’s substantial rights.16
“An error affects substantial rights if there is a reasonable probability that the
improperly admitted evidence contributed to the conviction.”17



       14
          United States v. Bustamante, 45 F.3d 933, 938 (5th Cir. 1995); see also United States
v. Carson, 464 F.2d 424, 433 (2d Cir. 1972) (“There is no doubt that federal bribery statutes
have been construed to cover any situation in which the advice or recommendation of a
Government employee would be influential, irrespective of the employee’s specific authority
(or lack of same) to make a binding decision.”).
       15
            United States v. Diaz, 637 F.3d 592, 599 (5th Cir. 2011).
       16
         Id.; see also FED. R. EVID. 103(a) (“A party may claim error in a ruling to admit or
exclude evidence only if the error affects a substantial right of the party . . . .”).
       17
          Diaz, 637 F.3d at 599 (quoting United States v. Sumlin, 489 F.3d 683, 688 (5th Cir.
2007)) (internal quotation marks omitted).

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                                        No. 11-20323

       The Federal Rules of Evidence permit a lay witness to give opinion
testimony if it is “rationally based on the witness’s perception,” “helpful to
clearly understanding the witness’s testimony or to determining a fact in issue,”
and “not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.”18 We have previously held that lay witnesses are permitted
to give opinion testimony on a defendant’s mental state.19
       The district court did not abuse its discretion in admitting Lane’s opinion
testimony. In response to a question regarding his opinion, based on his
observations and knowledge, regarding why Heard paid for Czecholinski’s
expenses, Lane replied, “Well, it was my opinion that we were trying to get a
favorable recommendation.” This testimony was rationally based on Lane’s
perception. He had worked with Heard for three years, had conversations with
Heard about Czecholinski, and made the arrangements for Czecholinski to play
in the golf tournament. His opinion was helpful to the jury for similar reasons.
Because of his experience working with Heard and his conversations with Heard,
he was in a unique position to observe Heard’s demeanor, which the jury could
not do.
       United States v. Ruppel,20 cited by Heard, does not persuade us to hold
otherwise. In that case, we expressed reservations about lay opinion testimony,
especially with respect to the defendant’s intention or state of mind.21 However,
we ultimately determined that the district court did not abuse its discretion in
admitting the testimony at issue. Therefore, Ruppel does not help Heard.



       18
            FED. R. EVID. 701.
       19
         See Diaz, 637 F.3d at 600; Hansard v. Pepsi-Cola Met. Bottling Co., 865 F.2d 1461,
1466-67 (5th Cir. 1989).
       20
            666 F.2d 261 (5th Cir. Unit A 1982).
       21
            Id. at 269-70.

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                                            III
       Heard next raises two challenges to his sentence. First, he argues that the
district court procedurally erred in calculating his advisory Guidelines range.
He also challenges his sentence as substantively unreasonable.
                                            A
       Heard argues that the district court procedurally erred in calculating his
recommended sentencing range under the United States Sentencing Guidelines
by enhancing his base offense level by two pursuant to Guidelines § 2T1.1(b)(1).
The Guidelines provide for a two-level increase to the base offense level for tax
evasion, which is the offense that drove Heard’s Guidelines calculation, when
“the defendant failed to report or to correctly identify the source of income
exceeding $10,000 in any year from criminal activity.”22 According to the
commentary, “‘[c]riminal activity’ means any conduct constituting a criminal
offense under federal, state, local, or foreign law.”23 This provision is included
for deterrence purposes.24 Whether income was derived from criminal activity
is a factual determination we review for clear error.25
       Heard argues that the § 2T1.1(b)(1) enhancement was improper because
it can only apply when the money was obtained by some illegal means, and the
income here was legitimate income earned from security-guard services.
According to Heard, the fact that the money was not reported is not sufficient—it
must have been obtained illegally. Allowing the enhancement here amounts to
“double counting” because his tax evasion is being punished twice.                    The



       22
            U.S. SENTENCING GUIDELINES MANUAL § 2T1.1(b)(1) (2010).
       23
            Id. cmt. 3.
       24
            Id. cmt. background.
       25
         United States v. Roush, 466 F.3d 380, 387 (5th Cir. 2006) (citing United States v.
Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005)).

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                                         No. 11-20323

Government argues that the money was obtained illegally because it was
embezzled from Heard’s employees.                   Specifically, it argues that Heard’s
companies did not report the employment taxes withheld, preventing the
employees from receiving credits for those taxes withheld,26 and Heard diverted
some of those funds for his own use without reporting them as income. In the
district court, the Government’s argument was similar, although its focus was
different. Instead of arguing that Heard embezzled from his employees, it
argued that Heard stole from the IRS by withholding in excess of $10,000 in
employment taxes in 2003 and not paying the money to the IRS.
       Application of the § 2T1.1(b)(1) enhancement was proper here. We find the
Government’s argument before the district court persuasive, and we may affirm
on any ground in the record.27 The enhancement was not applied here, as Heard
argues, merely because the funds were not reported on his personal tax return.
Rather, the illegality of the funds is demonstrated by Heard’s other tax
convictions, which concern interference with the IRS’s collection of these
employment taxes. Even if Heard had reported the withheld employment taxes
as income, they would still have been derived from his conspiracy to defraud the
United States. The facts contained in the presentence investigation report
(P.S.R.), which have not been challenged on appeal, show that over the course
of the conspiracy, Heard’s companies failed to pay to the IRS millions of dollars
in employment taxes. There was evidence that in 2003, SPI failed to pay over
$2 million in payroll taxes. An IRS revenue agent testified that Heard received
unreported distributions from SPI of $629,000 in 2003. Heard’s expert witness
even admitted that the distributions that Heard received in 2003 could have


       26
          See 26 C.F.R. § 1.31-1(a) (“If the tax has actually been withheld at the source, credit
or refund shall be made to the recipient of the income even though such tax has not been paid
over to the Government by the employer.”).
       27
            United States v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006).

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                                        No. 11-20323

been used to pay the payroll taxes due, and he testified that using over $500,000
to pay personal expenses from SPI when SPI owed about $450,000 in the first
quarter of 2003 “wasn’t probably the most prudent thing to do” and that the law
would require SPI to pay employment taxes before paying personal expenses.
In this situation, it was not clear error for the district court to find that, instead
of paying employment taxes, Heard used the money to pay personal expenses
and that Heard failed to report those diverted funds as income on his personal
tax return.
      Heard’s double-counting argument is unpersuasive. As noted above, the
unreported funds were illegally derived because they were withheld from the
IRS, not merely because they were unreported. Furthermore, to the extent that
Heard is arguing that the conduct underlying his convictions relating to the
illegal retention of employment taxes cannot be used to enhance the base offense
level for his tax evasion conviction his argument fails. Heard cites United States
v. Haltom, in which we held that, under the language of the Guidelines, the
district court should have grouped a defendant’s mail fraud conviction and tax
evasion conviction.28 We noted the grouping rules had the effect of preventing
the mail-fraud offense from counting twice toward the defendant’s offense, once
as the stand-alone offense, and once as a § 2T1.1(b) enhancement to the tax
evasion offense.29 No analogous problem is presented here. The district court
grouped all of the tax offenses, preventing any of those offenses from counting
twice. On appeal, Heard has not asserted that they were improperly grouped.
                                                 B
      Heard argues that his sentence is substantively unreasonable. This circuit
applies a presumption of reasonableness to a sentence that falls within the


      28
           113 F.3d 43, 46-47 (5th Cir. 1997).
      29
           Id.

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                                         No. 11-20323

Guidelines range.30 “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.”31 We generally review
the substantive reasonableness of a sentence for abuse of discretion under the
totality of the circumstances.32 However, the Government contends that Heard
has not preserved his claim of substantive reasonableness because he failed to
object on that ground below. This court requires an objection to preserve a claim
that the sentence is substantively unreasonable.33
       Heard asserts that by requesting a below-Guidelines sentence, he
adequately objected to the reasonableness of his sentence. This argument fails.
We held in Peltier v. United States that the defendant did not preserve the issue
of substantive reasonableness by requesting a below-Guidelines sentence.34
Heard also argues that he objected to the substantive reasonableness of his
sentence when, in response to the district judge asking whether there were any
other objections, his counsel responded, “Not other than those already argued,
Judge.” However, all of his prior objections were either Guidelines-related or a
request for a below-Guidelines sentence—none were related to substantive
reasonableness. Finally, Heard argues that his counsel adequately objected by
noting that the sentence imposed is “extensive.” That statement was made while



       30
         United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (citing United States v.
Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009)).
       31
         Id. (quoting United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)) (internal
quotation marks omitted).
       32
            United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011).
       33
            United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       34
            Id.

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                                     No. 11-20323

arguing for bond on appeal and was not an objection. Therefore, we will review
Heard’s sentence for plain error.35
      The district court calculated the advisory Guidelines range to be 151-188
months of imprisonment, and the court imposed a sentence of 151 months of
imprisonment for the conviction of aiding and abetting bribery of a public
official. The district court also imposed statutory maximum sentences of 60
months for conspiracy to defraud the United States, 60 months for each of the
two tax evasion counts, 36 months for the count of willfully making and
subscribing to a false tax return, and 36 months for corrupt interference with
internal revenue laws, all to run concurrently with the 151-month sentence. The
bribery conviction carried a 15-year maximum term of imprisonment (180
months).36
      Heard asserts that his sentence is unreasonable because if he had been
sentenced for bribery alone, the Guidelines range would have been 15-21 months
of imprisonment. He argues that the district court effectively circumvented the
statutory maximums on the tax counts by sentencing him to 151 months of
imprisonment for the bribery offense.
      The district court correctly calculated the advisory Guidelines range to be
151-188 months of imprisonment, as Heard concedes. The offense level for the
tax counts was 34, which combined with his criminal history, resulted in the
151-188 months advisory range. The offense level for the bribery count was 14.
The Guidelines provide in § 3D1.4 that if the offense level for one group of
related counts is more than 9 levels lower than that of the group with the
highest offense level, the lower offense level will have no effect on the calculation




      35
           Id. at 392.
      36
           See 18 U.S.C. § 201(b).

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                                        No. 11-20323

of the combined offense level.37 Accordingly, the bribery count did not affect the
computation of the 151-188 month range. From this properly calculated range,
the district court then selected a 151-month sentence as the total punishment
after considering the factors in 18 U.S.C. § 3553(a).38
       In subsequently imposing a 151-month sentence for the bribery count, the
district court adhered to the sentencing procedure contemplated by § 5G1.2 of
the Guidelines. Section 5G1.2 provides that when there are multiple counts of
conviction, the sentence imposed on each count shall be equal to the total
punishment, in this case 151 months, unless a count is subject to a statutory
maximum or minimum sentence.39 That section further provides that “[i]f the
sentence imposed on the count carrying the highest statutory maximum is
adequate to achieve the total punishment, then the sentences on all counts shall
run concurrently.”40 That is precisely what occurred in this case since the
statutory maximum for the bribery count was 180 months of imprisonment.
However, even if there had been no bribery count, the district court was
authorized to order consecutive sentences on the other counts up to the total
punishment of 151 months of imprisonment.41 In short, the district court
committed no error, let alone plain error, in sentencing Heard to 151-months in




       37
            U.S. SENTENCING GUIDELINES MANUAL § 3D1.4(c) (2010).
       38
         See id. § 5G1.2 cmt. n.1 (“The combined length of the sentences (‘total punishment’)
is determined by the court after determining the adjusted combined offense level and the
Criminal History Category and determining the defendant’s guideline range . . . .”).
       39
            Id. § 5G1.2(b).
       40
            Id. § 5G1.2(c).
       41
         Id. § 5G1.2(d) (“If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed on one or more of the
other counts shall run consecutively, but only to the extent necessary to produce a combined
sentence equal to the total punishment.”).

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                                       No. 11-20323

prison, with or without the bribery conviction.42 Heard does not discuss or even
cite § 5G1.2 of the Guidelines.
       Heard also contends that the 151-month sentence for the bribery count is
too harsh because the evidence showed the bribe was minor and Heard
presented extensive mitigating circumstances. The evidence reflects that the tax
loss was over $5 million and the district court did not plainly erred in applying
the factors set forth in § 3553(a).
       Lane and Czecholinski, who were both involved in the bribe, received 24
months and 36 months of probation respectively. Heard challenges his 151-
month prison sentence as an unwarranted disparity. However, Heard was the
leader of a conspiracy that spanned 20 years and involved numerous tax offenses
in addition to the bribery offense. Lane and Czecholinski pleaded guilty to
misdemeanor gratuity offenses. Heard pleaded not guilty and was convicted of
six felony counts after an 18-day trial. There was no plain error in treating the
defendants differently.
                                             IV
       Lambert argues that the district court should have granted his motion for
judgment of acquittal based on his withdrawal defense. Relatedly, he argues
that the district court erred in instructing the jury on his withdrawal defense
based on a six-year statute of limitations rather than a five-year statute of
limitations. We consider his latter challenge first.
                                              A
       Lambert submitted a requested jury instruction for his withdrawal defense
based on the general five-year statute of limitations found in 18 U.S.C. § 3282(a).



       42
          See United States v. Williams, 602 F.3d 313, 319 (5th Cir. 2010) (noting that “the
district court [may] impose[] consecutive sentences on each count, under the terms of
§ 5G1.2(d) of the sentencing guidelines . . . to produce a combined sentence equal to the total
punishment”).

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                                         No. 11-20323

The refusal to give a proposed jury instruction is reviewed for abuse of
discretion.43 Reversal is not warranted unless the proposed instruction “(1) is
substantially correct, (2) is not substantively covered in the jury charge, and (3)
pertains to an important issue in the trial, such that failure to give it seriously
impairs the presentation of an effective defense.”44
       The statute of limitations for conspiracy to defraud the United States in
violation of 18 U.S.C. § 371, the offense for which Lambert was charged, is six
years “where the object of the conspiracy is to attempt in any manner to evade
or defeat any tax or the payment thereof.”45                    Lambert was charged with
conspiracy to defraud the United States by preventing the IRS from
“ascertaining, computing, assessing, and collecting revenue, to wit: employment
taxes.” The six-year statute of limitations applies to such an offense.
       In support of his argument that the five-year statute of limitations applies,
Lambert cites United States v. Ely, in which the defendant was charged under
18 U.S.C. § 371 with conspiring with an IRS agent to disclose taxpayer
information in violation of 26 U.S.C. § 7213(a)(1).46 The decision in Ely is
inapposite.
                                                B
       Lambert argues that the district court erred in denying his motion for
judgment of acquittal based on his withdrawal from the conspiracy. Notably, he
has not argued on appeal that the evidence was insufficient for a jury to find
that he was ever part of the conspiracy.



       43
            United States v. Davis, 609 F.3d 663, 689 (5th Cir. 2010).
       44
            Id. (quoting United States v. Webster, 162 F.3d 308, 321-22 (5th Cir. 1998)).
       45
         26 U.S.C. § 6531(8); see also United States v. Aubin, 87 F.3d 141, 145 (5th Cir. 1996)
(applying a six-year statute of limitations to a tax-related charge under 18 U.S.C. § 371).
       46
            140 F.3d 1089, 1089 (5th Cir. 1998) (per curiam).

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                                         No. 11-20323

       The statute of limitations for a conspiracy charge begins to run when the
defendant withdraws from the conspiracy.47 Because Lambert was indicted on
October 9, 2008, and a six-year statute of limitations applies, he must have
withdrawn by October 9, 2002. Ordinarily we review the denial of a motion for
a judgment of acquittal de novo, determining whether the evidence was
sufficient for the jury to find that each element of the offense is satisfied beyond
a reasonable doubt.48 However, in this circuit, withdrawal is an affirmative
defense, and the burden of proof is on the defendant.49 Consequently, Lambert’s
conviction should only be vacated if no reasonable trier of fact could have failed
to find that Lambert’s withdrawal from the conspiracy by October 9, 2002, was
established by a preponderance of the evidence.50
       “[A] defendant is presumed to continue his involvement in a conspiracy
unless he makes a substantial affirmative showing of ‘withdrawal,
abandonment, or defeat of the conspiratorial purpose.’”51 In order to show
withdrawal, “the defendant must show that he has committed affirmative acts
inconsistent with the object of the conspiracy that are communicated in a


       47
         United States v. Gornto, 792 F.2d 1028, 1033 (11th Cir. 1986) (collecting cases); see
also United States v. U.S. Gypsum Co., 438 U.S. 422, 465 n.38 (1978).
       48
            United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (per curiam).
       49
          See United States v. Willis, 38 F.3d 170, 179 (5th Cir. 1994) (“Since a justification
defense such as duress is an affirmative defense, the burden of proof is on the defendant. To
succeed, the defendant must prove each element of the defense by a preponderance of the
evidence.” (internal citation omitted)); United States v. MMR Corp. (LA), 907 F.2d 489, 499
(5th Cir. 1990) (withdrawal is an affirmative defense).
       50
          See United States v. Barton, 992 F.2d 66, 68-69 (5th Cir. 1993) (holding that, in
reviewing a defendant’s motion for judgment of acquittal based on insanity, which the
defendant must prove by clear and convincing evidence, the court must determine whether no
reasonable jury “could have failed to find that the defendant’s criminal insanity at the time
of the offense was established by clear and convincing evidence.”).
       51
         United States v. Mann, 161 F.3d 840, 859-60 (5th Cir. 1998) (quoting United States
v. Puig-Infante, 19 F.3d 929, 945 (5th Cir. 1994)).

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                                      No. 11-20323

manner reasonably calculated to reach conspirators.”52                 Mere cessation of
activity in furtherance of the conspiracy is not sufficient to show withdrawal.53
       There was some evidence suggesting that Lambert withdrew from the
conspiracy before October 9, 2002.             It is undisputed that SPI paid all
employment taxes from 1999 to 2002, apparently because SPI began using a
payroll service in 1999. There is evidence that Lambert became the CFO of SPI
in 1999, and left that job in 2000. He remained as a consultant, but the evidence
is conflicting as to whether he left that position in 2001 or 2004. Two former
employees testified that they thought Lambert was in charge of payroll taxes,
and an IRS revenue officer determined that Lambert could be held responsible
for an alleged underpayment of payroll tax in 2000. Lambert’s expert witness
similarly testified that Lambert “had the authority to act and did, in fact, act
with regard to [SPI] during the period of—starting in about October of 2000 and
going forward until another five quarters, roughly.” There was evidence that in
2000, SPI obtained a loan to provide temporary working capital, and the loan
was guaranteed by personal assets in Lambert’s brokerage account at the bank.
The loan was repaid, and one witness testified that Lambert cashed in his
securities account to repay it. There was also some evidence that Lambert
borrowed $100,000 from a friend in 2000 and told the friend that he was going
to use it to pay payroll taxes. From this evidence, the jury might conclude that
when Lambert became an employee of SPI in 1999, he turned over a new leaf
and decided to begin operating SPI in compliance with the law.
       However, there is very little evidence indicating that Lambert was actually
the person that decided SPI should pay its employment taxes—it very well may
have been Heard. There was testimony that Heard kept very tight control of

       52
            Id. at 860.
       53
          United States v. Torres, 114 F.3d 520, 525 (5th Cir. 1997) (citing United States v.
Phillips, 664 F.2d 971 (5th Cir. Unit B 1981)).

                                             19
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                                 No. 11-20323

financial matters and generally was the one who decided whether to pay payroll
taxes, even when his CFO was an experienced accountant. Lane testified that
titles were not very important at Heard’s companies. Heard even appointed
multiple employees as CFO, some of whom had no financial experience.
      There was also evidence from which the jury could find that Lambert did
not withdraw. One employee testified that when Lambert discovered that
Heard’s newly acquired company had not paid payroll taxes in 1998, the year
before he began working at SPI, Lambert became frustrated not because a
company should pay its employment taxes, but because the company had paid
taxes in the past and ceasing payment would raise red flags with the IRS. That
same employee testified that in July 2002, Heard, Lambert, and the employee
were walking out of the building after Heard had recently been contacted by an
IRS criminal investigator. Heard stated that he would put the blame on
Lambert, and Lambert would disappear for a while. Lambert did not say
anything.   The employee testified that Heard told her that Lambert had
previously disappeared.    There was other testimony from one of Heard’s
employees in the mid-1990s that it was known around the office that Lambert
would disappear during tax time. Finally, there was evidence that during a
meeting with the IRS in 2004, when Lambert was asked if he had been involved
with other companies that had tax problems, he disclosed one company but
failed to mention Guardex, Probe Protection, the three IPS entities, and Beltran,
all of which had tax problems with the IRS.
      Although is it a close question, we conclude that the district court did not
err in denying Lambert’s motion for a judgment of acquittal. Although a jury
could reasonably have found that he withdrew, the evidence is not so clear-cut
that the jury was required to find withdrawal.
      Lambert argues that the evidence shows that he required Heard to dispose
of all stamps with fake names, merge all of his security companies into SPI, and

                                       20
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                                       No. 11-20323

outsource payroll. There was evidence that there were no fake names on
signature cards after 1997, that Heard’s security companies merged into SPI,
and that SPI used a payroll service. However, none of this evidence was linked
to efforts by Lambert.
                                              V
      Lambert argues that the district court erred in allowing evidence that he
committed bankruptcy fraud in connection with a bankruptcy petition he filed
in 1994 to discharge several personal debts to the IRS. The district court
admitted the testimony because it is either intrinsic evidence of Lambert’s
intent, and thus not subject to Federal Rule of Evidence 404(b), or alternatively,
extrinsic evidence, and proper notice was given in accordance with Rule 404(b).
The Government presses both arguments on appeal.
      Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act” is not
admissible as character evidence, but such evidence may be admissible for
another purpose, such as intent.54 In a criminal case, upon request of the
defendant, the government must provide reasonable notice of the general nature
of such evidence before trial, or during trial if the district court excuses pretrial
notice for good cause.55 This court has set forth a two-part analysis to determine
whether evidence is admissible under Rule 404(b). “First, it must be determined
that the extrinsic offense is relevant to an issue other than the defendant’s
character.      Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of rule 403.”56 Intrinsic evidence is generally admissible and is not




      54
           FED. R. EVID. 404(b)(1).
      55
           Id. 404(b)(2).
      56
           United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).

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                                         No. 11-20323

subject to Rule 404(b).57 Evidence of other acts is intrinsic “when the evidence
of the other act and evidence of the crime are ‘inextricably intertwined’ or both
acts are part of a ‘single criminal episode’ or the other acts were ‘necessary
preliminaries’ to the crime charged.”58
       The Government argues that evidence of bankruptcy fraud is intrinsic
because it “completes the story of the conspiracy and provides valuable
context.”59 This argument hinges on the fact that when Lambert filed for
bankruptcy to discharge his personal taxes, he was in charge of payroll and
financial matters for Probe Protection. However, there is no evidence linking
Lambert’s 1994 bankruptcy petition in any way to Probe’s employment tax
issues. Thus, it cannot be said that the false bankruptcy petition and the
conspiracy were inextricably intertwined, part of a single criminal episode, or
that the bankruptcy was a necessary preliminary to the conspiracy.
       The evidence is, however, admissible under Rule 404(b) as evidence of
Lambert’s intent with respect to the conspiracy. The evidence is relevant to
show Lambert’s intent to further the objective of the conspiracy60—defrauding
the United States out of employment taxes. We have previously held that in a
conspiracy case, the defendant puts his intent into issue when he pleads not
guilty.61 Here, it is more likely that Lambert intended to further the objective


       57
            United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005).
       58
            Id. (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)).
       59
         See United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996) (“[Intrinsic] evidence
is admissible to complete the story of the crime by proving the immediate context of events in
time and place.”).
       60
         United States v. Brooks, 681 F.3d 678, 699 (5th Cir. 2012), cert. denied, 133 S. Ct. 839
(2013) (“Conspiracy actually has two intent elements—intent to further the unlawful purpose
and the level of intent required for proving the underlying substantive offense.”).
       61
         United States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993); United States v. Prati, 861
F.2d 82, 86 (5th Cir. 1988).

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                                         No. 11-20323

of defrauding the United States out of employment taxes when he was, at the
same time, defrauding the United States out of income tax through a fraudulent
bankruptcy.
       Lambert argues that the evidence fails the first part of Beechum’s test
because the government did not offer sufficient evidence to establish that
Lambert committed bankruptcy fraud.62 However, the government offered
testimony that in the bankruptcy petition, Lambert estimated his income from
1992 to 1994 to be about $9,000 per year and listed no other assets. His wife
testified that in August 1994 they bought a home for which he contributed
$70,000 to $90,000 in cash. She also testified that Lambert owned a corporation
called Tuna Dog, and this corporation was not disclosed on the bankruptcy
petition. The home was purchased in the name of Tuna Dog. There was
evidence that both Lambert and Tuna Dog received checks over a two-and-a-half
month period in 1994 totaling $7,500 and $6,000 respectively. The government
also entered into evidence a 1996 brokerage account application in which
Lambert indicated Tuna Dog had an annual income of over $100,000 and a net
worth of $500,000. Based on this evidence, a reasonable jury could find that
Heard’s bankruptcy petition was fraudulent.
       Lambert also argues that the district court should have excluded the
evidence pursuant to Rule 403 because its probative value is substantially
outweighed by the danger of unfair prejudice.63 In performing a Rule 403
analysis,      the    court      must   balance    the   “incremental     probity    of   the
evidence . . . against its potential for undue prejudice.”64 While it is a close case,


       62
         See United States v. Beechum, 582 F.2d 898, 912-13 (5th Cir. 1978) (“[A]s a predicate
to a determination that the extrinsic offense is relevant, the Government must offer proof
demonstrating that the defendant committed the offense.”).
       63
            FED. R. EVID. 403.
       64
            Beechum, 582 F.2d at 914.

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                                       No. 11-20323

we hold that the district court did not abuse its discretion.                 The alleged
bankruptcy fraud occurred in the middle of the ongoing conspiracy and served
to deprive the IRS of taxes owed, just as the conspiracy at issue here deprived
the IRS of taxes. Lambert argued at trial that he did not intend or agree with
Heard to evade the payment of employment taxes. We think this evidence is
probative enough of Lambert’s intent that it was not an abuse of discretion to
admit it.
       Finally, Lambert argues that, even if the evidence is admissible as
extrinsic evidence, he did not receive written notice, and thus the evidence
should have been excluded. Rule 404(b) requires that the government give
reasonable notice of the general nature of any Rule 404(b) evidence. The
Advisory Committee Notes indicate that no specific form of notice is required,
and other circuits have agreed.65 The rule is intended to “reduce surprise and
promote early resolution on the issue of admissibility.”66
       We first note that the Government was not required to give Lambert
written notice—Rule 404 contains no such requirement. The Government argues
that it gave Lambert notice of its intent to offer evidence of his bankruptcy well
in advance of trial. According to the Government, it provided the bankruptcy
petition in discovery. It also provided Lambert with a copy of its proposed trial
exhibits three weeks before trial, listing the bankruptcy petition, and it
represented to the district court that it gave Lambert’s counsel a copy of the
exhibit. Lambert has not disputed any of these representations. Lambert even
filed a motion in limine before trial seeking, among other things, to exclude




       65
         FED. R. EVID. 404 advisory committee’s note, 1991 amendments; United States v.
Blount, 502 F.3d 674, 678 (7th Cir. 2007); United States v. Gorman, 312 F.3d 1159, 1163 (10th
Cir. 2002) (holding that verbal notice was sufficient).
       66
            FED. R. EVID. 404 advisory committee’s note, 1991 amendments.

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                                       No. 11-20323

evidence that Lambert “filed bankruptcy in 1994 and lawfully discharged a prior
IRS assessment for his personal taxes.”
       We have doubts about whether the Government’s notice was sufficient.
While Rule 404 requires that the Government give notice only of the “general
nature” of the evidence, the Government here did not indicate that it intended
to show that the bankruptcy was fraudulent. However, we hold that any lack of
notice here did not affect Lambert’s substantial rights.67 Lambert was on notice
that evidence of the bankruptcy would be raised well in advance of trial. The
Government indicated in its response to Lambert’s motion in limine that it
would present evidence that the bankruptcy was fraudulent two days before it
did so. Furthermore, there was extensive evidence that Lambert was involved
in the conspiracy with Heard, including evidence of the creation of signature
stamps with fake names used to sign paychecks and tax documents, the
destruction of tax documents, and his role in the repeated incorporation of
Heard’s companies. While the case was much closer with respect to Lambert’s
withdrawal, the 1994 bankruptcy petition is irrelevant to that issue.                       We
therefore hold that any error in finding sufficient notice was harmless.
                                              VI
       Lambert argues that his Confrontation Clause rights were violated when
the district court refused to allow him to cross-examine an IRS revenue agent
about the agent’s dismissal, which was converted to a suspension of
approximately five months without pay, for viewing pornography on his
computer during business hours. Lambert also argues that such evidence was
admissible under Rule 608(b) of the Federal Rules of Evidence. The district
court excluded the evidence both because it was not probative of the agent’s



       67
          See id. 103(a) (“A party may claim error in a ruling to admit or exclude evidence only
if the error affects a substantial right of a party . . . .”).

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                                         No. 11-20323

character for truthfulness and because any probative value was substantially
outweighed by unfair prejudice.
       An alleged violation of the Confrontation Clause is reviewed de novo,
subject to harmless-error review.68 If there is no constitutional violation, then
the court reviews limitations on cross-examination for abuse of discretion,
“which requires a showing that the limitations were clearly prejudicial.”69
       “The Confrontation Clause is satisfied where defense counsel has been
allowed to expose the jury to facts from which the jury ‘could appropriately draw
inferences relating to the reliability of the witness.’”70 Of particular importance
to the Confrontation Clause is evidence tending to show bias or motivation of a
witness to testify.71 However, the right to cross-examination is not unlimited.
“The district court has ‘wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on . . . 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.’”72
       Lambert’s Confrontation Clause rights were not violated. Lambert argues
that inquiry into the agent’s suspension tends to show bias because he was
suspended during the IRS investigation of Heard’s companies. Lambert claims
that during that time period, a number of Heard’s employees contacted the IRS
to implicate Heard in wrongdoing, and this put the agent in the position of


       68
            United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008).
       69
            Id.
       70
          United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004) (quoting United States v.
Restivo, 8 F.3d 274, 278 (5th Cir. 1993)).
       71
            Skelton, 514 F.3d at 442 (citing Alaska v. Davis, 415 U.S. 308, 316-17 (1974)).
       72
            Id. at 439 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

                                                26
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                                         No. 11-20323

trying to “curry favor with the federal government in order to get reinstated and
maintain his job.” This argument is unpersuasive. As the government notes,
the evidence shows that the Heard employees Lambert identified met with the
agent in 1999, while the misconduct occurred in 2000 and the suspension began
in 2001, so those interviews would not have been affected by the agent’s
suspension. Any argument that the suspension would cause the agent to falsify
his testimony in 2010, nine years later, to curry favor with his employer is
similarly unpersuasive.            A reasonable jury would not “have received a
significantly different impression of [the agent’s] credibility had [Lambert] been
permitted to pursue his proposed line of cross-examination.”73 Because evidence
of the suspension was simply not relevant to the agent’s bias or motivation for
testifying, the limitation on cross-examination was not clearly prejudicial, and
thus not an abuse of discretion.
       Lambert also argues that this evidence was admissible under Federal Rule
of Evidence 608(b), which allows inquiry into specific instances of conduct if
probative of the witness’s character for truthfulness or untruthfulness. He
argues that limiting cross-examination was “clearly prejudicial.”
       “Rule 608(b) authorizes inquiry only into instances of misconduct that are
clearly probative of truthfulness or untruthfulness, such as perjury, fraud,
swindling, forgery, bribery, and embezzlement.”74                    A district court has
substantial discretion in admitting testimony under Rule 608(b).75 The agent’s
conduct is not clearly probative of truthfulness or untruthfulness. The actions
at issue are nothing like perjury, fraud, swindling, forgery, bribery, or



       73
            Van Arsdall, 475 U.S. at 680.
       74
         United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995) (quoting United States
v. Leake, 642 F.2d 715, 718 (4th Cir. 1981)) (internal quotation marks omitted).
       75
            United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir. 1991).

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                                      No. 11-20323

embezzlement. The district court therefore did not abuse its discretion in
excluding the evidence.
       Even if it were error to exclude the testimony, we are convinced that the
error would be harmless beyond a reasonable doubt.76 The agent’s testimony
focused on his examination of the employment taxes of Beltran, the IPS entities,
Probe Protection, Falcon Computer Components, and a few of Heard’s personal
tax returns. The agent testified how he reconstructed the wages paid by Heard
in 1995, and he was able to be cross-examined on his methodology. Heard’s
filings for other years indicating that he owed taxes but did not pay them were
in evidence, so the agent’s testimony on this point was cumulative. Lambert also
has not disputed that these companies failed to pay employment taxes. In his
direct testimony, the agent’s only mention of Lambert was that Heard told him
that Lambert prepared Heard’s personal tax returns. On cross-examination, the
agent confirmed that Lambert was present at some of the agent’s meetings with
Heard. The agent further testified that Lambert was responsible for paying
Falcon’s taxes, but also stated that he found no material issues with Falcon’s
taxes. In these circumstances, any error was harmless beyond a reasonable
doubt.77
                                           VII
       Lambert contends that the district court erred in excluding testimony of
two witnesses concerning Lambert’s history of ensuring that their payroll taxes
were paid. One witness started to testify that Lambert had helped him take care

       76
        See Van Arsdall, 475 U.S. at 684 (holding that the improper denial of a defendant’s
opportunity to impeach for bias is subject to harmless-error review in which the reviewing
court must determine if the error was harmless beyond a reasonable doubt).
       77
          Id. at 684 (the factors governing whether an error is harmless include “the
importance of the witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case”).

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                                        No. 11-20323

of his taxes for his company in the past, and that he always filed his taxes every
year.        Another witness would have testified that Lambert had been his
accountant for over thirty years, had always paid his payroll taxes, and there
had never been any problems. The district court excluded the evidence because
the fact that Lambert sometimes did not commit a crime is not necessarily
evidence that he did not commit a crime here.
        Lambert argues that the evidence is admissible as habit evidence. Federal
Rule of Evidence 406 provides that “[e]vidence of a person’s habit or an
organization’s routine practice may be admitted to prove that on a particular
occasion the person or organization acted in accordance with the habit or routine
practice.”78 “To offer evidence of a habit, a party must at least demonstrate a
‘regular practice of meeting a particular kind of situation with a specific type of
conduct.’”79 “[H]abit suggests a regular response to a repeated specific situation
that has become semi-automatic.”80 “Although a precise formula cannot be
proposed for determining when the behavior may become so consistent as to rise
to the level of habit, ‘adequacy of sampling and uniformity of response’ are
controlling considerations.”81
        The district court did not abuse its discretion. There is no indication of
how many clients Lambert has had in his career, but establishing that he had


        78
             FED. R. EVID. 406.
        79
          Jones v. S. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992) (quoting Reyes v. Mo. Pac.
R.R. Co., 589 F.2d 791, 794 (5th Cir. 1979)).
        80
          Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 442 (5th Cir. 2007) (quoting
Reyes, 589 F.2d at 794) (internal quotation marks omitted); see also Mobil Exploration and
Prod. U.S., Inc. v. Cajun Constr. Servs., Inc., 45 F.3d 96, 99 (5th Cir. 1995) (holding that, with
respect to a business’s routine practice, “the plaintiff must show regularity over substantially
all occasions or with substantially all other parties with whom the defendant has had similar
business transactions”).
        81
        Reyes, 589 F.2d at 795 (quoting FED. R. EVID. 406 advisory committee’s notes, 1972
proposed rules).

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                                      No. 11-20323

always filed payroll taxes for two of them does not provide an adequate sample
for showing habit.82 There has not been a showing that payment of payroll taxes
had become an “invariable, reflexive response” to any kind of stimulus,83 and it
might be doubted whether such an involved action as filing and paying taxes
could be considered a habit.
                                           VIII
       Finally, Lambert challenges his sentence for conspiracy to defraud the
United States as substantively unreasonable. After a downward departure of
two levels, the district court calculated Lambert’s advisory Guidelines range as
being 51 to 60 months of imprisonment. The district court sentenced Lambert
to fifty-one months of imprisonment. Unlike Heard, Lambert has preserved his
objection to the substantive reasonableness of his sentence. We therefore review
his sentence for an abuse of discretion.84
       Lambert first argues that his sentence is unreasonable because it resulted
in an unwarranted sentence disparity among him, Heard, and Janet Heard, a
codefendant not involved in this appeal. Heard received a total sentence of 151
months, although for the conspiracy charge, he received the statutory maximum
of 60 months. Information regarding Janet Heard’s sentence is not in the record,
but according to the briefs, she received six months of incarceration and six
months of home confinement. She was convicted of the conspiracy count as well
as five counts of making a false oath in bankruptcy.



       82
         Leonard, 499 F.3d at 442 (holding that a district court abused its discretion in
admitting comments an insurance agent made to five clients over the course of a decade when
the record demonstrated the agent had sold nearly two hundred such policies).
       83
            Id.
       84
        United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009) (“We apply
a presumption of reasonableness to guideline sentences and review for abuse of discretion
sentences that include an upward or downward departure as provided for in the guidelines.”).

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                                         No. 11-20323

       We have held that a defendant may be able to establish substantive
unreasonableness due to unwarranted sentence disparity based on a similarly
situated defendant’s sentence.85 However, “a mere disparity of sentences among
co-defendants does not, alone, constitute an abuse of discretion.”86
       Lambert is not similarly situated to Heard. Although Heard received only
60 months of imprisonment on the conspiracy count, only nine more than
Lambert, he received a total sentence of 151 months, 100 more months than
Lambert.
       It is difficult to determine whether Lambert is similar to Janet Heard
because of the lack of information regarding her sentencing in the record. A
number of differences are evident, however. The indictment does not charge
Janet Heard with any act in furtherance of the conspiracy until 2002, while it
charges Lambert with committing an overt act as early as 1988.                       These
difference alone likely make the two not similarly situated. Without any other
information demonstrating their similarity, we cannot say that the district court
abused its discretion.
       Lambert also asserts that he argued four valid grounds for a variance in
his sentencing memorandum. He argues that the following factors support a
downward variance: (1) cooperation with the government, (2) lack of motive and
role in the offense evidenced by his lack of profit, (3) his imperfect withdrawal
and attempt to mitigate, and (4) his generosity, poor health, and senior age. In
essence, Lambert is asking the court to reweigh the § 3553(a) sentencing factors.
As we have previously held, “[a]ppellate review is highly deferential as the
sentencing judge is in a superior position to find facts and judge their import



       85
            United States v. Armstrong, 550 F.3d 382, 406 (5th Cir. 2008).
       86
        United States v. Ochoa, 667 F.3d 643, 651 (5th Cir. 2012) (quoting United States v.
Lemons, 941 F.2d 309, 320 (5th Cir. 1991)) (internal quotation marks omitted).

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                                       No. 11-20323

under § 3553(a) with respect to a particular defendant.”87 We will not disturb
Lambert’s sentence.
                                   *        *         *
      For the foregoing reasons, we AFFIRM the convictions and sentences of
Heard and Lambert in all respects.




      87
         United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citing Gall
v. United States, 552 U.S. 38, 51 (2007)).

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