     Case: 16-50468      Document: 00513956409         Page: 1    Date Filed: 04/18/2017




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

                                      No. 16-50468
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           April 18, 2017

UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellee,

v.

HELENA TANTILLO,

              Defendant - Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CR-162


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Helena Tantillo was convicted under 18 U.S.C. § 1001(a)(2) on two
counts of making false statements to FBI agents during a public corruption
investigation of Dallas County Commissioner John Wiley Price.                           Tantillo
challenges her conviction and sentence on four grounds, arguing that the
district court erroneously excluded evidence of her willingness to take a
polygraph test, that the district court erroneously instructed the jury on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50468
materiality, that the jury convicted her on insufficient evidence, and that her
sentence on two counts of making false statements subjects her to double
jeopardy. Because none of these challenges is meritorious, we AFFIRM the
judgment of the district court.
                                        I.
      At issue in this case is Tantillo’s liability for statements made to the FBI
during its investigation of a bribery conspiracy that lasted from approximately
2001 to 2011. The FBI had discovered that Commissioner Price repeatedly
took favorable actions for the clients of a consultant named Kathy Nealy after
Nealy conveyed financial benefits to Commissioner Price. The FBI interviewed
Tantillo to learn more about this activity because Tantillo was an executive-
level employee of BearingPoint, one of the companies that Commissioner Price
had helped after receiving funds from Nealy. The FBI wanted Tantillo to
provide information about a series of transactions in 2004 that suggested
BearingPoint had given a temporary pay raise to a consultant named Christian
Campbell so that he could pay Nealy to bribe Commissioner Price.
      FBI agents interviewed Tantillo three times from August 2013 to June
2014. Tantillo made two statements that are relevant to this case. First, she
told the FBI that BearingPoint gave Campbell a pay raise to make a
contribution to a favorite charity of a Dallas County commissioner who was not
under investigation. Second, she told the FBI that she had been reminded of
this fact during a phone call with her former boss that took place between her
first and second interviews. Tantillo made these statements during the second
interview and repeated them during the third.
      Tantillo was charged on two counts of making false statements to law
enforcement under 18 U.S.C. § 1001(a)(2)—one count for each of the
statements discussed above. At trial, the jury heard testimony relevant to each
statement. One BearingPoint employee testified that she recalled discussions
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                                 No. 16-50468
about a contribution to a charity associated with the commissioner whom
Tantillo named. On the other hand, two BearingPoint employees that Tantillo
said had discussed the charitable contribution both testified that they never
knew of such a plan. Campbell himself testified that he and Tantillo agreed
he would use $7,500 of his temporary pay raise to get Nealy’s help influencing
Commissioner Price and that the remaining $2,500 was intended to cover the
taxes he would owe on the pay raise.
      Regarding Tantillo’s claim that her former boss reminded her of the
reason for Campbell’s pay raise over the phone, the jury heard testimony from
the FBI agents who interviewed Tantillo that she initially claimed to have
called her former boss using the phone in a hotel room in Phoenix. They told
her they did not believe she made a long-distance call from the hotel’s landline
and would try to verify the hotel phone records, and Tantillo eventually said
she really made the call from her cell phone. The agents testified that the FBI
subpoenaed Tantillo’s cell phone records from the relevant time period and
that the records did not show any calls between Tantillo and her former boss.
The phone records were entered into evidence. Tantillo testified at trial that
she misremembered who reminded her of the reason for Campbell’s pay raise
when she spoke with the FBI.
      The jury found Tantillo guilty on both counts of making false statements
to law enforcement. Tantillo was sentenced to six months’ imprisonment on
each count, to be served concurrently and to be followed by three years of
supervised release. She was also fined $2,500 per count and ordered to pay a
$200 special assessment. Tantillo appealed, challenging an evidentiary ruling,
a jury instruction, the sufficiency of the evidence, and the alleged multiplicity
of her sentence.




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                                  No. 16-50468
                                        II.
      We review the sufficiency of the evidence de novo because Tantillo
preserved the issue. United States v. Curtis, 635 F.3d 704, 717 (5th Cir. 2011).
We conduct this review in light of the jury’s “sole authority to weigh any
conflicting evidence and to evaluate the credibility of the witnesses,” United
States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012), and in light of the jury’s
freedom to “choose among reasonable constructions of the evidence,” United
States v. Delgado, 668 F.3d 219, 225 (5th Cir. 2012). Thus, the evidence is
sufficient if, “after viewing all the evidence and inference[s] that may be drawn
therefrom in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt.” Id.
      The elements of an 18 U.S.C. § 1001(a)(2) violation are: “(1) a statement,
that is (2) false, (3) and material, (4) made with the requisite specific intent,
[and] (5) within the purview of government agency jurisdiction.” United States
v. Abrahem, 678 F.3d 370, 373 (5th Cir. 2012).           Tantillo challenges the
sufficiency of the evidence as to each element except the actual making of her
statements. However, her challenges fail because the evidence is sufficient to
allow a rational trier of fact to find the essential elements of the offense beyond
a reasonable doubt.
                                        A.
      The evidence is sufficient to allow a rational trier of fact to find that
Tantillo’s statements were false. At best, Tantillo’s arguments to the contrary
show that a jury could find Campbell’s pay raise was intended to facilitate a
contribution to the favorite charity of a commissioner other than Commissioner
Price if it credited the testimony she proffers, discredited contrary testimony,




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                                       No. 16-50468
and drew the inferences that she suggests. 1 However, the jury was free to
evaluate the credibility of the witnesses and to choose among reasonable
constructions of the evidence. Grant, 683 F.3d at 642; Delgado, 668 F.3d at
225. The jury heard Campbell testify that he and Tantillo agreed he would
pass $7,500 of his pay raise on to Nealy. It also heard two witnesses deny
Tantillo’s claim that they discussed plans to make a charitable contribution to
another commissioner through Campbell. The record shows that, consistent
with this testimony, Campbell passed $7,500 of his pay raise on to Nealy and
did not use it to make a charitable contribution. This evidence is sufficient for
a rational jury to conclude that Tantillo did not tell the truth when she said
Campbell’s pay raise was intended to enable him to make a charitable
contribution to bribe a commissioner other than Commissioner Price.
                                              B.
       The evidence is also sufficient for a rational jury to reject Tantillo’s claim
that she lacked the requisite intent because any inaccuracies in her statements
resulted from faulty memory.             Tantillo argues that her statement about
attempting to corrupt a commissioner other than Commissioner Price was a
statement against her interests and demonstrates that she made a good-faith
effort to remember the reasons for events that had taken place years before. 2
The jury heard Tantillo testify that she actually thought she remembered that



       1  None of Tantillo’s arguments about falsity pertain to the claim that she was
reminded of the reason for Campbell’s raise during a phone call with her former boss. Thus,
Tantillo has forfeited any argument that the evidence is insufficient to prove the falsity of
her statement regarding the phone call. See United States v. Scroggins, 599 F.3d 433, 446–
47 (5th Cir. 2010).
       2 Tantillo’s claim to have misremembered events years after the fact does not explain

why she inaccurately stated that she was reminded of the reason for Campbell’s raise during
a phone call with her former boss. This phone call allegedly took place within a few months
of the time that she made the statement. Thus, Tantillo has not adequately briefed any
challenge to the jury’s finding of specific intent with regard to her statement about the phone
call. See Scroggins, 599 F.3d at 446–47.
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                                       No. 16-50468
Campbell’s pay raise had been intended to facilitate a charitable contribution
when she told the FBI that this was the case. On the other hand, as has been
discussed above, the jury also heard Campbell’s testimony that he and Tantillo
did not intend a charitable contribution, heard other witnesses deny having
discussed plans for a charitable contribution, and heard that a charitable
contribution was not made. In light of this competing evidence, the jury was
free not to accept Tantillo’s self-serving testimony as credible. Grant, 683 F.3d
at 642. Thus, the evidence was sufficient to support the jury’s finding of
specific intent.
                                              C.
       Finally, the evidence shows that Tantillo’s arguments regarding
materiality and the FBI’s jurisdiction over the conduct it was investigating are
without merit. According to Tantillo, her 2013 and 2014 statements about
transactions that took place in 2004 had to do with conduct outside the statute
of limitations. Tantillo argues that the expiration of the statute of limitations
placed the conduct outside the FBI’s jurisdiction and made her false statement
about Campbell’s raise immaterial to “the official decision” of whether to arrest
or charge anyone involved. 3          However, the statute of limitations had not
expired at the time Tantillo made her statements: Although Tantillo’s
statement had to do with a pay raise in 2004, that pay raise was part of a
conspiracy that lasted until around 2011, and the statute of limitations for
conspiracy is five years. See 18 U.S.C. § 3282(a). Tantillo argues that any
conspiracy was complete once Commissioner Price received BearingPoint’s
bribe and gave BearingPoint the favorable treatment it sought. However, the


       3 Tantillo has not adequately briefed any challenge to the jury’s finding of materiality
and jurisdiction with respect to her statement about the phone call with her former boss.
Although she asserts that “a false ‘memory trigger’” is an improper basis for a federal felony
conviction, her brief does not support this proposition with legal authority and argument.
See Scroggins, 599 F.3d at 446–47.
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record shows that the FBI was investigating the 2004 transactions as part of a
broader conspiracy that lasted until around 2011 and shows that Campbell
was prosecuted for conspiracy based on his role in those transactions. We
therefore reject Tantillo’s argument that the alleged expiration of the statute
of limitations made her statements immaterial and placed the conduct of which
she spoke outside the FBI’s jurisdiction. 4
                                           III.
       We review the district court’s exclusion of evidence for abuse of
discretion. United States v. Alaniz, 726 F.3d 586, 606 (5th Cir. 2013). Even if
a district court abuses its discretion, we will reverse only if the exclusion of
evidence affected the outcome of the case. United States v. Kay, 513 F.3d 432,
457 (5th Cir. 2007). Tantillo argues that the district court erred by excluding
testimony about her willingness to take a polygraph test that allegedly would
have corroborated her claim that she believed she was telling the truth even if
her statements turned out to have been inaccurate. However, she has not
shown that the district court’s Rule 403 analysis was an abuse of discretion.
Nor has she shown that the excluded testimony would have overcome the
evidence from which the jury concluded, notwithstanding her arguments to the
contrary, that she intentionally misled the FBI. Thus, the district court’s
exclusion of testimony that Tantillo was willing to take a polygraph test does
not constitute reversible error.
                                            IV.
       We review jury instructions for plain error where, as here, no objection
was made at trial. United States v. Fuchs, 467 F.3d 889, 900 (5th Cir. 2006);
see also Fed. R. Crim. P. 30(d). Accordingly, this court has discretion to correct



       4Because the statute of limitations had not expired, we do not decide what impact the
expiration of the statute of limitations would have had.
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                                         No. 16-50468
an error that “is plain, affects substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Jimenez v.
Wood Cty., 660 F.3d 841, 845 (5th Cir. 2011). An error is plain if it is “clear or
obvious” at the time of the appeal. United States v. Escalante-Reyes, 689 F.3d
415, 423, 440 (5th Cir. 2012). An error affects substantial rights if it affects
the outcome of the court proceedings. Id. at 424.
       Tantillo argues that the district court’s jury instruction erroneously
defined the materiality element of an 18 U.S.C. § 1001(a)(2) violation.
According to the jury instruction, “A statement is ‘material’ if it has a natural
tendency to influence, or is capable of influencing, a decision of the Federal
Bureau of Investigation.” According to Tantillo, a statement is only material
if it has a natural tendency to influence “the official decision” of the FBI, which
she defines as whether to arrest or charge Price, Nealy, Campbell, Tantillo, or
a fifth individual for bribery, conspiracy, money laundering, or tax evasion. 5
Tantillo bases her argument on a Supreme Court decision that false
statements are only actionable under 8 U.S.C. § 1451(a) if they are material to
“the official decision” of the government. See Kungys v. United States, 485 U.S.
759, 771 (1988). 6
       The Court’s use of the phrase “the official decision” in Kungys is
insufficient to establish that the district court committed plain error by using
our Pattern Jury Instructions. The Court’s focus on one official decision in



       5    Thus, Tantillo takes “the official decision” to refer to forty decisions: eight decisions
(whether to arrest and whether to charge for any of four crimes) for each of five individuals.
          6 Tantillo also notes that Escobar calls materiality a rigorous requirement and holds

that violation of a legal obligation can only be material for purposes of the False Claims Act
if it is material to the government’s decision to make a payment. See Universal Health Servs.,
Inc. v. United States, ex rel. Escobar, 136 S. Ct. 1989, 1996 (2016). This is unsurprising as
the False Claims Act applies to false claims for government payment, and it does nothing to
show that a statement is material for purposes of 18 U.S.C. § 1001(a)(2) only if it pertains to
the FBI’s decisions as to who should be arrested or charged with what crimes.
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Kungys is unsurprising given the limited scope of the statute under which the
case arose. 7 However, Tantillo’s case arises under 18 U.S.C. § 1001(a)(2),
which does not limit the materiality analysis to a specific agency decision. That
the narrowness of the inquiry in Kungys arises from statutory limitations
rather than the definition of materiality is further supported by the case’s
holding that a statement is material if it has “a natural tendency to influence
the decisions of the [agency].” Kungys, 485 U.S. at 772. The instruction on
materiality stated the law correctly and provides no basis for reversal. 8
                                             V.
       “Whether a transaction results in the commission of one or more offenses
is determined by whether separate and distinct acts made punishable by law
have been committed.” United States v. Guzman, 781 F.2d 428, 432 (5th Cir.
1986). Under this test, a defendant is not subjected to double jeopardy “when
conviction under one count requires proof of an additional fact that the other
count does not require.” Id. Although Tantillo forfeited any double-jeopardy
challenge to the multiplicity of her indictment by failing to raise it before trial
as required by Federal Rule of Criminal Procedure 12(b), we liberally construe
her brief to include a double-jeopardy challenge to the multiplicity of her
sentence. See United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991)
(permitting a challenge to the multiplicity of a sentence to be raised for the
first time on appeal).
       Tantillo was sentenced on two counts of making false statements to law
enforcement.       Each count required different evidence to show that the



       7  Kungys arose under 8 U.S.C. § 1451(a), which provides for revocation of an order and
certificate of naturalization if it was procured by concealment or misrepresentation of a
material fact. Therefore, the Court focused exclusively on whether the false statements
tended to affect the decision to naturalize the applicant. Id. at 771–73.
        8 Even if the instruction misstated the law and its error was plain, Tantillo has not

shown that any error would have affected the outcome of the proceedings.
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statement was made and to show that the statement was false. Thus, each
count involved a separate and distinct act, and punishment for both acts does
not constitute double-jeopardy.    See Guzman, 781 F.2d at 432.         Tantillo’s
argument that her two statements were substantially the same and were made
during the course of a single transaction is unavailing. The statements were
distinct and were repeated in two separate interviews. Even if that were not
the case, Tantillo’s argument would only show that her case is like Guzman,
which held that presenting the same false signature on two documents in a
single transaction constituted two separate offenses.       Id. at 433.     Thus,
Tantillo’s double-jeopardy argument fails.
                                      VI.
      For the reasons stated above, Tantillo’s arguments are without merit.
Accordingly, the judgment of the district court is AFFIRMED.




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