                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 29, 2006

                                                          Charles R. Fulbruge III
                           No. 05-51138                           Clerk


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                          JOHN KARL LEE,

                                                 Defendant-Appellant.




          Appeal from the United States District Court
                for the Western District of Texas
                      No. 3:04-CR-1555-ALL


Before JONES, Chief Judge, and DAVIS, and GARZA, Circuit Judges.

PER CURIAM:*

          John Karl Lee appeals his conviction and restitution on

three counts of mail fraud, 18 U.S.C. § 1341, and three counts of

making false statements to obtain federal employees’ compensation,

18 U.S.C. § 1920.   Finding no reversible error, we AFFIRM.

          John Karl Lee, an active duty serviceman during Operation

Desert Storm in 1990-91, was convicted for mail fraud and false

statements he made to obtain disability benefits for alleged post-

traumatic stress disorder incurred in his military service.           Lee

had received $229,429.89 in monthly monetary disbursements between

     *
      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this opinion should not be published and is not precedent except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.
April 1996 and March 2003, while misrepresenting both that he was

married (after his divorce) and that he had no other employment.

           Lee was sentenced to six concurrent 24-month terms, two

years’ supervised release, a $172,000 fine, $229,429.89 in restitu-

tion, forfeiture of $157,936.25, and $600 in special assessments.

On appeal, he raises several trial errors and challenges the amount

of restitution.

                               I.    DISCUSSION

A.   Admission of the Vehicle Theft Testimony

           Lee asserts that the testimony by the Army investigator

that Lee had stolen a Chevy Suburban while on a patrol in Iraq

during   Desert   Storm   is    extrinsic    to   the   charged   offenses,

inadmissible character evidence, and unfairly prejudicial.            This

contention may be correct.       To establish the admissibility of this

evidence as “intrinsic” to the charged offenses, the Government had

to prove that the events in 1991 and his fraudulent Office of

Worker’s Compensation Program (“OWCP”) disability claims years

later were “inextricably intertwined” incidents and are part of the

same criminal transaction.          See United States v. Morgan, 117 F.3d

849, 860 (5th Cir. 1997) (uncharged offense must arise out of same

transaction as the charged offense to avoid proscription of Federal

Rule of Evidence 404(b)). Nonetheless, in light of the substantial

body of inculpatory evidence apart from the theft testimony, the




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error was harmless and caused no prejudice to Lee.               See United

States v. Buck, 324 F.3d 786, 789 (5th Cir. 2003).

B.    District Court’s Instructions on Texas Law

           Lee alleges that he was denied due process and a fair

trial when the district judge impermissibly testified as a witness

in violation of Federal Rule of Evidence 605 and “impeached” a

“pivotal” defense witness.

           Alicia Carlos, the filing room supervisor in the El Paso

County District Clerk’s Office, testified, in order to rebut the

Government’s position, that since Lee had waived service of his

divorce decree, there was no possibility that her office could have

sent him a copy of it.        In response to Carlos’s testimony, the

district judge instructed on and read to the jury TEXAS RULE        OF   CIVIL

PROCEDURE 119a, which requires the County Clerk to mail a certified

copy of a divorce decree to any party who waived service of

process.   Lee characterizes the instruction as judicial testimony

in violation of FEDERAL RULE     OF   EVIDENCE 605 because it allegedly

created the impression that the judge was directing the jury to

assume that Lee had received a copy of the divorce decree.

           The jury instruction at issue is, however, not akin to

the   improper   fact-based   testimonial    statements   that    Rule    605

prohibits.   The instant situation is more appropriately analyzed

within the scope of caselaw defining the district court’s “power of

comment and the inherent limitations on this power.” United States



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v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989).                          Thus, it is well

established       that     a    trial     judge        may       facilitate     a    jury’s

understanding      of     the    evidence       by     questioning      witnesses,         by

eliciting   facts        not    yet   adduced     by       the    parties,    or    through

explanation and commentary.             United States v. Reyes, 227 F.3d 263,

265 (5th Cir. 2000); FED. R. EVID. 614.                      On appeal, the issue is

whether the disputed judicial behavior “was so prejudicial that it

denied [the defendant] a fair, as opposed to a perfect, trial.”

United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998) (internal

quotation marks omitted).               The district court’s action must be

“qualitatively and quantitatively substantial” to merit a finding

of reversible error.            United States v. Munoz, 150 F.3d 401, 414

(5th Cir. 1998).           Because Lee did not object to the court’s

instruction at trial, we review only for plain error.                                United

States v. Hernandez-Guevara, 162 F.3d 863, 875 (5th Cir. 1998).

            The    district       court’s       Rule   119a       instruction       was   not

plainly erroneous and did not deprive Lee of a fair trial. It did

not    impermissibly       insinuate      that       the     jury   should    disbelieve

Carlos’s testimony, nor did it provide any guidance as to how the

jury should interpret Carlos’s testimony.                         Cf. United States v.

Nickl, 427 F.3d 1286, 1292-93 (10th Cir. 2005); Paiva, 892 F.2d at

158.     The judge intervened only to disabuse the jury of the

witness’s incorrect assertion that there was no possibility that

the El Paso District Clerk mailed divorce decrees to individuals

who have waived service of process.                  This single instruction, made

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in the course of a nine-day trial featuring twenty-five witnesses,

does not constitute error, much less prejudicial or plain error.

See United States v. Hefferon, 314 F.3d 211, 221 (5th Cir. 2002).

C.   Denial of Compulsory Process Claim

            Lee next contends that the exclusion as a witness of

Carol Holmes, a supervisor at the District Clerk’s office, deprived

him of his Sixth Amendment right to compulsory process.                  Holmes’s

testimony was intended to be probative of whether Lee received the

decree by mail because, unlike Carlos, Holmes was employed at the

Clerk’s Office at the same time when documentation of Lee’s divorce

proceeding was processed.

            A criminal defendant must demonstrate that the excluded

testimony    was    “both    material   and      favorable   to   his   defense.”

“[M]ore   than     the   mere   absence     of   testimony   is   necessary   to

establish a violation” of the right to compulsory process.                 United

States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440,

3446 (1982); Janecka v. Cockrell, 301 F.3d 316, 326 (5th Cir.

2002).      Here,   the     salient   points     of   Holmes’s    testimony   had

previously been put before the jury by Carlos.                      Any further

testimony by Holmes that the Clerk’s Office did not comply with

Rule 119a in 1998 would have been duplicative and immaterial to

Lee’s defense.      The court did not err.

D.   Calculation of Restitution




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            Lee alleges that the district court erred in ordering

restitution pursuant to the Mandatory Victims Restitution Act

(“MVRA”), 18 U.S.C. § 3663A, for the total amount of disbursements

he received starting in 1996, instead of limiting the amount to the

disbursements traceable to the offenses alleged in the indictment.

We review challenges to the legality of an award under the MVRA

de novo and then determine whether the district court abused its

discretion in calculating the amount awarded.       United States v.

Adams, 363 F.3d 363, 365 (5th Cir. 2004).

            Lee’s claim is meritless.   In order to convict Lee of the

mail fraud counts, the Government necessarily proved a scheme to

defraud in addition to the specific fraudulent misrepresentations

he made on the OWCP forms alleged in the indictment.    See 18 U.S.C.

§ 1341.   “[W]here a fraudulent scheme is an element of the convic-

tion, the court may award restitution for ‘actions pursuant to that

scheme.’”    United States v. Cothran, 302 F.3d 279, 289 (5th Cir.

2002) (quoting United States v. Stouffer, 986 F.2d 916, 928 (5th

Cir. 1993)).    The temporal scope of the criminal behavior and the

specific acts charged in the indictment define the parameters of

the fraudulent scheme for purposes of determining restitution under

the MVRA.      See Cothran, 302 F.3d at 288.       Count One of the

indictment states that “[o]n or about April 6, 1994, the Defendant

. . . made material false and fraudulent misrepresentations that

[the Defendant’s] Post Traumatic Stress Disorder was the result of

having been held captive as a prisoner of war in Iraq in 1991.”

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The indictment’s description of the fraudulent scheme charged

empowered the district court to include the total amount of OWCP

disbursements paid as a result of the erroneous diagnosis of total

disability that Lee procured through fraudulent misrepresentations.

          In so doing, the district court adopted the recommen-

dations contained in Lee’s PSR, which, under U.S.S.G. § 5E1.1 and

18 U.S.C. § 3663A, determined that Lee’s willful misrepresentations

to the OWCP began on April 13, 1994, and that the appropriate

measure of restitution was the total loss incurred from that date,

namely, $229,429.89.   The jury, conversely, rendered a forfeiture

verdict of $165,997.50, which only accounts for disbursements made

in response to the fraudulent misrepresentations alleged as overt

acts in the indictment.   But, according to the plain language of 18

U.S.C. § 3663A, the court, not the jury, ultimately determines the

amount of restitution appropriate to the offense.       In awarding

restitution for the total amount of the disbursements Lee procured

in the course of his fraudulent conduct, the court did not act

contrary to law or abuse its discretion.

                            CONCLUSION

          For the foregoing reasons, we find no reversible error in

the decision below and AFFIRM.




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