                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.
                                                  No. 01-2266
JAMES E. HOWARD, JR.; DOWN EAST
FARMS, INCORPORATED,
              Defendants-Appellees.
                                        
            Appeal from the United States District Court
      for the Eastern District of North Carolina, at New Bern.
                Malcolm J. Howard, District Judge.
                        (CA-99-192-4-H(3))

                      Argued: September 23, 2002

                      Decided: November 18, 2002

       Before LUTTIG and WILLIAMS, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion. Senior Judge Hamilton
wrote a dissenting opinion.


                             COUNSEL

ARGUED: Neal Irving Fowler, Assistant United States Attorney,
Civil Division, Raleigh, North Carolina, for Appellant. George Mason
Oliver, STUBBS & PURDUE, P.A., New Bern, North Carolina, for
Appellees. ON BRIEF: John Stuart Bruce, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Civil Division,
2                      UNITED STATES v. HOWARD
Raleigh, North Carolina, for Appellant. Trawick H. Stubbs, Jr.,
STUBBS & PURDUE, P.A., New Bern, North Carolina, for Appel-
lees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Appellant, the United States, appeals from the judgment of the dis-
trict court, contending that the court erred in several of its evidentiary
rulings made below in the course of a bench trial. The United States
requests a new trial. As we determine that the district court either did
not err or committed harmless error in its rulings, we affirm.

                                    I.

   James Howard and his corporation Down East Farms, Inc. (the "de-
fendants") farmed approximately 2,400 acres of land during the 1992
crop year. In September and October of 1992, Howard sold approxi-
mately 45,000 bushels of corn owned by Down East Farms under a
fictitious name. Also in 1992, the defendants signed or caused to be
signed various documents in connection with filing for and obtaining
crop insurance indemnity payments and disaster relief payments from
several federal agencies and programs, including the Risk Manage-
ment Agency and the Farm Service Agency’s Disaster Assistance
Program. The defendants received $85,893 for crop losses from these
programs. The defendants did not report the 45,000 bushels of corn
they sold in 1992 on the documents filed with the federal agencies.
If the bushels were from the 1992 harvest, then evidently the defen-
dants would not have been entitled to the insurance and disaster relief
payments received for crop losses in 1992.

   The United States sued the defendants under several legal theories,
including violation of the False Claims Act, common law fraud,
                      UNITED STATES v. HOWARD                         3
unjust enrichment, and payment under mistake of fact. All of these
claims turned on the allegation that the defendants gave false informa-
tion on the forms submitted to the federal agencies in order to defraud
the United States. This allegation in turn depended on the United
States’ contention that the 45,000 bushels sold under a false name
were part of the 1992 harvest.

   The basis for the United States’ contention that the corn was har-
vested in 1992 was as follows (according to the testimony of the
expert witnesses presented by the United States, or admitted by the
defendants). Corn can be stored safely for long periods of time only
at or below a moisture level of 15.5-16%. Corn stored at a higher
moisture level runs the risk of disease, mold, or rot. When sold, the
moisture level of corn is measured by machine. The type of machine
used to measure the disputed bushels’ moisture was known as a
Dickey John. When samples of the disputed 45,000 bushels of corn
were measured by a Dickey John, the readings returned by the
machine placed the moisture level of the corn between 15.5% and
17.8%. The buyer of the disputed corn reduced the price paid for dry-
ing charges, but not for poor quality, as one would presumably expect
if the corn were stored for a long period of time above a 15.5-16%
moisture level. Hence, the United States argued, this evidence,
although circumstantial, established that the disputed 45,000 bushels
sold by the defendants in 1992 were harvested in 1992.

   The defendants claimed that the 45,000 bushels sold in 1992 were
from the defendants’ stored corn, harvested in 1991 or earlier. There-
fore, they argued, they did not give false information on the various
documents relating to crop losses in 1992. To explain the high mois-
ture level of the corn, the defendants claimed that they had sprayed
water on the corn either during storage or during the transfer of the
corn from the storage bins into the trucks used to ship the corn.

   To support this explanation, at trial the defendants called a witness
by the name of Harold Smith, an operator of a Dickey John, and the
individual who purchased the disputed bushels of grain from the
defendants. After an objection from the United States (overruled by
the district court), Mr. Smith testified and then performed an in-court
experiment on the Dickey John machine. He took a small sample of
corn and measured it in the Dickey John machine. The machine
4                      UNITED STATES v. HOWARD
returned a reading of 13.8% moisture. Then, Mr. Smith sprayed a
small amount of water on the corn, and ran it through the machine.
After approximately 15 minutes (during which time Mr. Smith was
vigorously cross-examined by counsel for the United States as to his
observations and his expertise in the Dickey John and in corn), the
machine returned a reading of 19.5% moisture.

   At the close of the trial, defendants moved for a judgment on par-
tial findings pursuant to Fed. R. Civ. P. 52(c). The district court, rely-
ing in part on the result of the in-court experiment in its factual
findings, granted the defendants’ motion and entered a judgment
against the United States on all of its claims.

   The United States now appeals, challenging the admission of opin-
ion testimony from Mr. Smith, as well as the admission of the in-court
experiment.

                                   II.

   The United States argues that the district court erred in allowing
the in-court experiment into evidence. Although it is not clear as to
which of the Federal Rules of Evidence the United States contends
was violated, two seem possible: Fed. R. Evid. 402 (stating that evi-
dence "which is not relevant is not admissible") and Fed. R. Evid. 403
(stating that "evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury . . . .").

   First, we conclude that the in-court experiment was relevant. "‘Rel-
evant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. The fact that the spraying of water on
the exterior of a sample of corn could raise the moisture reading of
the corn sample on the Dickey John does make the defendants’ expla-
nation for the high moisture readings of the disputed bushels at least
slightly more probable. Hence, the admission of this evidence did not
violate Fed. R. Evid. 402 ("All relevant evidence is admissible, except
as otherwise provided . . . .").
                        UNITED STATES v. HOWARD                             5
  Second, the United States’ objection fares no better under Fed. R.
Evid. 403. "[I]n the context of a bench trial, evidence should not be
excluded under 403 on the ground that it is unfairly prejudicial."
Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994). As the instant
case involved a bench trial, rather than a jury trial, Fed. R. Evid. 403
was not violated by the admission of the in-court experiment.

   The United States also raises numerous objections to aspects of Mr.
Smith’s testimony, characterizing portions of the testimony as opinion
testimony, admitted in violation of Fed. R. Evid. 701 and 702. But,
the only factual findings in the district court’s order relating to Mr.
Smith’s testimony are the following: "13. The court finds, through the
testimony of grain buyer Harold Smith and his demonstration with the
actual Dickey John used to measure the moisture content of the dis-
puted 45,000 bushels of corn, that it is possible to spray water onto
corn and thereby raise the moisture content measurement on the
Dickey John. 14. The aforementioned demonstration in the court
showed that spraying water on corn with an initial content of 13.8
could raise the moisture level of the corn to approximately 19.5, an
increase of 5.7." J.A. 553. These factual findings are seemingly based
entirely on the result of the in-court experiment, which we have deter-
mined to be admissible. The district court does not rely elsewhere on
any of the objected-to opinion testimony in its order.* Hence, to the
extent that the district court entered opinion testimony in violation of
Fed. R. Evid. 701 and 702, these errors were harmless. See Taylor v.
Virginia Union Univ., 193 F.3d 219, 235 (4th Cir. 1999).

  The judgment of the district court is affirmed.

   *In its order, the district court did reference one piece of opinion testi-
mony by Mr. Smith. J.A. 550. But, the opinion testimony was mentioned
in a section labeled "Preamble." This section appeared to be simply a
short description of what occurred during the trial, rather than a discus-
sion of the district court’s reasoning. Also, the opinion testimony men-
tioned by the district court was given in response to direct questions from
opposing counsel on cross-examination, and thus any error was invited
by the United States’ counsel and its admission cannot be challenged by
the United States on appeal. See United States v. Neal, 78 F.3d 901, 904
(4th Cir. 1996).
6                     UNITED STATES v. HOWARD
                                                           AFFIRMED

HAMILTON, Senior Circuit Judge, dissenting:

   The government brought this case under the theory that the 45,000
bushels of corn, contained in sixty-eight truckloads, were harvested
in 1992 and not, as the defendants claimed, in 1991 or earlier. The
government’s case centered around proving that the high moisture
reading patterns as reflected on the grain tickets could not be achieved
in the manner for adding moisture described by the defendants (rehy-
drating the corn in storage and/or with a garden hose while being
loaded on trucks for shipment to the grain dealer) and, thus, the corn
had to have been harvested in 1992. The government introduced evi-
dence, through its two experts, that the actual moisture reading pat-
terns obtained from the 45,000 bushels of corn, as reflected on the
grain tickets, were indicative of corn harvested from the fields and not
from storage bins, and that the moisture reading patterns of the 45,000
bushels of corn, as reflected on the grain tickets, could not have been
obtained as James Howard described (by wetting corn in storage
and/or rehydrating the corn with a garden hose as it was being loaded
(sixty-eight truckloads) for delivery to the grain dealer). The govern-
ment also introduced evidence demonstrating that adding moisture to
the exterior surface of the corn would create highly unstable and
unpredictable moisture patterns depending on the temperature, humid-
ity, evaporation, sample taken, and time elapsed, and that James How-
ard’s purported method for storing and rehydrating corn was not
practical, logical, or economically beneficial. Stated simply, the gov-
ernment’s theory of the case was that, while one could add a small
amount of water to a small sample of corn and obtain an increased
moisture reading on the Dickey John, one could not add the large
amounts of water described by the defendants to 45,000 bushels of
corn and obtain the moisture reading patterns as reflected on the grain
tickets.

   As recognized by the majority, the gist of the defendants’ defense
centered around an explanation concerning the high moisture reading
patterns, as reflected on the grain tickets, for the 45,000 bushels of
corn. According to the defendants, the high moisture reading patterns,
as reflected on the grain tickets, occurred because they had sprayed
water on the 45,000 bushels of corn either during storage and/or dur-
                       UNITED STATES v. HOWARD                          7
ing the transfer of the corn from storage bins into the trucks (sixty-
eight truckloads) used to transport the corn to the grain dealer.

   To rebut the government’s case and to prove the validity of their
defense, the defendants introduced the expert testimony of, and an in-
court experiment conducted by, Harold Smith, the grain dealer who
purchased the 45,000 bushels of corn and paid the defendants under
the false name of Jack Peele. Even though Harold Smith had no
knowledge, skill, experience, training, or education sufficient to ren-
der an opinion concerning how one could add the large amounts of
water described by the defendants to 45,000 bushels of corn and
obtain the moisture reading patterns as reflected on the grain tickets,
he was permitted to render an opinion establishing this theory.

   On direct examination, over the government’s objection, Harold
Smith opined that the Dickey John "checks the corn from the inside
out . . . [and that it] won’t check moisture on the outside of the corn."
(J.A. 441). Harold Smith also opined that, if you spray water on corn,
"it will give enough moisture going inside the corn to raise the thing
on the Dickey John." (J.A. 441). Then, after asking Harold Smith
whether he had "tested this Dickey John to indicate whether moisture
can be increased in the corn," (J.A. 442), defense counsel asked Har-
old Smith to describe his "tests" for the district court. (J.A. 443). Over
the government’s continued objection, Harold Smith testified about
his tests with using water to increase the moisture level of corn when
tested by the Dickey John, describing how adding squirts of water to
a corn sample raises the moisture reading of the corn sample. Harold
Smith then conducted an in-court experiment which involved using
the Dickey John to measure the moisture content of a small sample
of dry corn, then spraying water on the small sample of corn, waiting
approximately fifteen minutes, and having the Dickey John measure
the moisture content of the small sample of wet corn. Through this
experiment, the defendants sought to prove that one could add the
large amounts of water described by the defendants to 45,000 bushels
of corn and obtain the moisture reading patterns as reflected on the
grain tickets.

   Faced with Harold Smith’s expert opinion and experiment, the gov-
ernment, on cross-examination, was forced to discredit Harold Smith,
not as a lay witness, but rather as an expert. On cross-examination,
8                          UNITED STATES v. HOWARD
Harold Smith admitted that he had no personal knowledge of farmers
adding water to corn to change the moisture level of the corn; that he
had no education or training concerning corn; that he did not know
what method James Howard used for adding moisture to corn; that he
was not aware of any machine that allowed farmers to add moisture
to corn by the truckload; and that he did not know how much water
was added by the defendants to the 45,000 bushels of corn. Notwith-
standing all of this testimony suggesting that he knew nothing about
the issue of whether the moisture level of corn could be manipulated
in the manner described by the defendants, Harold Smith opined that
the minor spraying in his experiment was the equivalent to the con-
tentions of the defendants concerning the "volume of water placed on
the corn by use of a garden hose as the corn came from the storage
bin via auger to the truck for transportation to the market." (J.A. 550).

   Unfortunately for the defendants, Harold Smith was never identi-
fied by them as an expert witness and no expert report was provided
pertaining to Harold Smith; consequently, his testimony, to the extent
he rendered expert opinions, was inadmissible. Fed. R. Civ. P.
26(a)(2). Second, the defendants made no effort to qualify Harold
Smith as having the knowledge, skill, experience, training, or educa-
tion to render expert opinion testimony admissible under Rule 702 of
the Federal Rules of Evidence.1 Moreover, the defendants did not
establish, and the district court did not elicit evidence of, any exper-
tise on Harold Smith’s part based upon knowledge, skill, experience,
training, or education that would qualify him to opine on the issue of
whether the high moisture reading patterns as reflected on the grain
tickets could have been obtained in the manner described by the
defendants. Harold Smith testified that he was not a scientist, that he
    1
     Rule 702 provides as follows:
        If scientific, technical, or other specialized knowledge will assist
        the trier of fact to understand the evidence or determine a fact in
        issue, a witness qualified as an expert by knowledge, skill, expe-
        rience, training, or education, may testify thereto in the form of
        an opinion or otherwise, if (1) the testimony is based upon suffi-
        cient facts or data, (2) the testimony is the product of reliable
        principles and methods, and (3) the witness has applied the prin-
        ciples and methods reliably to the facts of the case.
Fed. R. Evid. 702.
                       UNITED STATES v. HOWARD                          9
had no training and little knowledge about the internal characteristics
of corn, that he had simply been told how the Dickey John worked,
and that he had "mash[ed]" the button on the Dickey John for about
twenty-five years. (J.A. 457). Thus, there was no basis upon which
Harold Smith legitimately could be qualified as an expert witness on
corn moisture or on how one could add the large amounts of water
described by the defendants to 45,000 bushels of corn and obtain the
moisture reading patterns as reflected on the grain tickets. Accord-
ingly, Harold Smith’s testimony, to the extent that it rendered expert
opinions, was inadmissible under Rule 702.2

   In the "Findings of Fact" section of its order, the district court made
two findings concerning the testimony of Harold Smith: (1) "[t]he
court finds, through the testimony of grain buyer Harold Smith and
his demonstration with the actual Dickey John used to measure the
moisture content of the disputed 45,000 bushels of corn, that it is pos-
  2
    Nor was Harold Smith’s testimony admissible as the opinion testi-
mony of a lay witness under Rule 701. Rule 701 expressly limits the
opinion testimony of non-experts to, inter alia, opinions which are "ra-
tionally based on the perception of the witness" and "not based on scien-
tific, technical, or other specialized knowledge within the scope of Rule
702." Fed. R. Evid. 701. In this case, much of the testimony of Harold
Smith was based upon unstated and untested assumptions about the
experiment that he was conducting and how his experiment related to
what was or could have been done under actual farm conditions. It
appeared that Harold Smith could not perceive anything more about his
experiment (observing only the exterior of the Dickey John and what
appeared to be done to the small corn sample) than the fact-finder and
others present. Furthermore, any comparisons between Harold Smith’s
experiment and what the defendants claimed to have done was not based
on reason, but rather, on pure speculation. Harold Smith may have been
experienced in the operation of the Dickey John, but the record does not
reflect that he had any experience in determining whether one could add
the large amounts of water described by the defendants to 45,000 bushels
of corn and obtain the moisture reading patterns as reflected on the grain
tickets. Harold Smith’s expertise regarding pushing the button on the
Dickey John proved nothing, but the defendants attempted, through his
testimony and experiment, to prove their claim that sixty-eight truckloads
of corn (45,000 bushels) were rehydrated to the moisture reading patterns
as reflected on the grain tickets.
10                    UNITED STATES v. HOWARD
sible to spray water onto corn and thereby raise the moisture content
measurement on the Dickey John," (J.A. 553); and (2) "[t]he afore-
mentioned demonstration in the court showed that spraying water on
corn with an initial content of 13.8 could raise the moisture level of
the corn to approximately 19.5, an increase of 5.7" (J.A. 553). In its
"Findings of Fact" section, the district court did not mention any of
the government’s evidence which demonstrated that, while one could
add a small amount of water to a small sample of corn and obtain an
increased moisture reading on the Dickey John, one could not add the
large amounts of water described by the defendants to 45,000 bushels
of corn and obtain the moisture reading patterns as reflected on the
grain tickets. Indeed, the district court made no findings concerning
the government’s two experts.

   In its "Conclusions of Law" section, the district court does not
mention how the government failed to prove its case; rather the dis-
trict court stated in relevant part as follows:

     (1) The plaintiff has failed to meet the requisite burden of
         proof needed to prove by a "preponderance of the evi-
         dence" that defendant made false claims to obtain crop
         insurance indemnity payments and disaster assistance
         payments that contained false statements regarding the
         1992 crop production and losses.

     (2) The plaintiff is unable to meet the requisite burden
         needed to prove by a preponderance of the evidence
         that defendant obtained the crop insurance indemnity
         payments and disaster assistance payments by commit-
         ting common law fraud, mistake of fact theory, the
         unjust enrichment theory, or the False Claims Act, 31
         U.S.C. § 3729.

(J.A. 553-54).

  While recognizing that the district court relied in part on Harold
Smith’s testimony and experiment, ante at 4, the majority in this case
nevertheless takes the view that we should affirm because the district
court did not rely on any of the "objected-to opinion testimony in its
                      UNITED STATES v. HOWARD                        11
order," ante at 5, and, therefore, any error is harmless. With all due
respect, the majority has a myopic view of the record.

    Throughout the trial and during the district court’s colloquy on the
defendants’ Rule 52(c) motion, the district court seemed to believe
that Harold Smith’s expert testimony and the results of his experiment
destroyed the government’s case. See, e.g., (J.A. 513-14) ("through
history in this court, this case will be known as the Dickey John
case"); (J.A. 514) ("I understand [the government’s] expert comments
. . . but if there were 12 people sitting in that [jury] box yesterday,
. . . when I saw it register 13.8 and then the same corn go back in 15
minutes later after it had been sprayed to 19.5. I mean that is classic
evidence to shoot that theory down."); (J.A. 523) ("You going to fin-
ish up by telling me why the Dickey John thing shouldn’t impress
me?); (J.A. 545) (captioning the case "The Dickey John Case"). Har-
old Smith’s expert testimony provided the only evidence that effec-
tively contradicted the testimony of the government’s two experts that
the reported moisture reading patterns as reflected on the grain tickets
for the 45,000 bushels of corn were 1992 production rather than
stored corn, harvested in years prior to 1992. Indeed, in the absence
of Harold Smith’s expert testimony, the testimony of the govern-
ment’s two experts that dry stored corn could not be rehydrated to the
moisture reading patterns as reflected on the grain tickets would have
been uncontroverted. Having cited to and unmistakably relied upon
the inadmissible expert testimony, the district court understandably
made no mention of the government’s experts in its findings of fact.
In short, I cannot conclude that the district court’s erroneous reliance
on Harold Smith’s expert testimony was harmless because the district
court appears to have been too heavily swayed by Harold Smith’s
inadmissible expert testimony. For these reasons, I would remand for
a new trial.
