Brief for Appellee the United States of America

Thus, the gist of the offense is offering something of value to a person occupying a position of public trust to impede a lawful function of the government. That is exactly what happened here. As a construction manager in charge of stone contracts Wilson was an integral part of the Corps reconstruction effort. His official functions included safeguarding the integrity of that reconstruction effort, including maintaining the confidential nature of source selection information. His duty was to report Miranda's indiscretions to stop them, not to help them along by playing "delivery boy." HeinrichBr. 12. Instead, he colluded with Miranda on Corps property during Corps workdays. Supp.R62. And by his own admission he furthered the conspiracy by using his government computer to e-mail Heinrich source selection committee information. R981, 1005-06. As this court concluded in Thomas: "Under such circumstances, and for purposes of the federal bribery statute, there is simply no basis for differentiating between" government engineers and contract engineers. 240 F.3d at 449. The district court therefore correctly concluded that Wilson was a public official.

C. If The Court Erred In Instructing The Jury That Wilson And Miranda Were Public Officials, That Error Was Harmless

Suspecting that appellants would try to present to the jury a defense based on their erroneous interpretation of the term "public official" addressed in section I.B above, prior to trial the government filed a motion in limine asking the court to order appellants not to question the status of Wilson or Miranda as public officials, or argue their status as contract employees of the Corps as a defense. R141. The court granted that motion. R182. At the conclusion of trial, and consistent with its pre-trial ruling, the district court gave the following instruction to the jury with respect to the "public official" issue:

Specifically, with respect to whether Miranda and Wilson were public officials, appellants argue, as they did in the district court, that Wilson had to have official responsibilities for the Lake Cataouatche contract to "fit the definition of a public official." ⁽¹²⁾ HeinrichBr. 16-17; WilsonBr. 32. As noted earlier, however, that argument presented a legal question of statutory interpretation not a factual question. Thus, appellants could not have been prejudiced by a jury instruction that correctly interpreted Section 201. ⁽¹³⁾

Similarly, Wilson's claim (not joined by Heinrich) that "Miranda [was not] actually acting as a public official in providing bid information to Heinrich if his intent was not to interfere with the [Corps'] bidding process, but was actually intended to enhance the bid submitted by Manson Gulf," also raises a legal issue. WilsonBr. 37-38; id. at 35, 37 ("[n]ot everything done at work by a person working under contract for the government is an official function;" "not all manner of acts by those in public positions are official acts"). As the Supreme Court noted in Dixson, the question of whether someone is a public official turns "on the relationship between [the defendant] and the Federal Government," 465 U.S. at 486, not on the defendant's intent. And it held that all persons that "occup[y] a position of public trust with federal responsibilities . . . are public officials within the meaning of § 201." Id. at 496. The public official's intent in doing any particular act, therefore, like conveying confidential proposal information, while relevant to whether he possessed the requisite intent to "corruptly" agree to a bribe, does not affect his status as a public official. ⁽¹⁴⁾

Thus, while the question whether a particular individual held a job position that qualified him as a public official - in this case, the historical question whether Wilson was a contract consultant engineer working for the Corps as a construction manager - is a question for the jury, the question whether that job position fits within the statute's definition of public official is a question of statutory interpretation for the court. E.g., Madeoy, 912 F.2d at 1494 (explaining that in Dixson "the Court reached its conclusion [about petitioners' status as public officials] through an exercise in statuary interpretation"). Since appellants did not dispute the historical question of whether Wilson and Miranda were contract consultants for the Corps at the time of the offense, and only made what were effectively legal arguments as to why Wilson and Miranda should not be viewed as public officials notwithstanding their employment status, appellants could not have been prejudiced by a jury instruction that correctly stated the law and did not resolve any relevant disputed factual issue.

Indeed, even if the jury had been told to decide the public official issue after being properly instructed that contract consulting engineers can be public officials within the meaning of Section 201, given that Miranda's and Wilson's status as such was indisputable, there can be no doubt that a rational jury would have found that they were public officials. ⁽¹⁵⁾ Therefore, any jury instruction error in this case was harmless beyond a reasonable doubt.

II. THE DISTRICT COURT DID NOT IMPROPERLY LIMIT MIRANDA'S CROSS-EXAMINATION

A. Standard Of Review

Review of a district court's limitation of cross-examination is for abuse of discretion. United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). Cross-examination of a witness must be sufficient to satisfy the Confrontation Clause ofthe Sixth Amendment. Id. This requirement is met when defense counsel has been allowed to expose facts from which the jury could draw inferences as to the witness's reliability. Id.; accord United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993). To demonstrate an abuse of discretion a defendant must establish clear prejudice, i.e., "that a reasonable jury might have had a significantly different impression of the witness's credibility if defense counsel had been allowed to purse the questioning." Davis, 393 F.3d at 548 (citing United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir. 1991)).

B. Appellants Were Able To Effectively Cross-Examine Miranda And Expose His Potential Bias As A Government Witness To The Jury

Appellants contend the court improperly limited Miranda's cross-examination by preventing them from showing precisely how Miranda benefitted from his plea agreement, including quantification of the Sentencing Guidelines level enhancements he allegedly avoided by entering his plea. HeinrichBr. 7-10; WilsonBr. 43-47. Wilson further claims that he should have been "permitted to delve into the complex plea negotiations between Miranda and the government in order to show how Miranda benefitted from his cooperation with the government." ⁽¹⁶⁾ WilsonBr. 39 (footnote omitted). The record shows, however, that significant impeachment testimony was presented during Miranda's cross-examination that established his motive to testify against Heinrich and Wilson in hopes of getting a lower sentence.

Heinrich is wrong that "the only question that the court allowed about the plea agreement was what sentence Miranda expected to get." HeinrichBr. 6. During Miranda's cross-examination, the jury learned that when he first met with prosecutors he did not have an agreement with the government, Supp.R113; that he "and the government had agreed on what the charge would be that [he] would be pleading guilty to," Supp.R115-16; that he was "only charged with bribery," Supp.R116; and that the government had agreed not to bring charges for any other crimes he committed "before this plea of guilty." Supp.R121. The jury also was told that Miranda had lied to federal agents in his October 5, 2006 interview, which was "[t]he same thing that Martha Stewart got convicted of, lying to a federal agent," and that even though "every single lie that [he] told would have been five years," he was "not charged with . . . lying to a federal agent." Supp.R116. And from the Indictment itself the jury knew that Miranda was an uncharged member of the conspiracy charged against Heinrich and Wilson. ⁽¹⁷⁾

The jury also heard that when Miranda pled guilty in August 2007 the court set his sentencing for April 2008, but that it "got continued about three or four more times" "[b]ecause the government wanted to continue [his] sentencing until after [he] testified at this trial." Supp.R117-18. Additionally, the jury knew Miranda faced a "maximum sentence of 15 years" with a guidelines range of "18 to 24 months," Supp.R124; that the government had agreed to notify his sentencing judge "regarding [his] testimony and cooperation here today," id.; and that the sentencing "judge can sentence someone below or above the guidelines for certain reasons." Supp.R125.

Finally, in its jury instructions, the court expressly referred to Miranda's plea agreement when it instructed the jury that it should be skeptical of his testimony. Specifically, the court stated that because Miranda's agreement "provid[ed] for the government's agreement not to bring additional charges, and the possibility of a lesser sentence than [Miranda] would otherwise be exposed to," Miranda's testimony must "be viewed - - or received with caution and weighed with great care." R1112.

"[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985). A district court may cut off cross-examination that would cause prejudice or confusion. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). And providing sentencing information to a jury that has no sentencing function "open[s] the door to compromise[d] verdicts and to confus[ion]." Pope v. United States, 298 F.2d 507, 508 (5th Cir. 1962), cited with approval in Shannon v. United States, 512 U.S. 573, 579 (1994).

Here, appellants and Miranda each were charged with bribery, a crime with a maximum sentence of 15 years. 15 U.S.C. § 201(b). Before Miranda testified, the court, recognizing that questioning Miranda about what sentence he would face without a plea agreement would "bootstrap [Miranda] into telling the jury what these defendants would be facing," instructed defense counsel not to do so. ⁽¹⁸⁾ Supp.R36. Nonetheless, defense counsel asked Miranda if "the maximum penalty for your charge is 15 years." Supp.R121. The court stopped her and said: "That's highly improper, and if you do it again, I'm going to hold you in contempt of court . . . . you didn't have to blurt out the 15 years." Supp.R121-22. The court similarly stopped defense counsel from trying to elicit the guidelines level increase that Miranda's plea agreement potentially insulated him from but which defendants both faced. Supp.R122-23; see WilsonBr. 45-46.

The court did not abuse its discretion in refusing to allow counsel to ask about the statutory maximum sentence. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (affirming disallowance of "information about the precise number of years [cooperating witness] would have faced had he been charged [with the same offense as defendant]" because of "the potential for prejudice"); accord United States v. Cropp, 127 F.3d 354, 359 (4th Cir. 1997) (same). ⁽¹⁹⁾ And the court's "bootstrap" reasoning applies with equal force to appellants' claim that they had to inform the jury that without his plea agreement Miranda "would have faced th[e] same 14-level enhancement, which translates into a five or six year increase in the sentence," that Heinrich and Miranda faced. HeinrichBr. 9; WilsonBr. 45-47. Doing so would have informed the jury that both Heinrich and Wilson faced an "offense level 28 . . . [where] the range is 78-97 months," HeinrichBr. 9 n.35, and as such, would have been equally improper. See WilsonBr. 46 (arguing that the jury should have "known that Miranda's manipulations saved him from the sort of sentence (eventually to be) imposed on Wilson").

Moreover, this case is similar to United States v. Ramirez, 339 Fed. App. 361 (5th Cir. 2009). There, like here, the trial court prohibited the defendant from quantifying the benefit that the cooperating co-defendant received from her plea agreement by questioning "the co-defendant about her exact sentencing range or about the exact sentence reduction she might receive in exchange for entering into a plea agreement and testifying against [defendant]." 339 Fed. App. at 363. Noting that the defendant was able to question the witness about her motives for entering her plea, "including the possibility of receiving a reduced sentence," this Court concluded that, "[t]he testimony elicited through cross examination was sufficient to apprise the jury of codefendant's possible motives for testifying against [the defendant]." Id. In this case, not only did the court allow the defense to elicit Miranda's exact sentencing range of 18-24 months under the agreement, it also explicitly permitted defense counsel to ask Miranda "if he expects or hopes to get a reduced sentence because of his testimony." Supp.R123-24.

Also instructive is United States v. Restivo, supra, a case cited by both appellants. HeinrichBr. 7-8; WilsonBr. 48. In Restivo, the trial court prohibited the defense from asking a co-conspirator testifying pursuant to a plea agreement "whether a 'cap' existed on [his] sentence as a result of his plea agreement." 8 F.3d at 278. In affirming the conviction, this Court emphasized that the defense had informed the jury that the witness had a plea agreement, without which he could have been charged with additional, more serious crimes. Id. The Court also noted that the jury had been instructed that the witness had testified pursuant to an agreement "providing for the dismissal of some charges and lesser sentence[] than [he] would otherwise be exposed to or for the offense[] to which [he] pled guilty." Id. n.11.

In this case, the jury similarly knew that Miranda could have been charged with additional crimes - conspiracy and lying to a federal agent - and the court gave the same instruction as in Restivo. See R1112; page 33, supra. Thus, as in Restivo, "[b]ased upon these facts, the jury could have inferred that [Miranda] was a biased witness." 8 F.3d at 278 (footnote omitted); accord United States v. Nelson, 39 F.3d 705, 708-09 (7th^{Cir. 1994) (no abuse of discretion for disallowing questions "about the penalties [cooperating witnesses] faced without their plea-bargains," because "[t]he jury knew those plea bargains could have moved the witnesses to lie, to please the government so they might spend less time in prison").}

This case law also refutes Wilson's claim that the jury had to know "that Miranda's plea agreement kept him from exposure to an increased guideline sentencing level" so "the jury would have understood that Miranda had a motive to fabricate the bribery scheme which he claimed existed." WilsonBr. 45-46. Wilson argued at length to the jury his speculative theory that Miranda fabricated his bribery story and implicated Wilson to save his own neck. ⁽²⁰⁾ Given what the jury already knew about Miranda's plea agreement, "[a]ny probative value of information about the precise number of years [Miranda] would have faced [without his plea agreement] was slight." Luciano-Mosquera, 63 F.3d at 1153; accord Cropp, 127 F.3d at 359 (only "slight additional margin of probative information [would be] gained by quantitative questions").

Moreover, the defense also brought out additional impeachment testimony. For example, it established that when he first spoke to the prosecutors in March 2007, Miranda said he had told Heinrich that he would not supply the source selection information without compensation, which conflicted with his trial testimony that he first talked about money with Wilson. Supp.R137-38, 141. It also established that even though he was "the one who earns the money in the family" and that his "family depends on [him] for their support," Supp.R142, Miranda was nevertheless "risking [his] future" without ever having discussed how he was going to receive payment of the bribe. Supp.R146.

From this evidence, the defense argued to the jury that when it considered Miranda's testimony it could consider "what he had to gain, what he had to lose." R1081. And relying on Miranda's conflicting statements about whether he ever discussed money with Wilson, the defense argued it was only when Miranda "is being called to testify does he now, all of a sudden, remember another thing to help him, to help him when he has to go up to the fourth floor to be sentenced by Judge Fallon. To help him so that he can please the government and tell the government, look, I'm doing everything I can." R1083-84. Heinrich also emphasized the lack of any payment plan: "What do you do with $299,000? Do you just show up at your local Whitney and say I want to deposit this?" R1087. Wilson did the same:

R1098-99.

In sum, given this record, appellants have failed to show "that a reasonable jury might have had a significantly different impression of [Miranda's] credibility if defense counsel had been allowed to pursue the questioning." Davis, 393 F.3d at 548.

III. THE COURT DID NOT ERR EITHER IN ADMITTING OR EXCLUDING EVIDENCE

B. Wilson's E-mails

1. Sean Clayton, an Army CID agent assigned to the Lake Cataouatche investigation, testified that he obtained from the Corps the e-mail accounts of the seven people working on or for the Lake Cataouatche source selection committee, and also Kern Wilson's as a "person of interest," for the period August 1, 2006, prior to the Corps issuing the request for proposals, to October 6, 2006, the day after the CID interviewed Heinrich and Miranda. Supp.R200-01. His review of that data showed that everybody except Wilson had e-mails in their sent- and deleted-boxes dated prior to October 4, 2006. Supp.R202-03. Wilson's inbox, however, contained e-mails that were responses to e-mails Wilson had sent between August 1, 2006, and October 4, 2006, "[b]ut none of those sent messages were in his sent folder." Supp.R204. From these facts Agent Clayton concluded that Wilson "deleted the sent folder of all the e-mails prior to [October 4, 2006]." Id.

Wilson testified that two weeks after he began working for the Corps in July 2006, he began deleting e-mails at IT's direction, to avoid the "mailbox over full" warnings. R970, 1016-17. Thus, Wilson largely verified what Agent Clayton had inferred. ⁽²¹⁾ To the extent that Wilson claims he was archiving e-mails in project folders, the jury heard that testimony and was free to believe it or not, and weigh it as it saw fit. E.g., United States v. McCall, 553 F.3d 821, 835 (5th Cir. 2008); United States v. Estrada-Fernandez, 150 F.3d 491, 496 n.3 (5th Cir. 1998). If Wilson believed more of the story needed to be placed in evidence, for example, to show that his sent e-mails were actually stored in project folders, he had the opportunity to do so. ⁽²²⁾

In any event, the court was correct that Agent Clayton's inference was proper lay testimony. Supp.R190-91. "[L]ay testimony 'results from a process of reasoning familiar in everyday life.'" Yanez Sosa, 513 F.3d at 200 (quoting Fed. R. Evid. 701, Advisory Committee Notes to 2000 Amendments). "In particular, the witness must have personalized knowledge of the facts underlying the opinion and the opinion must have a rational connection to those facts." Mississippi Chemical Corp. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th Cir. 2002). Here, as the district court explained, Agent Clayton was drawing a reasonable inference that because Wilson's inbox contained responses to e-mails he sent but that were not in his sent-box, Wilson must have deleted them from his sent-box. Supp.R190.

Agent Clayton's conclusion certainly was "'the product of reasoning processes familiar to the average person in everyday life.'" United States v. Cooks, 589 F.3d 173, 180 (5th Cir. 2009) (citation omitted). Even Wilson acknowledges that "computer savvy lay people [comprise] a majority of adults in the United States." WilsonBr. 52; accord Supp.R190 (court explaining that "everybody who uses a computer knows, you press the little delete button"). Agent Clayton specifically told the jury that he was not a computer expert and that his knowledge was that of a "normal computer user." Supp.R267-68. Moreover, Agent Clayton never claimed Wilson's deleted e-mails were not stored somewhere on the server, and he expressly agreed that e-mails can be "erased without an act of intentional deletion by the individual operating that e-mail account." Supp.R239. Under these circumstances, Agent Clayton was properly testifying as a lay witness.

Nor did the court err in excluding Wilson's expert. Rather, the court correctly concluded that his testimony would be neither relevant nor reliable. R1034-35. First, the thrust of his testimony would have been that Wilson could not have permanently deleted e-mails from the server because the server would have backed them up. R1019, 1025-26. But the issue was not whether Wilson's e-mails were stored on some magnetic back-up tape under whatever "requirements for data retention are in place" at the server, R1026, but whether Wilson had deleted them from the sent-box on his computer, a fact Wilson readily admitted. R1016. And when the court asked "[p]utting aside whether copies might be maintained somewhere else, could you tell whether [Wilson] intentionally deleted e-mails from his desktop or his laptop," the proffered expert answered that he could not without "go[ing] through and do[ing] heavy, heavy searches." R1032. Thus, the court did not abuse its discretion in refusing to let him testify.

Finally, even if the court did abuse its discretion, any such error would have been harmless. The issue in the case was not whether Wilson deleted e-mails but, rather, whether he agreed to provide source selection information to Heinrich in exchange for money. He admitted he passed such information to Heinrich, R981-82, but denied doing it for money. Miranda testified they did it for money. Whether or not Wilson deleted e-mails from his sent-box, as he testified he did, could not have affected the jury's decision whether or not to believe Miranda.

C.Wilson's Character Witnesses

Wilson produced six character witnesses at trial. In addition to testifying to his honestly, integrity, and good moral character, the first two witnesses were asked on direct what "motivated" Wilson to go to New Orleans and participate in the Hurricane clean-up. Supp.R284, 293. Both testified he did so to do something good, to help and make a difference, not to make money. Supp.R284-85, 293-94. After the first two witnesses testified, the court cautioned defense counsel that he "went way beyond what's allowed under Rule 405 in terms of offering character evidence." R926. Specifically, with respect to questions about Wilson's motivation, the court noted "how could somebody else know what somebody else's motivation is to doing something," and instructed him not to ask that question again. Id. Thus, the next four witness were limited to vouching for Wilson's honesty, integrity and high moral character. R929, 936, 944, 949. Relying on this evidence in closing, Wilson argued to the jury: "Does [Wilson] come here to make a killing? Well, no one who testified about him thought so. They thought that he came here to make a difference, and that's what he told us, too." R1092.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgments of conviction.

Respectfully submitted.

May 11, 2010

CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2010, I electronically filed the foregoing Brief for Appellee United States of America with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to the following: Robin E. Schulberg and Steven Lemoine.

CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. Rule 32.27(c), the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7) because, exclusive of the exempted portions in 5th Cir. Rule 32.2, the brief contains 12,114 words.

1. The District Court prepared one record for Wilson's appeal and a second record for Heinrich. Both records contain many of the same pleadings and the same three-day trial transcript, but the corresponding pages of the identical record items have different USCA5 page numbers in each record. For example, the Indictment begins on USCA5 13 in Wilson but begins on USCA5 15 in Heinrich. Similarly, page 1 of the trial transcript is USCA5 486 in Wilson but USCA5 641 in Heinrich. For consistency, all record citations in this brief are to the Wilson record whenever possible and are denoted by an "R" followed by the USCA5 page number. For example, page 1 of the trail transcript is cited as "R486." When citations to the Heinrich record are necessary they are denoted as "H-Rec."

2. Volume II of the trial transcript is a supplemental record volume labeled "Supplement Transcript" and begins in the Wilson record with USAC5 5. Citations to that volume are denoted "Supp.R". >

3. For example, GX31 is an e-mail that Wilson sent Heinrich in July 2006 prior to joining the Corps. The e-mail forwarded a spreadsheet (GX32) that, the e-mail explains, Wilson "developed . . . a while back in an effort to get people to start working on the plans for moving [her] dirt."

4. Those signed statements provided in part: "A person acting for or on behalf of, or who is advising or has advised the United States with respect to, a Federal agency procurement, must not, other than as provided by law, knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates." GX16.

5. Ultimately there would be a total of eight contracts to reconstruct the Lake Cataouatche levee. R658.

6. Ultimately, although the project required 1.7 million cubic yards of dirt, 1 million would be available on site and only 700,000 would need to be purchased. R684-85.

7. The spreadsheet Heinrich e-mailed to Mayeux on September 29th (GX3, 34) was "last saved" by "Kern Wilson," just like the spreadsheet Wilson had e-mailed to Heinrich in July for "moving [her] dirt." Supp.R209-15; GX1, 12; see note 3, supra.

8. Manson Gulf had submitted the lowest bid, and the next lowest was nearly $5 million higher than Manson Gulf's. R678-80.

9. Heinrich does not challenge her conviction for bribing Miranda, who was the construction manager for the Lake Cataouatche project. Supp.R40, 45.

10. The district court followed Madeoy in concluding that "Wilson was a public official in the context of the crimes charged as a matter of law." R448-50.

11. To the extent that Hurley v. United States, 192 F.2d 297, 299 (4th Cir. 1951) (WilsonBr. 30), suggests "that for an offense to be made out under § 201, a person acting for the United States must be doing so in his official capacity," that statement is dicta because the court held "that since Sergeant Nichols was an officer of the United States, it was not necessary to allege or prove that he was acting in an official function." 192 F.2d at 300. Moreover, Hurley predated both the 1962 revision to Section 201 (see Gjieli, 717 F.2d at 973 & n.6) and the Supreme Court's decision in Dixson.

12. Apparently recognizing the harmlessness of any error in the court's instruction that Miranda was a public official, R1120, given that he was the construction manager for Lake Cataouatche, Heinrich does not challenge her conviction for bribing Miranda.

13. The district court recognized that appellants' position is based on an erroneous interpretation of Section 201 and correctly refused to give their proposed instruction reflecting that erroneous interpretation. R1052.

14. Wilson argued to the jury that what "Raul Miranda is, what he's trying to do is take the person, the company that is going to get the contract anyway, and make them do it better, make them agree to adhere to a schedule so it's going to be done right. That's not an attempt to defraud the United States." R1096.

15. This is the approach taken in several circuits. The Eleventh Circuit's model jury instructions, for example, contain the following instruction on the "public official" issue:

Eleventh Circuit Pattern Jury Instructions (Criminal) 105 (2003). See also Manual of Model Criminal Jury Instructions for the District Courts of the Eight Circuit 162 (2009). Given the facts of this case, the practical effect of the instruction charged below was not materially different than these model instructions.

16. Wilson speculates that in October 2006 "Miranda knew that he could be convicted for having violated the Procurement Integrity Act . . . [and] knew that he could go to jail," but when he "calculated his criminal sentencing exposure" he recognized that for an Integrity Act violation "the guideline calculations are unpredictable because of an unusual provision in the USSG," which, given "months to think about" it, "motivated Miranda to plead guilty in a way which substantially reduced, if not eliminated, sentencing uncertainties," by "agree[ing] to plead to bribery - something he didn't do." WilsonBr. 40-43. Wilson's speculation is refuted by the record. When asked on cross-examination whether "your lawyer . . . had advised you about consequences, penalties, charges, all kinds of things" before he met with prosecutors for the first time Miranda answered: "No, ma'am. Not before the meeting." Supp.R113-15; accord id. at 87 (Miranda explaining that when he first met with prosecutors "I had no idea the extent of the punishment at that point"). Thus, Miranda did not know the consequences of his actions when he first reported his crime.

17. For example, paragraph 8 of the Indictment states that "[i]t was the purpose of the conspiracy to unlawfully enrich Miranda and Defendant Wilson," and paragraph 13 states "[i]t was further part of the conspiracy that Defendants Wilson and Heinrich received confidential bid, proposal, and source selection information from Miranda." R15, 17.

18. The court also opined that discussion of guidelines ranges at that point would be "speculative." R317.

19. In Cropp, "the district court ruled that the defense could not ask about the specific penalties that the cooperators would have received absent cooperation, or about the specific penalties they hoped to receive due to their cooperation," even though "[t]he credibility of those witnesses was very relevant to the case against all defendants." 127 F.3d at 358.

20. In closing argument Wilson told the jury:

R1099-1100. In rebuttal, the government responded: "Really? You think Mr. Miranda would plead to something that he didn't do? . . . [s]omething a whole lot worse? . . . No, no one would do that." R1104-05.

21. Referring to a post-trial exhibit, R473, Wilson argues that he first reported the mailbox full problem to IT on October 4, 2006. WilsonBr. 58-59, 62 n.14. At trial, however, Wilson, who arrived at the Corps on July 10, 2006, R970, testified that he reported the problem to IT "two weeks after [he] got to the Corps," and thereafter, at IT's direction, he began deleting unnecessary e-mails. R1017. The post-trial exhibit he relies on states that on October 4, 2006, Wilson reported to IT that he had received a "mail box in [sic] full" message, but that he was "unable to delete" e-mails as IT previously suggested. R473. Thus, that exhibit corroborates Agent Clayton's testimony that starting on October 4, 2006, Wilson's sent-box contained e-mails, and that he had deleted them "prior to that date." Supp.R202-04.

22. Wilson erroneously claims that he was surprised by the "opinion testimony of Clayton." WilsonBr. 61-62 & n.14. In fact, Wilson should have known that e-mail was going to be an issue at trial since, "suspect[ing] what it would be," he sent Heinrich documents that contained source selection information using his Corps computer. R981-82, 1004-06. Additionally, on June 4, 2008, nearly 10 months prior to the beginning of trial, Wilson was provided with a copy of his e-mail account that the Corps produced to the Army CID. That same data was again provided to Wilson on November 11, 2008, along with the e-mail accounts of the people working for the source selection committee.