U.S. v. Norris, 99-30689

• Decision Date: 26 June 2000
• Docket Number: No. 99-30689,99-30689
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES A. NORRIS, JR., Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 262

217 F.3d 262 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES A. NORRIS, JR., Defendant-Appellant.

No. 99-30689

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

June 26, 2000

Appeal from the United States District Court for the Western District of Louisiana, Monroe

Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant James A. Norris, Jr., (Norris) was convicted after a jury trial of four counts of making false declarations in violation of 18 U.S.C. § 1623, sentenced to thirty-three months' imprisonment and three years' supervised release, and ordered to pay $490,000 in restitution. Norris appeals his convictions and sentences, arguing that the district court erred by admitting a videotape re-creation and testimony by the government's expert witness, by ordering Norris to pay restitution, and by enhancing his sentence for substantial interference with the administration of justice. We agree with Norris that the district court erred in ordering restitution, but reject his other attacks on his convictions and sentences. Accordingly, we affirm in part and reverse in part.

Facts and Proceedings Below

In 1989, Norris served as the district attorney for Ouachita and Morehouse Parishes in Louisiana and was also a partner in the West Monroe law firm of Johnson & Placke. A dispute over business decisions arose between Norris and his law partners, culminating in June 1989 with Norris disbursing $500,000 from the law partnership's money market accounts. In August 1989, Norris's law partners filed a state civil suit against him, seeking restoration of the disbursed funds and additional damages.

On February 9, 1994, Norris withdrew $500,000 in cash-5,000 $100 bills--from his personal accounts at Louisiana National Bank and placed it in a bank safe deposit box. Nearly eight months later, on September 30, 1994, his former law partners obtained a judgment, awarding them $540,000 plus prejudgment interest, amounting in all to approximately $800,000, in their state action against him.¹ The next day, Norris withdrew all the cash, approximately $500,000, from his safe deposit box.²

In December 1994, Norris's former law partners sought to execute on their judgment through state court proceedings. Norris testified at a judgment debtor examination that he had "spent" the money he had deposited in and subsequently removed from the safe deposit box, though he did not specify how he had spent the money. Attempting to collect on their judgment, Norris's former law partners filed an involuntary bankruptcy proceeding against him on January 30, 1995. On March 30, 1995, Norris testified under oath in an ancillary bankruptcy proceeding under Federal Bankruptcy Rule 2004, declaring under oath that on October 1, 1994 he had incinerated the some 4,900 $100 bills that he had withdrawn from the bank safe deposit box on October 1, 1994 by pouring gasoline on the money and burning it all in a metal trash barrel at his residence. On April 5, 1995, Norris appeared before the bankruptcy court for a hearing on his motion to dismiss the involuntary bankruptcy petition. At this hearing, Norris repeated under oath his previous statement about burning the cash. During another Rule 2004 ancillary bankruptcy proceeding held on May 1, 1995, Norris reiterated under oath that he had burned all the money. Norris also explained his use of the term "spent" at the December 1994 state judgment debtor examination as an attempt to convey that the money was "gone" or "burned."

Finally, on May 11, 1995, Norris testified before the bankruptcy court at a trial conducted pursuant to the bankruptcy trustee's motion for turnover, asking the court to order Norris to deliver certain assets to the trustee, including $500,000 that he withdrew from his bank safe deposit box. At this trial, Norris repeated under oath his earlier statements that he no longer possessed the cash because he had burned it all in a trash barrel at his residence. The bankruptcy court did not believe Norris's testimony and, on June 13, 1995, ordered him to turn over the cash to the bankruptcy trustee. Norris refused.

On July 21, 1995, the bankruptcy court conducted a hearing on the trustee's motion for sanctions and civil contempt against Norris. The bankruptcy court filed a report on August 14, 1995, holding Norris in contempt of court for failing to deliver the cash to the trustee and recommending that Norris be incarcerated until he turned over the cash. On January 31, 1996, a district court adopted the bankruptcy court's recommendation and held Norris in civil contempt, ordering him to be incarcerated until he produced the funds. Norris appealed the contempt order to this Court, and we affirmed in an unpublished opinion. In re Norris, No. 96-30146 (5th Cir. Apr. 11, 1997) (per curiam). Every month during his incarceration, Norris was brought before the bankruptcy court and asked to reveal the location of the cash and thereby lift the contempt order. On each occasion, Norris maintained that he had burned the money. Norris remained imprisoned until March 19, 1997-the date of his arraignment for his instant perjury offenses.

On February 2, 1997, a grand jury returned an indictment charging Norris with four counts of false declarations, all in violation of 18 U.S.C. § 1623³, related to the four instances-March 30, April 5, May 1 and May 11, 1994--during the bankruptcy proceedings in which he testified that he had burned approximately $490,000 in cash. Norris then filed a motion to dismiss the indictment on the basis that the prosecution violated the Double Jeopardy Clause of the United States Constitution as he had already been punished for the offenses charged in the indictment by being incarcerated pursuant to the civil contempt order. The district court denied Norris's motion to dismiss, and this Court affirmed in an unpublished opinion. United States v. Norris, No. 97-30812 (5th Cir. June 9, 1998), cert. denied, 119 S.Ct. 360 (1998).

The government sought to prove the perjury charges against Norris at trial, in part, through a videotape of, and testimony relating to, the Department of Alcohol, Tobacco, and Firearms (ATF) re-creation of the burning of the currency as Norris had described it in his declarations during his bankruptcy. In particular, the government intended the re-creation to demonstrate that most of the cash could not have burned under Norris's description of the incident, thereby establishing that Norris did not in fact burn all or substantially all the currency as he had testified to under oath and before the bankruptcy court.

Before trial, Norris filed a motion in limine to exclude the re-enactment evidence by the government as irrelevant and prejudicial under Federal Rules of Evidence 401,⁴ 403,⁵ and 703.⁶ The district court conducted a hearing, after which it ruled that the re-enactment evidence was provisionally admissible. The charges against Norris proceeded to trial in March 1999. At trial, Norris filed another motion to exclude the re-enactment videotape and testimony relating to it, this time on the ground that this evidence was not reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The district court overruled Norris's objection, reasoning that Daubert's teachings did not apply because Daubert only applied in determining whether an expert would be qualified to testify. The district court, however, concluded that the ATF's re-enactment accurately represented the events as Norris described them. Accordingly, the district court determined that the government's evidence was both reliable and relevant.

At trial, the government introduced over Norris's objections the re-enactment videotape and the testimony of ATF Agent Dennis Keith Constantino's (Agent Constantino). The district court permitted Agent Constantino to testify as an expert in fire investigation. Agent Constantino testified that he had re-enacted the steps Norris allegedly took when he burned the cash at his residence on October 1, 1994. Agent Constantino conducted the re-creation on February 4, 1997 at 11:30 a.m. in Gaithersburg, Maryland, at the Department of Commerce's National Institute for Standards and Technology. The Bureau of Engraving and Printing provided Agent Constantino with 4,950 uncirculated $5 bills, and he placed them in a five-gallon plastic container, as Norris claimed to have done. Agent Constantino then poured one and three-fourths gallons of gasoline into the plastic container. After the gasoline and the currency remained in the plastic container for approximately fifteen minutes, Agent Constantino tossed the contents of the plastic container into a brand-new fifty-five gallon steel trash barrel. The gasoline was then lit on fire with an electric match, and the currency and gasoline burned for five minutes. After the five minutes expired, Agent Constantino extinguished the fire by dumping the contents of a fifty-pound bag of corn feed, or deer corn, into the barrel, as Norris had stated he had done. Agent Constantino then allowed the barrel to cool for two to three minutes, before examining the barrel and its contents. First, he noticed that much of the interior paint on the barrel had burned off, which occurred within the first couple of minutes of the fire. Turning his attention to the currency, Agent Constantino observed that only about ten percent of the bills had been either damaged or destroyed. After completing the re-enactment, Agent Constantino spent approximately twenty minutes burning the undamaged bills, as the Bureau of Engraving and Printing requested that all the currency be destroyed.

As Agent Constantino admitted, the re-creation was not an exact duplication of Norris's alleged burning of the currency. First, the re-creation occurred in a different location at a different time of year-February in Maryland⁷ as opposed to October in...