United States v. Owings ( 2022 )

Case: 21-30279 Document: 00516198032 Page: 1 Date Filed: 02/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 10, 2022
No. 21-30279 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
John T. Owings,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:18-CR-120-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
John T. Owings appeals his convictions for theft of government
property and concealing an event affecting a right to certain social security
benefits. Owings contends that the district court erred by (1) excluding a one-
page summary of a report by the Social Security Administration (SSA) Office
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-30279
of Inspector General (OIG report summary) and (2) denying his motion for
a mistrial based on the jury’s inadvertent receipt of exhibits, including a six-
page chart of his earnings between 2008 and 2014, which were not admitted
into evidence at trial.
The district court did not abuse its discretion by excluding the OIG
report summary. See United States v. Brooks, 681 F.3d 678, 709 (5th Cir.
2012). The report summary, which broadly identifies the SSA’s “processing
delays and errors” and failures to correctly or timely process continuing
disability reviews as the cause of roughly one third of improper overpayments
(the other two-thirds stemming from claimants’ own failures to report their
earnings), does not support Owings’s specific trial defense that he informed
the SSA in 2012 that he had returned to full-time work but the SSA simply
failed to capture his call. As such, the OIG report summary did not have any
tendency to make the fact that Owings called the SSA or that he lacked the
requisite criminal intent more probable. See Fed. R. Evid. 401(a). In any
event, any potential error in excluding the OIG report summary was harmless
in light of the substantial evidence, including Owings’s own sworn
admission, that Owings did not inform the SSA that he had returned to full-
time work. See United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).
Nor did the district court abuse its discretion by denying a mistrial
based on the jury’s inadvertent receipt of the unadmitted exhibits. See United
States v. Velasquez, 881 F.3d 314, 343 (5th Cir. 2018); United States v. Smith,
354 F.3d 390, 394 (5th Cir. 2003). Owings stipulated to the admissibility of
the exhibits before trial although they were ultimately not admitted by the
district court. He asserts that the earnings chart in particular contained
inaccurate, prejudicial data. He does not explain how the inadvertent
submission of the rest of the exhibits resulted in prejudice apart from a vague
assertion that the documents were beneficial only to the Government and
that the submission of some documents but not others was necessarily
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No. 21-30279
prejudicial. By failing to articulate how the documents other than the
earnings chart were prejudicial, he has waived that issue. See United States v.
Reagan, 596 F.3d 251, 254 (5th Cir. 2010). Even if not waived, these vague
and conclusory assertions of prejudice are unavailing. United States v. Mix,
791 F.3d 603, 608 (5th Cir. 2015); Smith, 354 F.3d at 394. As for the chart,
its alleged inaccuracies relate to transactions occurring before the dates
charged in the indictment. Moreover, the district court removed the
challenged exhibits from the jury and issued a curative instruction to
disregard them. See United States v. Moparty, 11 F.4th 280, 294 (5th Cir.
2021); United States v. Owens, 683 F.3d 93, 104 (5th Cir. 2012). In light of
this, as well as the substantial weight of the evidence against him, see United
States v. Davis, 393 F.3d 540, 549 (5th Cir. 2004), Owings fails to show that
the jury’s inadvertent receipt of the unadmitted earnings chart prejudiced
him so as to warrant a mistrial, see Mix, 791 F.3d at 608; Smith, 354 F.3d at
394.
The judgment is AFFIRMED.
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