United States v. Kimberley Boyce

Case: 17-51128 Document: 00514784264 Page: 1 Date Filed: 01/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-51128 FILED
January 7, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
KIMBERLEY DALE BOYCE,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-161-1
Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
Following a jury trial, Defendant-Appellant Kimberley Dale Boyce
(“Defendant” or “Boyce”) was convicted on three counts each of mail fraud, wire
fraud, money laundering, and tax evasion. She was sentenced to twelve
concurrent terms of 60 months imprisonment and ordered to pay $2,039,014.53
in restitution to the victim, Gary Rogers (“Rogers”). Boyce now appeals her
conviction and sentence. We affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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I. FACTS AND PROCEEDINGS
A. Background
Boyce and Rogers have known each other since high school. When
Rogers’s oil field business, Rogers General Construction (“RGC”), began to
grow, he approached Boyce for accounting assistance. Although she had a full-
time job, she agreed to help Rogers. Over time, their professional relationship
expanded to include a romantic one. Boyce and Rogers lived together for
substantial periods of time, sent out Christmas cards together, and purchased
properties together. Rogers eventually proposed, but the two never married.
Boyce continued to file taxes as “head of household.”
Throughout the relationship, Boyce was mainly (and at times solely)
responsible for managing RGC’s accounting books. She was also responsible
for RGC’s banking, had access to RGC’s P.O. Box, and was responsible for
picking up checks and depositing them in the company’s bank accounts. Rogers
executed a power of attorney so that Boyce could more easily complete
transactions on behalf of RGC. She was compensated by RGC, and although
Boyce claims that she viewed these payments as a kind of allowance for
maintaining Rogers’s household, he characterized them as a salary for her
accounting work. Boyce did not report much of this compensation on her tax
returns. At some point during the relationship the couple started to have
disagreements, and Boyce stopped working for RGC for a brief period.
In February 2012, Boyce opened the Wells Fargo bank accounts at issue
here. Using her power of attorney and an “Assumed Name Records Certificate
of Ownership” for RGC, she opened business savings and checking accounts.
The mailing information for the accounts listed Boyce’s personal P.O. Box
rather than RGC’s and Boyce was the sole authorized signer on the accounts.
To open the accounts, she gave Wells Fargo two checks totaling just over
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$184,000 made out to RGC. She had retrieved both checks from RGC’s P.O.
Box. Boyce claimed that she opened the Wells Fargo accounts so that RGC
could get financing for some vehicle purchases, but no evidence of that
financing was produced at trial.
Over time, Boyce deposited checks made out to RGC worth $2.7 million
into the Wells Fargo accounts. Those funds were not used for RGC; rather, they
were either transferred into other accounts over which Boyce had exclusive
control or used to purchase property for Boyce. She did not report any of those
funds on her tax returns.
Boyce eventually resumed working for RGC, but her personal
relationship with Rogers ended when they separated early in 2014. As the
relationship broke down, Rogers requested that the two disentangle their
finances. In January and February of 2014, Boyce transferred funds from the
couple’s joint bank accounts to Rogers’s separate accounts. In April 2014, Boyce
signed over her interest in many of the properties that had been jointly
purchased. She also returned a diamond engagement ring. Evidence produced
at sentencing suggests that she also relinquished her interest in a boat, stock
in a water disposal company, and a Dodge pickup truck.
That breakup was not amicable. Transcripts of voicemails and text
messages between the couple reveal that by early 2014 Rogers had come to
dislike Boyce intensely. He became suspicious when he discovered that large
sums of money were missing. During an audit by one of RGC’s clients, the
auditor found the two Wells Fargo accounts in RGC’s accounting records that
had been labeled “inactive.” Rogers indicated that he was shocked and upset
about the existence of these accounts.
Boyce was indicted on twelve counts arising from the alleged scheme to
defraud RGC, including (1) three counts of mail fraud in violation of 18 U.S.C.
§ 1341, (2) three counts of wire fraud in violation of 18 U.S.C. § 1343, (3) three
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counts of money laundering in violation of 18 U.S.C. § 1957, and (4) three
counts of tax evasion in violation of 26 U.S.C. § 7201.
B. Pretrial Hearing
At a pretrial hearing, the defense explained that its theory of the case
was that Rogers was “essentially making up these allegations that he had no
idea about” the Wells Fargo accounts. To support that theory, the defense
planned to use transcripts of voicemails and text messages that Rogers had
sent to Boyce. Counsel for Boyce also wanted to present evidence that Rogers
was physically abusive. The defense intended to show that Rogers was “a
misogynist and a racist.” The district court excluded this evidence, concluding
that its probative value was substantially outweighed by its prejudicial effect.
The court suggested that Boyce could renew her attempts to use the evidence
during trial.
To rebut the government’s evidence that Boyce intended to defraud
Rogers, defense counsel indicated that part of his strategy would be to show
that, even though Boyce and Rogers “were not legally married,” they shared
everything. The district court barred any suggestion that the two were
married. The court did, however, allow Boyce to testify about the serious
nature of the relationship.
C. Trial
Before beginning to cross-examine Rogers, Boyce’s trial counsel renewed
his objection to the exclusion of the voicemails and text messages. But counsel
only sought to admit the exhibits en masse and did not try to identify a handful
that were especially probative. The district court overruled the objection. Prior
to direct examination of Boyce, her attorney confirmed that he was not
permitted to question Boyce about her belief that she was married to Rogers
or her allegations of physical and mental abuse. Direct examination, however,
elicited that Boyce considered herself engaged to be married to Rogers at the
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time and that she referred to Rogers as her husband. She also admitted that
Rogers was not informed that she was going to open the Wells Fargo accounts.
The jury returned a guilty verdict on all twelve counts. A presentence
investigative report (“PSR”) recommended that Boyce’s offense level should be
increased by sixteen levels pursuant to § 2B1.1(b)(1)(I) because her crimes
caused losses exceeding $1.5 million. At the sentencing hearing, Boyce claimed
that the loss calculation should be credited for just over $1.3 million worth of
property that she said she had returned to Rogers. The court disagreed and
accepted the recommendation of the PSR.
The district court sentenced Boyce to five years in prison—below the
guidelines recommendation for nine of the twelve counts—followed by three
years of supervised release. The court also ordered Boyce to pay $2,039,830 to
Rogers in restitution. Boyce now appeals her conviction and sentence.
II. LAW AND ANALYSIS
A. Evidentiary Rulings
This court reviews alleged violations of a defendant’s rights under the
Confrontation Clause de novo, subject to harmless error analysis. 1 If there is
no constitutional error, the allegedly impermissible limitation of cross-
examination is reviewed for abuse of discretion. 2 Claims that a defendant was
denied the right to present a complete defense are also reviewed de novo. 3
1. Evidence of Bias
Boyce claims that the district court’s exclusion of evidence of Rogers’s
alleged emotional and physical abuse violated her rights under the
Confrontation Clause. A defendant is guaranteed a meaningful opportunity to
1 United States v. Garcia, 887 F.3d 205, 209 (5th Cir. 2018).
2 United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010).
3 United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008).
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cross-examine witnesses against her. 4 Moreover, “[t]he partiality of a witness
is subject to exploration at trial and is ‘always relevant as discrediting the
witness and affecting the weight of his testimony.’” 5 The Sixth Amendment
requires the opportunity to show some evidence of bias. 6 Although the scope of
cross-examination is within the discretion of the trial court, that discretion
“comes into play only after there has been permitted as a matter of right
sufficient cross-examination to satisfy the Sixth Amendment.” 7
The district court nevertheless has “wide latitude” to place limits on
cross-examination based on, inter alia, concerns about harassment and
prejudice. 8 Inquiry into whether there has been a constitutional violation in
the exclusion of bias evidence typically includes determining whether the
evidence was properly excluded under Federal Rule of Evidence 403. 9 That rule
allows courts to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” 10 It was on this
basis that the district court excluded evidence of abuse.
The defense intended to show not only Rogers’s bias against Boyce, but
also to cast him as a “misogynist and a racist.” It is well within the discretion
of the trial court to exclude evidence “that arouse[s] the jury’s hostility or
sympathy without regard” to its probative value. 11 The trial judge is tasked
with excluding evidence brought forth for the sake of its prejudicial effect. 12
4 Davis v. Alaska, 415 U.S. 308, 315–16 (1974).
5 Id. at 316.
6 United States v. Abel, 469 U.S. 45, 50 (1984).
7 Skelton, 514 F.3d at 438.
8 Delaware v. Van Arsdall, 475 U.S. 673, 639 (1986).
9 Skelton, 514 F.3d at 440.
10 Fed. R. Evid. 403.
11 MCCORMICK ON EVIDENCE § 185 (7th ed.); see also United States v. Fields, 483
F.3d 313, 354 (5th Cir. 2007) (“One purpose of Rule 403 is to prevent evidence from ‘inducing
decision on a purely emotional basis.’”).
12 Fields, 483 F.3d at 354.
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Although here the voice and text messages might have some probative value,
their greatest stated value to the defense was their propensity to stir the jury’s
sympathy for Boyce and to arouse its anger toward Rogers. Although
reasonable minds could disagree on the Rule 403 balance of this evidence, its
exclusion was not outside the wide latitude afforded to the district court to
impose reasonable limits on cross-examination. 13 That is especially true
because defense counsel never tried to offer a narrower set of the messages
that may have minimized the district court’s concern about prejudice. Besides,
Boyce’s cross-examination elicited sufficient information that suggested
Rogers’s prejudice against her.
2. Evidence of Belief of Marriage
Boyce next argues that she was prevented from presenting a complete
defense because the district court precluded her from testifying that she
believed she was informally married to Rogers. Such claimed errors are
typically reviewed de novo, 14 but the government contends that this objection
by Boyce was either waived and unreviewable or not properly preserved, and
therefore is reviewable only for plain error.
“[W]aiver is the ‘intentional relinquishment or abandonment of a known
right.’” 15 Waived arguments are “entirely unreviewable.” 16 At the pretrial
hearing, Boyce’s trial counsel made clear that the two “were not legally
married,” and when asked by the court whether he was planning to claim that
they were common-law married, he responded, “No, I’m not.” Boyce thereby
waived the argument that she and Rogers were in fact in an informal marriage.
13 Van Arsdall, 475 U.S. at 679.
14 Skelton, 514 F.3d at 438.
15 United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938)).
16 United States v. Ceballos, 789 F.3d 607, 613 (5th Cir. 2015).
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Boyce, however, filed a pretrial memorandum in which she argued that
she should be allowed to “articulate why she believed she was in an informal
marriage” because it would illuminate whether she harbored the intent to
defraud Rogers and whether she willfully misstated her income on her tax
returns. The district court determined that this theory would not be allowed to
come before the jury, but that Boyce would be allowed to testify that the two
lived together and managed a household together. This ruling was repeated at
trial. Its effect was to preclude testimony from Boyce that she believed they
were informally married under Texas law and evidence that might support this
belief. This objection was properly preserved.
The Constitution guarantees defendants a meaningful opportunity to
present a complete defense. 17 The Federal Rules of Evidence guide the inquiry,
and the district court’s decisions under those rules are reviewed for abuse of
discretion. 18 Analysis of whether a potential error in this context was harmless
resembles the previous analysis of alleged Confrontation Clause violations. 19
The district court excluded this evidence because it believed it was “not
a legal theory” or a defense to the crimes for which Boyce was indicted. Federal
Rule of Evidence 403 gives trial courts discretion to exclude evidence if the
danger that it will confuse the issues or waste time substantially outweighs its
probative value. 20 Here, the probative value of this testimony was negated by
Boyce’s own testimony and other evidence produced at trial. Boyce testified
that she was engaged to be married to Rogers, and her tax forms show that she
filed as “head of household” instead of “married.” Her trial counsel also elicited
testimony from both parties about the seriousness of their relationship. The
17 Crane v. Kentucky, 476 U.S. 683, 690 (1986).
18 Skelton, 514 F.3d at 438.
19 Id. at 445 n.7.
20 Fed. R. Evid. 403.
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district court did not abuse its discretion, and Boyce was able to present a
complete defense.
3. Cumulation
Boyce also asserts that, even if these evidentiary rulings were not
harmful on their own, their cumulative effect justifies reversal. The cumulative
error doctrine justifies reversal when errors “so fatally infect the trial that they
violated the trial’s fundamental fairness.” 21 Put another way, cumulative error
justifies reversal only when contrary rulings “would have produced a very
different trial.” 22 This is not the “unusual case” in which repetitive errors
combine to violate the defendant’s right to a fair trial. 23
We perceive no error in the district court’s handling of the trial, so we
affirm Boyce’s conviction.
B. Sentencing
This court reviews sentences for abuse of discretion but undertakes a de
novo review of the district court’s application of the sentencing guidelines. 24 A
district court’s calculation of a victim’s loss is generally a factual finding
reviewed for clear error. 25 But how the sentencing court calculated the loss is
an application of the guidelines that is reviewed de novo. 26 The imposition of a
restitution award is reviewed de novo, but the calculation of the amount of
restitution is reviewed for abuse of discretion. 27
21 Fields, 483 F.3d at 362.
22 United States v. Jimenez-Laines, 354 F. App’x 889, 896 (5th Cir. 2009) (citing United
States v. Riddle, 103 F.3d 423, 434 (5th Cir. 1997)).
23 United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc).
24 United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).
25 United States v. Mahmood, 820 F.3d 177, 192 (5th Cir. 2016).
26 Klein, 543 F.3d at 213.
27 Mahmood, 820 F.3d at 196.
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1. Loss Calculation
United States Sentencing Guidelines § 2B1.1 makes the loss to the
victim a specific offense characteristic that, depending on the amount, will
increase a defendant’s offense level for purposes of sentencing. The loss is
calculated by measuring the greater of the victim’s actual loss or the loss
intended by the defendant. 28 That loss, however, must be reduced by “the
money returned, and the fair market value of the property returned and the
services rendered, by the defendant . . . to the victim before the offense was
detected.” 29 The time of detection of an offense is the earlier of the actual
discovery or the time the defendant knew or should have known that detection
was imminent. 30 The court “need only make a reasonable estimate of the
loss.” 31
The PSR, which was adopted by the district court, determined that the
loss intended by Boyce was $2,712,049.22, increasing her base offense level by
sixteen. 32 The PSR did note, however, that Rogers’s actual loss was less. Boyce
had returned just over $650,000 of the embezzled funds prior to detection of
the crime, making the actual loss $2,039,014.53. Even this amount, however,
would be sufficient for a sixteen-level increase. 33
On appeal, Boyce insists that the district court wrongly denied a
reduction in the loss calculation for several properties that were jointly
purchased and are now in Rogers’s name exclusively. The government counters
that many of these properties were either (1) returned after Boyce should have
known that discovery of her fraudulent scheme was imminent and therefore
28 U.S.S.G. § 2B1.1 (n.3(A)).
29 U.S.S.G. § 2B1.1 (n.3(E)(i)).
30 Id.
31 U.S.S.G. § 2B1.1 (n.3(C)).
32 See U.S.S.G. § 2B1.1(b)(1)(I).
33 Id.
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could not be credited against the loss, or (2) unsupported by evidence produced
at sentencing. The district court denied any credit.
At a sentencing hearing, the defendant has the burden of showing by a
preponderance of the evidence that she is entitled to a reduction in the loss
calculation. 34 A credit is warranted for money or property “returned” to the
victim before the detection of the crime. 35 Most of the credits requested by
Boyce were for properties that, on the relevant documents, were listed in both
her and Rogers’s names. But there was no evidence that these transfers
“returned” anything. The plain meaning of this guideline shows that it
contemplates the return of stolen money or property. Although a credit might
be warranted even though the defendant did not return the exact property
stolen, the property returned must still be traceable to the embezzled funds. 36
Boyce signed over her interest in jointly owned properties that the
evidence suggests were purchased almost entirely with Rogers’s money. There
is also no evidence that the transfers were made to compensate Rogers for
Boyce’s crime; rather, the two were ending their relationship and
disentangling their finances. Boyce’s transfers were not part of the underlying
fraudulent scheme, but simply an independent product of her breakup with
Rogers. The district court did not err in its guidelines calculation.
Moreover, any error would be harmless. The district court adopted the
PSR, which determined that Boyce’s offense level was twenty-eight and her
criminal history category was I. The guidelines range for sentencing was 78–
97 months. A sentence within that range was statutorily permissible for the
wire fraud, mail fraud, and money laundering convictions, but both the
34 Mahmood, 820 F.3d at 194.
35 U.S.S.G. § 2B1.1 (n.3(E)(i)).
36 Accord United States v. Shepard, 269 F.3d 884, 887–88 (7th Cir. 2001) (applying a
similar principle in the restitution context).
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statutory maximum and guidelines sentence for her tax fraud convictions were
60 months. 37 The district court noted, after considering the 18 U.S.C. § 3553(a)
factors, that a downward variance to 60 months was fair and reasonable. Even
if the court had awarded Boyce every credit she requested, her offense level
would have been twenty-six and her guidelines range would have been 63–78
months–entirely above her ultimate sentence of 60 months.
A district court’s miscalculation of the guidelines range for a sentence is
harmless if the government shows “both (1) that the district court would have
imposed the same sentence had it not made the error, and (2) that it would
have done so for the same reasons it gave at the prior sentencing.” 38 Although
this has been called a heavy burden, 39 the government has met it in this case.
In United States v. Ramos, this court found a sentencing error harmless when
the district court’s sentence was below guidelines, based on the § 3553(a)
factors and the lesser statutory maximum of several counts. 40 Similarly here,
even the alternate calculation would have resulted in a guidelines range above
the defendant’s ultimate sentence, and it is reasonable to infer that her
sentence was the least of the possible statutory maximum sentences.
2. Restitution
Boyce was ordered to pay restitution under 18 U.S.C. § 3663A in the
amount of $2,039,014.53. A district court may order the defendant to pay
restitution to the victim by returning the property stolen or, if that is not
feasible, by paying an amount equal to the value of the property as of the date
of sentencing or when it was stolen, whichever is greater. 41 As in the
sentencing context, the restitution amount must be reduced by “the value . . .
37 U.S.S.G. § 5G1.1(a).
38 United States v. Morrison, 713 F.3d 271, 282 (5th Cir. 2013).
39 United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010).
40 739 F.3d 250, 253 (5th Cir. 2014).
41 18 U.S.C. § 3663A(b).
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of any part of the property that is returned” to the victim. 42 The defendant has
the burden of showing an entitlement to a reduction in restitution owed. 43
Boyce insists that the district court erred when it failed to account for
the properties she signed over to Rogers. The government responds that Boyce
did not properly preserve her objection to the restitution calculation so that
this panel should review for plain error.
Boyce objected to the district court’s refusal to credit the loss calculation
for sentencing purposes. She made a general objection to the order of
restitution. It is an open question in this circuit whether an objection to a
sentencing court’s loss calculation is sufficient to preserve an objection to that
court’s restitution calculation. 44 Fifth Circuit precedent, however, “could be
read to hold that an objection to the Guidelines loss calculation preserves a
restitution argument.” 45 The arguments here for a credit under U.S.S.G. §
2B1.1 are essentially the same as those made by Boyce for a reduction in the
amount of restitution that she owed.
The district court adopted the PSR, which found that, of the
$2,712,049.22 that Boyce embezzled, she returned $650,170. As in the
sentencing context, the restitution statute’s insistence on a reduction for “any
part of the property that is returned” contemplates a return of stolen funds,
not any property the defendant gives the victim. 46 Of course, “a victim cannot
receive a windfall from restitution,” but there has been no showing that the
credits Boyce seeks are for property that is in any way traceable to the funds
42 18 U.S.C. § 3663A(b)(1)(B)(ii).
43 United States v. De Leon, 728 F.3d 500, 506–07 (5th Cir. 2013).
44 United States v. Wright, 496 F.3d 371, 381 (5th Cir. 2007).
45 Id. (citing United States v. Cockerham, 919 F.2d 286, 288 (5th Cir. 1990)).
46 18 U.S.C. § 3663A(b)(1)(B)(ii) (emphasis added).
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she embezzled. 47 The government has produced evidence of hundreds of checks
deposited in the fraudulent Wells Fargo account. Even though the credit of
$650,170 was proper, Boyce “offered little to no concrete evidence” to show that
her transfers returned any of the stolen property. 48 Neither was there anything
that showed Boyce returned these properties to Rogers in restitution for her
crime. She was simply disentangling herself at Rogers insistence from his
finances as the two ended their relationship. The district court did not err in
its restitution order.
III. CONCLUSION
The Defendant’s convictions and sentence are AFFIRMED.
47 FED. CRIM. RESTITUTION § 7:16; see also Shepard, 269 F.3d at 887–88
(describing how property provided to the victim that is traceable to the funds stolen in the
underlying fraud can require a restitution credit).
48 United States v. Sanjar, 876 F.3d 725, 748 (5th Cir. 2017).
14