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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-15155 Non-Argument Calendar ________________________
D.C. Docket No. 6:19-cr-00012-GAP-GJK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN CHARLES HIPPS,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(May 21, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Jonathan Hipps appeals his convictions related to misrepresentations to the USCA11 Case: 19-15155 Date Filed: 05/21/2021 Page: 2 of 17
National Aeronautics and Space Administration (“NASA”). After careful
consideration, we conclude the district court committed plain error when it allowed
a government witness to testify about (and discount) Hipps’s credibility. We
therefore vacate Hipps’s convictions.
I
From April 2013 through September 2014, Hipps worked as a technical
specialist for STAT Industry, Inc. (“STAT”), a company that described itself as
“serving the Aviation industry.” Acting as a middleman, STAT placed bids for
government contracts and hired people to fulfill those contracts. In 2014, NASA
awarded a contract to STAT to supply various materials, including stainless steel
threaded rods. The contract required that STAT comply with the Buy American
Act and provide materials manufactured in the United States.
During this time, Hipps was 29 years old and a low-level employee at
STAT, earning $10 an hour when he started, advancing to $12 an hour by the time
he left. Hipps has a bachelor’s and a master’s degree in engineering, but had no
prior experience working in government contracting. During his time at STAT,
Hipps did not have any supervisory responsibilities.
Deborah Raney, the president of STAT, assigned Hipps the NASA contract
to procure stainless steel threaded rods and other materials. To fulfill the contract,
Hipps contacted CBOL, a company located in California. Hipps testified that he
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told CBOL the parts had to be made domestically and that he turned down CBOL’s
offer to obtain threaded rods at a cheaper price from a foreign source.
When the threaded rods arrived, Raney inspected the rods, instructed Hipps
to remove the labels attached to them, took the paperwork into another room, and
told Hipps to get the rods shipped to NASA. Raney signed the certificate of
conformance, certifying to NASA that the threaded rods met the contract
requirements. Hipps testified that he did not know the threaded rods were not in
fact manufactured domestically. By 2018, STAT was no longer in business.
In 2019, Hipps was criminally charged with (1) committing mail fraud, in
violation of 18 U.S.C. § 1341 and 2; (2) concealing of a material fact, in violation
of 18 U.S.C. § 1001(a)(1) and 2; and (3) making a false statement, in violation of
18 U.S.C. § 1001(a)(3) and 2. In substance, Hipps was accused of knowingly
providing stainless steel threaded rods to NASA that were not manufactured in the
United States.
Over the course of a two-day trial, a jury heard evidence of Hipps’s alleged
scheme. As relevant to this appeal, the government presented testimony of two
investigators from the NASA Office of the Inspector General at the Kennedy
Space Center. During the investigation, Agent Shores interviewed Hipps on three
occasions, then testified to the substance of each interview at trial.
Agent Shores first interviewed Hipps in April 2015, mostly about problems
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with a different shipment of steel tubes after NASA became concerned by STAT’s
tardiness in delivering contracted items and indications that the tubes were foreign
made. According to Agent Shores, Hipps said he communicated with CBOL to
fulfill STAT’s contract with NASA and told CBOL all products had to be
manufactured domestically. Hipps denied being aware of any shipments from
STAT to NASA that contained substandard parts.
Agent Shores interviewed Hipps again about a month later, in May 2015. At
this second interview, Hipps provided the company email addresses assigned to
him while he worked at STAT. According to Agent Shores, Hipps said again that
he told CBOL any materials provided had to be of domestic origin.
Following this second interview, Agent Shores obtained emails associated
with Hipps’s company email addresses, as well as the STAT file folders related to
the contract with NASA for the threaded rods. Agent Shores also obtained the
labels that were removed from the threaded rods, which indicated the rods were
manufactured in India. At this point, Agent Shores’s investigation shifted to focus
on Hipps’s potential criminal culpability.
In November 2016, Agent Shores had a third interview with Hipps, this time
with Agent DiVita, another NASA investigator, present. At this interview, Agent
Shores showed Hipps the STAT file folders he now had. According to Agent
Shores, Hipps gasped audibly when presented with the file folders. Agent Shores
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also said that Hipps denied ever seeing any of the documents in the file folders and
denied having seen the words “made in India” on the labels for the threaded rods.
Agent Shores testified that, although his normal practice was to record interviews
when investigating potential criminal liability, the interview with Hipps was not
audio recorded because he had made “a mistake” and did not bring a recorder with
him.
Agent Shores’s testimony about his interviews with Hipps included three
instances in which he commented on Hipps’s credibility. First, on direct
examination, the government asked Agent Shores about his review of Hipps’s
email with CBOL. In the email at issue, Hipps declined CBOL’s offer to obtain
threaded rods at a reduced price from a foreign source, and wrote, “Our quote must
be domestic material only. This means no raw materials outside the U.S.A. Thank
you for your consideration, though.” After Agent Shores described the email, the
government had the following exchange with Shores:
Q. Okay. So what happened after this?
A. This raised more questions for – for our investigation as to – in addition to the stainless steel tubes, we now had concern about the threaded rod. I also had concerns as to whether or not Mr. Hipps had been honest with me during the first two interviews.
The second instance came after Agent Shores testified that Hipps denied
having seen documents indicating that the threaded rods were foreign made. The
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government then had the following exchange with Agent Shores:
Q. At this point had you shown him anything that was in the file folders or told him about anything that was in the file folders?
A. No, no.
Q. Okay.
A. At this point, after I had advised him of – you know, that we had seized these, I began showing him documents in the file folders . . . . Mr. Hipps responded repeatedly that he didn’t recall seeing any of those documents. I challenged him on the truthfulness of that answer. He continued to say, “I don’t know,” or became unresponsive. At this point in the interview, I then showed him the yellow labels that had been torn off, and he told me in response, after looking at them, that he didn’t recall seeing the wording on the labels. It was at this point I told Mr. Hipps I no longer believed anything that he was saying.
The third instance occurred during Agent Shores’s rebuttal testimony.
Agent Shores again testified about his recollection of the third interview with
Hipps, describing it in the following manner:
[Hipps] stated to me, “I don’t think I saw the wording,” or “I didn’t see the wording.” That is when, I guess, we would call it – I confronted him. I made an affirmative statement: “I don’t believe you.”
Agent DiVita also testified. According to Agent DiVita, during the third
interview Hipps confessed to removing the labels from the threaded rods so that it
would appear as if they were domestically manufactured. However, Agent DiVita
conceded that his contemporaneous notes did not reflect that Hipps admitted to 6 USCA11 Case: 19-15155 Date Filed: 05/21/2021 Page: 7 of 17
seeing “made in India” written on the labels. His notes also state that Hipps “was
following instructions” and “did not know it was wrong” to cut off the labels.
Agent DiVita also failed to audio record this interview.
Hipps testified as well. Hipps said the first time he saw that the labels said
“made in India” was during the third interview with Agent Shores and Agent
DiVita, when Shores pointed to the small print on the labels indicating the origin of
the threaded rods. The labels appear as follows:
Hipps testified he was “in shock” when he saw the labels at the third
interview. He testified that he had not confessed at the third interview to
purposefully hiding the foreign origin of the threaded rods. He testified that he 7 USCA11 Case: 19-15155 Date Filed: 05/21/2021 Page: 8 of 17
told the Agents he was unaware the threaded rods were not domestically made.
Hipps also explained why he never saw that the labels indicated the threaded
rods were not domestically manufactured. Hipps testified that, during his
employment at STAT, Raney was upset that the company was falling behind its
deadlines for NASA contracts. He testified that he did not notice that the labels or
associated documents indicating that the threaded rods were foreign made, because
he was rushing to get the orders shipped:
Q. Was Deborah Raney an easy person to work for?
A. No.
Q. Why do you say that?
A. Because there were times when she would yell at me at times and – and cuss at me a lot.
Q. Why? Why was she yelling at you? Why was she cussing at you?
A. Because she was getting upset that the NASA solicitations . . . were falling behind the deadline that NASA had wanted them. NASA was calling Deborah Raney, asking when she was going to deliver those parts, and Deborah Raney was yelling at me to – to – I’m sorry. I’m sorry. Am I allowed to swear?
THE COURT: You may.
THE WITNESS: The words Deborah Raney used at the time were, I quote, “Get your fucking ass moving.”
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Hipps further testified that Raney
was rushing me to get [the threaded rod shipment] out because it – everything for NASA was already late, and she rushed me to – to do the shipping. I asked Deborah Raney, “What do I need to do? What’s the process for getting something for shipping to government?” because at the time anything being shipped to government was completely different compared to shipping domestic or even international. There’s other paperwork that has to be included with it, which I had received no training at my time with STAT. When I asked Deborah Raney how do I fulfill this, how do I – what instructions, Deborah Raney quoted to me, “Figure it out yourself. I’m not you[r] fucking babysitter.”
Hipps testified that Raney instructed him to “remove labels and packing
slips that were on the package itself so that it was just – just the – the package
alone without all of – all of the labels.”
The jury also heard testimony from Hipps’s mother, Judith Ann Hipps. She
testified that her son was on the autism spectrum. She explained that, as a child, he
“preferred to be on his own. . . . He was very gifted in math and sciences. He . . .
devoured books, and he felt more comfortable there.” Even while he worked
toward his bachelor’s degree, Hipps lived at home. Judith Hipps also testified,
“Under pressure he would – oh he didn’t – he didn’t perform well under pressure at
all. He would get – he’d close into himself.” She testified that she had
accompanied her son to the public library where the third interview was conducted,
because she became worried when she heard he had been contacted by Shores for a
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third time. She noted that, by the time of the third interview in 2016, her son had
long stopped working for STAT. Though she could not hear the interview from
her vantage point in the library, she watched the interview from afar and saw the
agents “leaning in” and Hipps’s “face fall.” It was at this point that Judith Hipps
approached the table where the interview was being conducted. The agents
informed her that she needed legal counsel and left. She described her son as
exhibiting “[t]error, shock, [and] disbelief” in that moment.
At the conclusion of the government’s case, Hipps moved for a judgment of
acquittal. In ruling on the motion, the district court recognized that the
government’s case rested on “circumstantial evidence,” but ruled, “I have to look
at . . . the evidence . . . in the light most favorable to the Government, and although
I think the Government’s case is relatively thin, when you add on to it the alleged
confession, I think there’s sufficient evidence to go to the jury.”
The jury convicted Hipps on all three counts. At sentencing, the district
court asked why Raney, the owner of STAT who signed the certification for the
threaded rods, had not been charged. The government explained it lacked
admissible evidence to do so.
In imposing Hipps’s sentence, the district court stated the following:
Well, I don’t really know where to begin. So let me kind of begin with the end. And that is to say that I have had both of these lawyers appear before me numerous times, and I have great respect for both of them. 10 USCA11 Case: 19-15155 Date Filed: 05/21/2021 Page: 11 of 17
I respect immensely the Office of the United States Attorney. They do good work. They do honest work, and they generally try to do the right thing. In this case, I think they did the wrong thing. I don’t think it was a matter of bad motive. I think it was a matter of bad judgment, just like Mr. Hipps, with his disability, exercised a case of bad judgment.
Our collective job here as members of the judiciary is to dispense justice. It’s an important job. Indeed, it’s critical to the maintenance of a civil society. This was recognized long ago by Aristotle as one of the cardinal virtues of humanity.
We in the third branch try hard to get it right, and I believe we usually do. But sometimes we fail. In this case, I think we have.
It’s very hard to juxtapose Mr. Hipps with Ms. Raney and justify the outcome of this case. We have a practice in this Court after a jury trial of personally going back to the jury room and thanking jurors. And in this case, when I went back there, every juror was crying, every one of them. And they, too, wanted to know what happened to Ms. Raney.
I can’t change the result of the jury’s verdict. But I can, in some small measure, hope to correct this injustice in the form of my sentence. I wish I could do more. But I, too, have taken an oath, and my oath of office requires me to impose a sentence upon a conviction by the jury in this case.
So having considered the matter with great sadness, it is the judgment of the Court the defendant, Jonathan Charles Hipps, is placed on probation for a term of one year. His term consists of one year of probation on each of the Counts, I, II, and III, such terms to be run concurrently. . . .
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After considering the advisory sentencing guidelines in this case, as well as all the sentencing factors under 18, United States Code, Section 3553(a), I find that the sentence imposed is unjust, but nevertheless required by my oath of office.
I’m not proud today to be a federal district judge.
In July 2020, seven months into his sentence of one year’s probation, Hipps
moved for early termination. He cited the adverse impact being on probation had
on his ability to obtain gainful employment and the “devastating collateral
consequences of a federal conviction,” including “the permanent stigma” of having
felony convictions. The government did not oppose the request. The district court
terminated Hipps’s probation in August 2020.
Hipps timely appealed his convictions. We now address Hipps’s argument
that the district court plainly erred in allowing Agent Shores to testify on his
assessment of Hipps’s credibility. Agent Shores repeatedly testified that he did not
find Hipps to be credible. Although Hipps objected to one set of Agent Shores’s
testimony on credibility before the district court, he only argues plain error on
appeal. We note litigants likely cannot dictate the standard of review on appeal,
see, e.g., United Sates v. Neuci-Pena, 711 F.3d 191, 196 (1st Cir. 2013) (rejecting
party’s argument that de novo review applied to argument not raised in the district
court); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc)
(“[N]o party has the power to control our standard of review”); Cordrey v. Euckert,
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917 F.2d 1460, 1465 (6th Cir. 1990) (applying de novo review in a case where
“neither party discussed the proper standard of review on appeal”). And Hipps
may be entitled to abuse-of-discretion review as to the objected-to statement. But
we proceed with the plain error standard set out by Hipps because his challenge
succeeds either way.
II
To establish plain error, a defendant must show that there was an error, that
the error was plain, and that the error affected his substantial rights. United States
v. Campbell, 223 F.3d 1286, 1288 (11th Cir. 2000) (per curiam). If he makes that
showing, then we will correct the error if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
To be sufficiently “plain,” the alleged error must be clear from the plain
meaning of a statute or constitutional provision, or from a holding of the Supreme
Court or this Court. United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir.
2010). A defendant must satisfy the reviewing court’s judgment, informed by the
entire record, that but for the error “the probability of a different result is sufficient
to undermine confidence in the outcome of the proceeding.” United States v.
Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004) (quotation
marks omitted).
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III
We conclude the district court plainly erred in allowing Agent Shores to
testify repeatedly about his perception of Hipps’s truthfulness and credibility.
Our precedent is clear that a witness may not testify as to the credibility of another
witness in this manner. United States v. Henderson, 409 F.3d 1293, 1299 (11th
Cir. 2005) (citing Fed. R. Evid. 608(a)). That is because Federal Rule of Evidence
608(a) “permits a witness to testify as to another witness’s general character for
truthfulness or untruthfulness,” but not “about another witness’s truthfulness on a
particular occasion.” United States v. Rivera, 780 F.3d 1084, 1096 (11th Cir.
2015).
Here, Agent Shores did exactly what our precedent prohibits: he testified
about the credibility of Hipps, who was a witness in his own defense. Agent
Shores stated multiple times that he did not believe Hipps to be truthful. And
Agent Shores’s statements that he did not believe Hipps had little relevance to
other legitimate lines of testimony, such as explaining his investigative methods.
For example, when relaying that during the third interview Hipps said he “didn’t
see the wording” on the label, Agent Shores added, “That is when, I guess, we
would call it – I confronted him. I made an affirmative statement: ‘I don’t believe
you.’” Agent Shores’s commentary on Hipps’s credibility was not responsive to
the government’s direct questions. For instance, after Agent Shores described
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Hipps’s email to CBOL declining to obtain non-domestic materials, the
government asked, “what happened after this?” Agent Shores responded, “This
raised more questions . . . . we now had concern[s] about the threaded rod. I also
had concerns as to whether or not Mr. Hipps had been honest with me during the
first two interviews.” This record shows that such testimony does not help to
explain the investigation or relay factual events; rather, it served to discredit Hipps.
When the government asked Agent Shores whether he had “shown [Hipps]
anything that was in the file folders,” Shores gave an extended answer, ending
with, “at this point I told Mr. Hipps I no longer believed anything he was saying.”
These statements about Hipps’s truthfulness, tacked on at the end of Agent
Shores’s responses, served no purpose other than to undermine Hipps’s credibility.
The district court overruled Hipps’s objection to Agent Shores’s testimony
on his credibility. But under this Circuit’s precedent, “the duty to make credibility
determinations about a trial witness falls squarely in the province of the jury, and it
is not appropriate for another witness . . . to tread on the jury’s turf.” Rivera, 780
F.3d at 1096. In permitting Agent Shores to repeatedly comment on Hipps’s
credibility, the district court plainly erred. See id.; Henderson, 409 F.3d at 1299 (a
witness may not testify on another witness’s credibility under the guise of
explaining investigative steps “as an indirect way of bolstering . . . or attacking”
the credibility of another witness); United States v. Schmitz, 634 F.3d 1247, 1269
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(11th Cir. 2011) (a witness is prohibited from testifying as to his personal opinion
of a witness’s veracity).
Next, the plain error affected Hipps’s substantial rights. Campbell, 223 F.3d
at 1288. The government’s case relied on circumstantial evidence and was, as the
district court put it, “relatively thin.” Agent Shores and Agent DiVita insisted that
Hipps confessed to the crime during the third interview, even though DiVita’s
notes said instead that Hipps did not know he was doing anything wrong, and
neither agent recorded the interview. Agent Shores’s repeated statements that he
did not believe Hipps possibly affected the jury’s perception of Hipps’s testimony.
Given that the prosecution relied on circumstantial evidence and the credibility of
witnesses was a central issue at trial, we cannot say that this error, in light of the
entire record, did not raise the probability of a different verdict. Dominguez
Benitez, 542 U.S. at 83, 124 S. Ct. at 2340. We thus conclude that “the probability
of a different result is sufficient to undermine confidence in the outcome of the
proceeding.” Id. (quotation marks omitted).
The error also affected the fairness, integrity, and public reputation of the
proceeding. See Campbell, 223 F.3d at 1288. The district court recounted a
negative emotional reaction from the jury following its delivery of the verdict:
“[E]very juror was crying, every one of them.” The court, too, said that it “wish[ed
it] could do more” to “correct th[e] injustice” of the verdict, but was bound by its
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oath of office to impose a sentence on Hipps. Because Hipps has shown plain
error requiring vacatur of his convictions, we need not address his remaining
arguments.
CONVICTIONS VACATED AND REMANDED.