United States of America v. Cameo Williams, Sr.

Does it matter if a veteran lies about having served overseas? Yes, if the veteran

lies to the Department of Veteran Affairs (VA) to get undeserved benefits under 38

C.F.R. � 3.304(f)(2) for combat-related posttraumatic stress disorder (PTSD). We reject

Williams�s argument that his lie was not material under 18 U.S.C. �1001(a)(2), as well as

his two challenges to evidentiary rulings. Exercising jurisdiction under 28 U.S.C. � 1291,

we affirm.

BACKGROUND

Cameo Williams, Sr. is a veteran of the United States Army, who spent his entire

service stateside�never overseas or in combat. But for years, based on his false

statements about combat service, he obtained VA benefits for combat-related PTSD.

Eventually, during a review of his eligibility for benefits, the VA began to

question Williams�s accounts of his combat service. The VA�s doubts arose after

reviewing Williams�s medical records, which revealed that he had made inconsistent

statements regarding the nature of his alleged deployment. He had told one VA medical

provider about serving in Guantanamo Bay, Cuba from August 2004 to April 2005 and in

Afghanistan from May 2005 to June 2006.1 But he had told two other VA providers about

serving in Iraq in 2007 and 2008 for two three-month stints, never mentioning having

served in Cuba or Afghanistan. Recognizing that Williams�s claimed foreign service was

also unsupported by his military records, the VA proposed to decrease his benefits by

severing the service connection to his PTSD diagnosis. For some reason, Williams

challenged that proposal, maintaining that he was entitled to his previously awarded

benefits for combat-related PTSD.

The VA set Williams�s challenge for an informal hearing before Alana Bucheit, a

VA Decision Review Officer. The Review Officer�s preliminary review of Mr.

1 These claims were both inconsistent with Williams�s other statements and

factually unfeasible, as Williams did not join the Army until August 2006.

3

Williams�s military records revealed nothing to support his claim of overseas or combat

service. Even so, in August 2014 the Review Officer held the informal hearing.

While testifying at the informal hearing, Williams claimed to have served in Iraq

from May to September 2007. This statement underlies his charge and conviction under

18 U.S.C. �1001(a)(2). Interrelatedly, though not charged in the indictment, Williams

further testified that he had been stationed at Camp Taji, outside Baghdad; that he had

been deployed there twice as a casualty replacement; that while there he had been

exposed to the enemy�s improvised explosive devices and had to clean blood from an

attacked Humvee; and that these experiences had caused his PTSD. At the hearing,

Williams was the sole witness, but he provided the Review Officer with a �buddy

statement,� a letter from a fellow veteran claiming to have served with Williams in Iraq.2

R. Vol. III at 321. At the hearing, the Review Officer questioned Williams about the lack

of any deployment entries in his military records and asked whether he would consider

trying to have his records corrected to show his service in Iraq. Williams declined,

professing to have lost trust in the military and the VA.

After the hearing, the Review Officer continued to investigate Williams�s account

of being deployed to Iraq. She directed another VA employee to contact the Joint

Services Records Research Center (JSRRC) to confirm that Williams had been assigned

2 The veteran said that he had served with �Sergeant Williams� in Iraq

(Williams was never a Sergeant�his highest rank was private first class) and that his

unit had relieved Williams�s unit in Iraq. R. Vol. III at 323. The person who wrote

the buddy statement, however, later testified at trial that he had never seen Williams

in Iraq.

4

to the casualty-replacement unit and served with it in Iraq. As the Review Officer later

described at the criminal trial, the JSRRC has �access to the command chronologies that

[VA employees] don�t have access to� and �can research to try [to] confirm reported

events.� Id. at 332. The JSRRC also refuted Williams�s testimony. In fact, his military

records showed that at the very time he claimed to have been serving in Iraq, he was

being treated at Madigan Army Medical Center in Fort Lewis, Washington.

In June 2015, almost a year after the informal hearing, Review Officer Bucheit

upheld the VA�s proposal to reduce Williams�s benefits, finding that he lacked a service

connection for his claimed combat-related PTSD. She then followed her customary

practice and shredded her notes from the informal hearing with Williams.3

In March 2016, a grand jury sitting in the District of Colorado charged Williams in

a single-count indictment with violating 18 U.S.C. � 1001(a)(2). The charged conduct

was Williams�s false statement to the Review Officer about having served in Iraq from

May to September 2007. The indictment did not charge any of several other similar

statements he had made to other VA representatives.

The case proceeded to a jury trial. At the close of the government�s case, Williams

moved for a judgment of acquittal, arguing that the government had presented

insufficient evidence of materiality. The district court denied this motion. The jury found

3 Unfortunately, the recording equipment had failed during the hearing, leaving no

verbatim record of the hearing testimony. Because of this, the Review Officer drafted a

summary of the testimony and obtained approval of it from Williams�s representative

from the Veterans of Foreign Wars (VFW), who was assisting with the appeal.

5

Williams guilty, and the district court sentenced him to five years� probation. Williams

timely appealed.

On appeal, Williams challenges his conviction on three grounds: (1) that the

government presented insufficient evidence of materiality; (2) that the district court

violated his Fifth and Sixth Amendment rights by disallowing testimony from his two

listed expert witnesses; and (3) that the district court abused its discretion by admitting

into evidence some of Williams�s earlier false statements to the VA that the Army had

deployed him overseas.

ANALYSIS

A. Williams�s False Statement at the VA Hearing Was Material, and the

District Court Did Not Err in Denying Williams�s Motion for Acquittal

On appeal, Williams does not dispute making the false statement about serving

in Iraq.4 Rather, he challenges its materiality. He argues that under 38 C.F.R.

� 3.304(f)(2), the Review Officer could rely only on military records to determine

whether he had served in Iraq. For this reason, he contends that his testimony on that

point could not be material to the benefits decision. From this, Williams argues that

the district court erred by not granting his motion for acquittal, reasoning that

materiality is an element of an 18 U.S.C. � 1001(a)(2) offense and that his false

testimony was immaterial as a matter of law. We disagree.

4 See, e.g., Appellant�s Opening Br. at 40 (�[I]t�s difficult to fathom that

[Williams] did not knowingly and willingly falsely state that he deployed to Iraq,

unless he was psychotic, a diagnosis that is not contained in any of his medical

records.� (footnote omitted)).

6

We generally review de novo any challenges to the sufficiency of evidence and

the denial of a judgment of acquittal, �view[ing] the evidence in the light most

favorable to the government to determine whether a rational trier of fact could have

found the elements of the offense beyond a reasonable doubt.� United States v.

Johnson, 821 F.3d 1194, 1201 (10th Cir. 2016) (citing United States v. Hutchinson,

573 F.3d 1011, 1033 (10th Cir. 2009)). But the government argues for plain-error

review because Williams did not raise the materiality issue in the same terms on

appeal as he did in moving for a judgment of acquittal before the district court. The

government is correct.

In moving for a judgment of acquittal before the district court, Williams raised

two arguments. First, he argued that the informal hearing was akin to a judicial

proceeding and that 18 U.S.C. � 1001(b) excludes from prosecution false statements

made during judicial proceedings. Second, he argued that the prosecution had failed

to present sufficient evidence for a jury to find materiality because the government

had never directly asked the Review Officer during his criminal trial (a) whether

Williams�s false statement about deploying was material to her decision, or (b)

whether she had decided to reduce his benefits before the informal hearing. But on

appeal, Williams raises a new theory of immateriality based on VA regulations.

Because he did not argue that point to the district court, we will review for plain

error.5

5 On appeal, Williams contends that we should review de novo because the VA

regulations alone support his argument in the district court that the government

7

�Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.� United States v. Gonzalez�Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (citation omitted). But as a practical matter, whether we review

Williams�s challenge for plain error or de novo, �the review would be similar

because insufficiency of the evidence generally meets the plain error test.� United

States v. Thomas, 849 F.3d 906, 909 (10th Cir. 2017).6 This is so because �a

conviction in the absence of sufficient evidence of guilt is plainly an error, clearly

prejudiced the defendant, and almost always creates manifest injustice.� United

States v. Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007). �Therefore, plain error

offered insufficient evidence of materiality. In moving for a judgment of acquittal,

Williams argued that the Review Officer had �conceded, unrebutted, that the

testimony did not have a tendency to influence as she had already reviewed so many

documents prior to the hearing and it was not capable of influencing her decision.� R.

Vol. III at 640. Based on that �unrebutted� testimony, Williams argued that the

prosecution had not offered sufficient evidence to support a jury finding of

materiality. Id. at 639�40 (arguing that �there was never any testimony to the

contrary that the statements themselves were material to her finding�). This argument

differs from the one he makes on appeal, namely, that the VA regulations precluded

the Review Officer from considering lay testimony in determining Williams�s

eligibility for benefits. �Our precedent is clear that an objection must be �definite�

enough to indicate to the district court �the precise ground� for a party�s complaint.�

United States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009) (quoting Neu v. Grant,

548 F.2d 281, 287 (10th Cir. 1977)). Thus, because Williams did not raise the

argument with the required definitiveness or precision, we apply plain-error review.

6 See also United States v. Weiss, 650 F.3d 1263, 1269 n.2 (10th Cir. 2010)

(noting that �[i]n the context of sufficiency of the evidence claim, . . . the plain error

standard is essentially the same as the usual de novo standard� (internal quotation

marks omitted)); United States v. Bowie, 892 F.2d 1494, 1496 (10th Cir. 1990)

(observing that when we review for plain error, �the standard actually applied is

essentially the same as if there had been a timely motion for acquittal�).

8

review and de novo review are functionally equivalent so long as the fourth prong of

plain error review�that the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings�is also met.� United States v. Kaufman, 546 F.3d

1242, 1263 (10th Cir. 2008). As such, we will �view the evidence in the light most

favorable to the verdict and ask whether any rational trier of fact could find the

element in question.� United States v. Thomas, 849 F.3d 906, 909 (10th Cir. 2017).

We do not, however, �weigh conflicting evidence or consider witness credibility.�

United States v. Porter, 745 F.3d 1035, 1050 (10th Cir. 2014) (citation omitted).

�The only question is �whether the government�s evidence, credited as true, suffices

to establish the elements of the crime.�� Johnson, 821 F.3d at 1201 (quoting

Hutchinson, 573 F.3d at 1033).

To support a conviction for making a false statement in a matter within the

jurisdiction of the executive branch of the United States under 18 U.S.C. �1001(a)(2),

the government must prove five elements beyond a reasonable doubt: �(1) the

defendant made a statement; (2) the statement was false, fictitious, or fraudulent as

the defendant knew; (3) the statement was made knowingly and willfully; (4) the

statement was within the jurisdiction of the federal agency; and (5) the statement was

material.� United States v. Harrod, 981 F.2d 1171, 1175 (10th Cir. 1992) (citation

omitted). This appeal concerns only the fifth element�materiality.

A false statement is material when �it has a natural tendency to influence, or is

capable of influencing, the decision of the decision making body to which it was

addressed.� United States v. Williams, 865 F.3d 1302, 1310 (10th Cir. 2017)

9

(citations omitted). Whether a statement satisfies the materiality standard is a mixed

question of law and fact that the jury decides. United States v. Gaudin, 515 U.S. 506,

512�14 (1995). In determining whether the government presented sufficient evidence

to support a jury�s finding of materiality under � 1001, we ask three questions:

�(1) What statement was made? (2) What decision was the decision maker

considering? (3) Was the statement capable of influencing the relevant decision?�

United States v. Christy, 916 F.3d 814, 853�54 (10th Cir. 2019).7

In evaluating Williams�s materiality argument, a federal regulation guides us:

(f) Posttraumatic stress disorder. Service connection for

posttraumatic stress disorder requires medical evidence

diagnosing the condition in accordance with � 4.125 (a) of

this chapter; a link, established by medical evidence,

between current symptoms and an in-service stressor; and

credible supporting evidence that the claimed in-service

stressor occurred. The following provisions apply to claims

for service connection of posttraumatic stress disorder

diagnosed during service or based on the specified type of

claimed stressor:

* * *

(2) If the evidence establishes that the veteran engaged

in combat with the enemy and the claimed stressor is related

to that combat, in the absence of clear and convincing

evidence to the contrary, and provided that the claimed

stressor is consistent with the circumstances, conditions, or

hardships of the veteran�s service, the veteran�s lay

7 In Christy, we interpreted materiality under the false bank entry statute, 28

U.S.C. � 1005, and in doing so, we applied the materiality standards for bank-fraud

offenses. Christy, 916 F.3d at 853�54. But that analysis informs our consideration of

materiality under � 1001 because, as we have noted, the materiality analyses are

�identical� for bank fraud, mail fraud, wire fraud, and false-statement offenses.

Williams, 865 F.3d at 1310 n.10.

10

testimony alone may establish the occurrence of the claimed

in-service stressor.

38 C.F.R. �� 3.304(f) & (f)(2) (VA regulation governing benefits for PTSD and

combat-related PTSD).

As set forth in the regulation, � 3.304(f) requires three showings for a service

connection to PTSD. This appeal concerns Williams�s effort at the informal hearing

to meet the last of these, namely, �credible supporting evidence that the claimed inservice

stressor occurred.� Because Williams claimed that his alleged PTSD resulted

from combat, we examine how � 3.304(f)(2) applies to Williams�s showing. There,

we see that Williams could prevail on the in-service-stressor question more easily if

he could persuade the Review Officer that he satisfied the other requirements of

subsection (f)(2). To do so, he needed in part to establish that he had engaged in

combat with the enemy�hence the importance of his false testimony that he had

served in Iraq. Had Williams succeeded in persuading the Review Officer that he had

engaged in combat in Iraq (as well as that the claimed stressors related to that

combat), he could have established the occurrence of the stressor solely by his own

testimony. So for him, the stakes were high in convincing the Review Officer that he

had served in Iraq.

Every link in the subsections (f) and (f)(2) chain is material. Whether the

Review Officer was ultimately persuaded by Williams�s testimony is a separate

question from its materiality. It does not matter whether Williams�s statement

ultimately influenced the Review Officer�s decision�indeed, �[a] statement can be

11

objectively material even if the decision maker did not consider it� at all. Williams,

865 F.3d at 1316; see id. (�Requiring the government to establish actual reliance to

satisfy materiality . . . would undermine the statute�s criminalization of �attempts to

execute� the fraudulent scheme.� (citation omitted)); United States v. Irvin, 682 F.3d

1254, 1267�68 (10th Cir. 2012) (concluding that because the materiality standard is

objective, whether the decisionmakers were influenced by the defendant�s false

statement is �irrelevant�).

Here, Williams�s testimony had the natural tendency to influence and was

capable of influencing the Review Officer�s benefits decision. We reject any rule that

would increase a veteran�s leeway to provide false statements as the statements

became more far-fetched. Williams falsely testified about combat service in Iraq to

persuade the Review Officer of that service. And he put the issue squarely before the

Review Officer to decide. Cf. United States v. Camick, 796 F.3d 1206, 1210�11,

1218�19 (10th Cir. 2015) (ruling that false statements about applicant�s identity in a

provisional patent application with the U.S. Patent and Trademark Office were

incapable of influencing the agency�s decision, because filing a provisional

application requires no decision be made�any decision awaits the applicant taking

additional action so the agency had no reason or opportunity to review the

preliminary application).

To support his interpretation of subsection (f)(2), Williams strays from its

language. He argues that the words �the evidence establishes that the veteran engaged

in combat with the enemy� bars a VA review officer from considering any lay

12

evidence unless there is �threshold evidence (such as medical records and a DD Form

214 or other official military records)� of the veteran�s combat service. Appellant�s

Opening Br. at 24�25. But subsection (f)(2) does not say that. In fact, its sole

reference to a veteran�s lay testimony enlarges its importance�saying that lay

testimony alone will suffice to establish �the occurrence of the claimed in-service

stressor.� We will not read language into the regulation that would bar a veteran from

testifying about his or her combat service in an effort to persuade the VA that the

veteran had, in fact, served overseas. After all, as the government notes, �[m]istakes

occur in recordkeeping or records can be lost.� Appellee�s Br. at 13 (citing R. Vol. III

at 334).

Apart from the regulation�s language, Williams challenges materiality by

relying on the Review Officer�s actions and later testimony at Williams�s criminal

trial.8 He notes that the Review Officer questioned the need for the informal hearing

after preliminarily reviewing the military records, and that the Review Officer

testified at the criminal trial that �[j]ust lay testimony alone, um, that Mr. Williams

had deployed to Iraq would not be enough evidentiary�or not enough evidence for

me to concede that he had been to Iraq. I needed some kind of military record.�

Appellant�s Opening Br. at 3 (quoting R. Vol. III at 376). But as the government

accurately explained, the �standard for materiality is an objective one that is not

8 Because Williams preserved this argument in the district court, we review it

de novo.

13

based on the subjective views of the individual decision-maker.� Appellee�s Br. at 15

(citing United States v. McBane, 433 F.3d 344, 350�52 (3d Cir. 2005)9; United States

v. Galindo, No. CR 11-10117-EFM, 2012 WL 1945142, at *6 (D. Kan. May 30,

2012) (collecting cases), aff�d 543 F. App�x 862, 867 (10th Cir. Nov. 14, 2013)). A

false statement can be material regardless of its influence on the decisionmaker and

can also be material even if the decisionmaker had already arrived at her conclusion

before the statement is made. See Williams, 865 F.3d at 1316 (upholding materiality

even if the agency determination had already been made before misrepresentation

occurred).

Further, we can understand the Review Officer�s surprise that Williams still

sought an informal hearing despite his military records not showing overseas service.

But after learning that he still did seek a hearing, the Review Officer held a hearing

and heard Williams�s sworn testimony about his supposed Iraq service. As

mentioned, the Review Officer also received the unsworn, written buddy statement

from a fellow veteran, who claimed that he and Williams had served in Iraq together.

Further, the Review Officer testified that she waited until after the hearing to arrive at her

final decision, and that post-hearing she investigated further into Williams�s military

records concerning the dates he claimed to have been in Iraq. See United States v.

Gordon, 710 F.3d 1124, 1145 (10th Cir. 2013) (noting that materiality under � 1001 is

9 In Williams, we favorably cited McBane as �finding misrepresentation to FBI

was material even when FBI�s investigation was essentially complete and FBI

conceded the statement had no effect on its case because it was still �of a type�

capable of influencing a reasonable decision maker.� 865 F.3d at 1316.

14

satisfied where a false statement �could have influenced the agency�s decision on how to

craft its investigative focus�). We will not question or weigh the credibility of this

testimony. See Porter, 745 F.3d at 1050.

In sum, we conclude that Williams�s false statement about his deployment to Iraq

was material to the VA�s determination of his eligibility for benefits under � 3.304(f)(2)

for combat-related PTSD. Accordingly, the district court did not err in denying

Williams�s motion for acquittal.

B. The District Court Did Not Commit a Constitutional Violation by

Granting the Prosecution�s Motion to Exclude Testimony of Two

Defense Witnesses

We next consider Williams�s argument that the district court violated his

constitutional right to present a defense by excluding testimony from two defense

experts: Gregory Rada, an attorney with After Service Advocates, �a law firm for service

members and veterans,� R. Vol. I at 379 (capitalization altered); and Dr. Polly Wescott, a

clinical neuropsychologist and psychologist who works with patients suffering from

PTSD. Williams contends that Rada would have testified that the VA should have

considered other service-connected stressors that could have caused Williams�s PTSD,

and that Dr. Wescott would have testified that Williams suffers from PTSD. Combined,

Williams asserts that this testimony would have shown that his false statement to the

Review Officer was not material. The government moved to exclude the testimony as

irrelevant and likely to cause juror confusion. The district court agreed, explaining,

�[w]hat is of concern in this case is a general operation or process of the [VA] and

15

whether by law and by practice the [VA] considers statements regarding service in a

combat area as material to their decisional process. That�s it.� R. Vol. III at 155�56. The

district court concluded that the proposed testimony was �just totally irrelevant,� and

therefore granted the motion to exclude it. Id. at 156. On appeal, Williams argues that this

evidentiary ruling violated his constitutional right to present a defense.

We review the district court�s application of the Federal Rules of Evidence for an

abuse of discretion and �will not disturb an evidentiary ruling absent a distinct showing

that it was based on a clearly erroneous finding of fact or an erroneous conclusion of law

or manifests a clear error in judgment.� United States v. Hall, 473 F.3d 1295, 1303 (10th

Cir. 2007) (citation omitted). We review de novo the constitutionality of any challenged

evidentiary ruling. United States v. Rivas�Macias, 537 F.3d 1271, 1276 (10th Cir. 2008).

When it comes to the constitutionality of evidentiary rulings, we �take a �fresh,

independent� look at the question at bar.� Id. (quoting Timmons v. White, 314 F.3d 1229,

1234 (10th Cir. 2003)).

A defendant undoubtedly has a right to present witnesses under both the Fifth

Amendment�s Due Process Clause and the Sixth Amendment�s right to compulsory

process. Washington v. Texas, 338 U.S. 14, 18�19 (1967). But this right �is not absolute.�

United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998). In presenting witnesses,

the defendant must still �abide the rules of evidence and procedure, including standards

of relevance and materiality.� United States v. Dowlin, 408 F.3d 647, 659 (10th Cir.

2005) (citation and internal quotation marks omitted); see Taylor v. Illinois, 484 U.S.

400, 410 (1988) (�The accused does not have an unfettered right to offer testimony that is

16

. . . inadmissible under standard rules of evidence.�). Williams thus has a two-part burden

to succeed on his constitutional claim. �First, []he must demonstrate that the district court

abused its discretion in excluding the evidence. Second, []he must demonstrate that the

excluded evidence �was of such an exculpatory nature that its exclusion affected the

trial�s outcome.�� United States v. Tapaha, 891 F.3d 900, 905 (10th Cir. 2018) (quoting

Dowlin, 408 F.3d at 659). We need not reach the second prong, because Williams cannot

show an abuse of discretion.

To be admissible, Rada�s and Dr. Wescott�s testimony must first be relevant. This

means their testimony must have �any tendency to make a fact more or less probable than

it would be without the evidence� and the fact must be �of consequence in determining

the action.� Fed. R. Evid. 401. �In other words, relevant evidence tends to make a

necessary element of an offense more or less probable.� United States v. Henthorn, 864

F.3d 1241, 1249 (10th Cir. 2017) (brackets, citation, and internal quotation marks

omitted). Williams argues that Rada�s and Dr. Wescott�s testimony would have

undermined the materiality of his false statement of serving in Iraq, so we again turn our

focus there.

As the district court correctly explained in granting the prosecution�s motion to

exclude, materiality in this case depends solely on whether Williams�s alleged false

�statement would influence a decision of the [VA] and, if believed, increase a veteran�s

chances of two things, of obtaining disability benefits he was seeking and of receiving

preference.� R. Vol. III at 157. Whether Williams was entitled to some benefits for other

reasons, and whether he has a valid PTSD diagnosis, do not change this analysis�being

17

otherwise eligible for some benefits does not make it more or less likely that the VA

would be influenced by a veteran�s false claim to have served in combat when deciding

whether that veteran is eligible for benefits for combat-related PTSD under � 3.304(f)(2).

As discussed above, that is our sole consideration in evaluating materiality in this case. It

thus follows that the defense�s proposed testimony from Rada and Dr. Wescott could not

render materiality �more or less probable.� See Henthorn, 864 F.3d at 1249. Accordingly,

because the proffered defense-expert testimony could not make any element of the

charged crime less probable, the district court did not abuse its discretion in excluding the

testimony. Because the district court did not abuse its discretion, Williams�s

constitutional claim fails.

C. The District Court Did Not Abuse Its Discretion in Admitting

Williams�s Prior Statements Regarding Deployment

Finally, we turn to Williams�s claim that the district court abused its discretion

in admitting as intrinsic evidence Williams�s prior statements to VA providers about

having served in combat zones, and not barring those statements under Federal Rule

of Evidence 404(b). During trial, two prosecution witnesses, Dr. Justin Schulz and

Dr. Donna Peters, testified that Williams had told them about his having been

deployed to Iraq during their psychological assessments of him conducted as part of

earlier compensation and pension exams.10 These prior statements, Williams argues,

10 Dr. Shulz and Dr. Peters conduct medical exams for people who have

applied for VA benefits as part of the compensation and pension unit.

18

�were not integral to the crime charged or necessary for the jury to understand the

evidence.� Appellant�s Opening Br. at 38.

As a threshold matter, the parties disagree on the standard of review. We

normally review for an abuse of discretion a district court�s determination regarding

admissibility of evidence under Rule 404(b). United States v. Wilson, 107 F.3d 774,

782 (10th Cir. 1997). But where the complaining party has not objected at trial and

thus has failed to preserve the issue for appeal, we review for plain error. Id.

Williams did not object during trial. The question is whether that matters.

�[A] motion in limine may preserve an objection when the issue (1) is fairly

presented to the district court, (2) is the type of issue that can be finally decided in a

pretrial hearing, and (3) is ruled upon without equivocation by the trial judge.�

United States v. Goodman, 633 F.3d 963, 966 (10th Cir. 2011) (quoting United States

v. Mejia�Alarcon, 995 F.2d 982, 986 (10th Cir. 1993)). �Once the court rules

definitively on the record�either before or at trial�a party need not renew an

objection . . . to preserve a claim of error for appeal.� Fed. R. Evid. 103(b).

Before trial, Williams requested that the government provide notice of all Rule

404(b) and intrinsic evidence. The government responded that Williams�s prior

statements about having been deployed were not subject to Rule 404(b) because they

were intrinsic to the charged crime. R. Vol. I at 46�47 (�The prior statements by the

defendant describing his military service and deployment history in a way

inconsistent with his statement [at the informal hearing] are direct evidence that the

charged statement was false, that the defendant knew it was false, and that he made

19

the false statement willfully.�). After hearing argument from both parties at a motions

hearing, the district court agreed with the government and ruled from the bench that

�[t]he activity of this defendant before May of 2007 and his activity after that are and

can be relevant, and [Williams�s] overall objection to confine all testimony to this

one particular period and this one particular statement is rejected.� Id. at 362. The

district court further concluded that Williams�s prior statements about deploying �are

not 404 statements,� but instead �facts which would tend to prove the truth of the

charge.� Id.11

Given this procedural history, we are satisfied that the motion in limine

preserved Williams�s objection to the admissibility of his prior statements for

appellate review: the parties briefed and then argued the issue for the district court�s

consideration, the admissibility of prior statements is a general legal issue capable of

decision prior to trial, and the district court definitively addressed the matter in its

11 Williams also filed a motion in limine to exclude all records and evidence

related to his psychotherapy treatment, including his statements to his therapists

regarding deployment. The government countered that the therapists� records are not

privileged because they were not created with any expectation of privacy, that

Williams waived privilege by asking the VA to review the records as part of his

benefit application, and that the records were �created as part of his plan to defraud

the VA� and thus fell under the crime-fraud exception. R. Vol. I at 110. The district

court agreed and ruled that the crime-fraud exception defeated any claim of privilege

for Williams�s statements to his therapists. On appeal, Williams neither argues that

the prior statements were privileged nor that the district court erred regarding the

crime-fraud exception. Instead, Williams argues solely that the court erred in treating

his prior statements as intrinsic evidence, contending that those statements were

extrinsic evidence improperly admitted under Rule 404(b). Accordingly, we need not

address patient-therapist privilege. See United States v. Bowline, 917 F.3d 1227, 1231

(10th Cir. 2019) (�[W]hen a party omits an argument from its opening brief, an

appellate court has no obligation to consider that argument.�).

20

ruling from the bench. This is a case where counsel �diligently advance[d] the

contentions supporting a motion in limine and fully apprise[d] the trial judge of the

issue in an evidentiary hearing� such that �application of the rule requiring parties to

reraise objections at trial makes little sense.� Mejia�Alarcon, 995 F.2d at 986

(brackets and citation omitted). We therefore reject the government�s contention that

we must review for plain error and turn to the merits of Williams�s argument under

the abuse-of-discretion standard.

Williams argues that his prior statements were not intrinsic evidence and were

unnecessary to provide context for the evidence to prove the charged offense (the

single false statement to the Review Officer at the informal hearing). Instead, he

asserts that the prior statements to Dr. Schulz and Dr. Peters were improperly

admitted ��propensity evidence� prohibited by Rule 404(b).� Appellant�s Opening Br.

at 41. We disagree.

Williams�s statements to Dr. Schulz and Dr. Peters about his having served in

Iraq were properly admitted in evidence. Those statements explained Williams�s

earlier award of benefits for combat-related PTSD and presaged his informal-hearing

testimony demanding that the benefits be restored. The statements helped the jury to

understand the importance of his lie to the Review Officer and what prompted and

underlay the Review Officer investigation. See United States v. Thomas, 849 F.3d

906, 912 (10th Cir. 2017) (holding that uncharged acts are admissible intrinsic

evidence when the prior acts explain the course of the law enforcement

investigation). Because we agree with the district court that this evidence was

21

intrinsic to the charge, �Rule 404(b) is inapplicable.� United States v. Irving, 665

F.3d 1184, 1213 (10th Cir. 2011) (footnote omitted). In short, the district court did

not abuse its discretion in admitting Williams�s statements.12



* * *



12 Intrinsic evidence may still be excluded if it upsets the balancing test of

Rule 403. See Fed. R. Evid. 403; United States v. Wenger, 427 F.3d 840, 855 (10th

Cir. 2005). On appeal, however, Williams does not raise a 403 issue. He argues only

that the district court abused its discretion in concluding the statements were

intrinsic.

CONCLUSION

For the reasons given, we AFFIRM.

Editor's comment: Defendant was placed on Probation for 5 years and assessed $100.00. Pretty minimal punishment.