*1 America, UNITED STATES
Plaintiff-Appellee, SCHMITZ, a.k.a. Suzanne L.
Suzanne Schmitz, Defendant-
Martha Lowe
Appellant. 09-14452.
No. Appeals, Court
United States
Eleventh Circuit. 4, 2011.
March *4 appeals, challenging her
Schmitz now grounds. convictions on various Because conclude that the counts we federal-funds sufficiently allege indictment did not defraud, we vacate Schmitz’s scheme on those counts. affirm convictions We Clark, McLaughlin, R. Glory N. William And, convictions for mail fraud. Schmitz’s Brashier, Redden, Mills & Keith Edward we vacate sentences remand AL, Clark, LLP, Birmingham, for Schmitz. resentencing. Anderson, Albin, Ramona C. Jeffrey M. AL, for Birmingham, U.S. I. BACKGROUND
A. FACTS to the CITY path *5 to Alabama voters elected Schmitz BLACK, MARTIN, COX and Before in legislature state and re-elected Judges. Circuit legislative her in 2002.1 Schmitz’s duties in required Montgomery her to be three COX, Judge: Circuit week, days usually January a from Schmitz, L. a former Alabama Suzanne in May. serving legis- through While was convicted on three legislator, state lature, public high also in a taught Schmitz fraud, mail in violation of 18 counts of legislative pre- her duties school. When § and four counts of theft U.S.C. teaching, her from she would leave vented concerning program receiving a federal a plan a detailed lesson for substitute. funds, in of 18 U.S.C. violation paid salary was Schmitz her teacher’s 666(a)(1)(A). prosecution theory § of working legislator when was as a in she charges all was underlying Montgomery. legis- as position abused her state Schmitz re-election, with her Schmitz became employment lator obtain the Com- After to splitting legislative Youth her munity Intensive Treatment for dissatisfied (the duties, job teaching quit “Pro- and so her Program Program” or she “CITY looking and for new em- program for at- a teacher started gram”), federally-funded a end, over this Schmitz asked youth, ployment. risk and then collected To Hubbert, Secretary $177,000 Paul Executive of salary in and other benefits from Association and an Program, though performed she Alabama Education even work, to virtually lobbyist Montgomery, help influential generated little no no or job her a in the education field. Hub- product, rarely find services work Johnson, Roy then- Program To conceal bert in turn contacted up showed offices. scheme, Department of the Alabama of obtained a flexible Chancellor Schmitz Education, Postsecondary job to a for false find work schedule and submitted two-year college system. num- Schmitz regarding fraudulent statements Hammett, then- also Seth and the volume Hubbert told ber of hours she worked Repre- House Speaker of the Alabama of her services. nature United to the Government. we determine whether the most favorable 1. Because must Robertson, support States v. evidence is sufficient to Schmitz's convictions, Cir.2007). light the evidence in the we state sentatives, coming that Schmitz would be Johnson instructed Dr. to pay Cornell employment. salary equal to see him about In addition a Schmitz to the amount she assistance, Schmitz public Hubbert’s indirect a had earned as school teacher. asked if he Speaker directly offering Hammett The letter position Schmitz the arrangements money $42,623. would make to have specified salary a placed in the so that budget she could be January Dr. met with Cornell system. employed postsecondary gave job 2003 and list of handwritten Speaker Hammett told Johnson he duties for the first few months of her help would for job fund Schmitz if John- employment. essentially ex- department. son find one in his could pected “put face” on the CITY Pro- employ-
Johnson considered various gram improve public relations. Schmitz, options ment for but settled he particular, expected she was develop federally-fund- Program the CITY plan public statewide relations for the —a sought program develop ed Program; public CITY visit with relations social, behavioral, and academic skills personnel the Department from of Post- juvenile offenders in the State Ala- secondary two-year Education and the col- bama. Johnson for program selected this leges; visit each of the ten CITY Schmitz because it was exempt from sites Alabama and become familiar with requirements strict hiring processes Program personnel; develop rela- applicable to two-year system. college outlets; tionships with various media soli- *6 Cornell, Johnson directed Dr. James the cit ideas from CITY Program employees; Program administrator the CITY and analyze existing public and relations mate- president of Central Alabama Com- rials. Schmitz that understood she was munity College, a position to make avail- supposed forty per to work hours week for able for Schmitz. Dr. Cornell he said formally the CITY Program. accept- She position Schmitz, would find a for but he Program position January ed CITY on wanted assurance funding of additional 24, 2003.
for position, that he and wanted to meet person.
Schmitz in 2. Schmitz Speaker Hammett di- receives notice she can- rected the chairman of the Edu- House “double-count” her time and re- quests cation Appropriations a work Committee to alter flexible schedule Schmitz’s budget pay state to for new days Several after accepting the CITY position, and arranged meeting Johnson a Program position, Schmitz received a let- at the Alabama of Representatives House ter from the Chief Examiner of Public Cornell, between Dr. CITY Program di- Accounts for State of Alabama remind- Earnest, rector and founder Ed and her ing that a recent Alabama Ethics Schmitz. opinion prohibited Commission legis- state
After this Dr. meeting, Cornell offered from collecting lators compensation from position Schmitz the Program public employers Coordina- for spent legisla- time on Community tor for and External Affairs. help tive duties. To ensure Schmitz position before, That had never existed would not spent double-count time on leg- specially was created for Schmitz. islative spent duties as time on her CITY Dr. Program Cornell did not consider other any responsibilities, the letter includ- candidates for position, nor did he log ed work help time record to any conduct serious review of capture specific Schmitz’s details about hours she qualifications offering job. before her the worked. Program at employees the CITY accepting the CITY Various month or so after
A they in testified rare- office Huntsville on March Program position, during three-year peri- ly saw Schmitz her mailed a letter to Dr. Cornell Schmitz pro- employment. od of The Huntsville work schedule.” requesting “flexible coordinator, in particular, testified gram policy based on a estab- request This was only spend thirty min- that Schmitz would Johnson to allow a lished Chancellor at utes to an hour the office when she and work legislature to serve in the person And, said, more he than three visited. education, only but if certain public stay day. saw a full years he never re- of those requirements were met. One keep employee quirements was at up did not the other show According weekly log of their work hours. Program Although either. CITY locations Schmitz, requested she this accommoda- job was visit one of Schmitz’s duties all locations, difficulty balancing Program tion because ten CITY she failed to Program Regional of the CITY of them. Coor- requirements visit at least five legislator. state dinator Lester Crowder testified that she job her duties at CITY for saw Schmitz about five times approved request Dr. Cornell years 2003, Program during locations three April work schedule a flexible employment. rarely so “expected she was reminding her that seen at CITY offices that several log of activities relative maintain a detailed did not even know she was a witnesses legislative duties and to make to [her] Program employee when saw upon request.” them available for review an all-employee her at conference (Dkt. 166-67.) Beach, Orange Alabama in 2006. work, up 3. Schmitz fails to show only rarely up Not show for did Schmitz no completes assigned almost tasks work, complete job failed she also assigned to duties her. Within first Much of the at trial focused evidence year her employment, then-director of did, key issue of what work Schmitz *7 City Program complained Ed Earnest do, Program for after did not the CITY doing to Dr. Cornell that Schmitz was not she obtained a flexible work schedule. job. expressed her Earnest also concern produced evidence that Government manager, to Schmitz’s business Barbara rarely any at CITY up Schmitz showed Creel, doing anything. that she was not Program produced virtually office and no Creel testified that she could not think of product during pay- work her time on the any work Schmitz had done for the Pro- example, during roll. For the first month during gram employment. her 2003, employment, February her of computer com- up technician set Schmitz’s In November concerns about puter in her Huntsville office left a and employment prompted Schmitz’s situation password in note with her username and Larry interim then-director Palmer and envelope in desk sealed her drawer. president Community of Alabama Central to complain When the technician returned the office College Susan Sallato to to Chan- later, envelope Schmitz a month or so the sealed that not com- cellor Johnson was in the the computer ing was still drawer and to work.2 Johnson directed Palmer Schmitz setup. had not been used since its initial and Sallatto to ensure that came president Community 2. Palmer was named Interim Director of the Central Alabama Program early CITY when Earnest died in College time. around same replaced Dr. 2005. Dr. Sallatto Cornell as work, problems persisted. As a submit logs to but Schmitz to work each month result, meeting Johnson held a in Novem- thereafter. ber 2005 with all three individuals. At the responded sharply Schmitz to Palmer’s meeting, Palmer accused Schmitz not later, days letter January several work; showing up responded for 2006. She wrote that she could not fill out specific assign- that she lacked and duties requested progress reports because ments. To problem, resolve the Johnson forms; Palmer not proper had sent her the gave copy Schmitz a work flexible continuing on pub- that she was to work policy comply and schedule directed her to plan; lic was relations she work-
with it. He told he expected also her her ing on a waiting website but was on bud- forty to work hours each week for the getary information from Palmer. Schmitz apart Program, CITY from her time specific also wrote that she needed to have legislature. He further instructed to being directions from repri- Palmer before work, up log keep weekly show writing. printed manded in The letter was activities, turn logs those over to Representatives on official House of letter- regular Finally, Palmer for inspections. head, copies Roy to sent Johnson and direction, assigned Johnson’s Palmer Paul Hubbert. Palmer testified that he very specific Schmitz two tasks. One interpreted the letter as an to intim- effort develop to a public plan relations for the idate him. implement and to plan. The develop second was to a website By employment June sit- for the CITY When Johnson result, uation still had not improved. As a tasks, assigned these he was unaware that complained Palmer yet again to Johnson assigned substantially Dr. Cornell had sim- that he not get could come earlier, ilar years tasks almost two in Jan- perform work and the assigned tasks. uary 2003. Johnson Palmer place told his concerns By mid-December Schmitz still writing be prepared to move to the going result, was not to work. aAs Palm- disciplinary next level of action toward her complained er again Johnson termination. So Palmer sent Schmitz an- coming Schmitz was neither to work nor letter, again other requesting that she sub- assigned completing tasks. Palmer also mit progress reports written copies told Johnson he was about concerned logs. work Schmitz did When Schmitz, disciplining legislator, a state be- comply, explained Palmer his concerns in a *8 she domay cause harm the to CITY bud- 5, July Schmitz, 2006 letter to requesting get, might job. cost him his Johnson provide copies weekly she logs her assured Palmer that Schmitz would do nei- reports. response other to that ther, and told him to her a write letter that letter, logs Schmitz submitted work again expectation outlined the clear of progress reports the previous for five work and demanded that she comply with months. applicable policies and instructions or face When disciplinary 20, 2006, action. Palmer left as director of January On the in Program Palmer wrote letter CITY the fall of requesting Schmitz a his (1) successor, Lane, progress report relating develop- to Roscoe to continued have public problems ment of a plan, pro- relations the with Schmitz. When Lane be- (2) posed website, newsletter, he, Palmer, and a came director like was con- log work for fulfilling Schmitz’s activities for the cerned that Schmitz not was her previous responsibilities three months. Palmer also asked to Program, especially reports, making and otherwise higher- progress that she was one of considering perform- statements about her work false When paid employees ance. raising questions about Lane started Schmitz, him he supervisor told should his policies all Program provide that CITY with dealing her. “very careful”
be employees salaried employees, including 56.) (Dkt. at Lane nonetheless Schmitz, required to submit like were working. Schmitz not the issue of pressed Schmitz, monthly who start- time sheets. would have He instructed Schmitz she February employment her did ed working in the Huntsville to start and be any submit time sheets until October not day. then asked every Schmitz office requests ignoring After several got he she Lane whether knew how Creel, manager Barbara from business job. respond- Lane Program When CITY finally went to the business office Schmitz know, Schmitz told him ed that he did not eight filled months’ time sheets all out job gotten had for that Paul Hubbert to referring any notes or at once—without through her former director of After a calendar. October told Program, Ed Earnest. When Lane continually to time failed submit her sheets work, to she said “she Schmitz she needed on time. (Id. Paul Hubbert.” to call Mr. going was submit her time When Schmitz did 58.) making this state- Schmitz denied sheets, false, them as many of were shown ment Lane. them information from by comparing come to To that Schmitz would ensure credit card statements for the same her work, assigned her fill a Lane vacant periods. example, time For Schmitz re- re- position, counselor which would have Program ported for CITY work on time to come to Huntsville office quired her days attending legislative when she was back to every day. Schmitz wrote a letter country, across the San conferences counseling refusing posi- to fill the Lane Francisco, Worth, Seattle, Forth Charles- “in inter- it was not the best tion because ton, Petersburg. and St. Schmitz did this (Gov’t 17.) Ex. In- Program.” est though she had received a letter from even stead, requested that she “continue she day Accounts the the Examiner of Public Program in the same man- serve the CITY Program job before she started the CITY (Id.) past.” ner as [she had] not stating specifically that she could claim terminated employment she was time for the CITY when later, two weeks on October about fulfilling legislative duties. also termination, one 2006. After she told did at trial that she Schmitz testified if Program employee that Lane ever CITY legislative conferences to be consider the any a legislator came to financial legislative of her duties part because Program, then she assistance for legislative were outside of the session. it he be fired. would would see reported time for CITY Pro- also *9 a attending work when she was gram sheets, time 4. The submission of false in Leadership Democratic Conference reports, and other false state- progress Phoenix; a she was at Wine Associa- when ments Florida; Destín, in tion conference working she on beach house at trial showed that when evidence Beach, City in Florida. Schmitz’s Schmitz, Program pay- CITY Panama while the submitting for false roll, explanation at trial conceal her failure attempted to Creel, sheets, Barbara the was that submitting false time time sheets by work manager, business her to instructed record did not know public even Schmitz was the eight day, every hours work even if person she Program. relations for the CITY actually did not work those hours. Creel testimony Schmitz’s trial about several telling denied Schmitz this. representations on her progress reports directly conflicted with reported eight testimony Schmitz also hours of First, other January CITY witnesses. Program day work for each from Schmitz May 19, 2005, specifically through May reported even she met though Huff, with Pam attending producer she was television news tourism conference in Beach, Orange Birmingham, about CITY Program. Alabama hosted But Gulf Huff testified Metropolitan spoke United Business that she never Organi- (“GUMBO”). Second, Program. zation Schmitz about the paid GUMBO for Schmitz Kathy Schmitz and other testified that she met with members of the House Sawyer, the former Tourism and Travel Committee to Commissioner of the attend Department Health, of Mental presenta- conference featured tourism and men- tions and a sunset tioned the CITY dolphin Program cruise. often. But Schmitz Sawyer promoted testified that she testified that never spoke CITY she Pro- gram conference, Third, Schmitz during Program. but about the lobby- ist Schmitz who hosted the testified that met with trip Page testified that she Walley, Schmitz spoke never him the former about Commissioner of the Program. Department Resources, CITY of Human to dis- cuss the Walley CITY But tes- sheets, In addition to the time Schmitz tified that he spoke never with Schmitz required was also progress to submit re- about Program. Finally, in her June ports every month. Although Schmitz tes- 2006 progress report, represented Schmitz tified that she progress submitted reports that she presidents had contacted the month, every this testimony conflicted with the two-year colleges to discuss the CITY testimony Palmer’s and his letters request- Program request and to support. their ing reports. such In reports And, trial, specifically recalled submitted, reported she meeting Beck, with Dr. Marilyn presi- January soliciting 2006 she was ideas and dent Community College. Calhoun But suggestions from each of the program cen- Dr. Beck did recall discussing ever development ters for of positive public re- Program with Schmitz. lations. reported She also that March requested she had human-interest B. PROCEDURAL HISTORY stories from each of the ten sites 1. The Indictment so that the stories could be submitted to outlets, various media and she January “encour- the grand jury indicted aged each of the program coordinators to Schmitz. Counts through One Four keep a positive record of stories that charge can that she mail committed fraud be used in the publication.” future for violation § of 18 U.S.C. 1341. Her scheme (Gov’t 57.) Ex. program Several coordina- to defraud involved taking around testified, however, tors $177,251.82 that Schmitz never in salary and other benefits contacted them to discuss their ideas about from Program, the CITY federally-fund- relations, public never requested program informa- ed youth, at-risk though even stories, tion for human-interest performed never she little or no work for the *10 asked to keep them positive records of program, generated virtually no services news stories. One program or product, rarely coordinator work appeared and for knowingly willfully To did “em- Program offices. Schmitz and the CITY work at scheme, steal, al- bezzle, indictment by this obtain fraud and without accomplish use, authorization obtained to leges authority that Schmitz convert own and in- her “flexible job on a perform to based salary tentionally misapply” the she re- The further indictment work schedule.” years working four ceived over from that, to her fraud- alleges in order conceal 5-6.) (Dkt. 1 at the CITY scheme, submitted prepared ulent she regarding statements false and fraudulent Motion to the Indictment 2. Dismiss and the hours she the number of worked Bill of Particulars of The nature her services.
volume and finally alleges that indictment par- filed a for a bill of motion on four occasions separate used the mails ticulars, seeking specific more information this she re- in of scheme: furtherance charged to regarding scheme defraud. to the CITY appointment ceived of a letter then filed a motion to dismiss She January on Program position indictment, arguing that all counts were (Count Ed Earnest from then-director insufficiently specific. As to the mail- One); supervisor, a letter she wrote to counts, they she argued fraud that did not Cornell, requesting Dr. a flexible work a facts and circum- include statement of (Count Two); a she wrote letter schedule reasonably stances so as to inform her of Palmer, another of Larry then-director to the the scheme defraud. As federal- why Program, explaining the CITY she counts, allega- she argued funds progress reports and had not filled out tions of fraud those counts were insuffi- the work she had updating him on include cient too did not because (Count Three); and she wrote performed facts, incorporate did not statement Lane, yet another then- letter to Roscoe allegations in the any of the of fraud mail- City Program, regarding director of fraud counts. Schmitz also moved dis- counseling appointment his of her fill a miss the federal-funds counts based her work be more vacancy so that could 666(c). § salary” exception “bona fide closely monitored. recommended magistrate judge de- through Eight charge Five Counts to dismiss nial of Schmitz’s motion concerning program theft Schmitz with indictment, finding that the indictment suf- funds, of 18 federal in violation receiving ficiently charged both mail fraud theft 666(a)(1)(A).3 al- § The indictment U.S.C. concerning program receiving federal leges agent was that Schmitz an adopted funds. The district court and that Pro- Program, CITY judge’s magistrate recommendation. With gram organization an that received $10,000 for a bill per respect to Schmitz’s motion federal benefits excess of magistrate judge required year. alleges particulars, The indictment further care, organiza- provides, part: custody, § or such in relevant control of U.S.C. title, (a) Whoever, be this if the described tion ... shall fined under im- circumstance both, (b) section exists— years, subsection this prisoned not more or than (1) being agent organization ... an an (b) to in subsec- The circumstance referred embezzles, steals, fraud, (A) or obtains (a) organization ... is that ... tion authority knowingly con- without otherwise receives, any year period, benefits in one any person than the verts to the use of other $10,000 program a Federal excess of under misapplies, intentionally rightful owner or grant involving a .... $5,000 property ... is valued (b). 666(a)(1)(A), § 18 U.S.C. more, by, owned under the and ... is or is *11 testimony to what ba- with the of “explain upon the Government conflicted other Gov- witnesses, sis it that Ms. Schmitz ob- ernment Schmitz if has concluded asked those illegitimate position through tained her were Each lying. witnesses time Schmitz relationship attempted that explain discrepancy means and the between to (Dkt. mail fraud 72 testimony, prosecutor claim and the counts.” repeatedly ques- 5.) particulars, at In of the Govern- its bill her until say tioned she was forced to her explained previous ment Schmitz “utilized lying. whether witness was At legislator request evidence, status as a to and re- the close of all the Schmitz re- obtaining ceive preferential treatment her judgment newed motion for a of ac- (Dkt. position Program.” CITY quittal. The district court denied that mo- 1.) 75 at The Government further ex- tion. plained that Schmitz—with the assistance During prosecutor’s closing argu- of House of Speaker Alabama ment, he referred to the evidence devel- Representatives, the of the De- Chancellor during oped Schmitz’s cross-examination. Education, partment Postsecondary particular, In he commented several times lobbyist position an influential —obtained long how as to the list of liars must be if which did not exist before and for no testimony Schmitz’s were true. He also _ other applicants were considered. The commented on Schmitz’s failure to corrob- finally explained Government that the “il- her orate contention that she did various legitimate employed means” Schmitz for the Program, pointing tasks CITY out position obtain her were related subpoena power that she had the same charges mail-fraud “illumi- because bring in the Government to witnesses to intent, fraudulent for her un- nate[d] [her] story. corroborate her usual action[s] serve[d] to demonstrate jury acquitted The Schmitz on one of the actually per- that she never intended to (Count One), mail-fraud counts and con-
form any work her role as CITY on all other victed counts.4 The district (Id. 2-3.) Program employee.” thirty court sentenced Schmitz to months of imprisonment on each count of convic- trial, verdicts, 3. sentencing tion, run concurrently, for a total of ultimately proceeded The case to a nine- months. thirty The district court also or- day trial. At the close of the Govern- dered restitution and forfeiture case-in-chief, ment’s for a moved $177,251.82. amount judgment acquittal under Fed.R.Crim.P. 29, and the district court the mo- denied II. APPEAL ISSUES ON tion. presented testimony Schmitz then witnesses, from twenty-four ultimately following raises the issues (1) testified in her own During defense. appeal: whether district court examination, cross prosecutor asked in denying erred her motion to dismiss the Schmitz, occasions, provide on several indictment because the indictment failed to people allege names of who could corroborate the offenses of mail fraud and theft performed the work she concerning for the CITY a program receiving federal (2) addition, funds; prosecutor, af- whether the district court erred pointing testimony denying ter judgment out her motion for receipt position. gram Count One was based on Schmitz’s appointing of a letter to the Pro-
1259 de prosecutorial insuffi- claims of misconduct novo the evidence was acquittal because involve question mail fraud a mixed of convictions for because support cient to receiving Merrill, concerning program and fact. United v. law States and theft (3) (11th Cir.2008). 1293, funds; prosecutor But, whether the F.3d 1306 federal 513 by asking Schmitz did not ob- misconduct Schmitz’s trial counsel committed because ject or other evidence identify prosecutor’s questions asking witnesses to the (4) testimony; and her could corroborate to comment the truthfulness of her miscon- prosecutor committed prosecutor’s whether the related other witnesses during testify forcing Schmitz during argument, duct closing comments a dozen that at least cross-examination based on prosecutorial misconduct claim during their lying were other witnesses questions and comments is reviewed those dur- by making and comments testimony, error. Id. at plain for 1306-07. long the arguments as to how
ing closing in order for witnesses must be lying list of IV. DISCUSSION be testimony to true.5 Schmitz’s OF A. LEGAL SUFFICIENCY REVIEW III. STANDARDS OF THE INDICTMENT district court’s review the “We the indict denial of a motion dismiss asserts error in the district discretion, suffi but the ment for abuse denial of motion to dismiss the court’s question legal an indictment ciency of is indictment, contending that the mail-fraud v. de novo.” States that we review United charges legally federal-funds are in- and (11th 1198, F.3d 1204 Cir. Pendergraft, 297 sufficient. omitted). (internal
2002) We re citation “An considered le sufficiency of de indictment is view the the evidence (1) if it: the es novo, light gally presents “in the sufficient considering the evidence offense, (2) charged and sential elements government” most favorable to charges to the accused of the be all reasonable inferences notifies “resolve (3) against, the ac jury’s defended enables credibility evaluations favor of Robertson, rely upon under judgment 493 cused to States v. verdict.” United (11th Cir.2007) (internal jeopar a bar 1322, against double 1329 indictment omitted). subsequent for dy any prosecution for quotation marks and citation Jordan, v. every rea same offense.” United States “The evidence need exclude Cir.2009) (cita (11th of innocence or be 582 F.3d hypothesis sonable omitted). “In quotations deter every conclusion tion wholly inconsistent sufficient, mining a rea whether an is guilt, provided that of indictment except it a give fact read it as whole and ‘com trier of could find we sonable ” (citing a rea sense construction.’ Id. guilt beyond established mon evidence (internal Gold, States 743 F.2d quotation doubt.” Id. United sonable Cir.1984) omitted). v. Mark- citation We review United States marks and guilt, any giving the in- whether the error Schmitz also raises issue of by instructing jury that erred district court was harmless under Fed.R.Crim.P. struction 36-25~7(d) § it consider Ala.Code 52(a). could Drury, See United States v. 396 F.3d determining purposes whether Schmitz (11th Cir.2005) (noting jury requisite criminal intent. Consider- had the subject error are to harmless re- instructions limiting ing court's instruction the district view). totality supporting of the evidence and the ham, (5th Cir.1976)).6 “generated virtually no work product,” and *13 words, “In other Validity “rarely indictment’s even appeared for work at CITY (Dkt. 3.) is to by practical, be determined not tech- offices.” 1 at To ac- ” nical, Jordan, complish scheme, considerations.’ 582 F.3d her fraudulent the in- Gold, 812). (citing alleges, at 1245 dictment job 743 F.2d at Schmitz obtained her
through “illegitimate means” and received (Counts 1. Mail Fraud through One authorization to perform job her based on Four) 2-3.) a “flexible work schedule.” {Id. The indictment further alleges that charges indictment Schmitz sought conceal, and therefore fraud, with four counts of mail in violation facilitate, her fraudulent by pre- scheme § of 18 U.S.C. 1341.7 Schmitz contends paring submitting false statements re- that the mail-fraud counts are insufficient garding the number of hours she worked because do not state a criminal of and the volume and nature of her services. give fense and do not adequate notice The final paragraph of the indictment then of alleged scheme to defraud. “Mail charges that Schmitz used the mails on fraud consists of the following elements: separate four occasions to facilitate the (1) an participation intentional in a scheme fraudulent scheme. allega- Based on these person money defraud a of property, tions, the presents indictment the essential (2) the use of the mails in furtherance elements of mail fraud provided of the scheme.” Sharpe, United States v. Schmitz with the necessary notice to en- (11th 1257, Cir.2006) (cita 438 F.3d 1263 able her to against defend charges. those omitted). tion and quotations The district court did not err in denying We find that through Counts Two Schmitz’s motion to dismiss the mail-fraud Four adequately allege the mail-fraud of counts.8
fenses. After identifying Schmitz and the (Counts 2. Federal-Funds Counts Five CITY Program, the alleges indictment through Eight) from 2003 to 2006 intentionally devised a scheme to defraud the CITY The indictment charges Schmitz with Program $177,251.82 of in salary and other four counts of theft concerning a program benefits. The alleges indictment receiving funds, federal in violation of 18 Schmitz accepted this money though 666(a)(1)(A). even § U.S.C. The federal-funds she performed “virtually services,” no incorporate counts para- first two Prichard, City 6. In Bonner v. 661 F.2d the scheme to defraud the CITY (11th Cir.1981) (en banc), we Regardless of how job, Schmitz obtained her adopted binding precedent all decisions of alleges the indictment per- that she failed to the former Fifth prior Circuit handed down deliberately form it and up covered that lack October 1981. performance with false statements in order Second, payment. to receive even if the term jury acquitted 7. The Schmitz on one of the "illegitimate vague, any means” is notice (Count One). mail-fraud counts problems were cured when the Government provided particulars a bill of concluding, reject explaining In so we Schmitz's con- meaning allegation tention of the term and how it relates she obtained to the job through mail-fraud "illegitimate counts. See United States v. means” was so Per- kins, vague required speculation Cir.1984) it as to a part charges against (noting fundamental of the particulars that bill satisfy her. can First, allegation only this one of six alle- defendant’s need for additional information to gations describing defense). the nature prepare and extent of statute, language indictment, ment “tracks describe which graphs a state- accompanied Pro- with such CITY ‘it must be background or re- incorporate as will they do not the facts and circumstances gram, but ment of in the of fraud allegations offense, allege any of specific the accused of the inform Instead, the federal- counts. mail-fraud general description, coming under ” was an that Schmitz allege counts funds charged.’ is United States v. which he Program, and the CITY agent of (11th Cir.2003) Bobo, *14 in ex- federal benefits Program received States, 369 U.S. (citing Russell United $10,000 The indictment per year. cess of 1048-49, 1038, 749, 765, 8 L.Ed.2d 82 S.Ct. Schmitz, January from charges then (1962)). Five, Six, Seven, and Counts 240 2006, “knowingly and will- 2003 to October simply allege that Schmitz did “em- Eight steal, embezzle, by fraud obtain fully did bezzle, steal, obtain fraud and without own authority convert to her without use, to her own and in- authority convert salary use, intentionally misapply” the salary tentionally misapply” the and other Program from from the CITY she received she received from the CITY Pro- benefits 2006, year each of sala- through 2003 (Dkt. 5-6.) 1 lan- gram. at While this (Dkt. 1 count. separate ry representing 666, § tracks 18 the federal- guage U.S.C. 5-6.) at or circum- allege funds counts no facts allegations of argues that spe- that inform Schmitz of these' stances counts are insuf- in the federal-funds fraud result, allegations As a charges. cific present because do ficient federal-funds counts are of fraud do not of fraud and essential elements as a matter of law. insufficient defended notify charges her of the be contention reject Government’s fed- We out that the points against. sufficiently federal-funds counts allega- no factual provide counts eral-funds the scheme fraud if the indictment is consid regarding charge whatsoever tions defraud, incorporate any whole, of given and do not a common ered as a mail-fraud of fraud allegations The Government sense construction. counts. complete us overlook the ab would have in the allegations factual federal- sence of of allegations that the We hold the mail-fraud counts funds counts because counts are insuf fraud in the federal-funds fraudulent adequately describe Schmitz’s absolutely no they provide ficient because it This we cannot do scheme. because regarding the scheme to de factual detail principle that “each would contradict the Program. As we have fraud the CITY regarded an indictment must be count of noted, to be for an indictment previously indictment and separate if it were a as sufficient, ac notify it must legally without on its own content must stand to be defended charges cused validity allega on the for its dependence contain “a The indictment must against. in any expressly other count not tions of concise, state and definite written plain, Huff, 512 States v. corporated.” United constituting the the essential ment of facts Cir.1975) (citations (5th 66, omitt 7(c)(1) F.2d 69 Fed.R.Crim.P. charged[.]” offense ed).9 added). that we is correct an indict- The Government Even when (emphasis possession “methy- charged count Huff, of the indictment second the first count lenedioxy amphetamine,” which was a differ- illegally distribut- charged that the defendant “3,4 statutory drug on the schedule amphetamine,’’ ent not listed methylenedioxy ed substance, Huff, 512 F.2d at controlled substances. but a controlled which was 1262 previously validity
have stated that the pressly, permitted by Federal Rule of an indictment is determined reading 7(c)(1).”); from Criminal Procedure United Jordan, Knowles, 1245; (5th it States v. “as whole.” 29 F.3d Diwan, United States v. Cir.1994) (“While 864 F.2d it is true allega- that an Markham, (11th Cir.1989); 537 F.2d at tion made one count of an indictment 192. But that does not may mean factual alle incorporated by be reference in an- gations in one count indictment, are auto somehow other count of the we have matically incorporated into other any counts. held that incorporation such must be done”) (internal contrary, To the courts explained expressly have citation omit- Miller, ted); allegations when in one count are United States v. 774 F.2d incorporated Cir.1985) into another count under (citing Huff 7(c), Federal Rule of Criminal Procedure concluding that each count of an indict- incorporation such express. must be own, ment “must stand on its and cannot States, Davis v. United depend validity for its allegations *15 (5th Cir.1966); n. 2 United States v. Red any other count not specifically incorporat- corn, (10th Cir.2008) ed”) (internal 734-35 quotation marks and citation (“There is no Fulcher, beyond omitted); need to look United States v. particular borders of a (D.C.Cir.1980) count to determine (citing Huff indeed, what charged; offense is gen it is concluding that one count cannot “ab- erally improper to do so except where a by sorb allegations osmosis” the of another count).10 count incorporates allegations other ex- requiring The rule express incor- 68-69. The Fifth Circuit held that the express second need incorporation does not arise offense, charge count did not an See, and that the only because there is one count at issue. Gold, district jury 812-13; court’s instruction e.g., Markham, to the that 743 F.2d at count Second, two should be described as in count F.2d at 192. reading indictments one did not cure the defect. Id. whole,” at 69. "as a we have meant that factual allegations Seeking in one distinguish Huff, pro- count can inform or the Govern- meaning vide argues ment to the allegations that the factual indictment com- Huff See, Jordan, pletely crime, allege e.g., failed another count. an element of a 582 F.3d at while express incorporation the indictment The need for alleges in this case simply crime but does allegations does not not arise describe the fraud- because factual are ulent being transplanted scheme in sufficient not entirety detail. We are not in their but persuaded. simply informing While are meaning concerned the omis- of other Huff crime, sion of an allegations element of a already the Fifth Cir- that are in the other larger analytical point cuit's was that each count. count regarded of an indictment sep- must be dealing We are not in this case with factual arately, allegations unless factual of one allegations simply in one count that inform or expressly count incorporated are into anoth- provide meaning allegations to factual in a er. Indeed, separate count. there are no factual allegations recognize 10. We some at all in the tension between the federal-funds counts Therefore, establishing regarding line of cases analyze that we the scheme to defraud. whole,” indictment "as a whole” while we and the line of read the indictment cases "as a establishing case, that approach, each count of an indictment under the facts of this must they dispense stand on its own content. But are does not express-incorpo- with the First, reconcilable. requirements we have often said that ration of Fed. R. Crim. P. 7(c)(1). we read the indictment "as a whole” in the allegations Because the of fraud in analyzing context sufficiency allega- absolutely federal-funds counts include no context, single detail, tions in a count. In that we directly factual either through ex- problem have had endorsing no press the idea incorporation, provide fail allegations particular in a count can inform charges Schmitz with notice of the to be de- allegations other in the same count. against The fended legally and are insufficient. money she received from the own use” the especially impor- reference is poration 2022-23.) (Dkt. 199 at case, it is not at all where in this tant instruct that specifically face of the indictment court did not from the apparent mail-fraud counts means is sufficient to convict any the facts one counts, federal-funds the facts of the overlap with on the federal-funds but (Counts counts The federal-funds disjunctive sug- counts. word “or” the use of their do not stand on through Eight) Five was the intent of the gests that this content, incorpo- expressly and do own charge. the scheme any allegations about
rate
ques
We are thus faced with the
And,
mail-fraud counts.
from the
defraud
jury’s
verdict
general
tion of whether the
jury
not instruct the
court did
the district
convicting Schmitz on the federal-funds
required
counts
federal-funds
counts can stand where one of the alter
alleged in
the scheme to defraud
proof of
liability in
nate theories of criminal
those
con-
counts. We therefore
the mail-fraud
legally
counts
based on a
insufficient
is
deny-
court erred
that the district
clude
find that the convictions
the fraud
indictment.11 We
motion to dismiss
ing Schmitz’s
cannot stand
counts.
on the federal-funds counts
charges in the federal-funds
allegations
because the
of fraud
those
fraud
concluded that the
While we have
insufficient,
legally
counts are
and we do
counts are
charges in the federal-funds
jury
not know whether the
relied on those
insufficient,
address whether
we must still
*16
allegations
convicting
legally insufficient
counts can
convictions on these
Schmitz’s
on the federal-funds counts. See
Schmitz
allege all
federal-funds counts
stand. The
States,
46, 59,
v.
United
502 U.S.
666(a)(1)(A)
be Griffin
§
can
by which
five means
(1991)
B. SUFFICIENCY OF supervisors pressed why Schmitz as to she THE EVIDENCE work, showing up was not she threat- contends that Hubbert, the evi ened to call Paul prominent a at dence trial was insufficient to sustain lobbyist in creating posi- who assisted her convictions for mail fraud.13 Schmitz Interpreted tion. fa- Government’s argues that the evidence was insufficient vor, this statement further showed that (1) for the mail-fraud it counts because Schmitz never intended to work for the specific failed to establish her intent CITY but rather wanted to use (2) defraud, and failed to establish con political keep connections to her pay- nection mailings between the at issue and And, going. for-no-work scheme as dis- receipt salary Schmitz’s of her from the below, cussed Schmitz mailed the letters Program. disagree. We Two, Three, identified in Counts and Four in furtherance of her fraudulent scheme. light
Viewed most favorable to the Government, supports jury The evidence finding the evidence at trial estab- as to lished specific Schmitz’s intent to defraud each element of the charges mail-fraud the CITY The evidence estab- which she was convicted.
lished that position Schmitz used her aas Furthermore, legislator job
state specially have cre- Schmitz decided to ated for got job, testify case, her. Once she in this and her testimony own job performance was almost helped to establish the necessary elements non-existent. than years more three on for mail fraud. “[W]hen defendant takes Program payroll, the CITY rarely stand a criminal case exposes up any showed office and jury, failed to com- demeanor to jury may [her] *17 plete assigned tasks of implementing a make adverse determinations about [her] public statewide relations campaign credibility reject explanation [her] developing a website. To keep super- complete her fabrication.” United States v. just (11th visors from knowing 1216, how little work Vazquez, 53 F.3d 1225 Cir. 1995). she was doing, persuaded her su- The testifying defendant thus Cornell, pervisor, Dr. to authorize a “flexi- “runs the risk that if jury disbelieved the ble work schedule” that might allowed her to opposite conclude the testi [her] irregular work mony Brown, hours from locations other is true.” United States v. 53 (11th Program Cir.1995) (internal than CITY 312, offices. Schmitz fur- F.3d 314 quo- Williams, 13. (5th also contends that the evidence ed States 507 F.3d 908 And, insufficient to sustain her Cir.2007). convictions on wages whether are bona fide money federal-funds counts because the and earned in the usual course of business is salary she received awas bona fide under 18 generally question jury of fact for the 666(c). reject § U.S.C. argument. We this Here, decide. Id. at 909. the district court 666(c), § Under the federal-funds statute jury salary instructed the bona fide apply salary, wages, "does not to bona fide evidence, exception, and the discussed at fees, compensation paid, expenses or other length in the context of the mail-fraud reimbursed, paid or in the usual course of charges, support jury’s was sufficient to business." As the Fifth Circuit has conclud- salary pay- conclusion that the and benefit ed, salary "a is not bona fide or in the earned ments to Schmitz were not earned in the 666(c) § usual course of business under if the usual course of business. employee money.” is not entitled to the Unit-
1265 omitted). And, going. citation scheme While we share the con- marks and tation expressed criminalizing poor cern about corroborative evi- where “some at least job performance, belong this case does not charged of- guilt exists for dence of case, category. that fense!!,]” “the as in this defendant’s establish, by testimony, denying guilt, may contends that Schmitz also the ev itself, of the offense.” Id. at elements idence does not support mail-fraud applies special rule with 314-15. “This convictions because the Government did for proved where the elements to be force prove mailings that the listed in the highly subjective include ele- a conviction mail-fraud counts were made in further “the intent or ments” such as defendant’s alleged ance of the scheme to defraud. knowledge.” Id. at 315. mailing required ‘While a is a element of a Here, testimony attempted claim, to § Schmitz’s the use of the mails need not surrounding scheme; explain the circumstances be an essential element conviction, job testified She a mail fraud it is sufficient if Speaker government did not ask Hammett to the the mailing she shows job; money budget part in the for her that was ‘incident to an essential put ” or ‘a using step plot.’ no intention of her flexible scheme’ United she had Lee, States v. working; work to avoid that she schedule Cir.2005) (citing Waymer, United States v. knowingly submitted a false time never (11th Cir.1995)). sheet; logs never submitted work that she anyone; in an effort to defraud Two was on the Count based intended to defraud the CITY she never March 2003 letter Schmitz wrote to one general. jury The was free to Cornell, formally Dr. supervisors, of her reject testimony and conclude requesting a flexible work schedule. This Brown, opposite was true. letter, just written one month after she evidence, F.3d at 314. The Government’s Program payroll, went on the CITY re testimony with Schmitz’s which together quested a flexible work schedule because jury rejected, supports Schmitz’s con- purported need to balance the of Schmitz’s Two, victions for mail fraud Counts Program job requirements of her CITY Three, Four. legislator. and her duties as Gov ernment, however, evidence, challenging sufficiency produced pre of the evi- *18 dence, viously length, pros- has characterized her discussed Schmitz Schmitz jobs criminalizing poor job attempted the never to balance her two ecution as no for arguing performed that the Government and instead almost work performance, full thought Program collecting she did not work as much the CITY while simply description salary. establishing should have. That does Given the evidence she fulfill merely this case. More than that Schmitz did not intend to capture engaged Program, we find that employee, sub-standard duties for jury find that pattern in a calculated and extensive reasonable could in mailing to allow her March 2003 letter was a designed fraudulent conduct to defraud. A state-government salary to collect a while furtherance scheme the letter to jury almost no work. accom- reasonable could view performing She demonstrably Dr. a flexible work plished through requesting this scheme Cornell And, plot step time when schedule as a the fraudulent reports false sheets. because it allowed Schmitz to conceal her people asking questions, started she used it more difficult for legislator keep making scheme her status as state supervisors just salary though to determine how little time even benefits she doing Program. rarely for up work she was showed for work. To ensure sufficiently supports jury’s work, evidence up that Schmitz showed Lane verdict as to Count Two. assigned her to a vacant posi- counselor tion, required which would have her to Count Three was based on the every day. work at the Huntsville office January 2006 letter Schmitz wrote refusing Schmitz wrote a letter to Lane Larry to then-director Palmer. Schmitz assignment because she felt it was “not response wrote the letter in to Palmer’s Program” the best interest of the request progress report for a on her activi she could “best Program serve other January ties from November of 2005 to (Gov’t 17.) ways.” Ex. requested She 2006. The letter was written on official that she continue to serve the CITY Pro- Alabama House of Representatives letter gram the same manner as she had in copied Roy head and Johnson and Paul the past. jury We find that a reasonable letter, Hubbert. In the Schmitz writes could find that the October 2006 letter requested she has not filled out the was a mailing in furtherance of the scheme progress reports because she has not re jury to defraud. A reasonable could view ceived the proper forms from Palmer. the letter as attempt persuade Schmitz’s She also writes that her progress for the the director of the keep her on development website has been stalled be payroll meaningful oversight without cause Palmer provided budgetary has not accountability so that she could collect information. We find that a reasonable payment doing while almost no work. The jury January could find sufficiently evidence supports Count Four. a mailing letter was in furtherance of the scheme to defraud. A jury reasonable
could view the letter as Schmitz’s effort to C. PROSECUTORIAL MISCONDUCT: complete progress conceal her lack of SHIFT OF BURDEN OF PROOF tasks, assigned and to shift the blame cross-examination, During Schmitz’s toward Palmer for her failure to submit occasions, prosecutor, on several asked And, progress reports. because the letter provide Schmitz to people the names of stationary was written on official and sent who could corroborate the work that she Johnson, to Hubbert and jury a reasonable performed for the CITY Dur- could conclude that the letter im was an ing the closing argument, Government’s plicit threat to complain to Johnson and prosecutor commented that Schmitz Hubbert about Palmer’s questioning of her could not perform- corroborate her work scheme. sup This inference is further ance and that subpoena she has the same ported by subsequent conversa power as the produce Government to wit- Lane, tion with then-director Roscoe nesses and documents. argues where explicitly she call threatened to *19 prosecutor’s that the questions and com- Hubbert when questioned Lane her lack of impermissibly ments shifted the burden of work. The sufficiently supports evidence proof from the Government to her. Count Three. Count Four was based on the Oc Because Schmitz’s trial counsel 5, tober 2006 letter Schmitz objected wrote to then- to the prosecutor’s cross-exami director of the CITY questions Roscoe nation and closing-argument director, Lane. When Lane became he dis comments that purportedly shifted the covered that Schmitz was being paid proof, a full- burden of we review this claim of MISCONDUCT: misconduct, a D. PROSECUTORIAL which involves prosecutorial QUES- fact, de novo. THE “WERE-THEY-LYING” of law and question mixed Merrill, 1293, TIONS AND COMMENTS v. States United Cir.2008). (11th prosecutorial To find that, during her cross- Schmitz contends misconduct, be two-element test must examination, improperly the Government (1) must or comments questions met: of required her to assess the truthfulness (2) com questions improper, be cross-examination, previous witnesses. On the sub prejudicially must affect ments questioned Schmitz as fol- prosecutor rights of the defendant. See Unit stantial lows: Wilson, 149 F.3d v. ed States Q. (by prosecutor:) get a list [L]et’s Cir.1998). 1301(11th everybody say going you lying, of is in the impropriety find no We He’s a liar? okay? Seth Hammett. per and comments questions prosecutor’s I I my A. said I—what answered was inability to corrobo taining to Schmitz’s answer is different from his. I never Program be her work for the CITY rate called him a liar. of they plausibility cause tested Q. Did he tell the truth when he said v. De account. United States you came to him and asked him to (11th marest, Cir. 570 F.3d put money budget your in the to fund 2009). sub produced The Government job? was not stantial evidence No, A. he did not. completing work for the CITY Q. He lied? contrary, testified to the When Schmitz A. I never used the word “lie.” of plausibility the Government tested the story by asking corroborate her who could Q. Why not? questioning That testimony. line of just A. I don’t like the word. And, we proof. did not shift the burden Q. the truth. Does So he didn’t tell specifically prosecution have held you that make feel better? the same can note that the defendant has (Dkt. 9.) prosecutor 202 at then subpoena power as the Government. called out the names of twelve witnesses Hernandez, 145 F.3d States v. United who had testified in the case and asked (11th Cir.1998). Moreover, 1438-39 if be added to the should prosecutor’s questions if even some (Id. 10-17.) purported “list” of liars. suggested that Schmitz had the slightly attempted explain Each time Schmitz court cured proof,
burden of the district testimony, prosecu- discrepancy its clear any possibility prejudice with until repeatedly questioned tor he was repeated prosecu instructions on the say previous able to force her to whether of proof. tion’s burden See United States truth or telling witness was whether Simon, Cir. “liar the witness should be added to the 1992) (“This preju court has held that the (Id.) list.” prosecutor comments of a dice from the prosecutor closing arguments, in a of the bur may shifting which result purported to refer to the list of proof can be cured a court’s continued den said: lying prosecutor witnesses. The regarding instruction the burden making up, all it accordingly reject people *20 “These are not proof.”). We It’s not that the list engaged gentlemen. in ladies and prosecutor contention that the defen- proof. people lying now are and the by shifting the burden of is 17 misconduct 1268 person
dant is the one the telling credibility government truth.” of witnesses have (Dkt. 73.) point, prose- 199 at At one questions found that such are improper. Harris, they “going 507, cutor stated that were to have See United States v. 471 F.3d (3d Cir.2006); ... add some more names to the list of 511 United v. States Thom as, (7th 838, people obviously conspiring Cir.2006); who were 453 F.3d 846 Unit (Id. 129.) lying against Williams, 423, defendant.” ed v. States 343 F.3d 437 (5th Cir.2003); Sanchez, United States Because Schmitz’s trial counsel (9th 1214, Cir.1999); 176 F.3d 1219-20 object did not to the were-they-lying ques Sullivan, 743, United States v. 85 F.3d comments, tions and related we review the (1st Cir.1996); 749-50 United States v. impact of this conduct on the fairness of Boyd, 868, (D.C.Cir.1995); 54 F.3d 871 plain the trial under the error standard of Richter, United States v. 826 F.2d 208 standard, review. Under this (2d Cir.1987); but see United States v. “(1) occurred; must show that: an error Williamson, (10th 53 F.3d 1523 Cir. (2) (3) plain; the error was it affected [her] 1995) (characterizing unpersuasive (4) rights; seriously substantial it af reasoning why set forth as to Richter judicial fected the proceed fairness questions such should not be allowed but Gresham, ings.” United States v. 325 issue). declining to decide the Most of Cir.2003) (citation these courts have reasoned that ques such omitted); Olano, see also United States v. tions are improper they because invade the 725, 732, 1770, 1776, 507 U.S. 113 S.Ct. province jury by forcing defendants (1993) L.Ed.2d (articulating four condi credibility to assess the of others who have rule). plain tions of error Only if all four testified. of those showings are made does a court of appeals any authority have to correct an We hold that it improper is error preserved by that was not a timely ask a testifying defendant whether another objection Olano, in the district court. lying. witness is We come to this conclu 732, 741, 1776-77, U.S. at 113 S.Ct. at sion for several reasons. 1781. Schmitz has convinced us that there First, the Federal Rules of Evidence do error, but we do not think there was permit questions. not such See United plain error. Henderson, States v. We first conclude that there was error (11th Cir.2005) (“The Federal Rules Ev- in the district court’s decision to allow the preclude idence a witness from testifying prosecutor require say Schmitz to witness.”) as to credibility of another whether other lying, witnesses were and to 608(a) permits While Rule a witness to prosecutor allow the to make comments testify, in opinion reputation the form of or related to questions these in his closing evidence, that gen- another witness has a argument. In evaluating propriety eral character for truthfulness or untruth- prosecutor’s case, conduct in this we fulness, that rule does permit a witness analyze separately questions posed testify that another witness was truthful cross-examination and the comments made specific Moreover, not on a occasion. during closing arguments. were-they-lying questions have little or regard
With
to the questions posed on
probative
no
value
because
seek an
cross-examination,
begin by
we
noting
beyond
personal
answer
knowledge of
most of the
appeals
Harris,
federal courts of
the witness. See
1269 know, ie., liar”); intentionally being Liggett another v. People, whether is 135 P.3d tribunal”); (Colo.2006) mislead the Fed. seeking (citing to 731-32 State v. (“A Graves, (Iowa 2003)) testify not may R.Evid. 602 witness to 668 N.W.2d 872 introduced suf- a matter unless evidence is (describing the “no-win” situation that re- finding that the wit- support ficient to were-they-lying questions sults when are personal knowledge ness has of the mat- posed).
ter.”).
were-they-lying questions
The
are
Fourth,
the were-they-lying questions
also not relevant because one witness’s
argumentative,
are
primary
and often their
opinion
person
that another
has or has not purpose
appear
is make the defendant
it
likely
lied does not make more or less
accusatory.
Liggett,
See
Second,
jury
deliberately
that someone is
were-they-lying ques
de-
ceiving
jury
the court and the
must choose
province
jury,
tions invade the
of the
culprit.
jury
While
must make
credibility determinations are to be made
credibility
in determining
assessments
jury,
testifying
not the
witness.
innocence,
732, guilt or
the were-they-lying
Singletary,
See Snowden v.
Cir.1998) (“Witness
questions
do
serve this function but
credibility
is
Thomas, prejudicially
testifying
force the
defendant
jury.”);
the sole
of the
province
(“Because
worse,
to accuse or not. Even
the defen-
lying questions the court by testifying presented on as theretofore before opened the door fendant lying.” attorney was if the jury permissible that another witness are direct 512; Harris, Boyd, also that the he is 471 F.3d at see makes it clear conclusions * that had the (explaining n. drawn from urging F.3d at 871 are conclusions be Johns, on his own that defendant “testified States v. the evidence.” United (11th Cir.1984) questions might lying, officers were such (quotation Thus, today omitted). while we hold proper”). be light principle, In of this criminal defendant whether asking that prosecutor’s closing-argu- of the propriety lying improper, is we do another witness is presents question a closer ment comments that, in the possibility not foreclose the propriety than the cross-examina- case, ques- particular of a circumstances questions. tion We have no doubt that of another wit- tion the truthfulness about prosecutor is there are some cases where appropriate. may in some cases be ness argu- justified arguing during closing if particular lying, ments that a witness is The contends that Schmitz Government by an inference the evi- supported that is questions in this opened the door to such See, e.g., trial. dence Chandler examination as by testifying case on direct Cir.2001) Moore, witness. On to the truthfulness of another prosecutor’s during that comment (finding examination, testified that direct Schmitz liar closing argument that witness was was Speaker Hammett was not truthful when had accurate statement because witness that asked him to he testified Schmitz regarding different stories defen- told four adjust budget support her CITY time). crucial during dant’s whereabouts According to the Program employment. We must nonetheless conclude Government, testimony opened the this prosecutor’s particular comments this prosecutor’s questions door to the later justified. problem case were not about the truthfulness of other witnesses. is prosecutor’s comments this case recognize were-they-lying ques- We they were a clear continuation of the if may proper opens tions be a defendant posed improper questions previously dur- that anoth- testifying the door on direct par- ing Schmitz’s cross-examination. lying. opened But er witness was Schmitz ticular, prosecutor during continued First, no such door in this case. Schmitz closing arguments to hammer home the testify that Hammett was did not on direct list,” metaphor a “liar idea of which was Second, a liar. even if Schmitz’s direct improperly developed during Schmitz’s testimony calling could be construed as Thus, we hold that the cross-examination. liar, prosecutor Hammett a did not closing argument were im- comments only cross-examine as to Ham- Schmitz proper because the cross-examination Instead, testimony. prosecutor mett’s improper. cross-examined as to the testimo- ny of other witnesses and forced eleven Having concluded allow lying. were testify her to whether ing prosecutor’s cross-examination opened if the door as to Even closing-argument comments questions and testimony, Hammett’s eleven other doors error, constituted we must decide whether remained closed. “Before an error plain. those errors were subject plain correction under the respect prosecu to the is
With rule, control- during closing argu- plain error it must be under tor’s comments made BLACK, unequivo- Judge, concurring or in view of the Circuit ling precedent *23 part in dissenting part: of a statute or cally rule[.]” clear words Lett, 782, v. 483 F.3d 790 United States join majority I opinion except as to Cir.2007) (11th Olano, (citing 507 U.S. majority’s Part The holding IV.A.2. that 1776-79); 732-37, 113 S.Ct. at see also through Eight Five Counts of the indict- Castro, v. 455 F.3d United States legally appears ment were insufficient (11th .2006) (quoting Cir United 1253 (1) separate be based on two conclusions: Lejarde-Rada, v. 319 F.3d States through Eight, standing that Counts Five (11th Cir.2003)) (“When explicit ‘the 1291 alone, provide fail to suffi- a or rule does not language of statute charges cient notice of the to be defended issue, an there can be specifically resolve (2) against, may we not look to plain precedent no error where there is no allegations the factual of Counts One or this Supreme from the Court Court through assessing Four whether ”). Supreme it.’ directly resolving notice charges Schmitz had of the to be propriety on the Court has never ruled against through defended Counts Five comments of the kind at questions and Eight. I disagree Because with the sec- case, and, now, until neither issue this that, ond conclusion and believe read in result, the Eleventh As a has Circuit. whole, the context of the indictment as a although Schmitz has shown errors in al- through Eight provide Counts Five suffi- lowing prosecutor’s questions and com- cient notice of the charges to be defended ments, she cannot show that such errors against, I part dissent from this of the plain, challenge were and thus her must opinion. fail.14
Although
through
Counts One
Four of
V. CONCLUSION
the indictment
allegedly
describe Schmitz’s
detail,
fraudulent conduct in
majority
Two, Three, and
charge
Counts
Four
concludes
we cannot consider these
Schmitz with mail fraud. We affirm her
allegations because it would contradict the
counts.
convictions
these
principle, articulated
United States v.
Five, Six, Seven,
Eight
Counts
(5th
Cir.1975),
Huff, 512 F.2d
charge
with fraud and other of-
“each count of an indictment must be re
concerning program receiving
fenses
fed-
garded
if it
a separate
as
were
indictment
eral funds. We vacate Schmitz’s convic-
and must stand on its own content without
tions on these counts.
dependence
validity
allega
its
on the
vacate Schmitz’s sentences on all
We
any
expressly
tions of
other count not
in
resentencing.
counts and remand for
notes,
corporated.”
majority
As the
an
“(1)
PART,
AFFIRMED IN
if it:
presents
VACATED IN indictment is valid
PART,
offense,
charged
AND REMANDED FOR RE-
essential elements of the
(2)
charges
SENTENCING.
notifies
accused
reputation
judicial proceedings.
14. Because we have determined that the er-
of the
See
Cotton,
625, 631-32,
plain,
were
and all four
rors
this case
not
v.
United States
535 U.S.
requirements
plain
1781, 1785,
error rule must be
(2002)
122 S.Ct.
program from which ($177,- (CITY), stolen the amount
tained
251.82), form in which Schmitz and the (as salary amount and other this
obtained
benefits). lack a these counts Although fraud precisely how the
description location, out, dates, program,
carried
amount, the funds were and form which exactly the same as those are
obtained fraudulent
alleged describing through One
scheme detailed Counts facts, I am unconvinced
Four. On these lacked notice that the fraudu-
that Schmitz underlying Counts Five
lent conduct Eight was the same scheme de-
through through in detail in Counts One
scribed affirm
Four. I would therefore
convictions, all counts. *26 WARD, Petitioner,
Thomas O. SERVICE,
UNITED STATES POSTAL
Respondent.
No. 2010-3021. Appeals,
United States Court of
Federal Circuit.
Feb.