COX, Circuit Judge:
Suzanne L. Schmitz, a former Alabama state legislator, was convicted on three counts of mail fraud, in violation of 18 U.S.C. § 1341, and four counts of theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). The theory of prosecution underlying all the charges was that Schmitz abused her position as state legislator to obtain employment with the Community Intensive Treatment for Youth Program (the "CITY Program" or "Program"), a federally-funded program for at-risk youth, and then collected over $177,000 in salary and other benefits from the Program, even though she performed little or no work, generated virtually no services or work product, and rarely showed up at Program offices. To conceal her scheme, Schmitz obtained a flexible work schedule and submitted false and fraudulent statements regarding the number of hours she worked and the volume and nature of her services.
Schmitz now appeals, challenging her convictions on various grounds. Because we conclude that the federal-funds counts of the indictment did not sufficiently allege a scheme to defraud, we vacate Schmitz's convictions on those counts. We affirm Schmitz's convictions for mail fraud. And, we vacate her sentences and remand for resentencing.
1. Schmitz's path to the CITY Program
Alabama voters elected Schmitz to the state legislature in 1998, and re-elected her in 2002.
After her re-election, Schmitz became dissatisfied with splitting her legislative and teaching duties, so she quit her job as a teacher and started looking for new employment. To this end, Schmitz asked Paul Hubbert, the Executive Secretary of the Alabama Education Association and an influential lobbyist in Montgomery, to help her find a job in the education field. Hubbert in turn contacted Roy Johnson, then-Chancellor of the Alabama Department of Postsecondary Education, to find a job for Schmitz in the two-year college system. Hubbert also told Seth Hammett, then-Speaker of the Alabama House of Representatives,
Johnson considered various employment options for Schmitz, but he settled on the CITY Program—a federally-funded program that sought to develop the social, behavioral, and academic skills of juvenile offenders in the State of Alabama. Johnson selected this program for Schmitz because it was exempt from strict requirements for hiring processes applicable to the two-year college system. Johnson directed Dr. James Cornell, the administrator of the CITY Program and the president of Central Alabama Community College, to make a position available for Schmitz. Dr. Cornell said he would find a position for Schmitz, but he wanted assurance of additional funding for that position, and he wanted to meet Schmitz in person. Speaker Hammett directed the chairman of the House Education Appropriations Committee to alter the state budget to pay for Schmitz's new position, and Johnson arranged a meeting at the Alabama House of Representatives between Dr. Cornell, CITY Program director and founder Ed Earnest, and Schmitz.
After this meeting, Dr. Cornell offered Schmitz the position of Program Coordinator for Community and External Affairs. That position had never existed before, and was specially created for Schmitz. Dr. Cornell did not consider any other candidates for the position, nor did he conduct any serious review of Schmitz's qualifications before offering her the job. Johnson instructed Dr. Cornell to pay Schmitz a salary equal to the amount she had earned as a public school teacher. The letter offering Schmitz the position specified a salary of $42,623.
Dr. Cornell met with Schmitz in January 2003 and gave her a handwritten list of job duties for the first few months of her employment. Schmitz was essentially expected to "put a face" on the CITY Program and improve public relations. In particular, she was expected to develop a statewide public relations plan for the CITY Program; visit with public relations personnel from the Department of Postsecondary Education and the two-year colleges; visit each of the ten CITY Program sites in Alabama and become familiar with CITY Program personnel; develop relationships with various media outlets; solicit ideas from CITY Program employees; and analyze existing public relations materials. Schmitz understood that she was supposed to work forty hours per week for the CITY Program. She formally accepted the CITY Program position on January 24, 2003.
2. Schmitz receives notice that she cannot "double-count" her time and requests a flexible work schedule
Several days after accepting the CITY Program position, Schmitz received a letter from the Chief Examiner of Public Accounts for the State of Alabama reminding her that a recent Alabama Ethics Commission opinion prohibited state legislators from collecting compensation from public employers for time spent on legislative duties. To help ensure that Schmitz would not double-count time spent on legislative duties as time spent on her CITY Program responsibilities, the letter included a work log and time record to help capture specific details about the hours she worked.
3. Schmitz fails to show up for work, and completes almost no assigned tasks
Much of the evidence at trial focused on the key issue of what work Schmitz did, or did not do, for the CITY Program after she obtained a flexible work schedule. The Government produced evidence that Schmitz rarely showed up at any CITY Program office and produced virtually no work product during her time on the payroll. For example, during the first month of her employment, in February 2003, a computer technician set up Schmitz's computer in her Huntsville office and left a note with her username and password in a sealed envelope in her desk drawer. When the technician returned to the office a month or so later, the sealed envelope was still in the drawer and the computer had not been used since its initial setup. Various employees at the CITY Program office in Huntsville testified that they rarely saw Schmitz during her three-year period of employment. The Huntsville program coordinator, in particular, testified that Schmitz would spend only thirty minutes to an hour at the office when she visited. And, he said, in more than three years he never saw her stay a full day.
Schmitz did not show up at the other CITY Program locations either. Although one of Schmitz's job duties was to visit all ten CITY Program locations, she failed to visit at least five of them. Regional Coordinator Lester Crowder testified that she saw Schmitz about five times at CITY Program locations during her three years of employment. Schmitz was so rarely seen at CITY Program offices that several witnesses did not even know she was a CITY Program employee when they saw her at an all-employee conference in Orange Beach, Alabama in 2006.
Not only did Schmitz rarely show up for work, she also failed to complete the job duties assigned to her. Within the first year of her employment, then-director of the City Program Ed Earnest complained to Dr. Cornell that Schmitz was not doing her job. Earnest also expressed concern to Schmitz's business manager, Barbara Creel, that she was not doing anything. Creel testified that she could not think of any work Schmitz had done for the Program during her employment.
In November 2005, concerns about Schmitz's employment situation prompted then-director Larry Palmer and interim president of Central Alabama Community College Susan Sallato to complain to Chancellor Johnson that Schmitz was not coming to work.
By mid-December 2005, Schmitz still was not going to work. As a result, Palmer complained to Johnson again that Schmitz was neither coming to work nor completing assigned tasks. Palmer also told Johnson that he was concerned about disciplining Schmitz, a state legislator, because she may do harm to the CITY budget, or might cost him his job. Johnson assured Palmer that Schmitz would do neither, and told him to write her a letter that again outlined the clear expectation of work and demanded that she comply with applicable policies and instructions or face disciplinary action. On January 20, 2006, Palmer wrote Schmitz a letter requesting (1) a progress report relating to development of a public relations plan, the proposed website, and a newsletter, and (2) a work log for Schmitz's activities for the previous three months. Palmer also asked Schmitz to submit work logs each month thereafter.
Schmitz responded sharply to Palmer's letter several days later, on January 26, 2006. She wrote that she could not fill out the requested progress reports because Palmer had not sent her the proper forms; that she was continuing to work on a public relations plan; and that she was working on a website but was waiting on budgetary information from Palmer. Schmitz also wrote that she needed to have specific directions from Palmer before being reprimanded in writing. The letter was printed on official House of Representatives letterhead, with copies sent to Roy Johnson and Paul Hubbert. Palmer testified that he interpreted the letter as an effort to intimidate him.
By June 2006, Schmitz's employment situation still had not improved. As a result, Palmer complained yet again to Johnson that he could not get Schmitz to come to work and perform the assigned tasks. Johnson told Palmer to place his concerns in writing and be prepared to move to the next level of disciplinary action toward her termination. So Palmer sent Schmitz another letter, again requesting that she submit written progress reports and copies of her work logs. When Schmitz did not comply, Palmer explained his concerns in a July 5, 2006 letter to Schmitz, requesting that she provide copies of her weekly logs and other reports. In response to that letter, Schmitz submitted work logs and progress reports for the previous five months.
When Palmer left as director of the CITY Program in the fall of 2006, his successor, Roscoe Lane, continued to have problems with Schmitz. When Lane became director he, like Palmer, was concerned that Schmitz was not fulfilling her responsibilities to the Program, especially
To ensure that Schmitz would come to work, Lane assigned her to fill a vacant counselor position, which would have required her to come to the Huntsville office every day. Schmitz wrote a letter back to Lane refusing to fill the counseling position because it was not "in the best interest of the Program." (Gov't Ex. 17.) Instead, she requested that she "continue to serve the CITY Program in the same manner as [she had] in the past." (Id.) Schmitz's employment was terminated about two weeks later, on October 19, 2006. After termination, she told one CITY Program employee that if Lane ever came to her as a legislator for any financial assistance for the CITY Program, then she would see to it that he would be fired.
4. The submission of false time sheets, progress reports, and other false statements
The evidence at trial showed that Schmitz, while on the CITY Program payroll, attempted to conceal her failure to work by submitting false time sheets, progress reports, and otherwise making false statements about her work performance.
CITY Program policies provide that all employees, including salaried employees like Schmitz, were required to submit monthly time sheets. Schmitz, who started her employment in February 2003, did not submit any time sheets until October 2003. After ignoring several requests from business manager Barbara Creel, Schmitz finally went to the business office and filled out eight months' time sheets all at once—without referring to any notes or a calendar. After October 2003, Schmitz continually failed to submit her time sheets on time.
When Schmitz did submit her time sheets, many of them were false, as shown by comparing them with information from her credit card statements for the same time periods. For example, Schmitz reported time for CITY Program work on days when she was attending legislative conferences across the country, in San Francisco, Forth Worth, Seattle, Charleston, and St. Petersburg. Schmitz did this even though she had received a letter from the Examiner of Public Accounts the day before she started the CITY Program job stating specifically that she could not claim time for the CITY Program when she was also fulfilling her legislative duties. Schmitz testified at trial that she did not consider the legislative conferences to be part of her legislative duties because they were outside of the legislative session. Schmitz also reported time for CITY Program work when she was attending a Democratic Leadership Conference in Phoenix; when she was at a Wine Association conference in Destin, Florida; and when she was working on her beach house in Panama City Beach, Florida. Schmitz's explanation at trial for submitting false time sheets was that Barbara Creel, the
Schmitz also reported eight hours of CITY Program work for each day from May 17 through May 19, 2005, even though she was attending a tourism conference in Orange Beach, Alabama hosted by the Gulf United Metropolitan Business Organization ("GUMBO"). GUMBO paid for Schmitz and other members of the House Tourism and Travel Committee to attend a conference that featured tourism presentations and a sunset dolphin cruise. Schmitz testified that she promoted the CITY Program during the conference, but the lobbyist who hosted the trip testified that Schmitz never spoke to him about the CITY Program.
In addition to the time sheets, Schmitz was also required to submit progress reports every month. Although Schmitz testified that she submitted progress reports every month, this testimony conflicted with Palmer's testimony and his letters requesting such reports. In the reports that Schmitz submitted, she reported that in January 2006 she was soliciting ideas and suggestions from each of the program centers for development of positive public relations. She also reported that in March 2006 she had requested human-interest stories from each of the ten Program sites so that the stories could be submitted to various media outlets, and she "encouraged each of the program coordinators to keep a record of positive stories that can be used in the future for publication." (Gov't Ex. 57.) Several program coordinators testified, however, that Schmitz never contacted them to discuss their ideas about public relations, never requested information for human-interest stories, and never asked them to keep records of positive news stories. One program coordinator did not even know Schmitz was the public relations person for the CITY Program.
Schmitz's trial testimony about several representations on her progress reports directly conflicted with the testimony of other witnesses. First, in January 2006, Schmitz specifically reported that she met with Pam Huff, a television news producer in Birmingham, about the CITY Program. But Huff testified that she never spoke with Schmitz about the Program. Second, Schmitz testified that she met with Kathy Sawyer, the former Commissioner of the Department of Mental Health, and mentioned the CITY Program often. But Sawyer testified that she never spoke to Schmitz about the Program. Third, Schmitz testified that she met with Page Walley, the former Commissioner of the Department of Human Resources, to discuss the CITY Program. But Walley testified that he never spoke with Schmitz about the Program. Finally, in her June 2006 progress report, Schmitz represented that she had contacted the presidents of the two-year colleges to discuss the CITY Program and to request their support. And, at trial, Schmitz specifically recalled meeting with Dr. Marilyn Beck, the president of Calhoun Community College. But Dr. Beck did not recall ever discussing the CITY Program with Schmitz.
B. PROCEDURAL HISTORY
1. The Indictment
In January 2008, the grand jury indicted Schmitz. Counts One through Four charge that she committed mail fraud in violation of 18 U.S.C. § 1341. Her scheme to defraud involved her taking around $177,251.82 in salary and other benefits from the CITY Program, a federally-funded program for at-risk youth, even though she performed little or no work for the program, generated virtually no services or work product, and rarely appeared for
Counts Five through Eight charge Schmitz with theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A).
2. Motion to Dismiss the Indictment and Bill of Particulars
Schmitz filed a motion for a bill of particulars, seeking more specific information regarding the charged scheme to defraud. She then filed a motion to dismiss the indictment, arguing that all counts were insufficiently specific. As to the mail-fraud counts, she argued that they did not include a statement of facts and circumstances so as to reasonably inform her of the scheme to defraud. As to the federal-funds counts, she argued that the allegations of fraud in those counts were insufficient because they too did not include a statement of facts, and did not incorporate any of the allegations of fraud in the mail-fraud counts. Schmitz also moved to dismiss the federal-funds counts based on the "bona fide salary" exception in § 666(c).
The magistrate judge recommended denial of Schmitz's motion to dismiss the indictment, finding that the indictment sufficiently charged both mail fraud and theft concerning a program receiving federal funds. The district court adopted the magistrate judge's recommendation. With respect to Schmitz's motion for a bill of particulars, the magistrate judge required
3. The trial, verdicts, and sentencing
The case ultimately proceeded to a nine-day trial. At the close of the Government's case-in-chief, Schmitz moved for a judgment of acquittal under Fed.R.Crim.P. 29, and the district court denied the motion. Schmitz then presented testimony from twenty-four witnesses, and ultimately testified in her own defense. During her cross examination, the prosecutor asked Schmitz, on several occasions, to provide the names of people who could corroborate the work that she performed for the CITY Program. In addition, the prosecutor, after pointing out that Schmitz's testimony conflicted with the testimony of other Government witnesses, asked Schmitz if those witnesses were lying. Each time Schmitz attempted to explain the discrepancy in testimony, the prosecutor repeatedly questioned her until she was forced to say whether a previous witness was lying. At the close of all the evidence, Schmitz renewed her motion for a judgment of acquittal. The district court denied that motion.
During the prosecutor's closing argument, he referred to the evidence developed during Schmitz's cross-examination. In particular, he commented several times as to how long the list of liars must be if Schmitz's testimony were true. He also commented on Schmitz's failure to corroborate her contention that she did various tasks for the CITY Program, pointing out that she had the same subpoena power as the Government to bring in witnesses to corroborate her story.
The jury acquitted Schmitz on one of the mail-fraud counts (Count One), and convicted on all other counts.
II. ISSUES ON APPEAL
Schmitz raises the following issues on appeal: (1) whether the district court erred in denying her motion to dismiss the indictment because the indictment failed to allege the offenses of mail fraud and theft concerning a program receiving federal funds; (2) whether the district court erred by denying her motion for judgment of
III. STANDARDS OF REVIEW
"We review the district court's denial of a motion to dismiss the indictment for abuse of discretion, but the sufficiency of an indictment is a legal question that we review de novo." United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002) (internal citation omitted). We review the sufficiency of the evidence de novo, considering the evidence "in the light most favorable to the government" and "resolve all reasonable inferences and credibility evaluations in favor of the jury's verdict." United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir.2007) (internal quotation marks and citation omitted). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." Id. (internal quotation marks and citation omitted). We review claims of prosecutorial misconduct de novo because they involve a mixed question of law and fact. United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir.2008). But, because Schmitz's trial counsel did not object to the prosecutor's questions asking her to comment on the truthfulness of other witnesses or the prosecutor's related comments during closing argument, her claim of prosecutorial misconduct based on those questions and comments is reviewed for plain error. Id. at 1306-07.
A. LEGAL SUFFICIENCY OF THE INDICTMENT
Schmitz asserts error in the district court's denial of her motion to dismiss the indictment, contending that the mail-fraud and federal-funds charges are legally insufficient.
"An indictment is considered legally sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir.2009) (citation and quotations omitted). "In determining whether an indictment is sufficient, we read it as a whole and give it a `common sense construction.'" Id. (citing United States v. Gold, 743 F.2d 800, 813 (11th Cir.1984) and United States v. Markham,
1. Mail Fraud (Counts One through Four)
The indictment charges Schmitz with four counts of mail fraud, in violation of 18 U.S.C. § 1341.
We find that Counts Two through Four adequately allege the mail-fraud offenses. After identifying Schmitz and the CITY Program, the indictment alleges that from 2003 to 2006 Schmitz intentionally devised a scheme to defraud the CITY Program of $177,251.82 in salary and other benefits. The indictment alleges that Schmitz accepted this money even though she performed "virtually no services," "generated virtually no work product," and "rarely even appeared for work at CITY Program offices." (Dkt. 1 at 3.) To accomplish her fraudulent scheme, the indictment alleges, Schmitz obtained her job through "illegitimate means" and received authorization to perform her job based on a "flexible work schedule." (Id. at 2-3.) The indictment further alleges that Schmitz sought to conceal, and therefore facilitate, her fraudulent scheme by preparing and submitting false statements regarding the number of hours she worked and the volume and nature of her services. The final paragraph of the indictment then charges that Schmitz used the mails on four separate occasions to facilitate the fraudulent scheme. Based on these allegations, the indictment presents the essential elements of mail fraud and provided Schmitz with the notice necessary to enable her to defend against those charges. The district court did not err in denying Schmitz's motion to dismiss the mail-fraud counts.
2. Federal-Funds Counts (Counts Five through Eight)
The indictment charges Schmitz with four counts of theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). The federal-funds counts incorporate the first two paragraphs
Schmitz argues that the allegations of fraud in the federal-funds counts are insufficient because they do not present the essential elements of fraud and do not notify her of the charges to be defended against. Schmitz points out that the federal-funds counts provide no factual allegations whatsoever regarding the scheme to defraud, and do not incorporate any of the allegations of fraud in the mail-fraud counts.
We hold that the allegations of fraud in the federal-funds counts are insufficient because they provide absolutely no factual detail regarding the scheme to defraud the CITY Program. As we have previously noted, for an indictment to be legally sufficient, it must notify the accused of the charges to be defended against. The indictment must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]" Fed.R.Crim.P. 7(c)(1) (emphasis added). Even when an indictment "tracks the language of the statute, `it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.'" United States v. Bobo, 344 F.3d 1076, 1083 (11th Cir.2003) (citing Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1048-49, 8 L.Ed.2d 240 (1962)). Counts Five, Six, Seven, and Eight simply allege that Schmitz did "embezzle, steal, obtain by fraud and without authority convert to her own use, and intentionally misapply" the salary and other benefits she received from the CITY Program. (Dkt. 1 at 5-6.) While this language tracks 18 U.S.C. § 666, the federal-funds counts allege no facts or circumstances that inform Schmitz of these specific charges. As a result, the allegations of fraud in the federal-funds counts are insufficient as a matter of law.
We reject the Government's contention that the federal-funds counts sufficiently charge fraud if the indictment is considered as a whole, and given a common-sense construction. The Government would have us overlook the complete absence of factual allegations in the federal-funds counts because the mail-fraud counts adequately describe Schmitz's fraudulent scheme. This we cannot do because it would contradict the principle that "each count of an indictment must be regarded as if it were a separate indictment and must stand on its own content without dependence for its validity on the allegations of any other count not expressly incorporated." United States v. Huff, 512 F.2d 66, 69 (5th Cir.1975) (citations omitted).
While we have concluded that the fraud charges in the federal-funds counts are insufficient, we must still address whether Schmitz's convictions on these counts can stand. The federal-funds counts allege all five means by which § 666(a)(1)(A) can be violated. That is, the indictment alleges that Schmitz "knowingly and willfully did embezzle, steal, obtain by fraud and without authority convert to her own use, and intentionally misapply" the salary she received as a CITY Program employee. (Dkt. 1 at 5-6.) The district court instructed the jury that Schmitz could be found guilty of an offense under § 666(a)(1)(A) if she "misapplied, embezzled, stole, obtained by fraud, or otherwise without authority . . .  convert[ed] to her own use" the money she received from the CITY Program. (Dkt. 199 at 2022-23.) The court did not specifically instruct that any one means is sufficient to convict Schmitz on the federal-funds counts, but the use of the disjunctive word "or" suggests that this was the intent of the charge.
We are thus faced with the question of whether the jury's general verdict convicting Schmitz on the federal-funds counts can stand where one of the alternate theories of criminal liability in those counts is based on a legally insufficient indictment.
B. SUFFICIENCY OF THE EVIDENCE
Schmitz contends that the evidence at trial was insufficient to sustain her convictions for mail fraud.
Viewed in the light most favorable to the Government, the evidence at trial established Schmitz's specific intent to defraud the CITY Program. The evidence established that Schmitz used her position as a state legislator to have a job specially created for her. Once she got the job, Schmitz's job performance was almost non-existent. In more than three years on the CITY Program payroll, Schmitz rarely showed up at any office and failed to complete the assigned tasks of implementing a statewide public relations campaign and developing a website. To keep her supervisors from knowing just how little work she was doing, Schmitz persuaded her supervisor, Dr. Cornell, to authorize a "flexible work schedule" that allowed her to work irregular hours from locations other than CITY Program offices. Schmitz further concealed her scheme by submitting fraudulent reports about hours worked and work activities. When one of her supervisors pressed Schmitz as to why she was not showing up for work, she threatened to call Paul Hubbert, a prominent lobbyist who assisted in creating her position. Interpreted in the Government's favor, this statement further showed that Schmitz never intended to work for the CITY Program but rather wanted to use her political connections to keep her pay-for-no-work scheme going. And, as discussed below, Schmitz mailed the letters identified in Counts Two, Three, and Four in furtherance of her fraudulent scheme. The evidence supports a jury finding as to each element of the mail-fraud charges on which she was convicted.
Furthermore, Schmitz decided to testify in this case, and her own testimony helped to establish the necessary elements for mail fraud. "[W]hen a defendant takes the stand in a criminal case and exposes [her] demeanor to the jury, the jury may make adverse determinations about [her] credibility and reject [her] explanation as a complete fabrication." United States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995). The testifying defendant thus "runs the risk that if disbelieved the jury might conclude the opposite of [her] testimony is true." United States v. Brown, 53 F.3d 312, 314 (11th Cir.1995) (internal quotation
Here, Schmitz's testimony attempted to explain the circumstances surrounding her job with the CITY Program. She testified that she did not ask Speaker Hammett to put money in the budget for her job; that she had no intention of using her flexible work schedule to avoid working; that she never knowingly submitted a false time sheet; that she never submitted work logs in an effort to defraud anyone; and that she never intended to defraud the CITY Program in general. The jury was free to reject Schmitz's testimony and conclude that the opposite was true. Brown, 53 F.3d at 314. The Government's evidence, together with Schmitz's testimony which the jury rejected, supports Schmitz's convictions for mail fraud in Counts Two, Three, and Four.
In challenging the sufficiency of the evidence, Schmitz has characterized her prosecution as the criminalizing of poor job performance, arguing that the Government simply thought she did not work as much as she should have. That description does not capture this case. More than merely a sub-standard employee, Schmitz engaged in a calculated and extensive pattern of fraudulent conduct designed to allow her to collect a state-government salary while performing almost no work. She accomplished this scheme through demonstrably false reports and time sheets. And, when people started asking questions, she used her status as state legislator to keep the scheme going. While we share the concern expressed about criminalizing poor job performance, this case does not belong in that category.
Schmitz also contends that the evidence does not support her mail-fraud convictions because the Government did not prove that the mailings listed in the mail-fraud counts were made in furtherance of the alleged scheme to defraud. "While a mailing is a required element of a § 1341 claim, the use of the mails need not be an essential element of the scheme; for a mail fraud conviction, it is sufficient if the government shows that the mailing was `incident to an essential part of the scheme' or `a step in the plot.'" United States v. Lee, 427 F.3d 881, 887 (11th Cir.2005) (citing United States v. Waymer, 55 F.3d 564, 569 (11th Cir.1995)).
Count Two was based on the March 3, 2003 letter Schmitz wrote to one of her supervisors, Dr. Cornell, formally requesting a flexible work schedule. This letter, written just one month after she went on the CITY Program payroll, requested a flexible work schedule because of Schmitz's purported need to balance the requirements of her CITY Program job and her duties as a legislator. The Government, however, produced evidence, previously discussed at length, that Schmitz never attempted to balance her two jobs and instead performed almost no work for the CITY Program while collecting a full salary. Given the evidence establishing that Schmitz did not intend to fulfill her duties for the CITY Program, we find that a reasonable jury could find that the March 3, 2003 letter was a mailing in furtherance of the scheme to defraud. A reasonable jury could view the letter to Dr. Cornell requesting a flexible work schedule as a step in the fraudulent plot because it allowed Schmitz to conceal her scheme by making it more difficult for
Count Three was based on the January 26, 2006 letter that Schmitz wrote to then-director Larry Palmer. Schmitz wrote the letter in response to Palmer's request for a progress report on her activities from November of 2005 to January of 2006. The letter was written on official Alabama House of Representatives letterhead and copied to Roy Johnson and Paul Hubbert. In the letter, Schmitz writes that she has not filled out the requested progress reports because she has not received the proper forms from Palmer. She also writes that her progress for the website development has been stalled because Palmer has not provided budgetary information. We find that a reasonable jury could find that the January 26, 2006 letter was a mailing in furtherance of the scheme to defraud. A reasonable jury could view the letter as Schmitz's effort to conceal her complete lack of progress in her assigned tasks, and to shift the blame toward Palmer for her failure to submit progress reports. And, because the letter was written on official stationary and sent to Hubbert and Johnson, a reasonable jury could conclude that the letter was an implicit threat to complain to Johnson and Hubbert about Palmer's questioning of her scheme. This inference is further supported by Schmitz's subsequent conversation with then-director Roscoe Lane, where she explicitly threatened to call Hubbert when Lane questioned her lack of work. The evidence sufficiently supports Count Three.
Count Four was based on the October 5, 2006 letter Schmitz wrote to then-director of the CITY Program Roscoe Lane. When Lane became director, he discovered that Schmitz was being paid a full-time salary and benefits even though she rarely showed up for work. To ensure that Schmitz showed up for work, Lane assigned her to a vacant counselor position, which would have required her to work at the Huntsville office every day. Schmitz wrote a letter to Lane refusing the assignment because she felt it was "not in the best interest of the Program" and she could "best serve the Program in other ways." (Gov't Ex. 17.) She requested that she continue to serve the CITY Program in the same manner as she had in the past. We find that a reasonable jury could find that the October 5, 2006 letter was a mailing in furtherance of the scheme to defraud. A reasonable jury could view the letter as Schmitz's attempt to persuade the director of the Program to keep her on the payroll without meaningful oversight or accountability so that she could collect payment while doing almost no work. The evidence sufficiently supports Count Four.
C. PROSECUTORIAL MISCONDUCT: SHIFT OF BURDEN OF PROOF
During Schmitz's cross-examination, the prosecutor, on several occasions, asked Schmitz to provide the names of people who could corroborate the work that she performed for the CITY Program. During the Government's closing argument, the prosecutor commented that Schmitz could not corroborate her work performance and that she has the same subpoena power as the Government to produce witnesses and documents. Schmitz argues that the prosecutor's questions and comments impermissibly shifted the burden of proof from the Government to her.
Because Schmitz's trial counsel objected to the prosecutor's cross-examination questions and closing-argument comments that purportedly shifted the burden of proof, we review this claim of
We find no impropriety in the prosecutor's questions and comments pertaining to Schmitz's inability to corroborate her work for the CITY Program because they tested the plausibility of Schmitz's account. United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009). The Government produced substantial evidence that Schmitz was not completing work for the CITY Program. When Schmitz testified to the contrary, the Government tested the plausibility of her story by asking who could corroborate her testimony. That line of questioning did not shift the burden of proof. And, we have specifically held that the prosecution can note that the defendant has the same subpoena power as the Government. United States v. Hernandez, 145 F.3d 1433, 1438-39 (11th Cir.1998). Moreover, even if some of the prosecutor's questions slightly suggested that Schmitz had the burden of proof, the district court cured any possibility of prejudice with its clear and repeated instructions on the prosecution's burden of proof. See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) ("This court has held that the prejudice from the comments of a prosecutor which may result in a shifting of the burden of proof can be cured by a court's instruction regarding the burden of proof."). We accordingly reject Schmitz's contention that the prosecutor engaged in misconduct by shifting the burden of proof.
D. PROSECUTORIAL MISCONDUCT: THE "WERE-THEY-LYING" QUESTIONS AND COMMENTS
Schmitz contends that, during her cross-examination, the Government improperly required her to assess the truthfulness of previous witnesses. On cross-examination, the prosecutor questioned Schmitz as follows:
(Dkt. 202 at 9.) The prosecutor then called out the names of twelve witnesses who had testified in the case and asked Schmitz if they should be added to the "list" of purported liars. (Id. at 10-17.) Each time Schmitz attempted to explain the discrepancy in testimony, the prosecutor repeatedly questioned her until he was able to force her to say whether a previous witness was telling the truth or whether the witness should be added to the "liar list." (Id.)
In closing arguments, the prosecutor continued to refer to the list of purported lying witnesses. The prosecutor said: "These people are not all making it up, ladies and gentlemen. It's not that the list is now 17 people are lying and the defendant
Because Schmitz's trial counsel did not object to the were-they-lying questions and related comments, we review the impact of this conduct on the fairness of the trial under the plain error standard of review. Under this standard, Schmitz must show that: "(1) an error occurred; (2) the error was plain; (3) it affected [her] substantial rights; and (4) it seriously affected the fairness of the judicial proceedings." United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir.2003) (citation omitted); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (articulating four conditions of plain error rule). Only if all four of those showings are made does a court of appeals have any authority to correct an error that was not preserved by a timely objection in the district court. Olano, 507 U.S. at 732, 741, 113 S.Ct. at 1776-77, 1781. Schmitz has convinced us that there was error, but we do not think there was plain error.
We first conclude that there was error in the district court's decision to allow the prosecutor to require Schmitz to say whether other witnesses were lying, and to allow the prosecutor to make comments related to these questions in his closing argument. In evaluating the propriety of the prosecutor's conduct in this case, we analyze separately the questions posed on cross-examination and the comments made during closing arguments.
With regard to the questions posed on cross-examination, we begin by noting that most of the federal courts of appeals that have examined the propriety of questions posed to a criminal defendant about the credibility of government witnesses have found that such questions are improper. See United States v. Harris, 471 F.3d 507, 511 (3d Cir.2006); United States v. Thomas, 453 F.3d 838, 846 (7th Cir.2006); United States v. Williams, 343 F.3d 423, 437 (5th Cir.2003); United States v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir.1999); United States v. Sullivan, 85 F.3d 743, 749-50 (1st Cir.1996); United States v. Boyd, 54 F.3d 868, 871 (D.C.Cir.1995); United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987); but see United States v. Williamson, 53 F.3d 1500, 1523 (10th Cir. 1995) (characterizing as unpersuasive the reasoning set forth in Richter as to why such questions should not be allowed but declining to decide the issue). Most of these courts have reasoned that such questions are improper because they invade the province of the jury by forcing defendants to assess the credibility of others who have testified.
We hold that it is improper to ask a testifying defendant whether another witness is lying. We come to this conclusion for several reasons.
First, the Federal Rules of Evidence do not permit such questions. See United States v. Henderson, 409 F.3d 1293, 1299 (11th Cir.2005) ("The Federal Rules of Evidence preclude a witness from testifying as to the credibility of another witness.") While Rule 608(a) permits a witness to testify, in the form of opinion or reputation evidence, that another witness has a general character for truthfulness or untruthfulness, that rule does not permit a witness to testify that another witness was truthful or not on a specific occasion. Moreover, the were-they-lying questions have little or no probative value because they seek an answer beyond the personal knowledge of the witness. See Harris, 471 F.3d at 511 (stating that such questions "force a witness to testify as to something he cannot
Second, the were-they-lying questions invade the province of the jury, as credibility determinations are to be made by the jury, not the testifying witness. See Snowden v. Singletary, 135 F.3d 732, 739 (11th Cir.1998) ("Witness credibility is the sole province of the jury."); Thomas, 453 F.3d at 846 ("Because the evaluation of witness credibility is the province of the jury, it is improper to ask one witness to comment on the veracity of the testimony of another witness.") (internal quotation marks and citation omitted).
Third, the were-they-lying questions ignore other possible explanations for inconsistent testimony. Testimony can conflict for many reasons that do not involve a deliberate intent to deceive. There may be lapses in memory, differences in perception, or a genuine misunderstanding. The were-they-lying questions ignore all of these innocent explanations, and put the testifying defendant in a "no-win" situation: The defendant must either accuse another witness of lying or undermine his or her own version of events. See Harris, 471 F.3d at 511 (stating that such questions unfairly "force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar"); Liggett v. People, 135 P.3d 725, 731-32 (Colo.2006) (citing State v. Graves, 668 N.W.2d 860, 872 (Iowa 2003)) (describing the "no-win" situation that results when were-they-lying questions are posed).
Fourth, the were-they-lying questions are argumentative, and often their primary purpose is to make the defendant appear accusatory. See Liggett, 135 P.3d at 732 (citing Burgess v. State, 329 S.C. 88, 495 S.E.2d 445, 447 (1998)) (describing were-they-lying questions as argumentative). The very structure of the question is designed to pit the testifying witness against every other adverse witness, suggesting to the jury that someone is deliberately deceiving the court and the jury must choose the culprit. While the jury must make credibility assessments in determining guilt or innocence, the were-they-lying questions do not serve this function but prejudicially force the testifying defendant to accuse or not. Even worse, the defendant's answer often does not matter because the predominate purpose of such questions is to make the defendant look bad. Graves, 668 N.W.2d at 872.
Today's holding will not hamper the prosecution's ability to cross-examine a criminal defendant. We recognize that "[i]t is essential . . . to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth." Harris, 471 F.3d at 512 (quoting United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980)). We agree that "it is often necessary on cross-examination to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness." Harris, 471 F.3d at
The Government contends that Schmitz opened the door to such questions in this case by testifying on direct examination as to the truthfulness of another witness. On direct examination, Schmitz testified that Speaker Hammett was not truthful when he testified that Schmitz asked him to adjust the budget to support her CITY Program employment. According to the Government, this testimony opened the door to the prosecutor's later questions about the truthfulness of other witnesses. We recognize that were-they-lying questions may be proper if a defendant opens the door by testifying on direct that another witness was lying. But Schmitz opened no such door in this case. First, Schmitz did not testify on direct that Hammett was a liar. Second, even if Schmitz's direct testimony could be construed as calling Hammett a liar, the prosecutor did not cross-examine Schmitz only as to Hammett's testimony. Instead, the prosecutor cross-examined Schmitz as to the testimony of eleven other witnesses and forced her to testify whether they were lying. Even if Schmitz opened the door as to Hammett's testimony, eleven other doors remained closed.
With respect to the prosecutor's comments made during closing argument, "an attorney's statements that indicate his opinion or knowledge of the case as theretofore presented before the court and jury are permissible if the attorney makes it clear that the conclusions he is urging are conclusions to be drawn from the evidence." United States v. Johns, 734 F.2d 657, 663 (11th Cir.1984) (quotation omitted). In light of this principle, the propriety of the prosecutor's closing-argument comments presents a closer question than the propriety of the cross-examination questions. We have no doubt that there are some cases where a prosecutor is justified in arguing during closing arguments that a particular witness is lying, if that is an inference supported by the evidence at trial. See, e.g., Chandler v. Moore, 240 F.3d 907, 914 (11th Cir.2001) (finding that prosecutor's comment during closing argument that witness was liar was accurate statement because witness had told four different stories regarding defendant's whereabouts during crucial time). We must nonetheless conclude that the prosecutor's comments in this particular case were not justified. The problem with the prosecutor's comments in this case is that they were a clear continuation of the improper questions posed previously during Schmitz's cross-examination. In particular, the prosecutor continued during closing arguments to hammer home the idea of a "liar list," which was a metaphor improperly developed during Schmitz's cross-examination. Thus, we hold that the comments in closing argument were improper because the cross-examination was improper.
Having concluded that allowing the prosecutor's cross-examination questions and closing-argument comments constituted error, we must decide whether those errors were plain. "Before an error is subject to correction under the plain error rule, it must be plain under controlling
Counts Two, Three, and Four charge Schmitz with mail fraud. We affirm her convictions on these counts.
Counts Five, Six, Seven, and Eight charge Schmitz with fraud and other offenses concerning a program receiving federal funds. We vacate Schmitz's convictions on these counts.
We vacate Schmitz's sentences on all counts and remand for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.
BLACK, Circuit Judge, concurring in part and dissenting in part:
I join the majority opinion except as to Part IV.A.2. The majority's holding that Counts Five through Eight of the indictment were legally insufficient appears to be based on two separate conclusions: (1) that Counts Five through Eight, standing alone, fail to provide Schmitz with sufficient notice of the charges to be defended against, and (2) that we may not look to the factual allegations of Counts One through Four in assessing whether Schmitz had notice of the charges to be defended against in Counts Five through Eight. Because I disagree with the second conclusion and believe that, read in the context of the indictment as a whole, Counts Five through Eight provide sufficient notice of the charges to be defended against, I dissent from this part of the opinion.
Although Counts One through Four of the indictment describe Schmitz's allegedly fraudulent conduct in detail, the majority concludes that we cannot consider these allegations because it would contradict the principle, articulated in United States v. Huff, 512 F.2d 66, 69 (5th Cir.1975), that "each count of an indictment must be regarded as if it were a separate indictment and must stand on its own content without dependence for its validity on the allegations of any other count not expressly incorporated." As the majority notes, an indictment is valid if it: "(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to
In Huff, the defendant was charged in Count I with the unlawful distribution of "3,4 methylenedioxy amphetamine," a controlled substance. In Count II of the indictment, however, he was charged with possession with intent to distribute "methylenedioxy amphetamine." The defendant argued that Count II was void because the drug "methylenedioxy amphetamine," as distinguished from "3,4 methylenedioxy amphetamine," was not a controlled substance, and the count therefore failed to charge a crime. The prosecution admitted that the substance was misdescribed in Count II, but contended that this count was sufficient when read together with Count I as part of the entire indictment. Huff, 512 F.2d at 68-69.
The Fifth Circuit reversed the defendant's conviction on Count II. While noting that courts have generally allowed "common sense rather than mere technicalities [to] govern the determination of the sufficiency of an indictment," the court concluded "even a liberal construction of this simple rule does not dispense with the requirement that an indictment or each count thereof allege all the essential elements of an offense." Id. at 69 (emphasis added). The court explained:
Id. (citations omitted) (emphasis added). The court added that it could not regard the defect as a "mere technicality," because "the variance between non-criminal conduct, as alleged in Count II, and criminal conduct, which the government attempted to prove under Count II, rises above the level of form, however minute the omission may have been." Id. (emphasis added).
Given Huff's emphasis on the fact that Count II wholly failed to charge a crime, I do not read Huff to establish the broad rule the majority suggests.
Considering the indictment as a whole in determining whether a defendant had notice finds support in several of our sister circuits. For example, the Seventh Circuit, in United States v. Dooley, 578 F.3d 582, 590 (7th Cir.2009), considered a defendant's claim that he lacked notice of the charges against him where one count of the indictment alleged that he "intentionally misapplied property valued at $5,000 or more," but did not describe the property at issue or how it was misapplied. The court concluded this omission did not render the indictment insufficient because, reading the indictment as a whole, "it is clear that the property described in Count 7 is the cash and the laptop, the misapplication of which are described in detail in the previous counts." Id. The Ninth and Tenth Circuits have similarly looked to factual allegations in other counts in considering whether an indictment provided sufficient notice. See United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986) overruled in part on other grounds as stated in United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000) (holding that reading the indictment as a whole, "[w]e have no doubt that [the defendant] was fully aware of the charges against him"); United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir.1989) (en banc) (noting that even in the absence of express incorporation, "the allegations in count one afforded appellants actual notice regarding the violations proved at trial").
Additionally, although this Court has not explicitly stated that it is appropriate to consider the factual allegations of other counts in determining notice, our analysis in United States v. Cox, 664 F.2d 257, 257-58 (11th Cir.1981), strongly supports this conclusion. In Cox, the defendant claimed that Count Six, charging him with conversion of "property of the United States of the value of about $24,916.82" was too vague to inform him of the nature of the offense charged. This Court concluded that the defendant had not been prejudiced in the preparation of his defense, in part because Count Four of the indictment "clearly described the property and identified it by the same value, and the property was again described in detail and by the value in Overt Act 13 of Count Four." Id. at 258-59.
Such an approach does not mean, as the majority suggests, that "factual allegations in one count are somehow automatically incorporated into other counts." Maj. Op. at 1262. Rather, we simply consider whether in reading a particular indictment as a whole and giving it a common sense construction, see Jordan, 582 F.3d at 1245, the defendant had notice of the charges to be defended against.
In this case, I must conclude that the federal funds counts provided sufficient notice of the charges to be defended against when read in the context of the indictment as a whole. Contrary to the majority's description of the federal-funds counts as containing "no factual allegations at all . . . regarding the scheme to defraud," Maj. Op. at 1262 n.10, Counts Five through Eight allege the approximate dates of the fraud (January 2003 to October
18 U.S.C. § 666(a)(1)(A), (b).
Seeking to distinguish Huff, the Government argues that the Huff indictment completely failed to allege an element of a crime, while the indictment in this case alleges a crime but simply does not describe the fraudulent scheme in sufficient detail. We are not persuaded. While Huff concerned the omission of an element of a crime, the Fifth Circuit's larger analytical point was that each count of an indictment must be regarded separately, unless the factual allegations of one count are expressly incorporated into another.
We are not dealing in this case with factual allegations in one count that simply inform or provide meaning to factual allegations in a separate count. Indeed, there are no factual allegations at all in the federal-funds counts regarding the scheme to defraud. Therefore, while we read the indictment "as a whole," that approach, under the facts of this case, does not dispense with the express-incorporation requirements of Fed. R. Crim. P. 7(c)(1). Because the allegations of fraud in the federal-funds counts include absolutely no factual detail, either directly or through express incorporation, they fail to provide Schmitz with notice of the charges to be defended against and are legally insufficient.