IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50889
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIE BOWSER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
(A-95-CR-158-ALL)
_________________________________________________________________
November 19, 1997
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Marie Ann Bowser appeals from her convictions for embezzling
and conspiring to embezzle funds in excess of $5,000 from a
federally funded state agency, the Texas Employment Commission
(“TEC”), in violation of 18 U.S.C. §§ 371, 641, 666 and for
knowingly making a false oath or account in a bankruptcy proceeding
in violation of 18 U.S.C. § 152. She challenges her conviction
under 18 U.S.C. § 666 (Count 2) on duplicity grounds, and argues
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
that the conspiracy count must also fall by reason of the same
error. She challenges her conviction under 18 U.S.C. § 152 (Count
4) for Gaudin error.1 Bowser further claims the district court
erroneously enhanced her sentence under the Guidelines. After a
careful review of the record and the parties’ briefs, we reverse
Bowser’s conviction under § 152, uphold her remaining challenged
convictions, and affirm the sentence enhancement.
I
The acts charged in Count 2--violation of § 666--comprise a
single scheme with the actual offense being the entire scheme and
not each individual transaction. The consolidation here was proper
and the indictment not duplicitous even though each bad act alone
could constitute an offense. See United States v. Robin, 693 F.2d
376, 378 (5th Cir. 1982).
Furthermore, with respect to her lack of unanimity argument,
the government did not have to prove any dissimilar facts to obtain
a conviction under Count 2; Bowser admitted to cashing each check.
The only disputed issue was whether she possessed a culpable mens
rea when she did so. That was the only issue before the jury with
respect to Count 2 and there is no possibility that the verdict was
1
Bowser does not challenge on appeal her conviction of Count
3--violation of 18 U.S.C. § 641.
2
not unanimous. Bowser’s arguments with respect to Count 2 are
meritless.2
II
Bowser also maintains that her conviction of Count 4--
knowingly making a false oath in a bankruptcy proceeding in
violation of 18 U.S.C. § 152--should be reversed. She argues that
the court committed Gaudin error when it refused to submit the
issue of materiality to the jury and that her conviction of this
offense must be reversed. We agree.
The government did not object to the court’s instruction
regarding materiality. In fact, the court utilized the instruction
proffered by the government. The record clearly demonstrates that
the government never questioned the validity of materiality as an
essential element of the offense. As such, the government is bound
by the law of the case and materiality is an element in this
action. United States v. Taylor, 933 F.2d 307, 309-10 (5th Cir.
1991).
The district court, over defense objection, ruled that the
question of materiality was a question of law and instructed the
jury that it need not consider whether “the false statements were
2
Our opinion upholding Bowser’s conviction under Count 2
effectively moots her argument that the conspiracy count must fall.
3
material. This is a question of law which the court has determined
has been satisfied.”
It is generally agreed that a defendant has a right guaranteed
by the Fifth and Sixth Amendments to have a jury pass on all
elements of a charge lodged against her. United States v. Gaudin,
115 S.Ct. 2310, 2318, 2320 (1995). A unanimous Supreme Court has
held that this mandates a jury finding beyond a reasonable doubt as
to the element of materiality. Id. (“The trial judge’s refusal to
allow the jury to pass on the ‘materiality’ of Gaudin’s false
statements infringed that right.”) (discussing 18 U.S.C. § 1001).
When this element is withheld from the jury, as in this case, this
court has determined that harmless error review is inapplicable and
the conviction is fatally flawed. United States v. Pettigrew, 77
F.3d 1500, 1511 (5th Cir. 1996) (discussing 18 U.S.C. § 1006).
Because the trial court committed Gaudin error and Bowser timely
objected to such error, Pettigrew mandates that we vacate Bowser’s
conviction under 18 U.S.C. § 152.
III
Bowser further contends that the district court erred by
imposing a 2-level upward adjustment for obstruction of justice.
While stated somewhat unartfully, the district court’s finding of
perjury is not clearly erroneous. Bowser’s arguments with respect
4
to this issue are unpersuasive and we affirm the district court’s
application of the enhancement provision.
IV
In conclusion, Bowser’s argument that Count 2 of the
indictment was duplicitous and subjected her to a nonunanimous
verdict is meritless. However, we reverse Bowser’s conviction
under 18 U.S.C. § 152 because she properly preserved her objection
to the court’s Gaudin error and Pettigrew mandates that we not
allow her conviction of that offense to stand. Finally, the
district court did not clearly err when it found that Bowser
perjured herself, and we affirm the court’s sentence enhancement
under the Guidelines.
For the foregoing reasons, the judgment of the district court
is AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings not inconsistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.
5