United States v. Schmitz

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 4, 2011
No. 09-14452
JOHN LEY
________________________ CLERK

D.C. Docket No. 08-00014-CR-5-RDP-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUZANNE L. SCHMITZ,
a.k.a. Suzanne Martha Lowe Schmitz,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 4, 2011)

Before MARTIN, COX, and BLACK, Circuit Judges.

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.

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 I. BACKGROUND

A. FACTS

1. Schmitz’s path to the CITY Program

Alabama voters elected Schmitz to the state legislature in 1998, and re-elected

her in 2002.1 Schmitz’s legislative duties required her to be in Montgomery three

days a week, usually from January through May. While serving in the legislature,

Schmitz also taught in a public high school. When her legislative duties prevented

her from teaching, she would leave a detailed lesson plan for a substitute. Schmitz

was not paid her teacher’s salary when she was working as a legislator in

Montgomery.

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,

1
Because we must determine whether the evidence is sufficient to support Schmitz’s
convictions, we state the evidence in the light most favorable to the Government. United States v.
Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).

3
then-Speaker of the Alabama House of Representatives, that Schmitz would be

coming to see him about employment. In addition to Hubbert’s indirect assistance,

Schmitz asked Speaker Hammett directly if he would make arrangements to have

money placed in the budget so that she could be employed in the postsecondary

system. Speaker Hammett told Johnson that he would help fund a job for Schmitz if

Johnson could find one in his department.

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.

4
 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.

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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.

A month or so after accepting the CITY Program position, on March 3, 2003,

Schmitz mailed a letter to Dr. Cornell requesting a “flexible work schedule.” This

request was based on a policy established by Chancellor Johnson to allow a person

to serve in the legislature and work in public education, but only if certain

requirements were met. One of those requirements was that the employee keep a

weekly log of their work hours. According to Schmitz, she requested this

accommodation because of the difficulty in balancing the requirements of the CITY

Program job and her duties as a state legislator. Dr. Cornell approved Schmitz’s

request for a flexible work schedule in April 2003, reminding her that she was

6
“expected to maintain a detailed log of activities relative to [her] legislative duties

and to make them available for review upon request.” (Dkt. 186 at 166-67.)

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

7
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.2 Johnson directed Palmer and Sallatto to ensure that Schmitz came

to work, but problems persisted. As a result, Johnson held a meeting in November

2005 with all three individuals. At the meeting, Palmer accused Schmitz of not

2
Palmer was named Interim Director of the CITY Program when Earnest died in early 2005.
Dr. Sallatto replaced Dr. Cornell as president of Central Alabama Community College around the
same time.

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showing up for work; Schmitz responded that she lacked specific duties and

assignments. To resolve the problem, Johnson gave Schmitz a copy of the flexible

work schedule policy and directed her to comply with it. He also told her he expected

her to work forty hours each week for the CITY Program, apart from her time in the

legislature. He further instructed her to show up for work, keep a weekly log of

activities, and turn those logs over to Palmer for regular inspections. Finally, at

Johnson’s direction, Palmer assigned Schmitz two very specific tasks. One was to

develop a public relations plan for the CITY Program and to implement that plan.

The second was to develop a website for the CITY Program. When Johnson assigned

these tasks, he was unaware that Dr. Cornell had assigned substantially similar tasks

almost two years earlier, in January 2003.

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

9
(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

10
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 considering that she was one of the higher-

paid employees in the Program. When Lane started raising questions about Schmitz,

his supervisor told him he should be “very careful” in dealing with her. (Dkt. 195 at

56.) Lane nonetheless pressed the issue of Schmitz not working. He instructed

Schmitz that she would have to start working and be in the Huntsville office every

day. Schmitz then asked Lane whether he knew how she got the CITY Program job.

When Lane responded that he did not know, Schmitz told him that Paul Hubbert had

gotten the job for her through the former director of the Program, Ed Earnest. When

Lane told Schmitz she needed to work, she said “she was going to call Mr. Paul

Hubbert.” (Id. at 58.) Schmitz denied making this statement to Lane.

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

11
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

12
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 business manager, instructed her to record eight hours of work

every day, even if she did not actually work those hours. Creel denied telling Schmitz

this.

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

13
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,

14
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 Heath, 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

15
performed little or no work for the program, generated virtually no services or work

product, and rarely appeared for work at the CITY Program offices. To accomplish

this scheme, the indictment alleges that Schmitz obtained authorization to perform her

job based on a “flexible work schedule.” The indictment further alleges that, in order

to conceal her fraudulent scheme, she prepared and submitted false and fraudulent

statements regarding the number of hours she worked and the volume and nature of

her services. The indictment finally alleges that Schmitz used the mails on four

separate occasions in furtherance of this scheme: she received a letter of appointment

to the CITY Program position on January 16, 2003 from then-director Ed Earnest

(Count One); she wrote a letter to her supervisor, Dr. Cornell, requesting a flexible

work schedule (Count Two); she wrote a letter to Larry Palmer, another then-director

of the CITY Program, explaining why she had not filled out progress reports and

updating him on the work that she had performed (Count Three); and she wrote a

letter to Roscoe Lane, yet another then-director of the City Program, regarding his

appointment of her to fill a counseling vacancy so that her work could be more

closely monitored.

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 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)).3 The indictment

alleges that Schmitz was an agent of the CITY Program, and that the CITY Program

was an organization that received federal benefits in excess of $10,000 per year. The

indictment further 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 over four years from working for the CITY

Program. (Dkt. 1 at 5-6.)

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

3
18 U.S.C. § 666 provides, in relevant part:
(a) Whoever, if the circumstance described in subsection (b) of this
section exists-
(1) being an agent of an organization . . . (A) embezzles, steals,
obtains by fraud, or otherwise without authority knowingly converts
to the use of any person other than the rightful owner or intentionally
misapplies, property that . . . is valued at $5,000 or more, and . . . is
owned by, or is under the care, custody, or control of such
organization . . . shall be fined under this title, imprisoned not more
than 10 years, or both.

(b) The circumstance referred to in subsection (a) . . . is that the
organization . . . receives, in any one year period, benefits in excess
of $10,000 under a Federal program involving a grant . . . .
18 U.S.C. § 666(a)(1)(A), (b).

17
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 the Government to “explain upon what basis

it has concluded that Ms. Schmitz obtained her position through illegitimate means

and the relationship between that claim and the mail fraud counts.” (Dkt. 72 at 5.)

In its bill of particulars, the Government explained that Schmitz “utilized her status

as a legislator to request and receive preferential treatment in obtaining a position

with the CITY Program.” (Dkt. 75 at 1.) The Government further explained that

Schmitz–with the assistance of the Speaker of the Alabama House of Representatives,

18
the Chancellor of the Department of Postsecondary Education, and an influential

lobbyist–obtained a position that did not exist before and for which no other

applicants were considered. The Government finally explained that the “illegitimate

means” Schmitz employed to obtain her position were related to the mail-fraud

charges because they “illuminate[d] [her] fraudulent intent, for her unusual action[s]

serve[d] to demonstrate that she never intended to actually perform any work in her

role as a CITY Program employee.” (Id. at 2-3.)

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,

19
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.4 The district court sentenced Schmitz to thirty months

of imprisonment on each count of conviction, to run concurrently, for a total of thirty

months. The district court also ordered restitution and forfeiture in the amount of

$177, 251.82.

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

4
Count One was based on Schmitz’s receipt of a letter appointing her to the CITY Program
position.

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funds; (2) whether the district court erred by denying her motion for judgment of

acquittal because the evidence was insufficient to support convictions for mail fraud

and theft concerning a program receiving federal funds; (3) whether the prosecutor

committed misconduct by asking Schmitz to identify witnesses or other evidence that

could corroborate her testimony; and (4) whether the prosecutor committed

misconduct by forcing Schmitz to testify during cross-examination that at least a

dozen other witnesses were lying during their testimony, and by making comments

during closing arguments as to how long the list of lying witnesses must be in order

for Schmitz’s testimony to be true.5

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.”

5
Schmitz also raises the issue of whether the district court erred by instructing the jury that
it could consider Ala. Code § 36-25-7(d) for purposes of determining whether Schmitz had the
requisite criminal intent. Considering the district court’s limiting instruction and the totality of the
evidence supporting Schmitz’s guilt, any error in giving the instruction was harmless under Fed. R.
Crim. P. 52(a). See United States v. Drury, 396 F.3d 1303, 1314 (11th Cir. 2005) (noting that jury
instructions are subject to harmless error review).

21
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.

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 IV. DISCUSSION

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, 537 F.2d 187, 192 (5th Cir. 1976)).6 “In other words, the indictment’s

‘validity is to be determined by practical, not technical, considerations.’” Jordan, 582

F.3d at 1245 (citing Gold, 743 F.2d at 812).

6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

23
1. Mail Fraud (Counts One through Four)

The indictment charges Schmitz with four counts of mail fraud, in violation of

18 U.S.C. § 1341.7 Schmitz contends that the mail-fraud counts are insufficient

because they do not state a criminal offense and do not give her adequate notice of

the alleged scheme to defraud. “Mail fraud consists of the following elements: (1) an

intentional participation in a scheme to defraud a person of money or property, and

(2) the use of the mails in furtherance of the scheme.” United States v. Sharpe, 438

F.3d 1257, 1263 (11th Cir. 2006) (citation and quotations omitted).

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,

7
The jury acquitted Schmitz on one of the mail-fraud counts (Count One).

24
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.8

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 of the indictment, which describe

Schmitz’s background and the CITY Program, but they do not incorporate or re-

allege any of the allegations of fraud in the mail-fraud counts. Instead, the federal-

funds counts allege that Schmitz was an agent of the CITY Program, and the CITY

8
In so concluding, we reject Schmitz’s contention that the allegation she obtained her job
through “illegitimate means” was so vague that it required speculation as to a fundamental part of
the charges against her. First, this allegation was only one of six allegations describing the nature
and extent of the scheme to defraud the CITY Program. Regardless of how Schmitz obtained her
job, the indictment alleges that she failed to perform it and deliberately covered up that lack of
performance with false statements in order to receive payment. Second, even if the term
“illegitimate means” is vague, any notice problems were cured when the Government provided a bill
of particulars explaining the meaning of the term and how it relates to the mail-fraud counts. See
United States v. Perkins, 748 F.2d 1519, 1526 (11th Cir. 1984) (noting that bill of particulars can
satisfy a defendant’s need for additional information to prepare defense).

25
Program received federal benefits in excess of $10,000 per year. The indictment then

charges that Schmitz, from January 2003 to October 2006, “knowingly and willfully

did embezzle, steal, obtain by fraud and without authority convert to her own use, and

intentionally misapply” the salary she received from the CITY Program from 2003

through 2006, with each year of salary representing a separate count. (Dkt. 1 at 5-6.)

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

26
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 (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

27
omitted).9 The Government is correct that we have previously stated that the validity

of an indictment is determined from reading it “as a whole.” Jordan, 582 F.3d at

1245; United States v. Diwan, 864 F.2d 715, 719 (11th Cir. 1989); Markham, 537

F.2d at 192. But that does not mean factual allegations in one count are somehow

automatically incorporated into other counts. To the contrary, courts have explained

that when allegations in one count are incorporated into another count under Federal

Rule of Criminal Procedure 7(c), such incorporation must be express. Davis v.

United States, 357 F.2d 438, 440 n.2 (5th Cir. 1966); United States v. Redcorn, 528

F.3d 727, 734 -735 (10th Cir. 2008) (“There is no need to look beyond the borders

of a particular count to determine what offense is charged; indeed, it is generally

improper to do so except where a count incorporates other allegations expressly, as

permitted by Federal Rule of Criminal Procedure 7(c)(1).”); United States v. Knowles,

29 F.3d 947, 952 (5th Cir. 1994) (“While it is true that an allegation made in one

9
In Huff, the first count of the indictment charged that the defendant illegally distributed
“3,4 methylenedioxy amphetamine,” which was a controlled substance, but the second count charged
possession of “methylenedioxy amphetamine,” which was a different drug not listed on the statutory
schedule of controlled substances. Huff, 512 F.2d at 68-69. The Fifth Circuit held that the second
count did not charge an offense, and that the district court’s instruction to the jury that count two
should be described as in count one did not cure the defect. Id. at 69.
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.

28
count of an indictment may be incorporated by reference in another count of the

indictment, we have held that any such incorporation must be expressly done.”)

(internal citation omitted); United States v. Miller, 774 F.2d 883, 885 (8th Cir. 1985)

(citing Huff and concluding that each count of an indictment “must stand on its own,

and cannot depend for its validity on the allegations of any other count not

specifically incorporated”) (internal quotation marks and citation omitted); United

States v. Fulcher, 626 F.2d 985, 988 (D.C. Cir. 1980) (citing Huff and concluding that

one count cannot “absorb by osmosis” the allegations of another count).10 The rule

requiring express incorporation by reference is especially important in this case,

where it is not at all apparent from the face of the indictment that the facts of the mail-

10
We recognize some tension between the line of cases establishing that we analyze the
indictment “as a whole” and the line of cases establishing that each count of an indictment must
stand on its own content. But they are reconcilable. First, we have often said that we read the
indictment “as a whole” in the context of analyzing the sufficiency of allegations in a single count.
In that context, we have had no problem endorsing the idea that allegations in a particular count can
inform other allegations in the same count. The need for express incorporation does not arise
because there is only one count at issue. See, e.g., Gold, 743 F.2d at 812-13; Markham, 537 F.2d
at 192. Second, in reading indictments “as a whole,” we have meant that factual allegations in one
count can inform or provide meaning to the factual allegations in another count. See, e.g., Jordan,
582 F.3d at 1246. The need for express incorporation does not arise because factual allegations are
not being transplanted in their entirety but are simply informing the meaning of other allegations
that are already in the other count.
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.

29
fraud counts overlap with the facts of the federal-funds counts. The federal-funds

counts (Counts Five through Eight) do not stand on their own content, and do not

expressly incorporate any allegations about the scheme to defraud from the mail-fraud

counts. And, the district court did not instruct the jury that the federal-funds counts

required proof of the scheme to defraud alleged in the mail-fraud counts. We

therefore conclude that the district court erred in denying Schmitz’s motion to dismiss

the fraud charges in the federal-funds counts.

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

30
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.11 We find that the convictions on the federal-funds counts cannot stand

because the allegations of fraud in those counts are legally insufficient, and we do not

know whether the jury relied on those legally insufficient allegations in convicting

Schmitz on the federal-funds counts. See Griffin v. United States, 502 U.S. 46, 59,

112 S. Ct. 466, 474 (1991) (noting that jurors in a criminal case are “well equipped

to analyze the evidence” in order to avoid resting a guilty verdict on a “factually

inadequate” theory, but “are not generally equipped to determine whether a particular

theory of conviction submitted to them is contrary to law”); United States v. Shotts,

145 F.3d 1289, 1293 n.3 (11th Cir. 1998) (“A general verdict which may rest upon

11
This is not to say that the indictment sufficiently alleges misapplication, embezzlement,
theft, or conversion. And certainly not to say that the evidence supports those theories of criminal
liability. We do not address those issues because Schmitz did not move to dismiss those alternate
theories of criminal liability in the district court and does not specifically challenge those alternate
theories of criminal liability on appeal. And the Government, as counsel acknowledged at oral
argument, has relied solely on fraud as the theory of criminal liability throughout this case. Thus we
address only the allegations of fraud in the federal-funds counts.

31
an insufficient legal theory must be reversed.”).12 We accordingly vacate Schmitz’s

convictions on Counts Five, Six, Seven, and Eight.

B. SUFFICIENCY OF THE EVIDENCE

Schmitz contends that the evidence at trial was insufficient to sustain her

convictions for mail fraud.13 Schmitz argues that the evidence was insufficient for the

mail-fraud counts because it (1) failed to establish her specific intent to defraud, and

(2) failed to establish a connection between the mailings at issue and Schmitz’s

receipt of her salary from the CITY Program. We disagree.

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

12
We recognize that if the evidence is merely insufficient as to one alternate theory of
criminal liability in a particular count, then the conviction will stand as long as the evidence suffices
to support any one of the submitted theories. See, e.g., United States v. Browne, 505 F.3d 1229,
1261 (11th Cir. 2007). That principle cannot save the convictions on the federal-funds counts in
this case, however, because the indictment is legally insufficient.
13
Schmitz also contends that the evidence was insufficient to sustain her convictions on the
federal-funds counts because the money she received was a bona fide salary under 18 U.S.C. §
666(c). We reject this argument. Under § 666(c), the federal-funds statute “does not apply to bona
fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual
course of business.” As the Fifth Circuit has concluded, “a salary is not bona fide or earned in the
usual course of business under § 666(c) if the employee is not entitled to the money.” United States
v. Williams, 507 F.3d 905, 908 (5th Cir. 2007). And, whether wages are bona fide and earned in the
usual course of business is generally a question of fact for the jury to decide. Id. at 909. Here, the
district court instructed the jury on the bona fide salary exception, and the evidence, discussed at
length in the context of the mail-fraud charges, was sufficient to support the jury’s conclusion that
the salary and benefit payments to Schmitz were not earned in the usual course of business.

32
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.

33
 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 marks and citation omitted). And, at

least where “some corroborative evidence of guilt exists for the charged offense[,]”

as in this case, “the defendant’s testimony, denying guilt, may establish, by itself,

elements of the offense.” Id. at 314-15. “This rule applies with special force where

the elements to be proved for a conviction include highly subjective elements” such

as “the defendant’s intent or knowledge.” Id. at 315.

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

34
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

35
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

supervisors to determine just how little work she was doing for the Program. The

evidence sufficiently supports the jury’s verdict as to Count Two.

36
 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.

37
 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.

38
 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 prosecutorial misconduct, which involves a mixed

question of law and fact, de novo. United States v. Merrill, 513 F.3d 1293, 1306

(11th Cir. 2008). To find prosecutorial misconduct, a two-element test must be met:

(1) the questions or comments must be improper, and (2) the questions or comments

must prejudicially affect the substantial rights of the defendant. See United States v.

Wilson, 149 F.3d 1298, 1301(11th Cir. 1998).

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

39
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

40
 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:

Q. (by the prosecutor:) [L]et’s get a list going of

everybody you say is lying, okay? Seth Hammett. He’s

a liar?

A. I said I – what I answered was my answer is different

from his. I never called him a liar.

Q. Did he tell the truth when he said that you came to

him and asked him to put money in the budget to fund

your job?

A. No, he did not.

Q. He lied?

A. I never used the word “lie.”

Q. Why not?

A. I just don’t like the word.

Q. So he didn’t tell the truth. Does that make you feel

better?

41
(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 is

the one person telling the truth.” (Dkt. 199 at 73.) At one point, the prosecutor stated

that they were “going to have to add some more names . . . to the list of people who

were obviously conspiring and lying against the defendant.” (Id. at 129.)

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 (1993) (articulating

42
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, 1219-1220 (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.

43
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 know, i.e., whether another is

intentionally seeking to mislead the tribunal”); Fed. R. Evid. 602 (“A witness may

44
not testify to a matter unless evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter.”). The were-they-lying questions

are also not relevant because one witness’s opinion that another person has or has not

lied does not make it more or less likely that the person actually lied. Fed. R. Evid.

401. And, the were-they-lying questions distract the jury from the central task of

determining what version of events is accurate in order to determine a defendant’s

guilt or innocence.

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”

45
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, 495 S.E.2d 445, 447 (S.C. 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.

46
 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 (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 512. We also recognize that were-

they-lying questions might be proper “if a defendant opened the door by testifying on

direct that another witness was lying.” Harris, 471 F.3d at 512; see also Boyd, 54

F.3d at 871 n.* (explaining that had the defendant “testified on his own that the

officers were lying, such questions might be proper”). Thus, while we hold today

that asking a criminal defendant whether another witness is lying is improper, we do

not foreclose the possibility that, in the circumstances of a particular case, a question

about the truthfulness of another witness may in some cases be appropriate.

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

47
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

48
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 precedent or in view of the unequivocally clear

words of a statute or rule[.]” United States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007)

(citing Olano, 507 U.S. at 732-37, 113 S. Ct. at 1776-79); see also United States v.

Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quoting United States v.

49
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“When ‘the explicit language

of a statute or rule does not specifically resolve an issue, there can be no plain error

where there is no precedent from the Supreme Court or this Court directly resolving

it.’”). The Supreme Court has never ruled on the propriety of questions and

comments of the kind at issue in this case, and, until now, neither has the Eleventh

Circuit. As a result, although Schmitz has shown errors in allowing the prosecutor’s

questions and comments, she cannot show that such errors were plain, and thus her

challenge must fail.14

V. CONCLUSION

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.

14
Because we have determined that the errors in this case were not plain, and all four
requirements of the plain error rule must be met for this court to have the authority to correct such
errors, we need not address whether the errors affected Schmitz’s substantial rights, or whether such
errors seriously affected the fairness, integrity or public reputation of the judicial proceedings. See
United States v. Cotton, 535 U.S. 625, 631-32, 122 S. Ct. 1781, 1785 (2002) (quoting Olano, 507
U.S. at 732, 113 S. Ct. 1770, 1776) (noting that all four conditions of plain error rule must be met).

50
 We vacate Schmitz’s sentences on all counts and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.

51
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

52
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). While

the majority interprets Huff as imposing a broad rule that we examine counts of an

indictment in isolation, I read Huff 's holding as addressing only the first of these

requirements. That is, Huff establishes that the failure to allege an essential element

of the offense cannot be cured by looking to other counts of an indictment, but Huff

does not require that we read counts in isolation when assessing whether an

indictment provided sufficient notice of the charges to be defended against.

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.

53
 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:

[E]ach 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.
Here, the challenged count of the indictment alleges
nothing more than an act which is legal. And such a
failure to allege a crime cannot be remedied by proof or
curative instructions which attempt to incorporate other
counts not expressly referred to in the challenged count.

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).

54
 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.1 Moreover, this

Court's direction that we read an indictment "as a whole" and give it a "common sense

construction" in determining its validity, see, e.g., Jordan, 582 F.3d at 1245, supports

this narrower reading of Huff.

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

1
The majority cites cases from several other circuits to support its conclusion that, absent
express incorporation, we may not look to factual allegations in other counts of the indictment. As
in Huff, however, most of these cases seem to turn on the failure to include an essential element of
the offense under the count at issue. See United States v. Knowles, 29 F.3d 947, 952 (5th Cir. 1994)
(explaining that the failure to allege a nexus to interstate commerce under a count charging a
violation of the Gun Free Schools Act "render[ed] that charge fundamentally defective"); United
States v. Miller, 774 F.2d 883, 883 (8th Cir. 1985) (holding the indictment was insufficient "in that
it failed to cite the state statute alleged to have been violated, an essential element of the offense
described in 18 U.S.C. section 1955"); United States v. Fulcher, 626 F.2d 985, 988 (D.C. Cir. 1980)
("[W]e hold that the false pretenses counts, counts four through eight in the indictment, fail to state
an offense."). Nor did United States v. Redcorn, 528 F.3d 727, 734-35 (10th Cir. 2008), involve
facts similar to this case; instead the court was addressing a claim of inconsistency within the
indictment.

55
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

56
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 28. 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 29 n.10, Counts Five through Eight allege the approximate

dates of the fraud (January 2003 to October 2006), the location (Madison County and

elsewhere), the name of the federal program from which the funds were obtained

(CITY), the amount stolen ($177,251.82), and the form in which Schmitz obtained

this amount (as salary and other benefits). Although these counts lack a description

of precisely how the fraud was carried out, the dates, location, program, amount, and

form in which the funds were obtained are exactly the same as those alleged in

describing the fraudulent scheme detailed in Counts One through Four. On these

57
facts, I am unconvinced that Schmitz lacked notice that the fraudulent conduct

underlying Counts Five through Eight was the same scheme described in detail in

Counts One through Four. I would therefore affirm Schmitz’s convictions, on all

counts.

58