United States v. Schella Hope , 608 F. App'x 831 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12462
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cr-00016-LGW-JEG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCHELLA HOPE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 7, 2015)
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Schella Hope appeals her numerous convictions for conspiracy to commit
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health-care fraud, 18 U.S.C. § 1349; health-care fraud, 18 U.S.C. § 1347;
aggravated identity theft, 18 U.S.C. § 1028A; money laundering, 18 U.S.C.
§ 1956(a)(1)(A)(i); and engaging in money-laundering transactions of over
$10,000, 18 U.S.C. § 1957. Hope raises four challenges to her convictions, all of
which we review for plain error. After careful consideration, we affirm.
I. General Background
The 59-count superseding indictment alleges that, beginning in January 2005
and continuing through 2011, Hope stole approximately $4 million from Medicaid
by submitting thousands of phony claims for nutrition services that were not
provided, not provided as billed, or not medically necessary, and that were not
entitled to Medicaid reimbursement.
Hope was a licensed dietician who owned Hope Nutritional Services, LLC
(HNS), which purported to provide nutrition services and counseling for children
enrolled in Head Start through the state of Georgia. Head Start is a government-
funded program that provides services to low-income children up to five years old,
the majority of whom were recipients under the Georgia Medical Assistance
Program (Medicaid). Medicaid covers certain nutritional counseling services
ordered by a physician or provided by a licensed dietician.
In broad terms, the superseding indictment alleged the nature of the health-
care fraud scheme as follows. Hope obtained a Medicaid provider number, hired
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medical doctors with no background in treating children to serve as “medical
directors” of HNS, and contracted with Head Start centers in order to obtain a list
of children enrolled in the centers along with their Medicaid numbers. Using the
Medicaid numbers, Hope submitted false claims to Medicaid for services that were
not provided. To avoid detection, Hope and others created false documentation to
reflect the purported services by, for instance, using “signature stamps” to make it
look as if a doctor had prescribed the services. When the fraud began to be
detected, she recruited a co-conspirator, Arlene Murrell, to, inter alia, continue to
submit false claims under Murrell’s Medicaid provider number. When Murrell
received Medicaid reimbursement checks, she issued checks to HNS that
corresponded to approximately 80% of the Medicaid checks’ value. Hope also
submitted false claims for nutrition services under the name of another licensed
dietician, Marissa Garcia, without her permission.
We briefly review some of the evidence presented at Hope’s five-day trial.
In short, the evidence was consistent with the superseding indictment.1 HNS
employees traveled to Head Start centers throughout the state of Georgia to weigh
and measure children and test their hemoglobin levels by pricking their fingers for
blood. The HNS employees did not have any training for this work apart from
taking an online course. At the Head Start centers, HNS employees received a list
1
Hope does not challenge the sufficiency of the evidence to support her convictions.
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of the children’s Medicaid information for billing. The Head Start director
testified that Head Start was not supposed to give out children’s Medicaid
information.
At Hope’s direction, HNS employees prepared “cookie-cutter”
documentation concerning each child, including nearly identical prescriptions,
nutritional assessments, nutritional counseling notes, and physician plans of care.
The HNS employees who testified at trial indicated that they did not see Hope
provide any nutritional counseling to children. Nonetheless, Hope directed her
employees to affix her signature to the records. In addition, Hope directed HNS
employees to use a doctor’s signature stamp on patient forms, and employees also
used blank prescriptions and plans of care, which were pre-signed by doctors
without their authorization.
On follow-up visits to the Head Start centers, Tonya Hope, the defendant’s
sister-in-law, purportedly provided nutritional counseling. At Hope’s direction,
Tonya falsely identified herself as a “nutritionist” by signing her name as such and
occasionally wearing a lab coat. Tonya was neither a nutritionist nor a registered
dietician. Tonya testified that she, and not Hope, provided the nutritional
counseling, although the relevant patient forms were signed with Hope’s signature.
The government also presented evidence that Hope billed for services provided on
days when she was on vacation.
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Hope directed employees at HNS to file a certain number of Medicaid
claims per day. Early on, employees were supposed to bill only fifty patients per
day. Later, however, Hope sent an intraoffice memorandum telling employees to
submit 100 claims per day. Rocio Sloan, who was employed at HNS for
approximately eight years, testified that Hope directed Sloan and others to submit
claims to Medicaid, regularly held meetings about billing, and tracked the number
of claims submitted to Medicaid each day.
Several parents and guardians of Head Start children testified. They
generally stated that they were not aware of any nutritional problems with their
children, never took their children to a physician for a nutritional consultation, and
did not fill out any forms regarding a nutritional assessment.
After Hope presented witnesses and testified in her defense, the jury
deliberated for just over two hours and returned a verdict finding Hope guilty on
all 58 counts remaining in the superseding indictment. 2 She was sentenced to a
total term of 192 months in prison. Hope now appeals.
II. Standard of Review
Hope concedes that plain-error review applies to her arguments on appeal
because she did not object to the alleged errors before the district court. United
States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To demonstrate plain
2
Before trial, on the government’s motion, one count of engaging in money-laundering
transactions (Count 55) was dismissed without prejudice.
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error, a defendant must establish that there is “(1) an error (2) that is plain and (3)
that has affected the defendant’s substantial rights; and if the first three prongs are
satisfied, we may exercise discretion to correct the error if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
A “plain” error is one that is “clear” or “obvious.” United States v. Olano,
507 U.S. 725, 734, 113 S. Ct. 1170, 1777 (1993); see United States v. Lett, 483
F.3d 782, 790 (11th Cir. 2007) (explaining that a “plain error” must be “plain
under controlling precedent or in view of the unequivocally clear words of a statute
or rule”). For an error to affect substantial rights, in most cases the error “must
have been prejudicial: It must have affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734, 113 S. Ct. at 1777-78.
III. Discussion
Hope raises four issues on appeal. First, Hope argues, her aggravated
identity-theft convictions must be reversed because health-care fraud is not a
qualifying predicate felony for that offense. Second, she contends, the district
court plainly erred by referencing punishment when instructing the jury on
aggravated identify theft. Third, Hope challenges the government’s presentation of
“wealth evidence” during trial. And finally, she asserts, the prosecutor committed
misconduct in closing arguments.
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A. Aggravated Identity-theft Convictions
Hope first contends that she was wrongfully convicted of aggravated identity
theft, in violation of 18 U.S.C. § 1028A, because health-care fraud is not an
enumerated predicate felony under that statute.
When applying a criminal statute, we “generally must follow the plain and
unambiguous meaning of the statutory language.” United States v. Albertini, 472
U.S. 675, 680, 105 S. Ct. 2897, 2902 (1985). Courts should interpret the words of
a statute in context and avoid constructions that would render statutory language
superfluous or inoperative. Hibbs v. Winn, 542 U.S. 88, 101, 124 S. Ct. 2276,
2286 (2004).
Hope has not shown error, plain or otherwise. Section 1028A provides for
an additional two-year term of imprisonment when, “during and in relation to any
felony violation enumerated in subsection (c),” a defendant “knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1). A “felony violation enumerated in subsection
(c),” in turn, means any offense that is a felony violation of, among others, “any
provision contained in chapter 63 (relating to mail, bank, and wire fraud).” 18
U.S.C. § 1028A(c)(5). Health-care fraud is prohibited in chapter 63 of Title 18.
See 18 U.S.C. § 1347. Thus, by the plain terms of the statute, health-care fraud is
included within the ambit of predicate felonies described by § 1028A. See 18
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U.S.C. § 1028A(c)(5).
Hope contends that the appended parenthetical, “(relating to mail, bank, and
wire fraud),” limits the scope of predicate chapter 63 offenses to solely “mail,
bank, and wire fraud.” We disagree.
In United States v. Herring, 602 F.2d 1220 (5th Cir. 1979),3 this Court’s
predecessor rejected the same construction of 18 U.S.C. § 1961 that Hope seeks to
apply to § 1028A. 602 F.2d at 1223. Section 1961 defines “racketeering activity”
to include “sections 2314 and 2315 (relating to interstate transportation of stolen
property).” Id.; see 18 U.S.C. § 1961. The defendant in Herring argued that his
conviction under 18 U.S.C. § 2314, for interstate transportation of securities
converted or taken by fraud, was not “racketeering activity” as defined by § 1961
because it did not involve “interstate transportation of stolen property,” as
identified in the parenthetical. Herring, 602 F.2d at 1223.
The Court in Herring rejected the defendant’s contention, holding that “the
reference to the interstate transportation of stolen property in the
parenthetical . . . was intended merely to aid the identification of [the section]
rather than to limit the proscriptions of that section.” Id. The Court explained that
the defendant’s restrictive reading of the parenthetical would undermine the
remedial purposes of the statute—to eradicate organized crime. Id. And, further,
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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[i]f Congress had intended to exclude the interstate transportation of property
obtained by fraud from its definition in section 1961, it specifically could have
limited the incorporation of section 2314” as it did the incorporation of another
section. Id.Guided by Herring, we conclude that the reference to mail, bank, and wire
fraud in the parenthetical after “any provision in chapter 63,” 18 U.S.C.
§ 1028A(c)(5), serves only an explanatory or descriptive purpose and does not
limit the scope of predicate felonies under chapter 63. 4 See Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383-84, 112 S. Ct. 2031, 2037 (1992)
(explaining that the ordinary meaning of the phrase “relating to” is a broad and
expansive one). A restrictive reading of § 1028A(c)(5) would “undermine the
remedial purposes that Congress intended,” which was to combat identity theft.
See Herring, 602 F.2d at 1223. And if Congress had intended to exclude health-
care fraud from its definition of predicate felony violations, it expressly could have
done so as it did in other parts of § 1028A.5 Furthermore, Hope’s proposed
4
Section 1028A(c)’s list of enumerated felonies contains eleven subparts, each of which
has a similar parenthetical providing a general description of the offenses to which they pertain.
18 U.S.C. § 1028A. Some subparts refer to specific statutory sections, such as “section 911
(relating to false personation of citizenship),” 18 U.S.C. § 1028A(c)(3), while others refer to
chapters, as in this case. See United States v. Abdur-Rahman, 708 F.3d 98, 101 (2d Cir. 2013)
(providing a general description of these subparts).
5
For example, § 1028A(c) lists qualifying predicate felonies as including a felony
violation of “any provision contained in this chapter (relating to fraud and false statements),
other than this section or [§] 1028(a)(7).” See 18 U.S.C. § 1028A(c)(4) (emphasis added).
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construction would render superfluous the language “any provision in Chapter 63”
by equating it to “mail, bank, and wire fraud.” See Hibbs, 542 U.S. at 101, 124 S.
Ct. at 2286.
Accordingly, we conclude that Hope was properly convicted of aggravated
identity theft based on the predicate felony of health-care fraud.6
B. Jury Instructions
Hope next argues that the district court plainly erred by referring to issues of
punishment when instructing the jury on the offense of aggravated identity theft.
We disagree.
In general, “juries are not to be informed of or concerned with the
consequences of their verdicts.” United States v. Thigpen, 4 F.3d 1573, 1577 (11th
Cir. 1993) (en banc). Except in limited cases, the jury has no sentencing
functioning, and matters of punishment should not be considered in arriving at a
verdict as to guilt or innocence. Id. Informing jurors about the consequences of
their verdicts tends to draw jurors’ attention away from their sole role as judges of
the facts and to open the door to compromise verdicts or confusion of the issues to
be decided. Id. We have specifically stated that “[t]his court does not approve of
6
We also note that our interpretation is consistent with other circuit courts’ construction
of the predicate felony definitions in § 1028A(c). See, e.g., Abdur-Rahman, 708 F.3d at 101-02;
United States v. Harrell, 637 F.3d 1008, 1010-12 (9th Cir. 2011); United States v. Persichilli,
608 F.3d 34, 40-41 (1st Cir. 2010).
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informing a jury of a minimum or maximum punishment.” United States v. Cox,
696 F.2d 1294, 1296 (11th Cir. 1983).
Here, when instructing the jury on the offense of aggravated identity theft,
the district court began by stating, consistent with this Circuit’s pattern jury
instruction, “Now the law provides for an enhanced penalty when anyone commits
aggravated identity theft during and in relation to other certain specified felony
offenses.” (emphasis added). Thus, the court made a passing reference to
punishment that arguably violated the “canon that juries are not to be informed of
or concerned with the consequences of their verdicts.” Thigpen, 4 F.3d at 1577.
However, a reference to punishment in jury instructions alone does not
necessarily constitute error. For example, in Cox, the judge gave the jury the
following instruction: “the Judge, under the law, is permitted to impose anything
from a term of probation or a fine up to the maximum term of imprisonment that
Congress has set.” 696 F.2d at 1298. Noting that this Court “prefers no reference
to sentencing whatsoever,” we nonetheless found that the instruction was not
erroneous because it “in no way intimated what punishment [the judge] might be
inclined to give,” and the judge “consistently informed the jury that potential
punishment was not their concern.” Id. at 1298-99.
Similarly, in this case, the district court’s passing reference to sentencing in
no way intimated the likely consequences of finding Hope guilty. The court did
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not state that a two-year term of imprisonment applies. See 18 U.S.C.
§ 1028A(a)(1). And a jury might reasonably infer that finding Hope guilty of any
additional offense, particularly one with “aggravated” in its title, might result in an
“enhanced penalty,” whether instructed by the court to that effect or not. The
reference to “enhanced” also serves to highlight that aggravated identity theft is a
crime in addition to the predicate felony of health-care fraud.
And the district court expressly told the jury that punishment was not their
concern. Later in its instructions, the court stated, “You must never consider
punishment in any way to decide whether the Defendant is guilty. If you find the
Defendant guilty, the punishment is for the Judge alone to decide later.” Further,
the court instructed, “Remember that, in a very real way, you’re judges—judges of
the facts. Your only interest is to seek the truth from the evidence in the case.” We
presume that juries follow the court’s instructions. Thigpen, 4 F.3d at 1577.
Therefore, in view of the court’s express instructions not to consider punishment in
any way and only “to seek the truth from the evidence in the case,” Hope has not
shown that mere reference to an “enhanced penalty” was erroneous. See Cox, 696
F.2d at 1298-99; see also United States v. Cochran, 683 F.3d 1314, 1319 (11th Cir.
2012) (we analyze the objected-to portion of the instruction in light of the entire
charge, keeping in mind that apparently prejudicial isolated comments may be
innocuous in context).
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Nor do the circumstances indicate that the “enhanced penalty” instruction
had any effect on the outcome of the case. United States v. Prather, 205 F.3d
1265, 1271 (11th Cir. 2000) (stating that reversal on plain error is only appropriate
if the challenged instruction “was probably responsible for an incorrect verdict,
leading to substantial injustice” (internal quotation marks omitted)). In short, the
court did not err in giving the “enhanced penalty” instruction.
C. Admission of “Wealth Evidence”
Hope next argues that the district court plainly erred in allowing the
government to introduce evidence of her wealth, luxury purchases, vacation
expenses, and automobile leases. She asserts that the admission of such “wealth
evidence” constituted plain error because the evidence was irrelevant to the issues
before the jury and biased the jury against her.
For instance, at trial, during its case in chief, the government elicited
testimony from the case agent regarding a “rare elite type of corporate card” issued
to HNS. He described various charges on the card, including numerous purchases
of luxury items (with details of particular purchases and specific dollar amounts),
stays at luxury resorts, and lease payments for “high-end” BMW automobiles.
Another witness testified that she had reviewed HNS’s financial records, which
showed payments on boat loans, jewelry, and the BMW automobiles. Then, after
Hope testified in her defense that the billing process had been a bureaucratic
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nightmare, the prosecutor cross-examined Hope about numerous luxury purchases
and whether these were part of her “nightmare.” Specifically, the prosecutor
referred to luxury purchases from high-end designers such as Chanel, Gucci, and
Louis Vuitton. The prosecutor cited this evidence in closing arguments.
Whether evidence of wealth is properly admissible depends on the specific
facts of the case. See United States v. Nill, 518 F.2d 793, 802 (5th Cir. 1975) (“A
man’s wealth is wholly irrelevant to his guilt or innocence in a criminal
prosecution unless the wealth is directly connected to the offense for which he is
standing trial.”). On the one hand, “[u]se of a defendant’s wealth to appeal to class
bias can be highly improper and can deprive that defendant of a fair trial.” United
Bradley, 644 F.3d 1213, 1271 (11th Cir. 2011) (internal quotation marks omitted).
But on the other, “evidence of wealth or extravagant spending may be admissible
when relevant to issues in the case and where other evidence supports a finding of
guilt.” Id.We have noted that it is often difficult to determine whether wealth evidence
is “intended to appeal to class bias or to establish a fact in issue.” Id. Therefore, a
court’s determination of whether wealth evidence is relevant under Rule 401, Fed.
R. Evid., and whether the evidence’s probative value is substantially outweighed
by its unfair prejudice under Rule 403, Fed. R. Evid., must turn on the specific
facts of the case. Id.; see also United States v. Jackson-Randolph, 282 F.3d 369,
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378 (6th Cir. 2002) (delineating factors to analyze whether wealth evidence is
unfairly prejudicial). Rule 403 is “an extraordinary remedy that should be used
sparingly,” and in reviewing Rule 403 issues “we look at the evidence in the light
most favorable to its admission, maximizing its probative value and minimizing its
undue prejudicial impact.” United States v. Flanders, 752 F.3d 1317, 1335 (11th
Cir. 2014) (quotation marks omitted), cert. denied, (U.S. Jan. 26, 2015) (No. 14-
7642).
Here, the admission of evidence regarding Hope’s wealth and luxury
purchases was not erroneous because it was relevant to the issues in the case, and
other evidence supports Hope’s guilt. See Bradley, 644 F.3d at 1271. Some of the
evidence was relevant to establishing the fraudulent nature of specific claims. For
example, evidence of Hope’s expenditures while on vacation showed that
Medicaid was billed for services on dates when Hope was not at HNS.
The wealth evidence was also relevant to rebutting Hope’s defenses to the
charges. As part of her defense, Hope contended that she used the $4 million to
put into her practice and to pay her employees, who, according to her attorney’s
opening statement, “put that money in their bank account.” Evidence of Hope’s
lavish personal spending during the period in which the offenses occurred supports
the opposite inference—that the majority of the money was going directly to Hope
for her personal benefit. Hope also argued that she did not knowingly commit
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fraud, but rather that the overpayments were the result of billing errors. The
wealth evidence was relevant to this defense because it supports an inference that
Hope did not honestly believe that she was receiving payments from Medicaid as a
result of billing errors or other mistakes, and also that she was the person
responsible for the scheme.
The evidence also goes to Hope’s motive to commit the offenses. Hope
argues that motive was irrelevant by pointing to the prosecutor’s statement to the
jury that he did not “need to show you why somebody committed a crime.”
However, the fact that motive is not an element of the offense requiring proof does
not mean that it is irrelevant. As we have stated, “Evidence, not part of the crime
charged but pertaining to the chain of events explaining the context, motive and
set-up of the crime, is properly admitted if linked in time and circumstances with
the charged crime, or forms an integral and natural part of an account of the crime,
or is necessary to complete the story of the crime for the jury.” United States v.
Williford, 764 F.2d 1493, 1499 (11th Cir. 1985); see also Fed. R. Evid. 404(b)(2)
(noting that evidence of prior bad acts may be admissible for the purpose of
proving motive).
In sum, the evidence of Hope’s wealth and spending was relevant to facts at
issue in Hope’s trial. See Bradley, 644 F.3d at 1271-72. In addition, a substantial
amount of other credible evidence of the illegal activity was presented. See id. at
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1271. In view of these facts, we cannot say that the probative value of the wealth
evidence was substantially outweighed by a danger of unfair prejudice. See
Flanders, 752 F.3d at 1335. Therefore, the district court did not commit error,
plain or otherwise, in admitting the evidence.
D. Prosecutorial Misconduct
Hope contends that the government’s closing argument constituted
prosecutorial misconduct because it included several unduly inflammatory
statements and an improper “Golden Rule” argument.
The sole purpose of closing argument is to assist the jury in analyzing the
evidence presented at trial. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.
1997). To establish prosecutorial misconduct in closing argument, the defendant
must show that the prosecutor’s remarks were (1) improper and (2) prejudicially
affected her substantial rights. United States v. Lopez, 590 F.3d 1238, 1256 (11th
Cir. 2009). We first explain the comments Hope challenges on appeal, then
address whether they were improper, and finally proceed to the question of
prejudice.
1. The prosecutor’s comments
Hope points to the following four allegedly improper comments by the
prosecutor: first, in discussing the data regarding the large number of claims Hope
submitted to Medicaid for services, the prosecutor stated, “Are you kidding me
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with this? Really? 7,000 kids? 7,000 kids in one month. You all can do the math.
That’s like 225 kids a day. 940 kids on September 11th of 2006. It makes me sick
to think that September 11th, I’m going to remember it for this (indicating).”
Second, in reference to testimony that untrained HNS employees pricked the
fingers of Head Start children purportedly to obtain hemoglobin measurements, the
prosecutor stated,
What was truly horrifying to me -- and I don’t know if
you caught this -- but you’ve got some folks that are up
there testifying about how they’re pricking the fingers of
these children -- no training, nothing. They’re stabbing
these little kids.
How would you feel, ladies and gentlemen, if you sent
your kid to some center and have some stranger, high
school educated person, that’s going bing and stabbing
your kid with a pin? I don’t think you’d be too happy.
Third, the prosecutor commented on Marissa Garcia, an HNS employee who
testified at trial, as follows: “And you heard Marissa Garcia. Marissa Garcia is
probably one of the funniest witnesses that I’ve seen in quite a long time. She got
up there, and she was honest.”
Finally, in rebuttal closing argument, the prosecutor stated,
Ladies and gentlemen, counsel quotes for you a Biblical
verse. Let me quote for you from the Old Testament, one
other thing I’d like you to think about when you go back
there, one of the Ten Commandments. You might have
heard of it. “Thou shalt not steal.” That’s what this case
has been about.
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2. Whether the comments were improper
Improper suggestions, insinuations, or assertions that are calculated to
produce a wrongful conviction by misleading the jury or appealing to the jury’s
passion or prejudice are forbidden in closing arguments. United States v.
Rodriguez, 765 F.2d 1546, 1559-60 (11th Cir. 1985). However, “there is no
prohibition on colorful and perhaps flamboyant remarks if they relate to the
evidence adduced at trial.” Bailey, 123 F.3d at 1400 (internal quotation marks
omitted).
Remarks can also be improper “if they attempt to bolster the credibility of a
witness based on the government’s reputation or through alluding to evidence not
admitted at trial.” Lopez, 590 F.3d at 1256. Improper bolstering occurs if the “jury
could reasonably believe that the prosecutor was indicating a personal belief in the
witness’ credibility.” Id. (quotation marks omitted). However, this prohibition
does not forbid prosecutors from arguing credibility based on evidence admitted at
trial. Id.; see United States v. Schmitz, 634 F.3d 1247, 1270 (11th Cir. 2011) (“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.”).
We agree with Hope that the prosecutor’s closing arguments contained some
clearly improper statements. First, the prosecutor’s reference to September 11
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was, in context, improper and appears calculated solely to appeal to the jury’s
passion or prejudice. While the reference to the number of claims HNS submitted
on September 11, 2006, in and of itself, was based on the evidence presented, the
prosecutor went further. In stating that “it “makes [him] sick” to think that he’ll
remember September 11 for Hope’s Medicaid fraud, the prosecutor implied that
the juries should also be disgusted not solely by the evidence of Hope’s actions but
rather by some specious connection to an emotionally charged event. Therefore,
the remark was improper because it was intended solely to inflame.
Second, the prosecutor made an improper appeal to the jurors’ emotions by
asking the jurors to place themselves in the position of parents whose children
were “stabb[ed] with a pin” by HNS employees without medical backgrounds or
training. See United States v. McGarity, 669 F.3d 1218, 1246 (11th Cir. 2012); cf.
Grossman v. McDonough, 466 F.3d 1325, 1348 (11th Cir. 2006) (habeas case
discussing improper “Golden Rule” arguments under Florida law). Alone, the
prosecutor’s simple use of the word “stab” as opposed to “prick” would not have
been improper because it related to evidence admitted at trial and emphasized the
government’s position that the services HNS provided to Head Start children were
fraudulent. But, in context, the remarks—particularly the invitation to the jurors to
put themselves in the positions of the children’s parents—plainly were an improper
appeal to the jurors’ emotions.
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We do not find that the other remarks challenged by Hope were improper.
With respect to the statement that Garcia was “honest,” the prosecutor did not
improperly vouch for a witness’s credibility. After stating that Garcia was honest,
the prosecutor went on to discuss her testimony and the other evidence introduced
at trial. Therefore, in context, we understand the prosecutor’s “honest” remark to
be an argument in favor of finding Garcia credible based on her behavior on the
stand and the evidence admitted. See Lopez, 590 F.3d at 1256.
Finally, the prosecutor’s reference to the Ten Commandments’ prohibition
against stealing was made in response to Hope’s counsel’s reference to a Biblical
passage. We have explained that “[a] prosecutor is entitled to make a fair response
to defense counsel’s arguments,” even if the statement would otherwise be
inadmissible. United States v. Frank, 599 F.3d 1221, 1238 (11th Cir. 2010). In
any case, the prosecutor did not ask the jury to decide the case on a religious or
emotional basis, and the remark served mainly to highlight the government’s
position that the case was fundamentally about theft. See Bailey, 123 F.3d at 1400-
01 (holding that two references to the Bible during closing argument were not
improper).
3. Whether Hope has shown prejudice to her substantial rights
Improper remarks alone will not entitle a defendant to relief. Rather, Hope
must show prejudice to her substantial rights. In other words, Hope must
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demonstrate a reasonable probability that, but for the improper remarks, the result
of the trial would have been different. Lopez, 590 F.3d at 1256. She has not done
so for several reasons. See id. (delineating factors to assess the prejudicial effect of
a prosecutor’s conduct). We consider whether a defendant’s substantial rights
were prejudiced “in the context of the entire trial, along with any curative
instruction.” Id.First, the improper remarks were isolated. They were not interrelated or an
extension of impermissible comments earlier in the proceeding. See, e.g., Schmitz,
634 F.3d at 1270 (finding that comments in closing argument were improper
because “they were a clear continuation” of improper questions during cross-
examination).
Second, the district court gave curative instructions. See Lopez, 590 F.3d at
1256 (stating that, where the district court takes proper curative measures, “we will
reverse only if the evidence is so prejudicial as to be incurable by that measure.”).
The court instructed the jurors that their decisions “must be based only on the
evidence presented here in this courtroom, that “anything the lawyers say is not
evidence,” and that they “must not be influenced in any way by either sympathy
for or prejudice against the Defendant or the Government.”
Third, and most significantly, the government convincingly established
Hope’s guilt by admissible, inculpatory evidence, the vast majority of which is
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uncontested by Hope on appeal and unrelated to the errors raised. See id. (“When
the record contains sufficient independent evidence of guilt, any error is harmless.”
(quotation omitted)). At trial, the government presented extensive documentary
and testimonial evidence of guilt from fraud investigators, the case agent,
numerous former HNS employees, Hope’s cooperating co-conspirator, and the
parents of Head Start children whose billing information was used by Hope. Hope
does not argue that the evidence of her guilt was weak or insubstantial. In
addition, Hope testified on her own behalf. By doing so, she ran the risk that the
jury would disbelieve her and conclude that the opposite of her testimony was true.
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). For the foregoing
reasons, Hope has not met her burden of showing that the prosecutor’s improper
comments prejudicially affected her substantial rights. See Lopez, 590 F.3d at
1256-58; McGarity, 669 F.3d at 1246-47.
This fact, however, does not excuse the prosecutor’s clearly improper
remarks, and we pause to remind the prosecutor of his special obligations in our
adversary system:
The [prosecutor] is the representative not of an ordinary
party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence
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suffer. He may prosecute with earnestness and vigor—
indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
E. Cumulative Error
Finally, Hope asserts that, in light of all the alleged errors at trial, we should
reverse her convictions pursuant to the cumulative-error doctrine because she was
denied a fundamentally fair trial.
Under the cumulative-error doctrine, we will reverse a conviction “if the
cumulative effect of the errors is prejudicial, even if the prejudice caused by each
individual error was harmless.” United States v. Baker, 432 F.3d 1189, 1203 (11th
Cir. 2005). In making this determination, we consider, among other things, the
nature and number of the errors, any interrelationship of the errors, and the strength
of the government’s case. Id. at 1223-24.
Having already determined that the district court did not err in applying 18
U.S.C. § 1028A, referencing punishment in the jury instructions, or admitting
evidence of Hope’s wealth and spending, we also conclude, from our review of the
trial as a whole, that Hope was not denied a fair trial.
IV. Conclusion
For all of the reasons discussed above, we affirm Hope’s convictions.
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AFFIRMED.
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