United States v. Hitt , 164 F.3d 1370 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
1/15/99
No. 98-4017 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-14005-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM ALFRED HITT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
( January 15, 1999)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Following a jury trial, William A. Hitt was convicted of forty federal offenses, all arising out
of his long-running and highly successful scheme to defraud the Veterans Administration by making
false claims of physical disability. He appeals both his convictions and sentences. He challenges
his convictions on the ground that the district court abused its discretion in permitting prosecution
witnesses to answer questions such as the following:
If the defendant claimed that he had quit his job in March of 1979 at Ebasco
because of his disability, is that correct or incorrect?
If the defendant reported that he’s unable to walk in 1985, is that true or
false?
If he claimed that he lost total use of his right hand to his disabilities, is that
true or false?
If he claimed those things to the Veterans Administration, tell the members
of the jury is that true or false?
If he claimed he was confined to a wheelchair when you knew him, is that
true or is that a lie?
Hitt challenges his sentences on the ground that the district court erred in enhancing his base offense
level for obstruction of justice. We affirm.
The prosecutor’s questions were clearly inappropriate, in that they sought opinion testimony
concerning the validity of the claims of disability Hitt made to the Veterans Administration in
carrying out his scheme to defraud. In essence, the witnesses were asked to answer the very
questions the jury would be called upon to answer; the questions constituted nothing more than
lawyer argument – the prosecutor’s summation to the jury in advance.
The problem with Hitt’s challenge is twofold. First, his attorney hardly objected to the
prosecutor’s tact, and when he did the objection missed the mark. For example, when the prosecutor
asked (witness West) the first question quoted above, the objection was “Objection. Beyond this
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witness’s knowledge.” Second, the evidence of guilt was overwhelming, and any error the court
may have committed – by not sustaining the few objections that were made or by not calling the
prosecutor to the sidebar and explaining the error of his ways – was absolutely harmless. Hence,
we do not disturb Hitt’s convictions.
As for Hitt’s sentences, we conclude that the district court properly enhanced Hitt’s base
offense level for obstruction of justice. See United States Sentencing Commission, Guidelines
Manual, § 3C1.1, comment. (n.3(f)) (Nov. 1, 1997). The court based the enhancement on (1) the
false statements (regarding his ownership of real estate) Hitt made to the magistrate judge at an
indigency hearing held following his arrest to determine his eligibility for court-appointed counsel
and (2) his statement to a Veterans Administration employee that he “would like to blow
[investigating FBI Agent McBride’s] brains out.” Concerning the statements to the magistrate
judge, we have rejected similar arguments – that the statements were irrelevant to the offenses
alleged in the indictment and thus should not be considered as obstruction of justice, see United
States v. Ruff, 79 F.3d 123, 125 (11th Cir. 1996) – and we do so again here. We also reject Hitt’s
argument that the court should not have considered the statement to the Veterans Administration
employee because he neither intended, nor anticipated, that the statement would be communicated
to McBride.
AFFIRMED.
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