U.S. v. Sherer, 81-1008

• Decision Date: 09 July 1981
• Docket Number: No. 81-1008,81-1008
• Citation: 653 F.2d 334
• Parties: 8 Fed. R. Evid. Serv. 711 UNITED STATES of America, Appellee, v. Arlene SHERER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 334

653 F.2d 334

8 Fed. R. Evid. Serv. 711

UNITED STATES of America, Appellee, v. Arlene SHERER, Appellant.

No. 81-1008.

United States Court of Appeals Eighth Circuit.

Submitted May 22, 1981.

Decided July 9, 1981.

Barry H. Evenchick, Livingston, N. J., for appellant; Craig V. O'Connor, Morristown, on the brief.

Terry L. Pechota, U. S. Atty., John J. Ulrich, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.

Before GIBSON, Senior Circuit Judge, ARNOLD, Circuit Judge, and McMANUS, ^* District Judge.

ARNOLD, Circuit Judge.

Arlene Sherer, a New Jersey psychiatrist, was convicted of three counts of mail fraud against the State of South Dakota, in violation of 18 U.S.C. § 1341. The District Court ¹ sentenced Dr. Sherer to a $1,000 fine and 30 days imprisonment on Count I, with the recommendation that she be released during working hours on weekdays. On Counts II and III the defendant was given probation and a total additional fine of $2,000.00. As a condition of probation, defendant was ordered to make restitution to the State of South Dakota in the amount of $900. She now appeals her conviction, alleging that she was deprived of her right to a fair trial by inflammatory comments by the Assistant United States Attorney during closing argument, by the introduction of evidence of "other crimes," and by the court's failure to charge the jury on the defense of good faith. We affirm.

Dr. Sherer was hired by the State of South Dakota under an adoption-subsidy plan whereby the State paid for treatment of all medical conditions existing at the time a child was placed for adoption. Linda Caverly, a ward of the state, was adopted by Mr. and Mrs. James Caverly in early 1979. In March of 1979 she experienced emotional problems, and the adoption agency referred the Caverlys to Dr. Sherer, a specialist in the treatment of emotional disorders of children and adolescents. The Caverlys and Linda met with Dr. Sherer on March 26, 1979, to discuss Linda's treatment plan. According to the Caverlys' testimony at trial, they agreed on a once-a-week treatment program. Dr. Sherer testified, however, that they all agreed that Linda would have two appointments each week.

Department of Social Services regulations required that Dr. Sherer, as the provider of services, submit for billing purposes each month a form, designated as CS-101, and a statement of services on her letterhead stationery. Mrs. Connie Irwin of the Department of Social Services testified as to each billing form and letterhead statement Dr. Sherer mailed to her. Using Linda's chart, Dr. Sherer testified that she saw Linda 32 times and that Linda did not show up for scheduled appointments on 11 dates. Mrs. Caverly, using her kitchen calendar, testified that Dr. Sherer saw Linda only 14 times. Mr. Caverly and three other witnesses testified that Linda was at camp or on family vacations on four of the dates that Dr. Sherer claimed to have had sessions with her.

The investigation into Dr. Sherer's billing was initiated by Mr. Caverly, an F.B.I. agent, who noticed a discrepancy between the dates billed for April and the dates on which, according to him, Linda had seen Dr. Sherer. He alerted Mrs. Irwin in South Dakota and his superiors in the F.B.I. In spite of Mrs. Irwin's knowledge of the investigation, she continued to accept Dr. Sherer's statements, and Dr. Sherer was paid for the months of March, April, and May.

Improper Argument

During his closing argument, the Assistant United States Attorney stated:

MR. ULRICH: It's my duty as a prosecutor to look at evidence and to bring a case based on sufficient evidence, and I'd just like to assure you that the way our office operates is with diligence and with honesty and we're not out in the business of prosecuting where the evidence does not warrant the case to be indicted.

Now, ...

MR. HOY: Now wait a minute. This is improper argument. Arguing what your office does or might not do has no more relevance than what mine might do or not do.

THE COURT: Yes, I'm inclined to agree with counsel. I'm going to sustain the objection.

Later in his rebuttal argument the Assistant United States Attorney stated that:

(It) is conceivable that even the best surgeon could be guilty of crimes. In fact, some past Attorney Generals (sic) have entered pleas of guilty to criminal conduct. We've seen in the recent past, even Presidents step down in the face of criminal charges, ... I asked you early on, do you believe that there's anybody that is above the law, and I got a response from you that there was no one here that had that belief.

Defense counsel did not object to this remark.

Defendant characterizes the first statement as suggesting that the government prosecutes only the guilty. She characterizes the second statement as an inflammatory and irrelevant comparison of herself to Richard Nixon and John Mitchell, with the intended effect of inflaming the passions of the jury. The government seeks to justify its statements as a fair reply to remarks made by defense counsel in his closing argument. In his summation to the jury, defense counsel argued that the government was trying to make a "federal case" out of what was merely a billing dispute between a doctor and her patient. He suggested that the average person would not get any action if he walked into the United States Attorney's office and said that his doctor was overbilling him. He further argued that the case was not appropriate for a federal court and that the State of South Dakota had plenty of courts and lawyers. He concluded:

I have spent some time in this courtroom, and I have never ever in my life felt the power of the federal government and the using of the Courts and all the time and energy here to involve themselves in a private matter between a doctor and a patient in New Jersey, that should be handled right there.

We note initially that although defendant is now arguing that the Assistant United States Attorney's remarks were so inflammatory as to deprive her of a fair trial, there was no request for a mistrial when either of the remarks was made, and defendant did not even object to the implied comparison to President Nixon and Attorney General Mitchell.

Several factors lead us to the conclusion that any error committed by the government in closing argument was harmless when viewed in the context of the complete trial. An important factor to consider in determining whether a closing argument is so prejudicial as to require reversal of the conviction is the amount of evidence indicating defendant's guilt. "If the evidence of guilt is overwhelming, an improper argument is less likely to affect the jury verdict .... On the contrary, if the evidence of guilt is weak or tenuous, the existence of prejudice is more easily assumed." United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976). "Reversal is in order only if the court determines that the jury verdict could reasonabl(y) have been affected by the argument." Ibid.

In the present case the testimony of Mr. and Mrs. Caverly and three other witnesses was strong evidence that Linda Caverly was not treated by Dr. Sherer on at least two-thirds of the dates she claimed to have seen Linda. Had Dr. Sherer explicitly raised a defense of mistake or accident, the evidence against her might have been less convincing as to the question of her intent to defraud. She testified, however, that she in fact treated Linda on the dates for which she billed the State, and the jury was left with a pure credibility determination. The jury had to choose whether to believe Dr. Sherer's testimony that Linda was in her office on various dates, or the Caverlys' and other witnesses' testimony that she was at home, at camp, on vacation, or at the circus in New York City. This was hardly a case based on "weak or tenuous" evidence. While we agree with defendant that both challenged statements were possibly improper argument, ² the chance is remote that the jury verdict in this case was influenced by the Assistant United States Attorney's statements.

Since there was no objection to the Assistant United States Attorney's second statement, we ask only if it was so prejudicial as to have "affected substantial rights resulting in a miscarriage of justice." United States v. Big Crow, 523 F.2d 955, 960-61 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976). Having found that the statement would not merit reversal even if the point had been properly preserved for review, we must conclude that there was no plain error.

Jury Instruction on Good Faith

The standard employed by this Court in reviewing the adequacy of instructions is whether the instructions, when taken as a whole, adequately advise the jury of the essential elements of the offenses charged and the burden of proof required of the government. United States v. Brown, 540 F.2d 364, 380-81 (8th Cir. 1976). No instruction was requested on the issue of the defendant's good faith, and none was given. Good...