United States v. Grant

Citation850 F.3d 209
Decision Date01 March 2017
Docket NumberNo. 15-10962,15-10962
Parties UNITED STATES of America, Plaintiff–Appellee v. Julie GRANT, also known as Juliana Jacobs Grant, also known as Juliana Okwue Jacobs Grant, also known as Julianna Okwuenu, Defendant–Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney's Office, Dallas, TX, for PlaintiffAppellee.

Sherylynn Ann Kime–Goodwin, Helen Miller Liggett, Esq., Assistant Federal Public Defenders, Federal Public Defender's Office, Lubbock, TX, Kevin Joel Page, John MacIntyre Nicholson, Federal Public Defender's Office, Dallas, TX, for DefendantAppellant.

Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

DefendantAppellant Julie Grant was charged with four counts of making false statements under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. § 152(3). She moved to dismiss Counts Two and Four of the indictment for failure to state an offense. The district court denied the motion. At trial, the jury found Defendant guilty on Counts Two through Four. In determining Defendant's sentence, the district court calculated Defendant's guideline range using the perjury guideline, U.S.S.G. § 2J1.3. Defendant timely appealed, challenging (a) the district court's failure to dismiss Counts Two and Four; (b) the sufficiency of the evidence on Counts Two and Four; and (c) the district court's decision to use the perjury guideline, instead of the fraud guideline, to calculate Defendant's sentence. We AFFIRM.

I.

After filing five bankruptcy petitions between 2008 and 2011, Defendant was indicted on October 8, 2014, and charged with four counts of bankruptcy fraud under 18 U.S.C. § 152(3). Defendant moved to dismiss the indictment. The Government then filed a superseding indictment that, relevantly here, was identical to the original indictment.

Count One of the superseding indictment alleges that in her December 2009 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her prior October 2008 and March 2009 bankruptcy filings. Count Two alleges that in the same filing, Defendant knowingly and fraudulently disclosed only her social security number ending in XXXX (the "XXXX number") when Defendant knew that she had also used another social security number ending in XXXX (the "XXXX number"). Count Three alleges that in her August 2011 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her prior October 2008 and March 2009 bankruptcy filings. Finally, Count Four alleges that in the same filing, Defendant knowingly and fraudulently disclosed only the XXXX number when Defendant knew that she had also used the XXXX number.

The district court treated Defendant's motion to dismiss the indictment as one to dismiss the superseding indictment. Regarding Counts Two and Four, Defendant asserted that both Counts rested upon an erroneous statement of federal law because they alleged that Form B–21 (an official bankruptcy form that requires disclosure of the debtor's social security numbers) required the disclosure of every social security number "ever used" by the debtor. She argued that Form B–21 does not require a debtor to disclose every social security number that the debtor has ever used, instead arguing that she needed to disclose only the social security numbers that she "has." She contended that the offense required an affirmative false statement and asserted that her statement listing only one social security number was not false. The district court denied the motion. Before trial, the district court reexamined Defendant's motion to dismiss Counts Two and Four. The court denied the motion, stating that the case would proceed with "the indictment as is."

At trial, the Government presented extensive evidence that Defendant had the XXXX number from 1996 until at least 2008. In April 2008, Defendant applied for a new social security number and, in July 2008, she was issued the XXXX number. In a bankruptcy petition filed in December 2009, Defendant listed only the XXXX number on her Form B–21 filed in the bankruptcy proceeding. In August 2011, she filed another Form B–21 in a new bankruptcy proceeding and listed only the XXXX number. In both instances, the Forms B–21 required the debtor to list her social security number. Both Forms B–21 further directed the debtor to "state all" social security numbers if the debtor "has" more than one. Defendant declared both Forms B–21 true under penalty of perjury. Defendant presented no evidence and moved for a judgment of acquittal on all counts. The district court denied the motion. The jury found Defendant guilty of Counts Two through Four. She was found not guilty on Count One.

Defendant's presentence report determined that her total offense level was 14, applying U.S.S.G. § 2J1.3 (perjury). With an offense level of 14 and a Category I criminal history score, Defendant faced a guidelines range of 15 to 21 months. Defendant objected to the use of the perjury guideline, arguing that her offense was a fraud offense and therefore, that the offense level should be calculated under U.S.S.G. § 2B1.1 (theft, embezzlement, receipt of stolen property, property destruction, and offenses involving fraud or deceit) (relevant here "fraud"). The district court found that perjury was the correct guideline and accordingly sentenced Defendant to three concurrent terms of 15 months of imprisonment, followed by a total of one year of supervised release. Defendant timely appealed.

II.
A.

Defendant argues that "Counts two and four of the superseding indictment are legally deficient because they rest on an erroneous statement of federal law." Specifically, she argues that "Form B–21 does not require disclosure of any number previously ‘used.’ It merely requires disclosure of the number the debtor currently ‘has.’ " Defendant therefore reasons that the superseding indictment does not allege a false statement because it states that Form B–21 required that she "truthfully state all social security numbers ever used" by her when the Form did not actually require such disclosure.

This court reviews a preserved challenge to the sufficiency of an indictment de novo. United States v. Hoover , 467 F.3d 496, 498 (5th Cir. 2006).

"An indictment is intended to provide notice to the defendant that allows [her] to intelligently consider [her] defense or plea." United States v. Angeles–Mascote , 206 F.3d 529, 532 (5th Cir. 2000) (citing United States v. Chappell , 6 F.3d 1095, 1099 (5th Cir. 1993) ). "Therefore, [t]o be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense.’ " United States v. Berrios–Centeno , 250 F.3d 294, 297 (5th Cir. 2001) (quoting United States v. Cabrera–Teran , 168 F.3d 141, 143 (5th Cir. 1999), overruled on other grounds by United States v. Cotton , 535 U.S. 625, 630–31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ); see also United States v. Gordon , 780 F.2d 1165, 1169 (5th Cir. 1986) ("An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant what charge [s]he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense." (citations omitted)). Nonetheless, "[t]he test of the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Fitzgerald , 89 F.3d 218, 222 (5th Cir. 1996) (citation omitted).

Counts Two and Four of the superseding indictment allege every element of Defendant's offense. The elements of Section 152(3) are "(1) there was a bankruptcy proceeding; (2) defendant made a declaration or statement under penalty of perjury in relation to the proceeding; (3) the declaration concerned a material fact; (4) the declaration was false; and (5) defendant made the declaration knowingly and fraudulently." United States v. Spurlin , 664 F.3d 954, 962 (5th Cir. 2011). Both Counts Two and Four allege each element. (1) Each count alleges that there was a bankruptcy proceeding, namely cases 09–38525–hdh7 and 11–35094–bjh13. (2) Each count alleges that Defendant made a statement under penalty of perjury in relation to that proceeding. (3) Each count alleges that Defendant's false statement was "material." (4) Each count alleges that Defendant made a "false statement" by submitting a "false Statement of Social Security Number(s) (Official Form B–21)." And (5) each count alleges that Defendant "knowingly and fraudulently made a material false statement."

Even if Defendant is correct that the indictment misstated what Form B–21 requires, the indictment was not defective. This court "treat[s] the allegation of additional facts beyond those which comprise the elements of the crime as ‘mere surplusage.’ " United States v. Valencia , 600 F.3d 389, 432 (5th Cir. 2010) (quoting United States v. Robinson , 974 F.2d 575, 578 (5th Cir. 1992) ). The indictment here—even without the description of what Form B–21 requires—alleges every element of the offense. Accordingly, the additional factual description of Form B–21 is surplusage. "Surplusage ... may be disregarded provided it neither broadens the indictment nor misleads the accused." United States v. Thompson , 990 F.2d 625, at *3 (5th Cir. 1993) (unpublished).

The description of what Form B–21 requires does not broaden the indictment because the indictment required the Government to prove a knowingly made false statement to secure a conviction. The indictment alleges that "Grant falsely represented and stated that Grant only had one social security number XXX–XX–XXXX, when Grant then well knew that she had used at least one other social security number in other bankruptcy petitions which Grant knew she was obligated to disclose." By including the phrase "which...

To continue reading

Request your trial
16 cases
  • United States v. Herman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 6, 2021
    ...indictment was legally insufficient. We review a preserved challenge to the sufficiency of the indictment de novo. United States v. Grant , 850 F.3d 209, 214 (5th Cir. 2017). Count One charges Michael and Cynthia with violating 18 U.S.C. § 371. This statute criminalizes conspiracy (1) "to c......
  • United States v. Sertich, 16-51210
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 8, 2018
    ...most favorable to the government, with all reasonable inferences to be made in support of the jury’s verdict." United States v. Grant , 850 F.3d 209, 219 (5th Cir. 2017) (internal brackets and citations omitted). This Court "must affirm a conviction, if, after viewing the evidence and all r......
  • United States v. Spalding
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 26, 2018
    ...concerned a material fact; (4) the statement was false; and (5) the defendant made it knowingly and fraudulently. United States v. Grant , 850 F.3d 209, 214 (5th Cir.), cert. denied , ––– U.S. ––––, 138 S.Ct. 257, 199 L.Ed.2d 166 (2017) ; accord United States v. Marston , 694 F.3d 131, 133 ......
  • United States v. Stanford, 17-30285
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 19, 2018
    ...the Guidelines, including any cross references and selection of the applicable sentencing guideline, de novo. See United States v. Grant , 850 F.3d 209, 219 (5th Cir. 2017) (citation omitted); United States v. Johnston , 559 F.3d 292, 294 (5th Cir. 2009) (citation omitted). Where a party fa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT