United States v. Schmeltz
| Decision Date | 20 December 2011 |
| Docket Number | No. 11–3140.,11–3140. |
| Citation | 667 F.3d 685 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Jay SCHMELTZ, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Neil S. McElroy, Toledo, Ohio, for Appellant. Angela M. Miller, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Neil S. McElroy, Toledo, Ohio, for Appellant. Angela M. Miller, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., Roger S. Bamberger, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: ROGERS, COOK, and WHITE, Circuit Judges.
Federal prisoner Jay Schmeltz appeals his conviction for falsifying a document in violation of 18 U.S.C. § 1519, alleging that the structure of his indictment was duplicitous and that the district court's failure to provide the jury with a specific unanimity instruction violated his right to a unanimous verdict. Finding no error, we affirm.
On May 30, 2004, doctors at St. Vincent's Hospital discharged Carlton Benton, releasing him into the custody of two deputies of the Lucas County Sheriff's Office, Patrick Mangold and defendant Jay Schmeltz. Benton, a pretrial detainee, had received treatment at the hospital for seizures.
After the hospital discharged Benton, the two deputies attempted to extricate him from the web of handcuffs, medical equipment, and leg irons binding him to his hospital bed. Benton resisted, and a thirty-minute struggle ensued. With the help of a third deputy, mace, and blows to Benton's torso and upper body, Schmeltz and Mangold subdued him and shifted him into a wheelchair for easier transport. With Benton restrained and in the wheelchair, the deputies were able to load him into a waiting van and take him on the ten-minute drive to jail without further incident.
Sergeant John Gray and several other deputies met Mangold and Schmeltz at the jail to assist with Benton. Together, the officers escorted Benton, now out of the wheelchair and on foot, to the booking area, his hands cuffed to a belly chain and leg irons restricting his gait to a shuffle of “short, unbalanced steps.”
After pausing in the booking area to consider where to take Benton, Defendant Schmeltz shoved Benton in the direction of the elevator. Benton, unable to break his fall because of his restraints, hit his head on the wall and fell to the floor. A video camera set up in the booking area captured the incident.
Schmeltz picked Benton up from the ground and, along with five other deputies, took him to a medical unit on the second floor of the jail. Once in the cell, the officers placed Benton on a bed, face down, and attempted to remove his restraints. Benton resisted again, frustrating the officers' attempts. Finally, Sergeant Gray, one of the deputies assisting Schmeltz, subdued Benton with a “carotid artery restraint hold,” more commonly known as a “sleeper hold,” that rendered Benton unconscious. As Benton lay motionless on the bed, the officers removed his restraints and left the cell.
Later that day, a nurse discovered Benton still unconscious while performing her rounds. The nurse examined Benton, found that he was not breathing, and performed CPR. Benton never regained consciousness and died two days later.
Following the incident, Schmeltz prepared two “Corrections Officer Reports” describing the events surrounding Benton's transport from the hospital—one dated May 30, 2004, the other dated June 1, 2004. The earlier report followed the discovery of Benton unconscious in his cell; the later report resulted from Schmeltz's supervisor's request that he clarify one aspect of the earlier report. Neither report included any account of Schmeltz's shoving Benton or Gray's rendering Benton unconscious with a sleeper hold.
An investigation followed Benton's death. Ultimately, a grand jury charged Schmeltz and three other officers with various crimes in connection with their use of force on Benton and their alleged attempt to conceal their actions during the investigation. This appeal targets only Counts 6 and 7 of Schmeltz's indictment.
Count 6 read:
On or about May 30, 2004, in the Northern District of Ohio, Western Division, JAY M. SCHMELTZ, defendant herein, acting in relation to and in contemplation of a matter within the jurisdiction of an agency of the United States, knowingly falsified a document—specifically an official Correction Officer Report reflecting his actions, and the actions of his fellow corrections officers, in relation to uses of physical force on C.B. on May 30, 2004—with the intent to impede, obstruct, and influence the investigation and proper administration of that matter.
Specifically, SCHMELTZ omitted from his official report any mention of his assault of C.B. in the Jail's Booking area; any mention of John E. Gray's use of a “sleeper hold” on C.B.; and any mention of the fact that Gray had rendered C.B. unconscious with the sleeper hold.
Count 7 charged as a separate crime Schmeltz's submission of the second report, citing the same three omissions. Both counts charged Schmeltz with falsifying an official report in violation of 18 U.S.C. § 1519, which penalizes
[w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States ... or in relation to or contemplation of any such matter or case....
The jury found Schmeltz guilty of falsifying the May 30th report and not guilty of the crime with respect to the later report. The district court sentenced him to twelve months and one day's imprisonment. Schmeltz appeals.
This appeal marks the first time that Schmeltz challenges Count 6 as unconstitutional or duplicitous. We thus review only for plain error. See United States v. Boyd, 640 F.3d 657, 666 (6th Cir.2011).
At bottom, Schmeltz argues that Count 6 “set[ ] forth separate and distinct crimes in one count” by basing the charge of falsifying a report on three separate omissions. See United States v. Kakos, 483 F.3d 441, 443 (6th Cir.2007) (quoting United States v. Davis, 306 F.3d 398, 415 (6th Cir.2002)). Because Count 6 was duplicitous, Schmeltz argues, the district court erred in not instructing the jury that it must unanimously agree as to which of the three omissions supported a guilty finding, rather than agree that Schmeltz generally falsified the report. Because Count 6 charged only one crime, we find no error.
Schmeltz takes issue with the district court's instruction that
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...See Simmons, 215 F.3d at 741 ; Baker, 641 F.2d at 1317.4 Hendrickson's discussion of Miller, 734 F.3d 530, and United States v. Schmeltz, 667 F.3d 685, 686 (6th Cir.2011), is unavailing. In both Miller and Schmeltz, we found that a specific unanimity instruction was not required. See Miller......