Nice Ruling from Eleventh

United States v. Schmitz

"Because we conclude that the federal-funds counts of the indictment did not sufficiently allege a scheme to defraud, we vacate Schmitz’s convictions on those counts."

Gotta love when an opinion starts out that way.  Unfortunately, the very next sentence says "We affirm Schmitz’s convictions for mail fraud."  Duho!

The issue was really technical - the government failed in drafting the indictment, to incorporate by reference the more detailed allegations surrounding the mail fraud counts (which did allege a scheme to defraud) into the federal-funds theft counts.  The defendant moved to dismiss (based upon the same reasons the opinion tossed the convictions) and the magistrate and district court denied the motion.  Gotta wonder why the government wouldn't simply have taken the time to amend the indictment and save the time litigating the motions - even if it thought it was right.  What's wrong with a little extra protection?

Perhaps the more interesting point in the case is that it holds squarely that it is improper for a prosecutor to ask the 'so everybody else is lying' questions: "We first conclude that there was error in the district court’s decision to allow the prosecutor to require Schmitz to say whether other witnesses were lying, and to allow the prosecutor to make comments related to these questions in his closing argument."

The court went on to note that the error was not plain (no contemporaneous objection).  However, kudos to the Court for writing a thoughtful opinion that set forth the error, even if it was not fatal to the conviction.  Too often the Eleventh will rule that any possible error was not harmless, and then not rule on the question of whether or not there was error in the first place.  It provides zero guidance to the trial courts, and leaves  defense attorneys with very little to argue on important issues like 404(b) or Bills of Particular.  This panel easily could have done that, but instead it chose to do its duty and provide reasoned guidance and explanation; and they deserve credit for it. 

So, Judges Martin, Cox and Black (who dissented from a portion of the case), GOOD JOB!  Hopefully we will not see another one of those "...a majority of the court...vacated...rehearing..." cases.