United States v. Gerald Schuerer ( 2013 )

Case: 11-11010 Date Filed: 08/07/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11010
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D. C. Docket No. 3:10-cr-00074-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD SCHUERER,
Defendant-Appellant.
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No. 11-11011
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D. C. Docket No. 3:10-cr-00074-MCR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAY SCHUERER,
Defendant-Appellant.
Case: 11-11010 Date Filed: 08/07/2013 Page: 2 of 3
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Appeals from the United States District Court
for the Northern District of Florida
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(August 7, 2013)
Before MARTIN and BLACK, Circuit Judges, and GOLDBERG, * Judge.
PER CURIAM:
Gerald and Fay Schuerer appeal their convictions, following a jury trial, for
mail fraud, in violation of 18 U.S.C. § 1341; and fraudulent concealment of
property belonging to a bankruptcy estate, in violation of 18 U.S.C. § 152(1).
Specifically, the Schuerers contend the Government failed to present sufficient
evidence to convict them because: (1) they were not the debtors in Bankruptcy
Case No. 03-4073-LMK for the U.S. Bankruptcy Court for the Northern District of
Florida; (2) there was no admissible evidence that the final order of discharge in
their bankruptcy case was caused to be delivered by the United States Postal
Service; and (3) the jury was provided an erroneous instruction on the concealment
of property count.
We review de novo whether the evidence was sufficient to sustain a
conviction. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). We
view the record in the light most favorable to the verdict, drawing all reasonable
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
2
Case: 11-11010 Date Filed: 08/07/2013 Page: 3 of 3
inferences and resolving all questions of credibility in favor of the Government.
See id. After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude there is no merit to the Schuerers’
sufficiency arguments and that there was sufficient evidence to convict Gerald and
Fay Schuerer of both counts.
The Schuerers also request that we remand to the district court for it to
consider whether their trial counsel’s performance was ineffective. However,
“[e]xcept in the rare instance when the record is sufficiently developed, we will not
address claims for ineffective assistance on direct appeal.” United States v.
Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). “Instead, an ineffective
assistance of counsel claim is properly raised in a collateral attack on the
conviction under 28 U.S.C. § 2255.” United States v. Merill, 513 F.3d 1293, 1308
(11th Cir. 2008) (quotations and alteration omitted). We conclude the record is not
sufficiently developed for an ineffective assistance of counsel claim, and we will
not address it on direct appeal.
Accordingly, we affirm the Schuerers’ convictions. 1
AFFIRMED.
1
The Schuerers withdrew their cumulative error argument in their Reply Brief and we
therefore do not address it.
3