United States v. Swan, Shelia

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1417
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHELIA SWAN,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division
No. 03 CR 926—Amy J. St. Eve, Judge.
____________
ARGUED NOVEMBER 29, 2006—DECIDED MAY 8, 2007
____________
Before BAUER, CUDAHY, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. The defendant, Shelia Swan,
was convicted by a jury of mail fraud and sentenced to
22 months of imprisonment. She appeals her conviction,
claiming that the district court erred in admitting an
attorney’s statement as an admission by a party and in
limiting the testimony of a witness. The defendant also
argues that the district court erred in denying her motion
for judgment of acquittal and motion for a new trial. We
affirm her conviction and the denial of her motion for a
new trial.
2 No. 06-1417
I. Background
On September 25, 2003, a federal grand jury returned an
indictment against the defendant and her husband and co-
defendant, Seutter Swan, charging Shelia with two counts
of mail fraud in violation of 18 U.S.C. § 1341 and one count
of obstruction of justice in violation of 18 U.S.C. § 1505.1The latter charge was later dismissed. The indictment
alleged that Shelia and her husband were participants
in a scheme to defraud Medicare by submitting fraudulent
claims for reimbursement. The government’s theory was
that the Swans sought reimbursement for compensation
allegedly paid to three family members, Bettie Starling,
Veronica Alexander and Cedric Alexander, who did little
or no work for A-1 Home Health Care (“A-1”), the business
wholly owned by Shelia and her husband. The government
further charged that when federal agents began to investi-
gate the Swans, Shelia attempted to cover up the fraud.
The government presented evidence at trial that A-1
submitted cost reports to Medicare seeking reimburse-
ment of $32,885 in 1996 and $14,160 in 1998 for wages
paid to Bettie Starling, Shelia’s aunt. Starling testified
that she had never worked for A-1. She also testified that
Shelia sent her the checks and told her that the checks
were to pay off a loan to Greentree Financial to purchase
a mobile home in Benton, Mississippi for the defendant’s
parents. The address listed for Starling on the W-2 form
was a Chicago address with which Starling was not
familiar. In 1998, Starling testified that she was under
financial strain and asked Shelia for a loan. Shelia again
put Starling on A-1’s payroll and sent her checks. In an
1
Since we will also be referring to the defendant’s husband and
co-defendant, Seutter Swan, throughout the opinion, we will
refer to both the defendant and her husband by their first
names to avoid any confusion.
No. 06-1417 3
interview with FBI agents in the summer of 2000, Starling
said the defendant had told her to say that she was an
employee of A-1. Later in 2000, the Swans sent Starling
a job description dated November 29, 1995 through the
mail. It listed five different duties performed by Starling,
none of which she testified she performed.
A-1 also sought reimbursement from Medicare in 1996
for $42,600 in wages paid to Veronica Alexander, Seutter’s
sister. A-1 provided a job description to a Medicare auditor
reporting that Veronica Alexander was the “Quality
Management Coordinator” for A-1 in 1996. Testimony at
trial suggested that other A-1 employees and consultants
performed the responsibilities listed in the job description
for this position. Veronica Alexander’s ex-husband also
testified that she only worked for A-1 for one week while
on spring break during college.
In 1997, A-1 sought reimbursement from Medicare for
$18,880 in wages paid to Cedric Alexander, Seutter’s half-
brother. Cedric Alexander’s wife testified that he lived
in Mississippi until their separation in August 1997 and
that he had never worked at A-1 while they were together.
Checks issued to Cedric Alexander listed an address in
Richton Park, Illinois, where an employee of A-1 lived in
1997.
Relevant to this appeal, the government called FBI
Agent Mike Miller to testify about his investigation into A-
1. As to the investigation of Veronica Alexander’s wages,
Agent Miller testified that he sent a subpoena to A-1’s
lawyer at the time (the James Montgomery Group) seeking
documents relating to the qualified management coordina-
tor position. Agent Miller testified that he received a call
from an attorney, Tom Marszewski, in response to the
subpoena. Agent Miller further testified that Marszweski
informed him that the defendants “used the [quality
management coordinator] description submitted to
4 No. 06-1417
Medicare so that they could be reimbursed at a higher rate
per that job description.” (R. 75-3 at 353.) Both Shelia’s
attorney, Charles Shepherd, and her husband’s attorney,
Adam Bourgeois, objected on hearsay grounds to the
admissibility of Agent Miller’s testimony.2 The district
court allowed the testimony as an admission of a party
opponent pursuant to Federal Rule of Evidence
801(d)(2)(D).
Shelia filed a post-trial motion for a mistrial on October
27, 2005 based on the admission of Agent Miller’s testi-
mony. The district court denied the motion the same day.
An affidavit prepared by Attorney Marszewski was
submitted in support of a subsequent motion for a new
trial or judgment of acquittal. In the affidavit, Marszewski
denied making the statements attributed to him by
Agent Miller: “I did not tell either Agent Miller or prosecu-
tor Porter that A-1 used the job description to get reim-
bursed at a higher hourly rate of pay for Veronica Alexan-
der.” (Appellant’s Br., App. F at ¶ 3.) Marszewski also
stated that he has not “at any time represented Seutter or
Shelia Swan with respect to the federal criminal prosecu-
tion” and that he was “only involved with the investiga-
tion for the very limited purpose of responding to the
grand jury subpoena.” (Id. at ¶ ¶ 5, 6.) He stated that he
“had no authority to act for Seutter or Shelia Swan in any
other capacity.” (Id. at ¶ 7.) Lastly, Marszewski stated
that he “never considered myself—factually or legally—to
be the agent of either Seutter or Shelia Swan.” (Id. at ¶ 8.)
Also relevant for the purposes of this appeal is the
testimony of Attorney Charles MacKelvie. During the trial,
2
Attorney Bourgeois is representing the defendant Shelia
Swan on appeal. At trial, he represented only her husband,
Seutter Swan. Shelia was represented by Attorney Shepherd
at trial.
No. 06-1417 5
Shelia and Seutter filed a joint motion in limine to admit
the expert testimony of Attorney MacKelvie. The memo-
randum in support of the motion stated that “[t]he defen-
dant is offering Mr. MacKelvie as an opinion witness
either under FRE 701 or FRE 702.” (Appellant’s Br., App.
D at 3.) The memorandum also listed the areas in which
Attorney MacKelvie could offer testimony. The district
court, however, did not rule on this motion since Attorney
Bourgeois, Seutter’s attorney, effectively withdrew the
motion when he conceded at the hearing on the motion
that Attorney MacKelvie would not be providing opinion
testimony.
At trial, Attorney Bourgeois attempted to solicit testi-
mony from MacKelvie about his opinion whether the
defendant had violated Medicare regulations with respect
to the charges for which she was being tried. The prosecu-
tor objected as to foundation, among other grounds, and
the district court sustained this objection, thereby limit-
ing Attorney MacKelvie’s testimony.
On October 27, 2005, the jury found the defendant guilty
of two counts of mail fraud. On November 28, 2005, Shelia
and Seutter filed a joint motion for a new trial or for
judgment of acquittal. The court denied the motion and
sentenced Shelia to 22 months in prison. The defendant
appeals her conviction, as well as the denial of her motion
for a new trial or for judgment of acquittal.
II. Discussion
The defendant offers three grounds for reversal. First,
she argues that the district court erred in admitting the
testimony of Agent Miller concerning Attorney
Marszewski’s statement as an admission by an agent
under Federal Rule of Evidence 801(d)(2)(D). Second, she
contends that the district court erred in limiting the
6 No. 06-1417
testimony of Attorney MacKelvie. Third, she argues that
the district court erred in denying the defendants’ joint
motion for a new trial or for judgment of acquittal. We
address each argument in turn.
I. Agent Miller’s Testimony
Before turning to the substance of Shelia’s claim, we
must first determine the appropriate standard of review.
In order to preserve a ruling on the admission of evidence
for appeal, a party must make “a timely objection or
motion to strike [which] appears of record, stating the
specific ground of objection, if the specific ground was not
apparent from the context.” Fed. R. Evid. 103(a)(1); see
also United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.
1988). We review the district court’s decision to admit
evidence for abuse of discretion if the party contesting
its admissibility objected to it at trial. United States v.
Sanders, 979 F.2d 87, 92 (7th Cir. 1992); United States v.
Medina, 755 F.2d 1269, 1274 (7th Cir. 1985). If no objec-
tion was made, the standard of review is plain error.
United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th
Cir. 2005); Wynn, 845 F.2d at 1443.
The defendant argues that we should review the district
court’s decision to admit the evidence for abuse of discre-
tion. The government counters that plain error should be
the standard of review because the defendant’s counsel
failed to object to the government’s question. In order to
determine the appropriate standard of review, we must
examine the relevant testimony.
Q. [Ms. Noller, Prosecutor] Who is Tom Marszewski?
A. [Agent Miller] He was an associate for the James
Montgomery group representing A-1.
Q. So, Mr. Marszewski was also an attorney represent-
ing A-1; is that correct?
No. 06-1417 7
A. Correct.
Q. Was he also representing [Seutter] Tyrone Swan
and Sheila Swan, as far as you know?
A. To the best of my knowledge, yes.
Q. What did he say to you?
MR. SHEPHERD [attorney for Shelia Swan]:
Objection. Hearsay.
MS. NOLLER: It’s an admission of a party oppo-
nent.
THE COURT: Overruled. You may answer.
BY MS. NOLLER:
Q. What did Mr. Marszewski tell you in response to
the subpoena?
A. He informed me that there were no documents as
described in the subpoena, and that he was aware of
where my description came from and that these
documents didn’t exist.
Q. Did he also tell you why A-1 sent that—or the
defendants sent that—description to Medicare?
A. Yes.
MR. BOURGEOIS [attorney for Seutter Swan]:
Objection. Hearsay.
MS. NOLLER: Admission by a party opponent.
THE COURT: Overruled.
BY THE WITNESS:
A. Mr. Marszewski informed me that they used the
description submitted to Medicare so that they could
be reimbursed at a higher rate per that job description.
8 No. 06-1417
MR. BOURGEOIS: Objection. I ask that it be
stricken.
THE COURT: On what basis?
MR. BOURGEOIS: Clearly, we have no evidence
that either one of these parties said that.
THE COURT: It is an admission through a party
opponent through an agent. Overruled.
(R. 75-3 at 352-53.)
The defendant’s objection at the time of Agent Miller’s
testimony was based solely on hearsay grounds. On appeal,
the defendant’s issue with Agent Miller’s testimony
concerns whether Attorney Marszewski was an agent of
the defendant and the scope of his authority. The hearsay
objection offered by Shelia’s attorney, Attorney Shepherd,
and her husband’s attorney, Attorney Bourgeois, does not
constitute the “specific ground” on which the defendant
now objects. The simple hearsay objection by the defendant
failed to put the district court on notice of the precise
nature of the defendant’s concern. See Wynn, 845 F.2d at
1442; United States v. Laughlin, 772 F.2d 1382, 1392 (7th
Cir. 1985). The district court even acknowledged the
difference between the objection made during Agent
Miller’s testimony and the issue raised in the motion for
mistrial and the subsequent motion for new trial or for
judgment of acquittal, stating: “That is a different issue
than the one you raised and you objected to the testimony
on, though. You objected to its admission based on hear-
say.” (R. 75-4 at 542.) The defendant argues that the
“specific ground” was raised in the motion for mistrial and
the motion for a new trial, but any “objection” at that time
was not timely. In order to preserve an objection for appeal
under Federal Rule of Evidence 103(a)(1), “[t]he specific
ground for reversal of an evidentiary ruling on appeal
must also be the same as that raised at trial.” Wynn, 845
No. 06-1417 9
F.2d at 1442 (citing United States v. Taylor, 800 F.2d 1012,
1017 (10th Cir. 1986)).
We conclude that the defendant’s hearsay objection to
Agent Miller’s testimony does not meet the requirements
of Federal Rule of Evidence 103(a)(1). Accordingly, we
review the district court’s decision to admit the testimony
of Agent Miller concerning Attorney Marszewski’s state-
ment for plain error. Under plain error review, an error
must be “clear or obvious” and “affect substantial rights”
in order for this court to reverse the district court’s
decision to admit the evidence. United States v. Sumner,
265 F.3d 532, 539 (7th Cir. 2001). Moreover, we should not
exercise our discretion to correct the error unless it
“seriously affect[s] the fairness, integrity, or public reputa-
tion of the judicial proceedings.” United States v. Kibler,
279 F.3d 511, 514 (7th Cir. 2001) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)) (quotation marked
omitted).
Now turning to the substance of the defendant’s argu-
ment, Federal Rule of Evidence 801 provides certain
exceptions to the rule against hearsay testimony. “A
statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by the party’s agent
or servant concerning a matter within the scope of the
agency or employment, made during the existence of the
relationship . . . .” Fed. R. Evid. 801(d). We have pre-
viously held that “[a]n attorney may be the agent of his
client for purposes of Rule 801(d)(2)(D).” United States v.
Harris, 914 F.2d 927 (7th Cir. 1990) (citing United States
v. McClellan, 868 F.2d 210, 215 n.9 (7th Cir. 1989)); see
also United States v. Brandon, 50 F.3d 464, 468 (7th Cir.
1995).
Shelia asserts that Attorney Marszewski was not an
agent of the Swans and that he was not acting within the
scope of his authority. In questioning Agent Miller, the
10 No. 06-1417
government sufficiently established the agency relation-
ship and the scope of that agency in questioning Agent
Miller. Agent Miller testified that Attorney Marszewski
called him in response to the subpoena; Marszewski
identified himself as an associate of the law firm repre-
senting A-1 in this investigation; and, to the “best of
[Agent Miller’s] knowledge,” he was representing the
defendants. (R. 75-3 at 352.) Relying on this testimony, the
district court did not commit plain error in admitting
Agent Miller’s testimony as an admission of a party by
an agent.
Shelia also argues that attorney-client privilege should
have been considered in admitting Agent Miller’s testi-
mony as to Attorney Marszewski’s statement.3 The defen-
dant contends that there is no evidence that she waived
this privilege. But, as the government points out, there
is also no evidence that she asserted this privilege at trial.
Importantly, the privilege is forfeited if the party fails
to make a timely objection at trial. See United States v.
Sanders, 979 F.2d 87, 92 (7th Cir. 1992).
We have noted that “[t]he unique nature of the attorney-
client relationship, however, demands that a trial court
exercise caution in admitting statements that are the
product of this relationship.” Harris, 914 F.2d at 931
(citing United States v. McKeon, 738 F.2d 26, 30-33 (2d Cir.
1984)). In Harris, we followed the Second Circuit in
considering certain policy concerns in admitting an at-
torney’s statements under Federal Rule of Evidence
801(d)(2)(D). Namely, we noted that “the routine use of
attorney statements against a criminal defendant risks
3
Incidentally, the defendant’s attorney-client privilege argu-
ment has merit only if Attorney Marszewski was in fact the
defendant’s agent. Therefore, the privilege argument and the
lack of agency argument are mutually exclusive.
No. 06-1417 11
impairment of the privilege against self-incrimination, the
right to counsel of one’s choice and the right to effective
assistance of counsel.” Harris, 914 F.2d at 931 (quoting
United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987))
(quotation marks omitted). Although these policy con-
siderations are important, none was implicated in the
present case. The defendant was not forced to take the
stand because of the admission of the evidence. Attorney
Marszewski could have been called as a witness to rebut
Agent Miller’s testimony. Attorney Marszewski’s work on
this case was limited to pre-indictment activities; neither
he nor any member of his firm represented the defendant
at trial, nor is there any allegation made by Shelia that
she wanted Attorney Marszewski to represent her at trial.
Even if the district court failed to adequately consider
attorney-client privilege, this error does not implicate plain
error review since the defendant has failed to show any
violation of the privilege, and therefore, any effect on her
substantial rights.
II. Attorney MacKelvie’s Testimony
Shelia argues that Attorney MacKelvie’s testimony as
to the complexity of Medicare regulations and other related
topics should have been allowed in order to show that the
defendant’s conduct could have been an innocent mistake.
Although Shelia’s counsel might have originally planned to
call Attorney MacKelvie as an expert witness under
Federal Rule of Evidence 701 or as a lay witness offering
opinion testimony under Federal Rule of Evidence 702,
that motion was effectively withdrawn as is evident from
the following exchange with the district court:
THE COURT: I have the defendant’s motion in limine
to admit expert testimony.
Mr. Bourgeois, what exactly is it that you want Mr.
MacKelvie to testify about?
12 No. 06-1417
MR. BOURGEOIS: Well, actually, your Honor, I don’t
know that it falls into the category of an expert.
...
THE COURT: Okay. So your motion is denied as moot.
Is it moot?
MR. BOURGEOIS: I’m not suggesting—it may come
up later. If it comes up that we need to qualify him for
something or other, then I will ask you to reawaken
the motion, so to speak.
THE COURT: . . . Are you going to try to elicit opinions
from him?
MR. BOURGEOIS: No. No opinions.
THE COURT: Okay.
MR. BOURGEOIS: I don’t think.
THE COURT: Because if you are asking him to talk
about Medicare regulations—I need more.
MR. BOURGEOIS: I’m not going to ask [him for]
opinions, no.
...
THE COURT: All right. I do not expect you are going
to ask him any expert questions, then.
(R. 75-3 at 390-92.) Moreover, there was no effort on the
part of the defendant to introduce Attorney MacKelvie as
an expert witness during direct examination or to “re-
awaken the motion.” The defendant certainly forfeited
this argument. Regardless, the district court’s decision
to limit the testimony of Attorney MacKelvie to his first-
hand knowledge of this case does not constitute error,
plain or otherwise.
No. 06-1417 13
III. Motion for a New Trial or for Judgment of Acquittal
Denial of a motion for new trial is reviewed for abuse of
discretion. United States v. Reed, 875 F.2d 107, 113 (7th
Cir. 1989). The court should grant a motion for a new trial
only if the evidence “preponderate[s] heavily against the
verdict, such that it would be a miscarriage of justice to
let the verdict stand.” Id. (quoting United States v. Marti-
nez, 763 F.2d 1297, 1312-13 (11th Cir. 1985)). In a motion
for judgment of acquittal, we ask “whether the record
contained sufficient evidence from which the jury could
reasonably find the defendant guilty beyond a reason-
able doubt.” United States v. Theodospoulos, 48 F.3d 1438,
1444 (7th Cir. 1995). “We view the evidence in the light
most favorable to the government, recognizing that it is
the exclusive function of the jury to determine the cred-
ibility of witnesses and draw reasonable inferences.” Id.The defendant argues that the evidence fails to estab-
lish criminal intent. The crux of the defendant’s argu-
ment is that payments made to the three family members
are not “inherently illegal.” The defendant, however,
disregards that she and her husband did not simply pay
a “salary” to family members, but rather, sought reim-
bursement from Medicare for those payments. The jury
could have reasonably found criminal intent from the
defendant’s requests for reimbursements from Medicare
for “salaries” of close family members who were not
employees of A-1. At the very least, the district court did
not abuse its discretion in denying the motion.
III. Conclusion
For the foregoing reasons we AFFIRM the defendant’s
conviction and the denial of her motion for a new trial or
for judgment of acquittal.
14 No. 06-1417
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-8-07