                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0572n.06

                                         Case No. 19-5693

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Nov 14, 2019
 UNITED STATES OF AMERICA,                      )
                                                )                            DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                   )
                                                )             ON APPEAL FROM THE UNITED
 v.                                             )             STATES DISTRICT COURT FOR
                                                )             THE MIDDLE DISTRICT OF
 ANGELA SUDDARTH,                               )             TENNESSEE
                                                )
          Defendant-Appellant.                  )                          OPINION
                                                )



BEFORE: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Defendant Angela Suddarth appeals her conviction for

making a false declaration in violation of 18 U.S.C. § 1623. She argues that the evidence was

insufficient to sustain her conviction, that venue was improper in the Middle District of Tennessee,

and that the district court committed reversible error by communicating with the jury outside the

presence of the parties. We agree that the record contains insufficient evidence and reverse.

                                                    I.

       This case begins with the sale of Shipper Direct Logistics, Inc. (“Shipper Direct”), a

truckload transportation brokerage business managed by Suddarth. In short, Shipper Direct

matched shippers with available carriers. Suddarth and Echo Global Logistics, Inc. (“Echo”) began

negotiating the sale of all of Shipper Direct’s assets to Echo in the spring of 2012. As part of these

negotiations, Echo required Suddarth to provide financial information that would allow Echo to

determine the value and financial health of Shipper Direct. On July 19, 2012, Echo and Suddarth
No. 19-5693, United States v. Suddarth


entered an asset purchase agreement in which Echo agreed to purchase all of Shipper Direct’s

assets for $8.9 million.

       Soon after, Echo realized that Shipper Direct was worth far less than it had paid and filed

a civil lawsuit against Suddarth, and others, alleging fraud, conspiracy, and breach of contract.

Echo/Tenn. Holdings, LLC v. AvidPath Inc., No. 1:13-cv-309, 2014 WL 1698340, at *1 (N.D. Ill.

Apr. 29, 2014). Echo’s primary allegation was that Suddarth orchestrated a scheme to defraud

Echo by furnishing false financial information and transmitting it to Echo by email during their

negotiations. Id. On May 28, 2013, the court entered a default judgment against Suddarth and her

codefendants. Id. Suddarth moved to set aside the judgment and, in support of her motion, signed

and filed an affidavit explaining the circumstances of the sale of Shipper Direct to Echo. Suddarth

stated in the affidavit that “we did our accounting on a cash basis.” (Gov’t Trial Ex. 27 at PageID

# 245.) It is this statement that undergirds her conviction.

       In May 2015, in the Middle District of Tennessee, the government indicted Suddarth on

twenty-two counts related to the alleged fraudulent transaction. Count 18 alleged that Suddarth’s

statement that “all accounting for her business was done on a case basis” was a false declaration

in violation of 18 U.S.C. § 1623. (R. 1, Indictment at PageID # 12.) The government’s evidence

in support of Count 18 was limited. Besides the affidavit itself, the attorney who represented

Suddarth in the underlying civil proceeding testified that:

       Ms. Suddarth provided the information and [he] put it into an affidavit form. . . .
       Ms. Suddarth came to [his] office after the language [in the affidavit] was drafted
       and she made whatever changes that were necessary and came to [his] office here
       in Nashville. And once she signed it, one of [his] assistants filed it on the Pacer
       System.

(R. 159, Trial Tr. at PageID # 1698–99.) In its opening statement, the government stated “that in

the context of that civil suit [Suddarth] submitted an affidavit that contained false statements.”




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No. 19-5693, United States v. Suddarth


(R. 158, Trial Tr. at PageID # 1429.) Kyle Sauers, an Echo employee, testified that Echo used

accrual-based accounting. (R. 159, Trial Tr. at PageID # 1576.) Sauers also testified that any

distinction between cash and accrual-based accounting would be a distinction without a difference:

“[t]here really isn’t much difference in the profit and loss. This would really be no difference. It

might be a little [difference in] timing . . . . But the overall financials, the profit and loss, would

not change much between the two accounting methods.” (R. 159, Trial Tr. at PageID # 1578–79.)

And the evidence included several financial documents labeled “Accrual Basis” that Suddarth

provided to Echo during closing. (Gov’t Trial Ex. 1-2; Gov’t Trial Ex. 2-2; Gov’t Trial Ex. 2-8.)

       At the close of the government’s case in chief Suddarth moved for acquittal on Count 18,

under Fed. R. Crim. P. 29(a), arguing that the government failed to establish that the Middle

District of Tennessee was a proper venue. The court took this motion under advisement. After

presenting her case in chief, Suddarth renewed all motions for acquittal and the court denied

Suddarth’s improper venue motion for Count 18 on the merits. The jury returned not guilty verdicts

on all counts except Count 18. Following sentencing, Suddarth appealed.

                                                  II.

       We review insufficient evidence claims to determine whether, “viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”1 Jackson v. Virginia, 443 U.S. 307, 319 (1979).




       1
          The dissent concludes that Suddarth failed to preserve her insufficiency of the evidence
claim but also that the government forfeited the forfeiture argument. We do not dispute this
analysis. But neither party’s brief argues forfeiture, nor do they dispute that the Jackson v. Virginia
standard is appropriate here. Instead, the government mentioned the issue at oral argument for the
first time. So any discussion of forfeiture is thus unnecessary. See City & Cty. of S.F., Cal. v.
Sheehan, 135 S. Ct. 1765, 1775 (2015); cf. In re Brown, 851 F.3d 619, 625–26 (6th Cir. 2017).




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No. 19-5693, United States v. Suddarth


                                                 III.

       To violate 18 U.S.C. § 1623, a person must “under oath . . . in any proceeding before . . .

any court . . . of the United States knowingly make[] [a] false material declaration.” 2 Suddarth

argues that the government presented insufficient evidence on both the falsity and materiality

elements. Count 18 was limited to Suddarth’s assertion “[t]hat all accounting for her business was

done on a cash basis.”3 (R.1, Indictment at PageID # 12.) To succeed, Suddarth must show that no

rational juror could have found beyond a reasonable doubt that Shipper Direct conducted its

accounting on other than a cash basis or that the accounting method Shipper Direct used was

material to the civil proceedings in the Northern District of Illinois.

       “The falsity of the statements at issue is necessarily an element under § 1623.” United

States v. Frost, 125 F.3d 346, 386 (6th Cir. 1997). The government, however, has failed to put

forth any evidence that Shipper Direct conducted its accounting on other than a cash basis.

       The government first argues that “[t]rial testimony established that financial information

submitted by Suddarth to representatives of Echo Global Logistics had been prepared on an accrual

basis, not a cash basis.” (Appellee’s Br. at 17 (emphasis added).) But just because a company uses

one accounting method to prepare documents for closing doesn’t necessarily mean that method is

standard for the company. In fact, Suddarth’s affidavit explicitly states that the submitted financial

documents were prepared on an accrual basis at Echo’s request. Suddarth wrote:



       2
        The statute also includes making a false declaration within “document[s]” and “record[s]”
provided to the United States courts. 18 U.S.C. § 1623(a).
       3
          Count 19—on which the jury acquitted Suddarth—specifically alleged Suddarth’s
statement that an Echo employee “prepared accrual load level detail reports” was a false
declaration. (R.1, Indictment at PageID # 13.) The jury also acquitted her on Count 17, which
alleged Suddarth’s statement “[t]hat she did not misrepresent anything to Echo with respect to the
sale of Shipper Direct or any other business” was a false declaration. (R. 1, Indictment at PageID
# 12.)


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No. 19-5693, United States v. Suddarth


       [t]hat we did our accounting on a cash basis and Echo/Tennessee Holdings, LLC
       wanted the numbers to reflect accrual so Kyle Sauers and Mike Bloss actually
       created accrual numbers and from load level detail reports from the freight
       management system. The final balance sheet which was provided at closing was
       prepared and provided to the closing attorneys by Kyle Sauers who worked for the
       Plaintiffs. The Plaintiffs insisted on numbers on an accrual basis which was not
       how Shipper Direct Logistics, Inc. accounted for its business.

(Gov’t Trial Ex. 27 at PageID # 244–45.) It is consistent for Shipper Direct to have conducted its

accounting on a cash basis but submitted documents prepared on an accrual basis for closing. Echo

CFO Kyle Sauers’s explanation of due diligence confirms this. He described due diligence as the

process by which the selling company provides documentation necessary to assure the buyer of

the seller’s financial health. (R. 159, Trial Tr. at PageID # 1562 (explaining due diligence as “the

process of understanding the business, verifying the books and records, looking at all the

information that the company is willing—willing to give you to verify the financial statements that

they’ve given us.”).) So due diligence was on Echo’s terms, and if Echo was unhappy the deal

would fall through. Thus, it makes perfect sense for Shipper Direct to have conformed their

financial statements to Echo’s preferred accounting method for closing.

       Suddarth’s statement covered by Count 18 speaks only to the standard accounting method

used by Shipper Direct—that the accounting “was done on a cash basis.” (Id.) Especially given

Suddarth’s uncontradicted testimony that Echo requested closing documents be prepared on an

accrual basis, these documents do not establish that Shipper Direct conducted its accounting on

other than a cash basis. What’s more, when specifically asked if Shipper Direct provided Echo

with a “description of accounting methods, practices, [or] any known differences from GAAP,”

Sauers responded: “There was not a written statement about accounting practices. They did not

have that.” (R. 159, Trial Tr. at PageID # 1671.) So Echo could not even speak to Shipper Direct’s




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No. 19-5693, United States v. Suddarth


standard accounting procedures. Counts 17 and 19 more appropriately alleged false declarations

related to the submission process, but the jury acquitted Suddarth on these counts.4

       And context matters. “[I]n perjury cases, district courts should view a witness’s testimony

as a whole and [her] statements should not be taken out of context.” United States v. Ronda, 455

F.3d 1273, 1294 (11th Cir. 2006); United States v. Serafini, 167 F.3d 812, 820–24 (3d Cir. 1999)

(similar); Van Liew v. United States, 321 F.2d 674, 677–78 (5th Cir. 1963) (similar); Fotie v.

United States, 137 F.2d 831, 842 (8th Cir. 1943) (similar); see also United States v. Thomas, 612

F.3d 1107, 1116 (9th Cir. 2010) (similar). And here, the context of Suddarth’s declaration makes

all the difference. Just after Suddarth’s supposedly perjurious statement is her clarification that

Echo required Shipper Direct to provide its financial data in an accrual format. That Echo received

what it wanted doesn’t show Shipper Direct used something other than cash accounting “for its

business.” (Gov’t Trial Ex. 27 at PageID # 245 (emphasis added).) It just shows that Shipper Direct

knew how to close a deal. Again, the insufficient evidence standard asks whether any rational juror

could have concluded beyond a reasonable doubt that each essential element of the offense was

established. See Jackson, 443 U.S. at 319. Given the substantial doubts expressed above, the

government has not satisfied this standard based on the documents submitted during closing.

       The dissent argues that these documents establish that Shipper Direct conducted its

accounting on an accrual basis by trying to link the documents to a single sentence in a several-



       4
          The government’s only record citation in its attempt to establish the falsity of Suddarth’s
declaration is Kyle Sauers’s testimony that all the documents submitted by Suddarth to Echo
during closing were prepared consistent with, and labeled as, accrual-based accounting. (See R.
159, Trial Tr. at PageID # 1574–79.) But Suddarth concedes that these documents were prepared
on an accrual basis, only arguing, as discussed here, that these documents departed from Shipper
Direct’s standard practice. (See R. 160, Trial Tr. at PageID # 2010.) Although there was a dispute
at trial about who prepared these documents, the jury resolved that dispute when it acquitted
Suddarth on Count 19, which specifically alleged that Suddarth’s statement that an Echo employee
prepared the documents was a false declaration.


                                                 6
No. 19-5693, United States v. Suddarth


hundred-page purchase agreement. That link, crucial to the dissent’s argument, is unsupported by

the evidence. The sentence at issue is in the Asset Purchase Agreement that Suddarth signed and

asserts that “[t]he Financial Statements have been prepared in accordance with Seller’s standard

accounting policies and procedures applied on a consistent basis, are complete and correct in all

material respects, and present fairly as of their respective dates the financial condition and results

of operations of the Business[.]” (Gov’t Trial Ex. 7 at 21.) Remarkably, the government has not

cited this passage once during this appeal; neither in its brief, nor at oral argument.

       Importantly, there is no evidence that the exhibits labeled “Accrual Basis” are the same

“Financial Statements” that the Asset Purchase Agreement says Shipper Direct submitted “in

accordance with Seller’s standard accounting policies and procedures applied on a consistent

basis.” As the dissent points out, the dates of these exhibits align with the Asset Purchase

Agreement. But given the large volume of documents that change hands during due diligence, the

dates of the documents alone cannot establish a connection to the Asset Purchase Agreement. Not

only has the government pointed to no evidence linking these documents to the Asset Purchase

Agreement but no one at trial or on appeal—until the dissent today—has argued that the trial

exhibits labeled “Accrual Basis” are the financial statements referenced by the Asset Purchase

Agreement. Without evidence of such a link, assuming the exhibits represent Shipper Direct’s

standard accounting practices is pure speculation. As we have said before, “the web of inference

is too weak on these facts to permit any rational trier of fact, absent sheer speculation, to find

beyond a reasonable doubt that” Suddarth’s declaration was false. United States v. Sliwo, 620 F.3d

630, 637 (6th Cir. 2010) (cleaned up).




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No. 19-5693, United States v. Suddarth


       More telling is Sauers’s own testimony about this section of the Asset Purchase Agreement.

After being directed to the relevant section, Sauers was asked, “what is that,” and he responded:

“it’s a representation that the financial statements are true and accurate.” (R. 159, Trial Tr. at

PageID # 1597.) And after reading the section into the record, the government asked Sauers “what

did that mean to you as a buyer?” (Id. at PageID # 1598.) He responded: “That means that the –

that Angela’s attesting to the fact that the financial statements that she has given us are true and

accurate.” (Id.) The government was using this section of the Asset Purchase Agreement to prove

the falsity of Suddarth’s declaration covered by Count 17—that she did not misrepresent anything

to Echo related to the sale of Shipper Direct—not Count 18. Sauers’s testimony is clear. The parties

to the Asset Purchase Agreement believed this section to mean that the information provided in

the financial documents was not fraudulently prepared, not that it was an assertion by Shipper

Direct that it customarily used accrual-based accounting. And the government’s failure to cite this

evidence—either in its brief or at oral argument—suggests that the government itself thinks the

evidence is relevant to a different count.

       The dissent also points to Sauers’s later testimony that the agreements between Shipper

Direct and Echo referred to accrual-based accounting, that Shipper Direct’s financial statements

were always labeled as accrual-based, that Sauers and Suddarth had talked about accrual-based

accounting, and that Shipper Direct wouldn’t have accounts receivable or accounts payable data if

they conducted their accounting on a cash basis. But the dissent omits two key pieces of

information. First, this section of Sauers’s testimony responded to questioning about “the financial

statements provided to [Sauers] by Ms. Suddarth[.]” (R. 159, Trial Tr. at PageID # 1575–76

(emphasis added).) And we’ve already discussed why the documents provided during closing

aren’t necessarily probative of Shipper Direct’s normal accounting method. Second, Sauers later




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No. 19-5693, United States v. Suddarth


testified that Shipper Direct never provided a “description of accounting methods, practices, [or]

any known differences from GAAP.” (R. 159, Trial Tr. at PageID # 1671.) So Sauers admitted

that he had no first-hand knowledge of whether Shipper Direct conducted their accounting on a

cash or accrual basis and he was not a credible witness on the topic.5

       The government also argues that Suddarth’s admission “that there was a difference

between the total net income determined on an accrual basis as opposed to a cash basis” proves

the falsity of her declaration. (Appellee’s Br. at 17.) While this assertion may bear on the

materiality of Suddarth’s declaration, it does not affect falsity. Any financial difference resulting

from the use of different accounting methods provides no evidence that Shipper Direct did not in

fact use cash-based accounting methods.

       Last, the government argues that:

       [f]rom the context of the affidavit and the lawsuit in which it was filed, Suddarth
       clearly was intending to mislead the district court by providing a false and
       seemingly innocent explanation for the discrepancies between the financial
       information that she provided to Echo Global Logistics and the financial
       information that she asserted was accurate after the closing of the sale of her
       business interests to Echo Global Logistics.

(Id. at 18.) The government does not cite the record for this otherwise conclusory statement.

Whatever Suddarth’s motivations may have been for making the declaration, § 1623 requires that

the actual declaration—that Shipper Direct conducted its accounting on a cash basis—be literally

false. See 18 U.S.C. § 1623(a); Frost, 125 F.3d at 386.

       It is true that this court has found contextual evidence sufficient to support a conviction.

See Frost, 125 F.3d at 386. For example, in United States v. Frost, this court found that context




5
  And for what it’s worth, it’s implausible to believe that only businesses that conduct their
accounting on an accrual basis keep track of who owes them money or to whom they owe money.



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No. 19-5693, United States v. Suddarth


suggesting a relationship was professional and not friendly could support a rational juror’s

conclusion that the defendant’s statement that “they offered to look at my dissertation as a

colleague and a friend” was false. Id. at 385–86.6 But the contextual evidence proffered by the

government here does not bear a similar relationship to the underlying statement. Even if it is true

that Suddarth made the declarations in the affidavit to explain away her efforts to defraud Echo,

these motivations provide no contextual clues about the method of accounting that Shipper Direct

actually used.

       The dissent correctly notes that the primary question before us is “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319

(emphasis added). But contrary to the dissent’s accusations, we are not requiring that the

government remove every reasonable hypothesis except that of guilt, nor do we “impose

limitations on a jury’s deliberations that do not exist under the law.” Rather, in this case, given the

dearth of evidence presented by the government at trial and the problems with its arguments on

appeal, as discussed above, many doubts—too many for a rational juror to conclude beyond a

reasonable doubt—exist as to the falsity of Suddarth’s declaration. The dissent assumes that the

jury drew inferences and made logical leaps not suggested to them by the evidence at trial. This

weak “web of inference” is something a rational juror does not follow. See Sliwo, 620 F.3d at 637.

There is no way for this court to view the evidence in the light most favorable to the prosecution

when the prosecution has put forth no relevant evidence. We hold that no rational juror could have

found that the government established the falsity of Suddarth’s declaration, an essential element




6
 The jury in Frost also heard testimony from the alleged friend who explicitly stated: “I didn’t
necessarily do it as a friend, I did it as a paid employee.” Frost, 125 F.3d at 386.


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No. 19-5693, United States v. Suddarth


of the offense, beyond a reasonable doubt. It is thus unnecessary to discuss the sufficiency of the

evidence supporting materiality, or any of the other claims that Suddarth raises.

                                                IV.

       For these reasons, we REVERSE Suddarth’s conviction.




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No. 19-5693, United States v. Suddarth


       CLAY, Circuit Judge, dissenting. On May 27, 2015, Defendant Angela Suddarth was

indicted in the Middle District of Tennessee on twenty-two counts arising out of the sale of her

business’s assets. Defendant was alleged to have defrauded the buyer, Echo Global Logistics

(“Echo”), by making false statements about her company, Shipper Direct Logistics, Inc. (“Shipper

Direct”); fabricating its financial information; committing wire fraud and mail fraud in conveying

that information to Echo; stealing others’ identities to cover her tracks; engaging in money

laundering with the proceeds; and committing bankruptcy fraud during the course of an ensuing

civil suit. A jury acquitted Defendant on twenty-one counts and convicted her of one. Specifically,

the jury found that Defendant made a false declaration before a federal court, in violation of 18

U.S.C. § 1623, when she filed an affidavit in a civil suit brought by Echo declaring that “all

accounting” for her business “[was] done on a cash basis.” Defendant now appeals her conviction,

asserting three claims of error. Her principal claim is that there was insufficient evidence to convict

her of this offense. Defendant’s claims are entirely without merit. The majority is wrong to find

otherwise.

       The primary question before us is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). We may overturn the jury’s verdict only if its

“finding was so insupportable as to fall below the threshold of bare rationality.” Coleman v.

Johnson, 566 U.S. 650, 656 (2012) (per curiam).

       I disagree with the majority’s contention that the jury’s verdict fell below that threshold.

The majority finds so only by misconstruing our required standard of review and improperly

imposing limitations on the jury’s authority to consider the evidence before them. I would respect




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No. 19-5693, United States v. Suddarth


the jury’s determination of what the evidence shows, and because Defendant’s other challenges

are without merit, I would affirm the jury’s verdict in its entirety.

                                     FACTUAL BACKGROUND

        A review of the facts of the case will assist in revealing the deficiencies of the majority’s

argument.1 As of early 2012, Defendant was President and sole shareholder of Shipper Direct, a

company that coordinated transportation of goods for other companies. At that time, Shipper Direct

was having financial difficulties. Thus, in spring 2012, Defendant began negotiations to sell

Shipper Direct’s assets to Echo, which was engaged in the same business. Throughout those

negotiations, Defendant provided a number of financial documents to Echo employees conducting

diligence on Shipper Direct, including Echo employee Kyle Sauers. These negotiations culminated

on July 19, 2012, when Shipper Direct and Echo executed an asset purchase agreement (“the Asset

Purchase Agreement” or “APA”) selling Shipper Direct’s assets to Echo for approximately

$9 million. Defendant signed the APA for Shipper Direct.

        After the APA was executed, Echo discovered that Shipper Direct was worth considerably

less than $9 million and, particularly, that Shipper Direct’s actual finances did not reflect those

represented in the financial statements Echo had been provided. Echo then filed civil fraud,

conspiracy, and breach of contract claims against Defendant, her husband, and Shipper Direct in

the United States District Court for the Northern District of Illinois. Echo obtained a default

judgment against Defendant, which she sought to set aside. Defendant executed and submitted the

relevant affidavit in support of that effort, declaring under penalty of perjury:



        1
          Because this Court must “view[] the evidence in the light most favorable to the prosecution” when
considering Defendant’s sufficiency of the evidence claim, Jackson, 443 U.S. at 319, and resolve all
conflicts in the testimony in favor of the government, United States v. Siemaszko, 612 F.3d 450, 462 (6th
Cir. 2010) (citing United States v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992)), I accept as true all evidence
relevant to that claim presented by the government.


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No. 19-5693, United States v. Suddarth


               6. That [Shipper Direct] did our accounting on a cash basis and
               Echo/Tenenssee [sic] Holdings, LLC wanted the numbers to reflect
               accrual so Kyle Sauers and Mike Bloss actually created accrual
               numbers and from load level detail reports from the freight
               management system. The final balance sheet which was provided at
               closing was prepared and provided to the closing attorneys by Kyle
               Sauers who worked for the Plaintiffs. The Plaintiffs insisted on
               numbers on an accrual basis which was not how Shipper Direct
               Logistics, Inc. accounted for its business.
               ...
               10. That all accounting is done on a cash basis. Kyle Sauers and
               Mike Bloss wanted accrual numbers. Kyle Sauers prepared accrual
               load level detail accounting from the system while in the offices in
               TN. Kyle Sauers prepared the final closing balance sheet.
               Echo/Tennessee Holdings, LLC prepared the load level detail.

       Defendant was later indicted on twenty-two counts, including for making a false

declaration before a federal court, in violation of 18 U.S.C. § 1623, by stating in this affidavit that

Shipper Direct did its accounting on a cash basis. Defendant’s case was heard by a jury in the

United States District Court for the Middle District of Tennessee beginning on January 8, 2019.

Her trial concluded on January 16, 2019 with not guilty verdicts on twenty-one counts and a single

guilty verdict on this 18 U.S.C. § 1623 charge.

                                           DISCUSSION

       Defendant’s principal claim on appeal is that the evidence presented at trial was insufficient

to convict her under 18 U.S.C. § 1623. To overturn the jury’s verdict, we must conclude that no

rational juror could have found beyond a reasonable doubt that her statement that Shipper Direct

did all its accounting on a cash basis was both false and material.

       Because this case turns on the distinction between accounting methods, it is important to

understand what those methods are. As relevant here, a company’s accounting method determines

the date when it records the revenue it earns. See Raj Gnanarajah, Cong. Research Serv., 7-5700,

Cash Versus Accrual Basis of Accounting: An Introduction 1 (2014). The two general methods of



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No. 19-5693, United States v. Suddarth


accounting are cash-basis accounting and accrual-basis accounting. Id. A company using cash-

basis accounting records revenue when it actually receives money. Id. A company using accrual-

basis accounting records revenue when it earns the revenue, whether or not it has yet actually

received any of the money. Id.

       As an example, suppose that Shipper Direct entered a contract to provide services to

Worldwide Widgets, for which Shipper Direct would receive $10,000 in revenue. Further suppose

that Shipper Direct provided those services on September 1, and Worldwide Widgets had one

month thereafter to pay Shipper Direct. Worldwide Widgets actually paid Shipper Direct on

October 1. If Shipper Direct used cash-basis accounting, it would record the $10,000 in revenue

on October 1, when Worldwide Widgets paid. If Shipper Direct used accrual-basis accounting, it

would record the $10,000 in revenue on September 1, when it provided the services and earned

the revenue.

       Thus, a change from cash- to accrual-basis accounting would change the amount of revenue

reflected on Shipper Direct’s financial statements. If Shipper Direct used accrual-basis accounting,

its documented revenue would reflect money yet to come in. That amount is typically designated

as a “receivable.” Id. at 20. If Shipper Direct used cash-basis accounting, its documented revenue

would not reflect any such sums. Id. at 4.

       With this groundwork laid, I turn to Defendant’s claims.

                                   Sufficiency of the Evidence

           A. Preservation

       Though the majority skirts the issue, we must begin by assessing whether Defendant’s

claim has been preserved for our review. A defendant properly preserves a sufficiency of the

evidence claim by making a Rule 29 motion for judgment of acquittal at the end of the

prosecution’s case-in-chief and renewing that motion at the close of the evidence. United States v.


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No. 19-5693, United States v. Suddarth


Chance, 306 F.3d 356, 368 (6th Cir. 2002) (citing United States v. Dandy, 998 F.2d 1344, 1356

(6th Cir. 1993)). A Rule 29 motion asserts that “the evidence is insufficient to sustain a

conviction,” and therefore the defendant must be acquitted. Fed. R. Crim. P. 29(a). Defendant

made a Rule 29 motion related to the current offense at the close of the government’s case, but she

explained that her motion “deal[t] with the proper venue for perjury.” (Trial Tr., R. 160 at PageID

#1841.) At the close of evidence, she renewed this motion “only based on these other grounds

[she] had raised before.” (Trial Tr., R. 162 at PageID #2448.) Thus, Defendant’s argument before

the district court was not that there was insufficient evidence to convict her of an 18 U.S.C. § 1623

offense, but that there was insufficient evidence to show that the Middle District of Tennessee was

the correct place to try her for this offense.

        Ordinarily, when a defendant makes a Rule 29 motion on specific grounds, this Court finds

all grounds not asserted in that motion waived. See United States v. Porter, 886 F.3d 562, 566 (6th

Cir. 2018). However, the government did not argue that Defendant had waived her sufficiency of

the evidence claim in either of its briefs on appeal. Though it argued waiver at oral argument, it

conceded that this argument should have been made in its briefs. Thus, the government arguably

forfeited Defendant’s waiver. “[A]s with any other argument, the government can forfeit a waiver

argument by failing to raise it in a timely fashion.” United States v. Boudreau, 564 F.3d 431, 435

(6th Cir. 2009) (quoting Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir. 1998)).

We regularly find waivers to have been forfeited in other contexts. See, e.g., United States v.

Williams, 641 F.3d 758, 763–64 (6th Cir. 2011) (“[B]ecause the United States failed to request

that we apply plain-error review, it has forfeited any argument that we should apply that standard

. . . .”). Although it is within our discretion to find Defendant’s claim waived, given this precedent




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No. 19-5693, United States v. Suddarth


and the lack of any concession by Defendant in the instant action, Defendant’s argument will be

addressed herein as if it had been properly preserved.

           B. Standard of Review

       This Court reviews a district court’s denial of a motion for judgment of acquittal de novo.

United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004) (citing United States v. Keeton, 101 F.3d

48, 52 (6th Cir. 1996)). When considering a sufficiency of the evidence claim, “the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 319. In assessing the evidence, we are bound to make “[a]ll reasonable

inferences and resolutions of credibility . . . in the jury’s favor” and may uphold a conviction on

the basis of circumstantial evidence alone. United States v. Tragas, 727 F.3d 610, 617 (6th Cir.

2013) (quoting United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012); and then citing

United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010)). Thus, a defendant must bear “‘a very

heavy burden’ to show that the government’s evidence was insufficient.” Id. (quoting United States

v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012)).

       In the case at bar, the jury found the evidence sufficient to conclude beyond a reasonable

doubt that Defendant had committed each of the elements of an 18 U.S.C. § 1623 offense. An

individual violates 18 U.S.C. § 1623 if “under oath (or in any declaration . . . or statement under

penalty of perjury . . .) in any proceeding before or ancillary to any court or grand jury of the

United States [she] knowingly makes any false material declaration.” 18 U.S.C. § 1623(a).

Defendant contests two specific elements, arguing that the evidence was insufficient to show that

her statement was either false or material. Falsity and materiality are essential elements of an

18 U.S.C. § 1623 offense. See United States v. Frost, 125 F.3d 346, 386 (6th Cir. 1997) (falsity);

Johnson v. United States, 520 U.S. 461, 465 (1997) (materiality). Defendant does not meaningfully


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No. 19-5693, United States v. Suddarth


contest the sufficiency of the evidence to show the other elements of her offense—that she

“knowingly made” her false statement and that she made that statement “before or ancillary to” a

United States court or grand jury. 18 U.S.C. § 1623; see also United States v. Ramirez, 635 F.3d

249, 260 (6th Cir. 2011).

              C. Falsity

           The majority’s opinion focuses entirely on whether or not Defendant’s statement was false.

It concludes not just that there was insufficient evidence of falsity, but that the government “has

failed to put forth any evidence that Shipper Direct conducted its accounting on other than a cash

basis.” This statement is itself demonstrably false. Nevertheless, in so finding, the majority

apparently excuses itself from applying our required standard of review, as it contends “[t]here is

no way for this court to view the evidence in the light most favorable to the prosecution when the

prosecution has put forth no relevant evidence.” This statement is indefensible. In fact, the

evidence presented at trial overwhelmingly suggested Shipper Direct used accrual-basis

accounting. While the evidence argued by the government on appeal is not voluminous, a review

of the record before the jury at trial reveals ample evidence to allow a rational juror to find beyond

a reasonable doubt that Defendant’s statement that Shipper Direct did its accounting on a cash

basis was false. That same evidence suggests Defendant must have recognized the statement’s

falsity.

           Throughout her negotiations with Echo, Defendant provided Echo employees with a

number of financial statements that were explicitly labeled as accrual-based statements. The

government introduced multiple of those statements into evidence. It specifically sought witness

testimony about a 2011 profit and loss statement and a June 30, 2012 balance sheet. (Gov’t Trial

Exh. 1:2; Gov’t Trial Exh. 2:2.) Both were labeled “Accrual Basis” and were identified as accrual-

based statements in witness testimony, including, in the case of the profit and loss statement, by


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No. 19-5693, United States v. Suddarth


Defendant herself. (Sauers Direct, R. 159 at PageID #1569, 1575; Suddarth Cross, Trial Tr., R. 160

at PageID #2011.)

       The majority wrongly asserts that the materials submitted as part of an asset purchase

negotiation have no bearing on whether Shipper Direct conducted its accounting on a cash basis.

Instead, it dismisses these materials as constituting no evidence whatsoever. It notes that

Defendant’s affidavit acknowledges that she submitted materials developed on an accrual basis to

Echo during negotiations.

       However, the evidence presented to the jury suggests these materials do reflect how

Shipper Direct conducted its accounting. The parties’ Asset Purchase Agreement clearly states that

the financial statements Shipper Direct provided to Echo “have been prepared in accordance with

[Shipper Direct’s] standard accounting policies and procedures applied on a consistent basis.”

(Gov’t Trial Exh. 7 at 021.) It further states that Shipper Direct’s purchase price was based on its

assumed 2011 earnings “determined in accordance with [its] standard accounting policies and

procedures, applied on a consistent basis.” (Id.) This evidence plainly connects Shipper Direct’s

accrual-basis financial statements to its standard accounting procedure. And out of all of the text

of the APA, the government affirmatively brought this section of the APA to the jury’s attention.

After introducing the APA into evidence, the government directed witness Kyle Sauers to this

portion and had him read each of these passages aloud. (Sauers Direct, R. 159 at PageID #1598–

99.) In the same section as the portions read aloud, the APA specifically identifies financial

statements aligning with the dates of the accrual-basis statements introduced—“statements of

income and cash flow” for 2011 and a “balance sheet . . . as of June 30, 2012”—as statements that

would have been prepared under Shipper Direct’s standard accounting procedures. (Gov’t Trial

Exh. 7 at 021.) Asked what this portion of the APA meant, Sauers explained that this was where




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No. 19-5693, United States v. Suddarth


Defendant “sa[id] here’s all the things that we’ve told you about the business and it’s all accurate

and true.” (Sauers Direct, R. 159 at PageID #1594–95.) Defendant herself later agreed that she

signed this APA on behalf of Shipper Direct. (Suddarth Cross, Trial Tr., R. 160 at PageID #2028.)

       Viewing this evidence together, a rational juror could certainly find that Shipper Direct’s

“standard accounting policies and procedures” must have been accrual-based, and not cash-based,

as Defendant stated in her affidavit. Coming to this conclusion does not require a “web of

inferences” or “sheer speculation,” as the majority alleges, but merely an ability to make basic

connections. The APA says that Shipper Direct’s financial statements were developed under its

standard accounting procedures. The financial statements put before the jury were developed using

accrual-basis accounting. Therefore, Shipper Direct used accrual-basis accounting.

       The majority makes every effort to dismiss this evidence. It asserts that the financial

statements introduced in the APA are not necessarily the same accrual-based financial statements

introduced into evidence. It goes so far as to say there is “no evidence” that these are the same

statements, despite acknowledging that the dates and descriptions of the financial statements the

APA identifies align with the financial statements in evidence. But even if this alignment were the

only evidence put before the jury, the jury is permitted to make reasonable inferences from it. See

Tragas, 727 F.3d at 617. We are bound to respect those inferences—on review, we must make all

reasonable inferences in the jury’s favor. Id. No evidence, no jury instruction, and no legal rule

suggests this inference is unreasonable.

       Still, this alignment is not the only evidence suggesting such a connection, nor is it the only

evidence grounding the jury’s conclusion. Sauers, who conducted Echo’s diligence on Shipper

Direct, testified that Shipper Direct’s financial statements “were always indicated as accrual based

accounting,” suggesting any financial statements the APA could refer to were developed on an




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No. 19-5693, United States v. Suddarth


accrual basis. (Sauers Direct, Trial Tr., R. 159 at PageID #1576.) Sauers also directly testified that

“the agreements [between Shipper Direct and Echo] referred to accrual based accounting.” (Id.)

The APA by itself includes more indications of accrual-based accounting, including language

referring to “Accounts Receivable” and “Accounts payable.” (Gov’t Trial Exh. 7 at 048, 129.) As

Sauers explained to the jury, “you wouldn’t have accounts receivable or accounts payable [on a

financial document] if you were doing cash basis accounting because the purpose of that is that

you account for it when the money comes in or out. If you’re going to track what customers owe

you and what you owe your vendors or in our case the trucking companies, that’s, by definition,

accrual basis accounting.” (Sauers Direct, Trial Tr., R. 159 at PageID #1576–77.)

        Given the apparent conflict between the APA and Defendant’s affidavit, a rational juror

could not only conclude that one of those statements must be false, but could conclude that

Defendant knew her statement in the affidavit was false. As it happens, Defendant barely touches

upon the required scienter for her offense and wrongly suggests that willfulness, rather than

knowledge, is required.2 See 18 U.S.C. § 1623. Even had Defendant argued that there was

insufficient evidence to show scienter, sufficient evidence was provided to conclude that she was

aware of Shipper Direct’s accounting practices and therefore knew her statement was false, based

upon the conflict between the APA and Defendant’s affidavit, Defendant’s position as Shipper

Direct’s president and sole shareholder, and her role in sending accrual-basis financial statements

to Echo.

        Faced with this evidence, the jury’s conclusion that Defendant’s statement that Shipper

Direct used cash-basis accounting was false does not “fall below the threshold of bare rationality.”


        2
        In this regard, it should be noted that “[i]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” United States v.
Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (quotations and citations omitted in original) (quoting
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)).


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No. 19-5693, United States v. Suddarth


Coleman, 566 U.S. at 656. To justify its decision, then, the majority notes that the government did

not explicitly argue that the APA’s language regarding the use of “standard accounting policies

and procedures” was connected to Shipper Direct’s accrual-basis financial statements. But this

does not make the jury’s conclusion irrational. The jury received all the information necessary to

make such a connection. We must “give full credit to the responsibility of the jury to weigh the

evidence . . . and to draw inferences,” United States v. Washington, 715 F.3d 975, 979 (6th Cir.

2013) (citing Jackson, 443 U.S. at 319), including inferences not explicitly argued by the

government. The jury was not bound to confine its consideration of testimony and exhibits to the

government’s principal argument, so long as its verdict was supported by substantial evidence and

rendered in accordance with the law and the court’s instructions. By arguing to the contrary, the

majority seeks to impose limitations on a jury’s deliberations that do not exist under the law.

       Most egregiously, to reach its decision, the majority misconstrues our standard of review.

It chooses to focus entirely on the phrase “beyond a reasonable doubt,” even construing the

Supreme Court’s original statement to emphasize not that “any rational juror” must be able to

come to the jury’s conclusion, but that the juror must find so “beyond a reasonable doubt.”

Applying the rule in this manner, the majority finds that because Defendant’s affidavit also

presents a possible explanation for the accrual-based statements, a rational juror must have a

reasonable doubt about whether Shipper Direct used cash-basis accounting. But our case law

clarifies that the evidence “need not ‘remove every reasonable hypothesis except that of guilt’” in

order to sustain a guilty verdict. United States v. Lee, 359 F.3d at 418 (quoting United States v.

Stone, 748 F.2d 361, 63 (6th Cir. 1984)).

       More importantly, the majority’s construction of our standard of review misrepresents our

task on appeal. Of course, it is undeniably true that the jury must find each element of the




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No. 19-5693, United States v. Suddarth


defendant’s offense beyond a reasonable doubt. But maintaining such a narrow focus causes the

broader question to slip out of view—that is, is it possible for any single rational juror to conclude,

viewing all of the evidence before that juror as favorably to the prosecution as it can be viewed,

that Defendant’s statement was false beyond a reasonable doubt. Instead, the majority apparently

asks whether, considering only their credited evidence—that is, the evidence that the government

explicitly introduced and identified as relevant to this issue—Defendant’s statement was false

beyond a reasonable doubt.

       In doing so, the majority “unduly impinge[s] on the jury’s role as factfinder.” Coleman,

566 U.S. at 655. “[I]t is the responsibility of the jury—not the court—to decide what conclusions

should be drawn from evidence admitted at trial.” Id. at 651 (quoting Cavazos v. Smith, 565 U.S.1,

1 (2011) (per curiam)). The jury’s role and its deliberations should be given the respect that the

law requires. “[T]rial by jury in criminal cases is fundamental to the American scheme of justice,”

Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and is clearly established in the Constitution, see

U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be

by Jury . . . .”); U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed . . . .”). This reflects “a profound judgment about the way in which law

should be enforced and justice administered.” Duncan, 391 U.S. at 155. The majority’s decision

disturbs that judgment.

           D. Materiality

       Because it finds insufficient evidence of falsity, the majority does not address the

materiality of Defendant’s statement, which is also asserted by Defendant. Defendant’s materiality

argument is unpersuasive.




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No. 19-5693, United States v. Suddarth


       “A statement is material if ‘it has the natural tendency to influence, or was capable of

influencing, the decision of the decision-making body to which it was addressed.’” United States

v. Lee, 359 F.3d 412, 416 (6th Cir. 2004) (quoting United States v. McKenna, 327 F.3d 830, 838

(9th Cir. 2003)). In this case, the relevant decision-making body was the court in Defendant’s civil

suit with Echo. Defendant’s statement that Shipper Direct always used cash-based accounting was

material to at least Echo’s breach of contract and fraud claims in that suit.

       Defendant’s affidavit implied that a change in accounting methods, rather than any

misrepresentations, caused the disparity between Shipper Direct’s financial statements submitted

during negotiations and its actual financial state. (See Gov’t Trial Exh. 27 at 001–02.) She

reiterated before the district court that Shipper Direct’s revenues reached $18 million only because

of “outstanding receivables” revealed when accounting was done on an accrual basis. (Suddarth

Cross, Trial Tr., R. 160 at PageID #2011.) A Defendant admission that Shipper Direct did not use

cash-based accounting could have eliminated that explanation for the disparity and prompted

further inquiry into its cause, potentially revealing a breach of contract or fraudulent conduct.

       Defendant asserts on appeal that the government’s only evidence of materiality was

testimony by Kyle Sauers that Shipper Direct’s “overall financials, the profit and loss, would not

change much between the two accounting methods.” (Sauers Direct, R. 159 at PageID #1579.) But

the fact that Sauers made this statement does not make it true. Furthermore, this statement is taken

out of context. In response to the same question, Sauers noted that “[t]he balance sheet would look

different” if developed on a cash basis rather than an accrual basis, “because you wouldn’t have

the receivables and payables on there.” (Id.) He also acknowledged that the accounting method

affects timing “because your customer might have paid you on May 31 instead of June 1 or January




                                                 24
No. 19-5693, United States v. Suddarth


2 instead of December 1,” resulting in “an extra few thousand dollars in one period one month one

year versus the next.” (Id.)

       In context, it is clear that Sauers was contending that the accounting method could not

explain discrepancies of the magnitude that Echo saw in Shipper Direct’s statements. He suggested

that he would not have recommended purchasing Shipper Direct if he had known about its true

financial state. (Id. at #1578, 1645.) As Sauers later explained, Defendant’s actual financial

statements suggested Shipper Direct brought in less than a third of the revenue Defendant had

claimed. (Id. at #1644–45.) This testimony conflicted with Defendant’s own, which suggested that

“outstanding receivables” that were not apparent in cash-basis statements accounted for these vast

discrepancies. (Suddarth Cross, R. 160 at PageID #2011.) In the context of Defendant’s own

explanation, Sauers’ conflicting testimony could make a factfinder more inclined to believe that

Defendant purposefully obscured the cause of the financial discrepancies.

       To be sure, Sauers understates how a company’s accounting method could affect its

apparent financial health. But Defendant must rely on this out-of-context statement only because

her argument, that the accounting method Shipper Direct used made no difference to her civil case,

is otherwise indefensible. Even a basic understanding of standard accounting rules suggests that

accounting method matters. Many companies prefer accrual-basis accounting because they believe

it provides a clearer, more accurate picture of a company’s financial health. See Gnanarajah, Cash

Versus Accrual Basis of Accounting: An Introduction at 1. Cash-basis accounting, on the other

hand, can result in “significant distortion[s]” in a company’s financial statements if, for instance,

“it has received a large payment but has not yet delivered the product or provided the service.” Id.

Defendant herself explained that receivables apparent in accrual-based statements reflected a

substantial difference in her apparent revenue—suggesting Shipper Direct’s accounting method




                                                 25
No. 19-5693, United States v. Suddarth


was indeed material. (Suddarth Cross, R. 160 at PageID #2011 (suggesting that her bank

statements did not reflect “outstanding receivables that we hadn’t collected in,” which brought

Shipper Direct’s revenue to $18 million.)

        After weighing the evidence, making their credibility determinations, and drawing

inferences, Washington, 715 F.3d at 979, the jury concluded that Defendant’s statement was

material. We are not entitled to supplant that judgment with our own. Thus, because Defendant

has not carried her “very heavy burden” to show that the evidence as to either falsity or materiality

was insufficient, Tragas, 727 F.3d at 617, I would deny her sufficiency of the evidence claim and

affirm the jury’s conviction. Defendant’s other claims are discussed below.

                                                    Venue

        Defendant also argues that the district court erred in denying her Rule 29 motion for

acquittal on the basis of improper venue. The majority fails to address this claim. As it happens,

this claim is easily disposed of, as it has not been preserved for this Court’s review. While

Defendant made and renewed a proper Rule 29 motion on this basis, she failed to raise the issue

prior to trial, and therefore forfeited any objection to venue.3 Under Federal Rule of Criminal

Procedure 12(b)(3), a motion asserting improper venue “must be raised by pretrial motion if the

basis for the motion is then reasonably available and the motion can be determined without a trial

on the merits.” Fed. R. Crim. P. 12(b)(3)(A)(i). A defendant forfeits objections if she does not

challenge venue prior to trial when “the alleged defect [is] readily apparent on the face of the

indictment.” United States v. Gross, 626 F.3d 289, 293 (6th Cir. 2010). Defendant’s indictment


        3
           The government contends that Defendant waived this objection knowingly, pointing to defense
counsel’s statement that “tactically I thought it was better to raise it after jeopardy had attached in the case.”
However, defense counsel was referring to an objection on a prior count in making this statement. (See
Trial Tr., R. 160 at PageID #1840–41.) In the absence of evidence that there was a legally recognized
exception to Defendant raising this objection, it is more accurate to say that Defendant forfeited this
argument.


                                                       26
No. 19-5693, United States v. Suddarth


stated that Count 18 was based on an affidavit filed from Nashville, Tennessee with the United

States District Court for the Northern District of Illinois. At trial, Defendant argued that the

Northern District of Illinois was the proper venue because that was where the relevant proceeding

took place and that venue was not permitted in the Middle District of Tennessee on the basis that

the affidavit was filed there. This alleged defect was readily apparent from the face of the

indictment and, having not been raised by pretrial motion, is therefore forfeited.

                                     Ex Parte Communication

        The majority also fails to address Defendant’s final argument. Defendant asserts that the

district court committed reversible error by responding to a jury note asking what they should do

if they could not come to a unanimous verdict, without first conferring with the parties. (R. 129 at

PageID #1000–01.) In the response in question, the court noted that it was in the middle of a

sentencing hearing, said it would get back to the jury in an hour, and told them to continue

deliberating. (Id.) Within the hour, the jury reached a verdict.

        This claim is also unpreserved. When the jury indicated that it had reached a verdict, but

before the court received that verdict, the court summoned the parties and explained what had

happened. Defendant did not object to this communication at that time, nor did she raise this claim

in any post-trial motion. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir.

2009) (holding that to preserve an argument, a litigant must (1) state “the issue with sufficient

clarity to give the court and opposing parties notice that it is asserting the issue” and (2) provide

“some minimal level of argumentation in support of it.”) Because Defendant did not raise this issue

before the district court, she has forfeited it on appeal.




                                                  27
No. 19-5693, United States v. Suddarth


                                          CONCLUSION

        This case asks us to determine whether Defendant was wrongfully convicted based on the

facts and legal arguments before the jury and the district court. Because Defendant’s improper

venue and ex parte communication claims are unpreserved, her sufficiency of the evidence claim

is the only one remaining.

        Applying the appropriate standard of review, the record plainly shows that the evidence

presented was sufficient to allow a rational juror to conclude that Defendant’s statement that

Shipper Direct did its accounting on a cash basis was both false and material. To find otherwise,

my colleagues cast aside relevant evidence and seek to impose new, legally-unsupportable

limitations on the jury’s ability to consider evidence. They then wrongly take on the jury’s

responsibility to decide what the evidence shows. I would not so usurp the jury’s role. Instead,

I would affirm the district court’s decision in all respects. I therefore respectfully dissent.




                                                  28
