In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1894

United States of America,

Plaintiff-Appellee,

v.

Dina Abdelhaq,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 146--George W. Lindberg, Judge.


Argued January 16, 2001--Decided April 10, 2001



 Before Flaum, Chief Judge, and Posner and Coffey,
Circuit Judges.

 Posner, Circuit Judge. The government indicted
the defendant on 17 counts of bank fraud, mail
fraud, securities fraud, and welfare fraud,
involving fraudulent conduct over a period of
less than two years by which the defendant had
obtained money from banks, insurance companies,
and state and federal welfare agencies. The
district judge ordered a number of the charges
severed, leaving for trial the counts relating to
just three incidents: the defendant’s murder of
her infant daughter Tara to collect the proceeds
of a life-insurance policy that she had obtained
on the infant’s life (the most lurid charge, and
the heart of the trial and the appeal), charged
as mail fraud; another insurance fraud, arising
from a slip and fall accident in which the
defendant falsely claimed to have been injured;
and a bank fraud involving the cashing of three
bad checks within a month after the daughter’s
death in order to obtain money for gambling. The
severed counts included similar insurance and
bank frauds, along with welfare fraud.

 The grant of the motion to sever was
questionable. None of the usual grounds for
severance of counts at trial, Fed. R. Crim. P.
14; United States v. Coleman, 22 F.3d 126, 132-33
(7th Cir. 1994), was present. The frauds charged
in the indictment, all it appears motivated by
the defendant’s desire to obtain money for
gambling, were closely related in time as well as
in method and motive, and might even have been
charged as a single scheme. The risk that the
jury would be confused or prejudiced was slight.
The retained counts, which included the murder,
were more lurid than the ones severed, and so it
was not a case of "evidentiary spillover," that
is, a case in which a strong count is added in
the hope of bolstering a weak one. (Moreover, as
a basis for requiring severance, "evidentiary
spillover" has been rejected, e.g., United States
v. Dixon, 184 F.3d 643 (7th Cir. 1999), United
States v. Alexander, 135 F.3d 470, 478 (7th Cir.
1998); Sandoval v. Calderon, No. 99-99010, 2001
WL 167833, at *5-6 (9th Cir. Feb. 21, 2001);
United States v. Wiseman, 172 F.3d 1196, 1211-12
(10th Cir. 1999); United States v. Chitty, 15
F.3d 159, 161 (11th Cir. 1994), in all but one
case that we’ve found, Bean v. Calderon, 163 F.3d
1073, 1084-85 (9th Cir. 1998), where it was
accepted on very dubious due process grounds.)
Likewise slight was the risk that the jury would
be overwhelmed by the sheer number of charges or
that it would convict the defendant simply for
exhibiting criminal propensities. See United
States v. Vest, 116 F.3d 1179, 1189-90 (7th Cir.
1997).

 The judge felt that the government didn’t need
the extra counts. He may have been right. There
would be no sentencing increment from conviction
of the other charges if the government succeeded
in convicting the defendant of the main charge,
that of murdering her daughter for the insurance
money. And indeed, after she was convicted on
that charge and sentenced to 21 years in prison,
the government dismissed the counts that had been
severed. But the decision on how many counts are
needed to present an effective case is a
managerial decision committed to the discretion
of the prosecution. That was the basis on which
we reversed the order of severance in United
States v. Giannattasio, 979 F.2d 98 (7th Cir.
1992), remarking that "a judge in our system does
not have the authority to tell prosecutors which
crimes to prosecute or when to prosecute them,"
though we acknowledged the possibility, not
presented either by Giannattasio or by this case,
that "the judiciary has some inherent power to
protect itself from cases of overwhelming
complexity." Id. at 101.

 The government, however, is not challenging the
grant of the motion to sever (as it did in
Giannattasio by refusing to sever, precipitating
a dismissal of the indictment from which it could
and did appeal), and so we take the order as a
given and consider the defendant’s argument that
the government violated it by referring to facts
relating to the severed counts during the trial.
Even if there was a violation, it would not
follow that the proper sanction was reversal.
With immaterial exceptions, only prejudicial
errors warrant reversal; our discussion of the
basis (or rather lack thereof) of the severance
order in this case suggests that a violation of
the order was unlikely to be prejudicial. But
there is a deeper objection to the defendant’s
argument, and that is its premise that the effect
of severance is to forbid reference to the facts
underlying the severed counts. All a severance
does is reduce the number of counts or the number
of defendants. It is not the equivalent of a
ruling granting a motion in limine to exclude
specified evidence from the trial. Granted,
evidence relevant only to a particular count in
the indictment becomes irrelevant if the count is
severed; but relevant evidence is unaffected.
E.g., United States v. Arrington, 159 F.3d 1069,
1072 (7th Cir. 1998); United States v. Moore, 115
F.3d 1348, 1362 (7th Cir. 1997); United States v.
Windom, 19 F.3d 1190, 1198 (7th Cir. 1994);
United States v. Mackey, 117 F.3d 24, 26 (1st
Cir. 1997); United States v. Pierce, 62 F.3d 818,
830 (6th Cir. 1995). When such evidence is
presented, the defendant can object to its
admission on any of the grounds for such an
objection that the Federal Rules of Evidence
allow, such as undue prejudice or one of the
other grounds in Rule 403, see United States v.
Mobley, 193 F.3d 492, 495-96 (7th Cir. 1999); of
particular significance, of course, is Fed. R.
Evid. 404(b), with its limitations on the
introduction in evidence of other crimes besides
the ones the defendant is being tried for. But
severance is not one of those grounds. Evidence
underlying a severed count but relevant to the
remaining counts has the same status as any other
relevant evidence. In this case that evidence, to
which in any event no proper objections were
made, was not only relevant, but highly probative
in demonstrating the defendant’s desperation for
gambling money and her practice of defrauding
insurance companies and other disbursers of cash
in order to obtain the money she wanted for
gambling or to pay her gambling debts.

 The defendant’s only other argument that merits
discussion is that there was insufficient
evidence to justify a rational jury in finding
beyond a reasonable doubt that she had killed her
daughter, her claim being that the infant died of
SIDS (sudden infant death syndrome--"crib death,"
as it is sometimes called). The argument is based
partly on the mistaken belief that circumstantial
evidence alone cannot support a murder conviction
and partly on a failure to keep steadily in mind
that this is a fraud case rather than a murder
case. It makes no difference whether (as in fact
the evidence demonstrates convincingly) the
defendant smothered the infant or whether, hoping
that it would die, so that she could collect the
insurance proceeds, she failed to provide the
infant with basic care. The mail-fraud statute
punishes the scheme to defraud, 18 U.S.C. sec.
1341; United States v. Stockheimer, 157 F.3d
1082, 1087 (7th Cir. 1998), and there is no doubt
that the defendant deliberately misled the
insurance company into thinking that it was
insuring an infant who would receive ordinary,
rather than either lethal or deliberately
inadequate, care from the mother, the beneficiary
of the insurance policy on the infant’s life.
That was all that was necessary to enable a
rational jury to find her guilty beyond a
reasonable doubt. See, e.g., United States v.
Gee, 226 F.3d 885, 891 (7th Cir. 2000); United
States v. Cheska, 202 F.3d 947, 954 (7th Cir.
2000); United States v. Ewings, 936 F.2d 903,
907-08 (7th Cir. 1991).

 In any event there is no serious doubt that she
killed the child. Her motive, and her awareness
that she could obtain money by means of false
claims against insurance companies, are not in
doubt. She had motive and means (not merely to
file a false claim, but to kill the child), and
of course opportunity (she just needed to be
alone with the child for a few minutes). Not that
these circumstances alone would be sufficient to
convict, but there was much more. The fact that
she took out a $200,000 life-insurance policy on
her infant a month before it died even though she
was on public aid and deeply in debt for her
gambling losses and the infant’s death would not
have imposed significant costs on her is
suspicious. What is more, a previous child of
hers had died, supposedly another case of SIDS.
That child had not been insured, but it is
possible that the defendant murdered her in order
to avoid the expense of caring for her; she
already had two children. The defendant argues
that the previous death indicated a genetic
predisposition that might explain the
extraordinary coincidence of losing two children
to SIDS, but she presented little evidence to
support that conjecture (and there apparently is
little evidence that could have been presented,
see Stedman’s Medical Dictionary 1768 (27th ed.
2000)), it was vigorously contested, and the jury
was entitled to disbelieve it.

 And there is more. The defendant concealed the
birth of the child that she is charged in this
case with having murdered from her pediatrician
(having concealed the pregnancy from her as
well), and during the two months of this child’s
life never brought her to see a doctor. She
brought another of her children to the
pediatrician, both before and after Tara’s death,
yet did not mention Tara to her. Although the
emergency-room physician who first examined the
dead child accepted the defendant’s claim that it
was a SIDS death, and the report of the autopsy
did not say there had been foul play, the
defendant herself had said that there was blood
on the child’s mouth when she found the corpse
and the government’s experts testified that the
presence of blood was suggestive of suffocation,
as were certain small hemorrhages found on the
child’s heart and chest and the fact that rigor
mortis had set in first in the chest. The cause
of death stated in the autopsy report,
incidentally, was changed from SIDS to
"undetermined" when the hospital discovered the
death of the defendant’s previous child, because
of the improbability of a person’s having two
babies die of SIDS.

 The defendant emphasizes the lack of medical
certainty concerning the etiology and diagnosis
of SIDS. It is a mysterious syndrome. But given
how the parties framed the case, all the jury had
to do was decide between two hypotheses--that the
death was a SIDS death, and that the child had
been smothered by her mother. (A third, that
deliberate neglect had contributed to the child’s
death, was not explored--and for the reason
explained earlier would not have been helpful to
the defendant.) The second hypothesis was far
more probable in the circumstances than the
first. Taken all in all, the evidence of the
defendant’s guilt, while circumstantial (there
were no witnesses to the suffocation and the
defendant did not admit the deed), was sufficient
to support the conviction.

Affirmed.
