                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               OCT 8, 2010
                             No. 09-13388                      JOHN LEY
                         Non-Argument Calendar                   CLERK
                       ________________________

                  D. C. Docket No. 06-00468-CR-RWS-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

BRIDGETTE L. DAVIDSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (October 8, 2010)

Before CARNES, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:

      Bridgette Davidson was indicted on six counts: honest services mail fraud

in violation of 18 U.S.C. §§ 1341, 1346, and 2 (counts 1–4); conflict of interest in

violation of 18 U.S.C. § 208(a) (count 5); and making a false statement in violation

of 18 U.S.C. § 1001(a) (count 6). A jury convicted her on all counts. The district

court imposed: a sentence of 36 months imprisonment on each count to run

concurrently; a $5,000 fine; a 3-year term of supervised release on counts 1–4; a

concurrent 1-year term of supervised release on counts 5 and 6; and a $600 special

assessment. This is Davidson’s appeal of her convictions and sentence.

                                          I.

      Davidson first contends that her convictions for honest services mail fraud

on counts 1–4 of the indictment must be reversed in light of Skilling v. United

States, — U.S. —, 130 S.Ct. 2896 (2010), which the Supreme Court issued while

her case was pending on this direct appeal. In Skilling the Court held that the

honest services statute criminalizes only bribery and kickback schemes. Id. at

2931 (interpreting 18 U.S.C. § 1346). As the government concedes, because

Davidson was charged with and convicted of undisclosed self-dealing instead of

bribery or kickbacks, under Skilling her convictions on counts 1–4 must be

reversed. See id. at 2932 (rejecting the argument that undisclosed self-dealing by a



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public official or private employee is a crime covered by § 1346).

                                                II.

       Because her convictions for honest services mail fraud on counts 1–4 are

being reversed in light of Skilling, Davidson contends that her convictions on

count 5 for conflict of interest in violation of 18 U.S.C. § 208(a) and on count 6 for

making a false statement in violation of 18 U.S.C. § 1001(a) also should be

reversed. She argues that the evidence admitted to prove her intent to commit the

honest services mail fraud that was charged in counts 1–4 prejudicially spilled over

and led to her convictions on counts 5 and 6. She maintains that specific intent

evidence would not have been admitted at trial to prove the strict liability offense

of conflict of interest (count 5) or the false statement offense (count 6).

       If Davidson wanted to limit the use of the intent evidence to the honest

services mail fraud counts, she should have objected to it or requested a limiting

instruction. She did not.1 As a result, we review the prejudicial spillover issue as to


       1
         Davidson argues that she did not have an opportunity to request a limiting instruction
because the evidence was not offered under Fed. R. Evid. 404(b) as evidence of other crimes,
wrongs, or acts for the purpose of proving intent but instead was offered as substantive evidence
on the honest services mail fraud counts. Even so, if there was a risk that the jury would
impermissibly consider the honest services intent evidence as evidence in support of the other
charges against her, she could have requested a jury instruction to limit the jury’s consideration
of that evidence to the honest services charges. See Fed. R. Evid. 105 (when evidence is
admissible for one purpose but not another, “the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly”). Because she did not make that request,
plain error review applies. United States v. Smith, 459 F.3d 1276, 1297 (11th Cir. 2006)
(“[B]ecause Federal Rule of Evidence 105, which provides for limiting instructions in

                                                 3
counts 5 and 6 only for plain error. See Griffin v. City of Opa-Locka, 261 F.3d

1295, 1301 (11th Cir. 2001); United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005) (“An appellate court may not correct an error the defendant failed

to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights. If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” (citation and quotation marks omitted)). And, in doing so, we keep

in mind that “[d]ismissal of some counts charged in the indictment does not

automatically warrant reversal of convictions reached on remaining counts.”

United States v. Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000).

       As for count 5, the government concedes that because conflict of interest is a

strict liability offense, the intent evidence would not have been admissible to prove

count 5, but it argues that evidence was not prejudicial for the very reason that it



appropriate circumstances, only operates upon request, the failure to give a limiting instruction is
error only when such an instruction is requested.” (citation, quotation marks, and alteration
omitted)).

       Davidson also argues that even if the intent evidence would have been admissible under
Fed. R. Evid. 404(b), it would have been inadmissible as unfairly prejudicial under Fed. R. Evid.
403. As we have explained in regard to prejudicial spillover arguments, however, “[e]xclusion
of evidence under Rule 403 is within the discretion of the district court, and this court will not
speculate on what the district court would have done had a Rule 403 objection been raised.”
United States v. Prosperi, 201 F.3d 1335, 1346 (11th Cir. 2000) (citation omitted).

                                                 4
was irrelevant to the count 5 charge. We agree, at least in this plain error only

context. For the same reasons that the evidence was not relevant on count 5

Davidson has failed to carry her burden of persuading us, as she must under the

plain error rule, that there is a reasonable probability that but for the specific intent

evidence she would not have been convicted of the count 5 strict liability conflict

of interest charge. See Rodriguez, 398 F.3d at 1302.

      The analysis is somewhat different as to the count 6 false statement charge,

because that charge does require proof of intent — intent to make a false statement

to the VA investigators. Davidson’s position is that the evidence of her intent to

commit honest services mail fraud went beyond her intent to make false

statements, and for that reason there was prejudicial spillover. To determine

whether Davidson’s conviction on count 6 was the result of prejudicial spillover,

we consider whether there was evidence “(1) that would not have been admitted

but for the dismissed charges and (2) that was improperly relied on by the jury in

their consideration of the remaining charges.” Prosperi, 201 F.3d at 1345. If the

evidence at issue would have been admissible anyway under Fed. R. Evid. 404(b),

then no prejudicial spillover occurred. See id. at 1345–46. “Evidence of criminal

activity other than the charged offense is admissible for purposes of Rule 404(b) if

it: ‘pertain[s] to the chain of events explaining the context, motive and set-up of the



                                            5
crime [and is] linked in time and circumstances with the charged crime, or forms

an integral and natural part of the crime, or is necessary to complete the story of

the crime for the jury.’” United States v. Lehder-Rivas, 955 F.2d 1510, 1515–16

(11th Cir. 1992) (quoting United States v. Van Dorn, 925 F.2d 1331, 1338 (11th

Cir.1991)).

       Count 6 involved allegations that Davidson made false statements to

Veterans Administration investigators about whether she had any financial interest

in the personal care facility to which she assigned veterans who were under her

care as a VA social work associate.2 In her job with the VA, Davidson was

responsible for placing special needs military veterans in privately owned assisted

living facilities or personal care homes. VA policy and federal law prohibited

Davidson from placing the veterans in a personal care home if she owned or had a

financial stake in it. In violation of those prohibitions, she placed four veterans in

Jordan’s Elite Personal Care Home. To show that she had a financial stake in that

personal care home, the government presented evidence that Davidson had signed

a lease agreement for the home and had obtained a business license, which listed

       2
          On count 6 Davidson was convicted of making a false material statement in a matter
within the jurisdiction of a federal agency. See United States v. Lawson, 809 F.2d 1514, 1517
(11th Cir. 1987) (“To make any false or fraudulent statement in any matter within the
jurisdiction of a federal agency is a federal crime under 18 U.S.C. § 1001.”). To sustain a
conviction under § 1001, the government had to prove these elements: “(1) a statement, (2)
falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction.” Id.


                                               6
her as the owner of that business. She also had a business checking account in her

name for the home. There was also evidence that she made a profit of $16,000

based on the difference between the rent she paid on the house and the amount

collected from the veterans who lived there.

       During the investigation that led to the false statements charge contained in

count 6, VA investigators asked Davidson, who was under oath at the time, “Do

you have any financial involvement in Elite Personal Care Home?,” and she told

them she did not.3 They asked her if she had “in any way, shape or form

financially gained from any of the patients being placed in Elite Personal Care

Home . . . [e]ither directly or indirectly,” and she told them she had not. They

asked her if she knew who owned the personal care home or who had a financial

interest in it, and she told them that, except for what the investigators had said to

her about Darrick Frazier, she did not.

       The jury heard testimony that Davidson was in a long-term relationship with

Frazier and that they had a daughter. Frazier, who was Davidson’s co-defendant,

testified that Davidson had suggested opening a business for disabled veterans.

Davidson had told him that it would be a conflict of interest for the business to be

in her name because of her position with the VA. The assigned fiduciaries for the


       3
       Transcript excerpts of Davidson’s sworn testimony before an administrative board of
VA investigators were read into the record during Davidson’s trial.

                                              7
veterans wrote checks to Frazier or to the personal care home. Frazier testified that

he cashed the checks and gave the money to Davidson.

      No plain error as to count 6 occurred as a result of the admission of evidence

pertaining to Davidson’s criminal intent to commit the honest services mail fraud

offenses charged in counts 1–4. The same evidence was admissible to prove that

Davidson intentionally made false statements to the VA investigators in order to

cover up the underlying scheme of placing veterans in a home in which Davidson

had a financial interest. Evidence showing the context and motive for the crime

was necessary for the jury to understand what had led to the false statements and it

was admissible under Fed. R. Evid. 404(b). See Lehder-Rivas, 955 F.2d at

1515–16. Because the evidence would have been admissible under Rule 404(b) in

any event, no prejudicial spillover occurred. See Prosperi, 201 F.3d at 1345–46;

see also United States v. Lee, 612 F.3d 170, 180, (3d Cir. 2010) (“[I]f the evidence

to prove the overturned count would have been admissible to prove the remaining

valid count, the defendant was not prejudiced, and there is no need to consider

whether the evidence influenced the outcome. In other words, if, in creating a

hypothetical trial as to the valid count only, the evidence of the invalidated count

would have been admissible anyway, the analysis ends there.” (citation and

quotation marks omitted)). There was no error, much less plain error.



                                           8
                                          III.

      Davidson also contends that the evidence was insufficient to support her

conviction on count 6 for making a false statement in violation of 18 U.S.C. §

1001(a). “We review the sufficiency of the evidence de novo, viewing the

evidence in the light most favorable to the verdict.” United States v. Thompson,

473 F.3d 1137, 1142 (11th Cir. 2006). “The jury gets to make any credibility

choices, and we will assume that they made them all in the way that supports the

verdict.” Id. Furthermore, “the issue is not whether a jury reasonably could have

acquitted but whether it reasonably could have found guilt beyond a reasonable

doubt.” Id. Davidson contends that the government failed to show the falsity and

specific intent elements necessary to prove a violation of § 1001(a). See Lawson,

809 F.2d at 1517.

      As is evident from the discussion of intent evidence in Part II of this

opinion, there was ample evidence for a jury to conclude that Davidson made false

statements about her financial interest in the Jordan’s Elite Personal Care Home

and that she did so intentionally to cover up the conflict of interest created when

she placed veterans under her care in that home. The jury reasonably could have

found, as it did, guilt beyond a reasonable doubt on the false statement charge

against Davidson.



                                           9
                                         IV.

      Davidson contends that the district court plainly erred by sentencing her to a

term of 36 months in prison for having a conflict of interest as a federal employee

in violation of 18 U.S.C. § 208(a). A federal employee cannot “participate[]

personally and substantially as a Government officer or employee” in matter in

which she has a financial interest. 18 U.S.C. § 208(a). If an employee violates that

law, she commits a misdemeanor, subject to a maximum term of imprisonment of

one year. 18 U.S.C. § 216(a)(1). A willful violation, however, is a felony, subject

to a maximum sentence of five years. Id. § 216(a)(2).

      Because the indictment did not charge that Davidson had acted willfully, the

statutory maximum sentence for her misdemeanor crime was one year. As a result,

the government concedes that the district court did plainly err when it sentenced

Davidson to 36 months on her conviction for a § 208(a)(1) violation. Davidson has

already served her sentence on this count, which ran concurrently with her

sentences on the other counts, but her judgment of conviction—and thus her

criminal record—incorrectly indicate that she was convicted of a felony on this

count. Under these circumstances, the district court on remand should correct the

judgment to reflect that Davidson was convicted of a misdemeanor on the federal

employee conflict of interest count under § 208(a)(1), instead of a felony



                                         10
conviction under § 208(a)(2). For the same reason, the district court should revisit

the special assessment in accordance with the statutory limits imposed by 18

U.S.C. § 3013(a)(1)(A)(iii) and (a)(2).4

                                                V.

       Davidson also contends that the district court erred by applying a U.S.S.G. §

3A1.1(b)(1) vulnerable victim enhancement in sentencing her. She argues that her

victim was the VA, not the veterans she placed in the home and asserts that she did

not specifically choose vulnerable people because all of the veterans she worked

with at the VA fit into that category. She also argues the district court should not

have considered the condition of the personal care home in which she placed the

veterans.5

       4
        The government points out that the district court on remand should reduce the special
assessment from $600 to $525 in accordance with the limits imposed by 18 U.S.C. §
3013(a)(1)(A)(iii) and (a)(2).
       5
        The PSI quoted an incident report written by a Cobb County police officer, which
described these conditions in the home:

       The house and the living conditions were deplorable. The house was scarcely
       furnished and the furniture that was there was badly stained. The carpet was
       stained with feces and cigarette ashes. The carpet on the stairwell was detached
       and a hazard to walk on. The bathrooms were absolutely filthy and the only food
       in the house was a large pack of hotdogs.

PSI at 4–5, ¶ 16. The PSI, however, did not recommend a vulnerable victim enhancement,
reasoning that the VA was the victim of the offense and the indictment did not charge Davidson
with any offense arising from the quality of care provided to the veterans. See id. at 9, ¶ 29. The
government objected, and the district court ruled that the vulnerable victim enhancement
applied.


                                                11
      This issue is moot because the vulnerable victim enhancement applied to the

honest services mail fraud convictions, which are being reversed. Furthermore,

Davidson has already served her sentence.

      REVERSED in part, AFFIRMED in part, and REMANDED for

proceedings consistent with this opinion.




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