                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1297n.06

                                             No. 12-3074                                  FILED
                                                                                       Dec 19, 2012
                           UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )         ON APPEAL FROM THE
        Plaintiff-Appellee,                                )         UNITED STATES DISTRICT
                                                           )         COURT     FOR     THE
v.                                                         )         NORTHERN DISTRICT OF
                                                           )         OHIO
KAREN A. ANDERSON-BAGSHAW,                                 )
aka Karen Bagshaw,                                         )                            OPINION
                                                           )
        Defendant-Appellant.                               )
                                                           )



BEFORE: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

        McKEAGUE, Circuit Judge. A jury convicted Appellant Karen Bagshaw of one count of

mail fraud and thirteen counts of providing false statements to obtain federal employees’

compensation. She received disability payments while allegedly misrepresenting her physical

abilities and her involvement in an alpaca farm. To obtain evidence of her activities, the government

installed a video camera on a utility pole overlooking Bagshaw’s backyard. Bagshaw appeals the

district court’s denial of her motion to suppress this footage at trial. Bagshaw also appeals the

district court’s denial of her motion for a continuance, its exclusion of expert testimony, the alleged

multiplicitous nature of her convictions, and the district court’s denial of her motion for an acquittal

based on the insufficiency of the evidence. We AFFIRM.
No. 12-3074
United States v. Bagshaw

                                       I. BACKGROUND

       Injury and Benefits

       In 1998, Karen Bagshaw was working as a mail carrier in Wickliffe, Ohio. She began

experiencing back pain and was diagnosed with thoracic degenerative disc disorder. She received

workers’ compensation benefits beginning on May 25, 1998. The next year, she underwent spinal

fusion surgery. The parties dispute whether the surgeon botched the surgery. Regardless, Bagshaw

did not completely recover and was later diagnosed with “failed back syndrome.”

       In the spring of 2000, Bagshaw returned to work for the USPS during the afternoons,

performing limited duties such as answering the phone, completing paperwork, and delivering small

packages. Her primary care physician, Dr. Dicello, stated that she could work six hours per day, five

days per week. On June 19, 2002, the postmaster gave Bagshaw a new limited duty job offer for an

early morning shift—5:30 a.m. to 11:30 a.m. The postmaster consulted Bagshaw’s current medical

restrictions before making this offer, and they did not restrict the time of day she could work. The

new job did not involve duties any more strenuous than her current responsibilities.

       Bagshaw accepted this job offer “under duress” but did not return to work. She instead

submitted an injury recurrence notice on August 9, 2002, indicating that her medical condition had

worsened on June 20—the day after she received the early morning shift job offer. Her form stated

that Dr. Dicello said she could not perform sustained gainful employment due to her May 25, 1998

injury. Bagshaw further stated that she was experiencing “[h]orrible constant pain” that “cause[d]

[her] whole body distress.”



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United States v. Bagshaw

       The Department of Labor Office of Workers Compensation (“OWC”) granted her total

disability payments as of June, 2002. Between June 12, 2002, and July 2, 2011, the OWC paid

Bagshaw approximately $291,000.

       David Cattani, a Senior Claims Examiner with the OWC, explained the process by which

federal civilian employees obtain disability benefits. Once removed from the payroll, the employee

must file a form each pay period claiming wage loss. Eventually, if the injury is long-lasting, the

employee will be placed on the “automated rolls” and will automatically receive payments. Once

on the “automated rolls,” the employee must complete an annual survey form called a CA-1032.

This form asks about business involvement and any changes in the employee’s life, including

moving, household status, insurance settlements, etc. The amount of compensation a totally disabled

employee receives is either 2/3 or 3/4 of his or her normal salary, depending on whether he or she

is supporting dependents. An employee is entitled to these benefits until the OWC can prove

otherwise.

       On September 10, 2002, in response to a request from a claims examiner for more

information about her injury recurrence, Bagshaw sent a letter to the OWC. She explained that she

“stopped working mainly because they changed my job offer.” Along with her letter, she submitted

a letter of disability from an orthopedic surgeon, Dr. John Paul. Dr. Paul diagnosed her with, among

other things, a “herniated thoracic disc, some problems with the fusion at the thoracic spine slightly

higher up, [and] degenerative disk disease in the lumbar region.” As a result, he stated that she was

disabled and could not perform her duties at the post office. Bagshaw also included a form from Dr.

Dicello stating that she was “permanently and totally disabled for any and all forms of sustained

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United States v. Bagshaw

gainful employment [and] . . . restricted to personal care and hygiene only due to the work injury of

5/25/[98].”

       Bagshaw received several medical examinations from different physicians over the next

several years. In 2004, at the request of the OWC, an independent physician named Dr. Ghanma

examined Bagshaw and concluded she could return to work. Two years later a Dr. Metz disagreed

and concluded she could not. In 2008, a third doctor, Dr. Rehmatullah, broke the tie and concluded

that Bagshaw was “not medically capable of performing her duties as a letter carrier, since she ha[d]

complaints of pain and utilization of opioid medication which would prevent her from performing

satisfactorily in the workplace.”

       Between 2005 and 2009, Bagshaw annually received and returned CA-1032 forms by US

mail. These forms required her to report things such as employment, self-employment, involvement

in business enterprise, earnings, and volunteer activities for which compensation was received.

Question 2 on the form asked, “Were you self-employed or involved in any business enterprise in

the past 15 months?” Below the question it asked for a description of the work or business

involvement. On her March 2007 form, Bagshaw answered “no” to the question and wrote “invest

money in alpacas with husband for retirement later” in the description space. On her March 2008

form she answered “no.” Her explanation was, “Invest in alpacas with husband, no return on money,

though hopefully in future.” On the March 2009 form she answered “yes.” Her explanation was,

“Don’t earn income of any kind. Invest my money with my husband to buy feed for alpacas. I am

married, so I am part owner.”



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United States v. Bagshaw

       Part B of the form asks, “During the past 15 months, did you perform any volunteer work for

which ANY FORM of monetary or in-kind compensation was received?” Bagshaw never identified

any such volunteer activity.

       Investigation

       In the summer of 2008, a claims examiner told Stephanie Morgano, Special Agent with the

United States Postal Service Office of the Inspector General, that he was concerned Bagshaw was

engaging in business activities in connection with an alpaca farm. Morgano learned the farm’s name

was K & J Alpacas and visited its website. She discovered that it advertised several things including

alpacas for sale, transportation services, and Young Living Essential Oil (“YLEO”) products.1

       Continuing her investigation, Morgano attended an event hosted at the K & J Alpaca farm.

She wore a wire and a camera and pretended to be interested in alpacas. Morgano conversed with

Bagshaw, who repeatedly referred to the alpacas as an “investment.” Bagshaw told Morgano that

her husband performed the physical upkeep of the farm and distributed YLEO products, but

Morgano observed Bagshaw raking up alpaca excrement.

       Later that year, a Special Agent named Jeffrey Dancer, using an undercover name, contacted

Bagshaw and scheduled a quality assurance review (“QAR”) for December 10, 2008, in Cleveland.

This covert interview was a common technique used to investigate possible workers’ compensation




       1
         According to Bagshaw, “YLEO is set up as a pyramid-scheme where customers buy a $40
‘distributor kit’ in order to obtain supposedly lower pricing and rebates in the form of ‘commissions’
for their own purchases and any distributors under them.” It is similar to Amway.

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No. 12-3074
United States v. Bagshaw

fraud. The interview was recorded by two hidden cameras and monitored by three agents in an

adjacent room.

       During the QAR, Dancer asked Bagshaw many questions about her physical activities and

business endeavors. Bagshaw described her pain as “consuming.” She denied physically caring for

the alpacas. She stated that her husband cared for the alpacas and ran the business. She said that she

had not received any income from business or investment activities. She said she did not perform

any volunteer work. She said she did no driving in connection with the alpacas. When asked

whether she had left the state of Ohio in the past year, she said she went to Las Vegas in January.

Finally, she said that she did not think she could work limited duty or limited hours.

       At the end of the interview, Dancer helped Bagshaw fill out a 1032 form. Consistent with

her responses on the previous forms she had sent in, she denied participating in volunteer activities

for which she received compensation. In response to the question, “Were you self-employed or

involved in any business enterprise in the past 15 months,” she answered, “Yes, Investing in

Alpaca’s [sic] (only providing funding).” In the blank for “[d]escription of work or business

involvement,” she said, “Provide funding, no work activities, i.e. no bookeeping [sic], care,

demonstrations, etc.”

       Following the QAR interview, agents began conducting visual surveillance to observe and

record Bagshaw’s physical activities. They followed her when she went on a Caribbean cruise,

observing her activities at airports, the hotel, and aboard ship. They filmed her doing various things

such as moving luggage, walking, sunbathing, and playing bingo. They attempted to catch her at two

county fairs but were unsuccessful.

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No. 12-3074
United States v. Bagshaw

       Conducting roadside visual surveillance at Bagshaw’s home proved difficult. She lived in

a “rather rural area,” on a busy highway, and the view into her backyard from the road in front of her

house was obscured by foliage and her house. From the road, the agents could not see much more

than the front of the house. However, the vacant lot next door had recently been cleared of brush,

giving the agents a “line of sight” into the backyard from a utility pole near the road. Because

roadside surveillance was so difficult, the agents decided to install a camera on the pole. The utility

company consented to the placement of the camera and hung a box to conceal it. The camera was

installed on June 16, 2009, and remained active until July 10. It was placed to view Bagshaw’s front

yard and backyard, but it could not view the interiors of Bagshaw’s house or barn. The camera had

the capability to “pan as well as zoom” and streamed a live image via the internet that Agent

Morgano could view at home or at the office. Over the 24 days the camera was in operation, the

government recorded approximately 500 hours of footage. Images captured included Bagshaw

mowing the lawn, raking, caring for and herding the alpacas, and pushing a wheelbarrow.

Unfortunately, the camera also captured Bagshaw’s husband naked and her son relieving himself

against a tree. Based in part on the camera footage, the government obtained a search warrant for

Bagshaw’s home and confiscated thousands of documents and several home videos.

       Trial

       The government charged Bagshaw with 1 count of mail fraud in violation of 18 U.S.C.

§ 13412 (Count 1), 15 counts of making false statements to obtain federal employees’ compensation


       2
        18 U.S.C. § 1341 provides in relevant part: “Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent

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United States v. Bagshaw

in violation of 18 U.S.C. § 19203 (Counts 2-16), and 5 counts of making false statements in violation

of 18 U.S.C. § 1001 (Counts 17-21). Before trial, Bagshaw moved to suppress the footage from the

pole camera. After a hearing, the district court denied the motion. Bagshaw also asked the district

court to require the government to elect and/or dismiss counts of the indictment on the ground of

multiplicity, and the court denied this motion as well.

        The trial was originally scheduled for July 25, 2011, but upon Bagshaw’s motion the court

declared the case complex and postponed the trial until September 6. The parties filed a joint motion

to continue the trial for 180 days, but the court only partially granted the motion, designating October

11 as the final trial date. Bagshaw renewed her continuance request approximately three weeks

before trial, but the court denied the request again.

        On October 4, Bagshaw filed a notice of expert evidence for a psychologist named Dr. Sandra

McPherson. Bagshaw’s notice attached Dr. McPherson’s curriculum vitae and stated she was

prepared to testify about Bagshaw’s mental issues. The district court excluded this evidence for

failing to comply with Fed. R. Crim. P. 16(b)(1)(c) and Fed. R. Evid. 704(b).



pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or
attempting so to do, places in any post office or authorized depository for mail matter, any matter
or thing whatever to be sent or delivered by the Postal Service . . . shall be fined under this title or
imprisoned not more than 20 years, or both.”
       3
         18 U.S.C. § 1920 provides in relevant part: “Whoever knowingly and willfully falsifies,
conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or
representation, . . . in connection with the application for or receipt of compensation or other benefit
or payment under subchapter I or III of chapter 81 of title 5, shall be guilty of perjury, and on
conviction thereof shall be punished by a fine under this title, or by imprisonment for not more than
5 years, or both.”

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United States v. Bagshaw

       Bagshaw’s trial lasted six days. The government introduced 21 witnesses, the defense 5. The

government showed the jury excerpts of footage from the cruise surveillance and the pole camera

video. It also showed clips from Bagshaw’s home videos that depicted Bagshaw caring for and

showing the alpacas. It introduced two checks from YLEO, payable to Jim Bagshaw and signed over

to Karen Bagshaw, totaling $243.46. The government introduced exhibits and testimony indicating

that in 2008 Bagshaw traveled to Salt Lake City, Los Angeles, and Erie, Pennsylvania. The

government called Elsie Pinchak, a neighbor who lived two doors down from Bagshaw, who testified

to observing Bagshaw caring for the alpacas.

       Notably, the only doctor to testify was Dr. Ahmeed Chauhan, Bagshaw’s current physician.

He testified that Bagshaw misrepresented her “physical capabilities and medical condition during

her examinations,” but said that in his opinion, Bagshaw was unable to return to “full-time”

“remunerative employment.”

       The jury convicted Bagshaw of Counts 1-14 and acquitted her of Counts 15-21.Bagshaw was

sentenced to one year and one day on Counts 1-14, to be served concurrently, with two years

supervised release.

                                         II. ANALYSIS

The Motion to Suppress

A. Standard of Review

       “When reviewing the denial of a motion to suppress, we review the district court’s findings

of fact for clear error and its conclusions of law de novo.” U.S. v. Johnson, 656 F.3d 375, 377 (6th



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United States v. Bagshaw

Cir. 2011) (quotations omitted). “We construe the evidence in the light most favorable to the

government.” Id.

B. Legal Principles

       The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

A “search” occurs for purposes of the Fourth Amendment when the government invades an

individual’s reasonable expectation of privacy. Smith v. Maryland, 442 U.S. 735, 739-40 (1979)

(discussing Katz v. United States, 389 U.S. 347 (1967)). This test involves two questions: first,

whether the individual had a subjective expectation of privacy; and second, whether that expectation

of privacy was objectively reasonable. Id. at 740. An individual has a reasonable expectation of

privacy in “curtilage,” which is the area immediately surrounding a house that “harbors the intimate

activity associated with the sanctity of a man’s home and the privacies of life.” United States v.

Dunn, 480 U.S. 294, 300 (1987) (quotations omitted). However, an individual has no reasonable

expectation of privacy in an “open field,” the area outside a home’s curtilage. Oliver v. United

States, 466 U.S. 170, 179 (1984).

C. Application

       Bagshaw argues that the use of the pole camera violated the Fourth Amendment because her

backyard was within the curtilage of her home, and she therefore had a reasonable expectation of

privacy in that area. Citing Justice Alito’s opinion concurring in the judgment in the Supreme

Court’s recent decision United States v. Jones, 132 S. Ct. 945 (2012), she further contends that the



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United States v. Bagshaw

voluminous quantity of video surveillance—constant footage for twenty-four days—invaded her

reasonable expectation of privacy.

       The district court rejected these arguments. It found that Bagshaw did not have a subjective

expectation of privacy because she took no steps to conceal her backyard from her neighbors’ views.

It further found that even if Bagshaw had a subjective expectation of privacy, that expectation was

not reasonable since the views from the camera were “identical to those available to a curious utility

worker with a cheap pair of binoculars, or the disinterested glance of neighbors in either adjoining

lot.” Finally, the district court concluded that the Supreme Court’s holding in Jones did not apply

to Bagshaw’s situation since the government agents never trespassed onto Bagshaw’s property. It

rejected Bagshaw’s argument that the extent of the surveillance violated her reasonable expectation

of privacy, reasoning that “[a] mounted camera . . . hardly creates the type of detailed portrait of a

single subject’s movements that might establish a privacy-implicating mosaic of information.”

       1. Fourth Amendment Considerations

       The area behind Bagshaw’s house can be divided into three distinct areas. The first is a

grassy area directly behind the house that contained a picnic table, a clothesline, and what appears

to be a gazebo of some sort. For convenience, we term this area the “backyard.” Behind the

backyard is a fenced-in area next to the barn—the “barnyard.” Behind the barnyard in the far rear

of the property is a fenced-in grassy area—the “pasture.”

       We decide curtilage issues based on the unique facts of each case. Daughenbaugh v. City

of Tiffin, 150 F.3d 594, 598 (6th Cir. 1998). Whether an area falls within a home’s curtilage is

determined by considering four factors:

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United States v. Bagshaw

        [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area
        is included within an enclosure surrounding the home, [3] the nature of the uses to
        which the area is put, and [4] the steps taken by the resident to protect the area from
        observation by people passing by.

United States v. Dunn, 480 U.S. 294, 301 (1987). However, the “centrally relevant consideration”

is “ whether the area in question is so intimately tied to the home itself that it should be placed under

the home’s ‘umbrella’ of Fourth Amendment protection.” Id.

        Without a doubt, the “barnyard” and “pasture” areas were outside the curtilage of Bagshaw’s

home. These areas constitute “open fields,” and Bagshaw had no reasonable expectation of privacy

in them. Surveillance of these areas did not constitute a Fourth Amendment search. See United

States v. Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009) (Use of surveillance cameras to film an

open field does not violate a reasonable expectation of privacy.).

        However, application of the four factors directs us to find that the “backyard” constitutes

curtilage. First, the “backyard” was in immediate proximity to the house. Second, it was essentially

encircled by the house, the barn, the barnyard fence, and a line of trees along the edge of the vacant

lot. Natural barriers can form an “enclosure” for purposes of curtilage. See Daughenbaugh, 150

F.3d. at 599. Although the “backyard” was visible through this tree line from the pole camera

location on the vacant lot, “an area can be curtilage even where neighbors have a view of the area.”

Hardesty v. Hamburg Tp., 461 F.3d 646, 653 (6th Cir. 2006). Third, the “backyard” contained a

clothesline and a picnic table, which are generally associated with a domestic setting. See United

States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997) (gardening and hanging laundry said to be

“related to the intimate activities normally associated with the home”). Finally, although Bagshaw


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United States v. Bagshaw

evidently took no steps to hide the “backyard” from prying eyes, government agents testified that the

view from the road was largely obscured by the house and foliage. We routinely find backyards to

be part of a home’s curtilage, and we see no reason not to do so here as well. See Hardesty, 461 F.3d

at 653.

          Our conclusion that the “backyard” is curtilage does not end our analysis, since law

enforcement officers are entitled to observe things in plain sight from publicly accessible areas. In

California v. Ciraolo, the Supreme Court stated that the fact “[t]hat the area is within the curtilage

does not itself bar all police observation. The Fourth Amendment protection of the home has never

been extended to require law enforcement officers to shield their eyes when passing by a home on

public thoroughfares.” 476 U.S. 207, 213 (1986). Law enforcement officers may observe a home’s

curtilage “from a public vantage where [they] have a right to be and which renders the activities

clearly visible.” Id. at 213. In Ciraolo, the Court held that no reasonable expectation of privacy was

invaded when the police used unenhanced visual surveillance from an aircraft in publicly navigable

airspace to view the curtilage of the defendant’s home. Id. at 215. The Court remarked that a person

who “grows illicit drugs in his backyard” is not entitled to assume that “his unlawful conduct will

not be observed by . . . a power company repair mechanic on a pole overlooking the yard.” Id. at

214-15.

          Testimony at the suppression hearing indicated that the “backyard” was visible from the

adjacent vacant lot. Agent Morgano testified that the view into the “backyard” from the utility pole,

which was located on the vacant lot near the road, was equally as good from ground level as from

atop the utility pole. According to her testimony, the camera was placed at the top of the pole for

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United States v. Bagshaw

technical reasons, not to improve the vantage point. The footage from the pole camera confirms

Agent Morgano’s testimony. It shows that the vacant lot had recently been cleared of trees and

undergrowth, rendering the view into the “backyard” largely unobstructed. From the footage, it

appears that someone standing on the vacant lot near the road would have enjoyed the same view

of the “backyard” that the pole camera possessed.

       Since the “backyard” was visible from a publicly accessible location, the government agents

were constitutionally permitted to view whatever portions of it were visible from this point. See Katz

v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amendment protection.”). The government

agents never physically invaded the “backyard.” They merely observed it from a point where they

had a right to be. See United States v. Jackson, 213 F.3d 1269, 1281 (10th Cir. 2000), judgment

vacated on other grounds by Jackson v. United States, 531 U.S. 1033 (2000) (holding that using pole

cameras to view outdoor areas surrounding a home and easily observable by people passing by does

not violate the Fourth Amendment); United States v. Jenkins, 124 F.3d 768, 773-74 (6th Cir. 1997)

(recognizing the difference between physical invasion of curtilage and “visual inspection from a

lawful vantage point”).

       Nonetheless, we confess some misgivings about a rule that would allow the government to

conduct long-term video surveillance of a person’s backyard without a warrant. Few people, it

seems, would expect that the government can constantly film their backyard for over three weeks

using a secret camera that can pan and zoom and stream a live image to government agents. We are

inclined to agree with the Fifth Circuit that “[t]his type of surveillance provokes an immediate

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United States v. Bagshaw

negative visceral reaction.” United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987)

(stating in dicta that using a pole camera to view curtilage over a 10-foot fence constitutes a Fourth

Amendment search). We also note that Ciraolo involved a brief flyover, not an extended period of

constant and covert surveillance.

        Furthermore, it appears that at least five Justices of the Supreme Court share our concerns

about certain types of long-term warrantless surveillance. See United States v. Jones, 132 S. Ct. 945

(2012) (Sotomayor, J., concurring and Alito, J., concurring in the judgment). But Jones involved

GPS tracking, and it may be that the privacy concerns implicated by a fixed point of surveillance are

not so great as those implicated by GPS tracking. The camera revealed only Bagshaw’s activities

outside in her yard—a fixed space which was open to public view. It did not “generate[] a precise

record of [her] public movements that reflect[ed] a wealth of detail about her familial, political,

professional, religious, and sexual associations” like a GPS device would do. See id. at 955

(Sotomayor, J., concurring). Ultimately, since we hold that any possible Fourth Amendment

violation here would be harmless, we decline to decide whether long-term video surveillance of

curtilage requires a warrant.

        2. Harmless Error

        Even if we concluded that use of the pole camera violated Bagshaw’s Fourth Amendment

rights because it captured images of her home’s curtilage, we would find this violation harmless.

“Not all Fourth Amendment violations require reversal.” United States v. Carnes, 309 F.3d 950, 963

(6th Cir. 2002). Instead, “[t]he question is whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23

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(1967) (quotations omitted). To declare a Fourth Amendment violation harmless, we “must be able

to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24.

         Any Fourth Amendment violation caused by the pole camera was harmless beyond a

reasonable doubt. At trial, the jury was shown 12 minutes and 46 seconds of footage from the pole

camera. This footage contained 44 separate clips from 12 different days during a period beginning

June 17 and ending July 8.      The vast majority of the footage showed Bagshaw in the frontyard,

“barnyard,” or “pasture” areas. Only five clips showed Bagshaw in the “backyard” area. These five

clips total a mere 56 seconds. In these clips Bagshaw can be seen digging and bending over, pushing

a lawn mower, and picking up a large object.

         The relevance of these activities, if any, is to show the extent of Bagshaw’s physical

capabilities. But the best evidence by far of her physical capabilities was the cruise surveillance

footage. The cruise footage shows Bagshaw bending and squatting on multiple occasions, raising

her arms, rotating her torso, getting up from prone and sitting positions, lifting suitcases and other

bags, and riding a motor scooter. Furthermore, the home movies leave no doubt that Bagshaw

physically cared for the alpacas. They show that she was involved in birthing them, feeding them,

shaving them, transporting them, and showing them. They contain a compelling clip showing

Bagshaw wrestling down a rearing alpaca.

         In light of this other visual evidence, the clips showing Bagshaw in the “backyard” were

utterly insignificant to her convictions. Therefore, we hold that the introduction of these clips at trial

was harmless beyond a reasonable doubt and affirm the denial of her suppression motion on this

basis.

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Motion for a Continuance

A. Standard of Review

       We review a district court’s denial of a motion for a continuance for an abuse of discretion.

United States v. Crossley, 224 F.3d 847, 854 (6th Cir. 2000).

B. Legal Principles

       According to the Supreme Court, trial judges must be given “broad discretion” “on matters

of continuance.” Morris v. Slappy, 461 U.S. 1, 11 (1983). “[O]nly an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay violates the [Sixth

Amendment] right to the assistance of counsel.” Id. at 11-12 (quotations omitted). This Court has

stated that “to demonstrate reversible error, the defendant must show that the denial [of the motion

for a continuance] resulted in actual prejudice to his defense.” United States v. Crossley, 224 F.3d

847, 855 (6th Cir. 2000) (quotations omitted). To demonstrate actual prejudice, the defendant must

“show[] that a continuance would have made relevant witnesses available or added something to the

defense.” Id. (quotations omitted). When a defendant claims insufficient preparation time, we

examine the totality of the circumstances. United States v. Medina, 992 F.2d 573, 581 (6th Cir.

1993), abrogated on other grounds by United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th

Cir. 2002).

C. Application

       In arguing that she was granted insufficient time to prepare for trial, Bagshaw points to the

volume of discovery her counsel faced. The record indicates that the government possessed 22

bankers boxes of documents, over 500 hours of video footage, three hard drives, and several thumb

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United States v. Bagshaw

drives. Bagshaw claims that the time between her arraignment on June 21, 2011, and the ultimate

trial date on October 11, 2011, was not enough time for her counsel to sort through the materials the

government had accumulated during its investigation. She states that her counsel received

documents “as late as 10 days before trial” and that despite counsel’s best efforts, “counsel was

unable to review all of the footage for its effective use at trial.”

        Bagshaw claims that she was prejudiced by the time constraint in several ways. First, she

would have been able to rebut the pole camera footage used by the government by editing the footage

to show that she did not continuously perform farm work and that she required extended rest after

working outside. Second, she might have been able to produce her Office of Personnel Management

disability file showing that she was eligible for and receiving disability retirement during a portion

of the time covered by the indictment. Third, she would have gained sufficient time to present Dr.

McPherson’s testimony.

        The government counters by contending that discovery materials were provided with

sufficient time to review them before the trial. It points out that Bagshaw hired a data management

company to review the pole camera footage, and that during trial Bagshaw’s counsel provided the

prosecution with a sixty-five-page spreadsheet detailing all the activities captured in the 500 hours

of footage. It argues that Bagshaw could not have used the pole camera footage to show herself

resting indoors, and that only Bagshaw or a member of her household could testify to her need for

rest after working outside. It disputes the relevancy of evidence relating to Bagshaw’s eligibility for

disability retirement. Finally, the government argues that more time would not have enabled Dr.



                                                 - 18 -
No. 12-3074
United States v. Bagshaw

McPherson to testify. Therefore, the government asserts that Bagshaw was not prejudiced by the

district court’s refusal to grant a continuance.

       Ultimately, it cannot be said that the district court abused its discretion by denying Bagshaw’s

motion for a continuance. Bagshaw has not demonstrated either that she was given insufficient time

to prepare for trial or that the alleged lack of time prejudiced her defense.

       Despite the large volume of discovery material held by the government, Bagshaw’s counsel

had sufficient time to review it and prepare for trial. Bagshaw was indicted on June 9, 2011, and

arraigned on June 21. The trial date was first set for July 25, but it was postponed twice—first to

September 6 and then to October 11. In its brief, the government states that it began supplying

materials to Bagshaw’s counsel as early as August, 2010. On the day of Bagshaw’s arraignment, the

government provided Bagshaw’s counsel with a letter briefly summarizing the materials it held. The

record reflects that Bagshaw’s counsel received substantial quantities of materials, including

documents and electronic records, on July 13, August 1, and August 11. Bagshaw’s counsel was

allowed to review all the boxes of evidence at the U.S. Attorney’s office on August 15 and 18.

Although Bagshaw states that her counsel received 2000 pages of documents within three weeks of

trial, she does not explain what those documents contained or why she was prejudiced by receiving

them at such a late date. Bagshaw states that her counsel received documents ten days before trial,

but the government has explained that those documents were Jencks Act material. Bagshaw’s reply

brief does not dispute this explanation. Furthermore, Bagshaw was represented by three attorneys

at trial, so it does not appear that one attorney was required to review all the evidence alone.



                                                   - 19 -
No. 12-3074
United States v. Bagshaw

       The record does not support Bagshaw’s argument that she was prejudiced by not having

sufficient time to review the pole camera footage. Bagshaw received the hard drive containing the

pole camera footage on July 26, approximately two and a half months before the October 11 trial.

Although evidently Bagshaw’s counsel had some difficulty viewing the footage, that issue was

resolved by August 5. Therefore, Bagshaw’s counsel possessed viewable footage over two months

before trial. Of course, it would have been impractical for Bagshaw’s counsel to personally review

all 500 hours of footage, but she could have (and ultimately did) hired a data management company

to do the job. It is unclear from the briefs and the record when exactly the company finished

reviewing the footage, but at least by the end of the defense’s case, Bagshaw’s counsel possessed

a detailed spreadsheet summarizing the footage by date, time, and activity. The prosecution stated

it would not object if Bagshaw’s counsel called as a witness the individual who prepared the

spreadsheet, but evidently Bagshaw’s counsel did not seek to do so.

       Even assuming that Bagshaw did not have sufficient time to review the pole camera footage,

she likely would not have been prejudiced. As the government points out, the footage would not

have shown Bagshaw resting after working outdoors. Also, it seems unlikely that Bagshaw would

have edited the video to show long portions where she was not performing farm chores. Testimony

from friends or family members with personal knowledge of Bagshaw’s alleged need for rest would

have been a much more efficient way to prove these points.

       It is unclear how Bagshaw’s eligibility for disability retirement benefits would have been

relevant to her defense. She was charged with mail fraud and making false statements to obtain

federal workers’ compensation benefits, and her eligibility for or receipt of benefits under another

                                               - 20 -
No. 12-3074
United States v. Bagshaw

system would have little or no bearing on her guilt or innocence for these crimes. David Cattani

repeatedly testified that the OWC program was not equivalent to a retirement system. Bagshaw has

not clarified how documents relating to disability retirement are relevant to the crimes charged.

       Finally, Bagshaw was not prejudiced by the alleged lack of time to present Dr. McPherson’s

testimony. Bagshaw’s asserted inability to present Dr. McPherson’s testimony is her strongest

argument here. The government urges us to find that Bagshaw was not prejudiced because Dr.

McPherson’s testimony was inadmissible anyway under Fed. R. Evid. 704(b). However, as

explained below we do not reach the issue of whether Dr. McPherson’s testimony was admissible

under Rule 704(b). Instead, we find that Bagshaw was not prejudiced because her counsel had

sufficient time to call Dr. McPherson as a witness.

       Bagshaw claims that her attorney did not encounter the possibility of mental health issues

until she reviewed the last box of discovery materials. This box contained evidence that “Bagshaw

sought mental health assistance in 2001 from an employee assistance program.” According to

Bagshaw, this discovery prompted her counsel to immediately hire Dr. McPherson to conduct a

mental health exam.

       Bagshaw’s rationale for why her counsel waited so long to solicit Dr. McPherson’s opinion

is implausible. Bagshaw herself was the one who sought the mental health assistance in 2001, so

she had knowledge of the incident. Furthermore, even if she had forgotten about it, her brief states

that almost two months before she filed notice of Dr. McPherson’s testimony, another psychologist

named Dr. Delaney diagnosed her with “anxiety disorders; forms of depression; and schizoid

personality disorders.” Bagshaw draws parallels between the conclusions reached by Dr. McPherson

                                               - 21 -
No. 12-3074
United States v. Bagshaw

and Dr. Delaney to show that the government was prepared to handle Dr. McPherson’s testimony

by consulting Dr. Delaney’s evaluation. Bagshaw never asserts that her own counsel did not know

of Dr. Delaney’s diagnosis. So Bagshaw’s own arguments show that her counsel almost certainly

knew of possible mental health issues well before examining the last box of discovery materials.

Bagshaw’s brief also refers to several other sources indicating that she had mental health issues, and

Bagshaw does not claim that these sources were also located in the last box her counsel reviewed.4

Therefore, the claim that Bagshaw’s counsel was surprised by the document in the last box of

discovery materials seems highly improbable. Bagshaw was not hindered from calling an expert

witness by the district court’s denial of her motion for a continuance.

        In sum, we hold that the district court did not abuse its discretion by denying Bagshaw’s

motion for a continuance.

Exclusion of Expert Testimony

A. Standard of Review

       We review a district court’s evidentiary rulings, including the exclusion of expert evidence,

for an abuse of discretion. United States v. Langan, 263 F.3d 613, 620 (6th Cir. 2001); United States

v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004).




       4
        The government points out that at least one of these other sources, which Bagshaw herself
describes as “replete with references to Bagshaw’s depression and anxiety,” was received by
Bagshaw’s counsel on August 1.

                                                - 22 -
No. 12-3074
United States v. Bagshaw

B. Legal Principles and Application

       Bagshaw argues that the district court abused its discretion by excluding Dr. McPherson’s

expert testimony regarding Bagshaw’s mental health. The district court excluded this testimony on

two grounds.5 First, it concluded that Bagshaw’s summary of Dr. McPherson’s testimony was

inadequate under Fed. R. Crim. P. 16. Second, it concluded that Dr. McPherson’s testimony was

inadmissible under Fed. R. Evid. 704(b) because it went to “whether the defendant did or did not

have the mental state or condition constituting an element of the crime charged.” Additionally, the

government urges us to affirm based on Bagshaw’s late notice under Fed. R. Crim. P. 12.2(b). For

the reasons stated below, we affirm based on Fed. R. Crim. P. 16. Therefore, we need not consider

the other two alternative grounds.

       The district court concluded that Bagshaw’s summary of Dr. McPherson’s testimony was

inadequate under Fed. R. Crim. P. 16(b)(1)(C). That rule requires the defendant, at the government’s

request, to give the government a “written summary” of expert testimony if the defendant gives

notice of “an intent to present expert testimony on the defendant’s mental condition.” Fed. R. Crim.

P. 16(b)(1)(C). The rule specifies that “[t]his summary must describe the witness’s opinions, the

bases and reasons for those opinions, and the witnesses’s qualifications.” Id. Failure to comply with

this rule allows the district court to exclude the expert testimony. Fed. R. Crim. P. 16(d)(2)(C).

Well before trial, the government requested a summary of expert testimony.



       5
        Bagshaw claims that the district court excluded Dr. McPherson’s testimony on a third
ground—Fed. R. Evid. 702. However, the portion of the record Bagshaw cites for this proposition
involves a different witness. It appears that the district court relied on only two grounds.

                                               - 23 -
No. 12-3074
United States v. Bagshaw

       To support her contention that she provided an adequate written summary to the government,

Bagshaw points to her Notice of Expert which she filed one week before trial. Attached to the

Notice of Expert was Dr. McPherson’s curriculum vitae. Bagshaw summarized Dr. McPherson’s

opinions and the bases and reasons for those opinions as follows:

               Defense counsel anticipates that Dr. McPherson will testify regarding the
       results of her examination last week of Karen Anderson-Bagshaw. Based on this
       evaluation and testing, Dr. McPherson is prepared to testify regarding numerous
       psychological concerns and conditions exhibited by Ms. Anderson-Bagshaw,
       including chronic depression, schizoaffective disorder, intelligence testing, and
       limited verbal comprehension. Her testimony will include opinions as to how these
       mental conditions effect [sic] the Defendant’s medical conditions, and the
       Defendant’s ability to respond to questions presented to her. Dr. McPherson will
       also testify about the specific origins of the mental conditions of Ms.
       Anderson-Bagshaw, which includes both genetic predisposition and situational
       influences.

       The detailed curriculum vitae probably demonstrated Dr. McPherson’s qualifications, and

the government does not specifically argue otherwise. The real issue is whether Dr. McPherson’s

opinions and the bases and reasons for those opinions were adequately summarized. The district

court concluded that they were not, and its conclusion was not an abuse of discretion.

       First, the summary inadequately describes Dr. McPherson’s opinions. It does, of course,

identify some of them. It indicates that Dr. McPherson concluded that Bagshaw suffered from

several specific mental conditions. But the summary only vaguely says that Dr. McPherson had

“opinions” about how those mental conditions affected Bagshaw’s “ability to respond to questions.”

It does not identify what those opinions were. The whole reason for Dr. McPherson’s testimony was

to show that Bagshaw did not act with the specific intent to defraud. Dr. McPherson’s opinions

about Bagshaw’s ability to respond to questions were therefore the most crucial aspect of her

                                              - 24 -
No. 12-3074
United States v. Bagshaw

testimony. Since the summary does not at all identify those opinions, the district court did not abuse

its discretion in concluding that the summary was inadequate.

        Second, the summary inadequately describes the bases for Dr. McPherson’s opinions. The

only bases Bagshaw gave were an “examination,” an “evaluation,” and “testing.” These bases are

extremely vague and could not have helped the government prepare to cross examine Dr.

McPherson. In one of the cases Bagshaw cites, the government’s summary of expert testimony at

least provided a nonexclusive list of general reasons for the expert’s opinion. See United States v.

Conroy, 424 F.3d 833, 838 (8th Cir. 2005). Even so, the court in Conroy noted approvingly the

district court’s advice to the government that its future expert testimony summaries should be more

“enlightening.” Id. at 838 n.2.

        According to the Advisory Committee Notes to Rule 16, the summary of expert testimony

“should cover not only written and oral reports, tests, reports, and investigations, but any information

that might be recognized as a legitimate basis for an opinion under Federal Rule of Evidence 703,

including opinions of other experts.” Fed. R. Crim. P. 16, advisory committee’s note (1993). The

Court of Appeals for the District of Columbia found that a summary of expert testimony was

inadequate in part because it did not “state what [the expert] had concluded from any individual test

result, interview, or expert report,” even though the summary contained a “page-long list of tests [the

expert] had performed.” United States v. Day, 524 F.3d 1361, 1371-72 (D.C. Cir. 2008). Bagshaw’s

summary listed not a single test that Dr. McPherson performed, much less the specific conclusions

reached from each test. Not until trial did the government learn which tests Dr. McPherson had



                                                 - 25 -
No. 12-3074
United States v. Bagshaw

performed. Without at least a list of the tests, the government could not have adequately prepared

to cross examine her.

       In short, Bagshaw’s summary of Dr. McPherson’s testimony did not describe the most

important of Dr. McPherson’s opinions. It wholly failed to specify the bases for Dr. McPherson’s

opinions. In her defense, Bagshaw’s counsel filed the summary the same day she learned of Dr.

McPherson’s findings. However, at the very least counsel could have listed in the summary the tests

that Dr. McPherson performed. Counsel did not do so. Therefore, the district court’s decision to

exclude the testimony under Rule 16 was not an abuse of discretion.

Multiplicity

A. Standard of Review

       The parties disagree on the correct standard of review for a claim of multiplicity. Citing a

1990 case from this Court, the government claims that we apply an abuse of discretion standard. See

United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990). Bagshaw argues that we apply a

de novo standard.

       Bagshaw is correct. Throneburg’s abuse of discretion standard does not apply when the

defendant is claiming that he was convicted and sentenced for multiplicitous counts in violation of

the Double Jeopardy Clause. Instead, it applies when the district court allowed multiplicitous counts

to go to the jury and then merged the multiplicitous convictions after the jury verdict. See United

States v. McCafferty, No. 11-3845, 2012 WL 1970777, at *8 (6th Cir. June 4, 2012); United States

v. Tocco, 306 F.3d 279, 289 n.12 (6th Cir. 2002). Other cases from this Court demonstrate that when

a defendant is claiming that he or she has been convicted and sentenced for multiplicitous counts in

                                               - 26 -
No. 12-3074
United States v. Bagshaw

violation of the Double Jeopardy Clause, we apply a de novo standard of review. See United States

v. Richards, 659 F.3d 527, 547 (6th Cir. 2011) (quoting United States v. Swafford, 512 F.3d 833, 844

(6th Cir. 2008)); see also 1A Charles Alan Wright et al., Federal Practice and Procedure § 142 (4th

ed.) (“Whether an indictment is multiplicitous or duplicitous is a question of law that appellate

courts review de novo.”). Therefore, we review Bagshaw’s claim of multiplicity de novo.

B. Legal Principles

       “‘Multiplicity’ is charging a single offense in more than one count in an indictment.” United

States v. Swafford, 512 F.3d 833, 844 (6th Cir. 2008) (quotations omitted). Multiplicity violates the

Double Jeopardy Clause because it “result[s] in a defendant being punished twice for the same

crime.” Id.

       In a crime involving a false statement, separate false statements are “entirely separate

offenses.” United States v. Dedman, 527 F.3d 577, 600 n.10 (6th Cir. 2008) (involving a violation

of 18 U.S.C. § 1001— making false statements to a federal agent). But when a defendant is charged

with multiple counts of making false statements that concern the same subject matter, there is a

danger that the defendant could be convicted multiple times for making essentially the same

statement. The issue here is whether any of Bagshaw’s multiple false statements were so closely

related as to constitute the “same crime.”

       In an unpublished decision, we held that “two separate perjury counts were plainly

multiplicitous [when] they involve[d] separate responses to essentially the same question.” United

States v. Ragland, 3 Fed. App’x 279, 284 (6th Cir. 2001). In Ragland, the defendant appeared before

a grand jury and was twice asked the same question: Who called her daughter to tell the daughter to

                                               - 27 -
No. 12-3074
United States v. Bagshaw

remove drug money from a home about to be searched. Id. at 282. Both times, the defendant falsely

stated that she, the defendant, placed the call. Id. This Court observed that “[t]he law is well

established that a single lie merits only one punishment.” Id. at 284. Therefore, “[i]t was improper

to charge and punish the Defendant more than once for her answers to the same rephrased

questions.” Id.

        However, when the multiple counts of false statements involve different questions and

different responses, the defendant may properly be convicted of multiple crimes, even if all the false

statements relate to the same topic. The Fifth Circuit has stated that “an obstruction of justice

indictment is not multiplicious [sic] when it contains charges for separate and distinct acts of perjury,

even if the acts are all related and arise out of the same transaction or subject matter, if they require

different factual proof of falsity.” United States v. Sharpe, 193 F.3d 852, 865 (5th Cir. 1999)

(emphasis added).

        In close cases, some circuits apply what the Eighth Circuit has called the “unitary harm rule.”

See United States v. Graham, 60 F.3d 463, 467 (8th Cir. 1995). This rule originated in the Ninth

Circuit. It holds that “the government may charge separate violations for identical false statements

under section 1001(a)(2) [making false statements to government agents] if: (1) the declarant was

asked the same question and gave the same answer; and (2) the later false statement further impaired

the operations of the government.” United States v. Stewart, 420 F.3d 1007, 1013 (9th Cir. 2005)

(emphasis added). Although both parties reference this “unitary harm rule”in their briefs, it does not

appear that we adopted it. See United States v. Lacefield, 146 Fed. App’x 15, 20 (6th Cir. 2005)

(noting that “the Sixth Circuit has never adopted or relied upon a ‘unitary harm’ rule”). As explained

                                                 - 28 -
No. 12-3074
United States v. Bagshaw

below, we need not now decide whether to adopt this rule, since by its terms it applies when the

government has charged separate counts for “identical false statements.” Here, all the questions

were distinct and none of Bagshaw’s statements were identical.

C. Application

       In order to analyze the alleged multiplicity of the counts contained in the indictment, it is

necessary to briefly summarize the questions and false statements made by Bagshaw. All the counts

Bagshaw claims are multiplicitous arose out of the QAR interview conducted by Agent Jeffrey

Dancer on December 10, 2009. Agent Dancer first asked Bagshaw a series of questions, which

became the bases for Counts 7-14. He then helped her fill out a 1032 form, which became the basis

for Count 4. The following is a summary, adopted from the indictment and the interview transcript,

of the relevant counts.

       Count 4: Bagshaw failed to disclose the extent of her work activities outside her
       federal job during the claimed period when asked whether she was self-employed or
       involved in any business enterprise during the past 15 months.

       Count 7: Bagshaw stated that her back pain consumed her when asked to describe
       her pain.

       Count 8: Bagshaw stated that her husband took care of the alpacas and ran the
       business in response to a question about her investment in the alpaca farm.

       Count 9: Bagshaw answered “No” when asked whether she physically cared for the
       animals.

       Count 10: Bagshaw answered “No” when asked whether she received any income
       from any business or investment activities.

       Count 11: Bagshaw answered “No” when asked whether she engaged in volunteer
       activities.


                                              - 29 -
No. 12-3074
United States v. Bagshaw


        Count 12: Bagshaw answered “No” when asked whether she was driving in relation
        to the alpaca business.

        Count 13: Bagshaw replied that she traveled to Las Vegas in January when asked
        whether she had left Ohio in the past year.

        Count 14: Bagshaw answered “No” when asked whether she thought she could work
        limited duty or limited hours.

        A brief review of the above summary demonstrates that none of these nine counts are

multiplicitous. They all involve different responses to different questions. Unlike the false

statements in Ragland, these statements are not merely the same response to a rephrased question.

Bagshaw contends that all the counts involve “just two facets of inquiry—business activities and

physical ability.” Even so, each one of the statements required different factual proofs of falsity.

Therefore, none of the statements were multiplicitous. And since none of the statements were

identical, we need not now decide whether to adopt the “unitary harm” rule followed by other

circuits.

Sufficiency of the Evidence

A. Standard of Review

        We review a district court’s ruling denying a motion for judgment of acquittal de novo.

United States v. McGee, 529 F.3d 691, 696 (6th Cir. 2008). We will affirm the district court’s ruling

“if the evidence, viewed in the light most favorable to the government, would allow a trier of fact

to find the defendant guilty beyond a reasonable doubt.” Id. (quotations omitted).6


        6
         Bagshaw cites to a May 1995 decision from this Court for the proposition that “‘materiality
is a conclusion of law that must be fully supported by the evidence, direct or circumstantial’ and this

                                                - 30 -
No. 12-3074
United States v. Bagshaw

B. Application

          The district court summarily denied Bagshaw’s motion for a judgment of acquittal. Bagshaw

claims that there was insufficient evidence presented at trial to prove the charges against her. The

evidence for several of the counts was scarce—certainly not “overwhelming” as the government

claims. However, for each of the fourteen counts, there is evidence in the record from which a

reasonable juror could conclude that Bagshaw was guilty. Therefore, we affirm the district court’s

ruling.

          1. Count 1: Mail Fraud

          The district court instructed the jury that to find Bagshaw guilty of mail fraud under 18

U.S.C. § 1341, it had to find that the government proved the following four elements beyond a

reasonable doubt: (1) Bagshaw knowingly devised a scheme to defraud in order to obtain money or

property; (2) the scheme included a material misrepresentation or a concealment of a material fact;

(3) Bagshaw had an intent to defraud; and (4) Bagshaw used the mails in furtherance of this scheme.

See United States v. Martinez, 588 F.3d 301, 316 (6th Cir. 2009).




Court reviews a finding of materiality de novo.” See United States v. LeMaster, 54 F.3d 1224, 1230
(6th Cir. 1995). Although the government does not contest this statement, Bagshaw is wrong. The
rule she cites has not been good law since June 1995, when the Supreme Court unanimously held
that “[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a
reasonable doubt, his guilt of every element of the crime with which he is charged,” including the
materiality of a false statement. United States v. Gaudin, 515 U.S. 506, 522-23 (1995); see also
United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir. 1997) (noting that Gaudin “overruled Sixth
Circuit precedent regarding who decides the question of ‘materiality’ in a prosecution under 18
U.S.C. § 1001").

                                                - 31 -
No. 12-3074
United States v. Bagshaw

       Bagshaw argues that, contrary to the government’s allegation that her scheme to defraud

began in 2002, there was no evidence indicating that she began any scheme to defraud until 2005

when she completed the first 1032 form. However, the government points to a letter from Bagshaw

dated September 10, 2002, that referred to the early hours limited duty job offer and stated that she

“stopped working mainly because they changed my job offer.” Bagshaw filed her recurrence notice

in June, 2002, and she was granted total disability payments for that same month. Therefore, it

cannot be said that no reasonable juror could have believed that a scheme to defraud began in 2002.

       Bagshaw returned the 1032 forms using the US mail. Based on the discussion below, we

conclude that a reasonable juror could have found that Bagshaw devised a scheme to defraud, with

the intent to defraud, and that the scheme included a material misrepresentation.

       2. Counts 2-14: False Statements to Obtain Workers’ Compensation Benefits

       The district court instructed the jury that to find Bagshaw guilty of making false statements

to obtain workers’ compensation benefits under 18 U.S.C. § 1920, it had to find that the government

proved the following elements beyond a reasonable doubt: (1) Bagshaw made a statement; (2) the

statement was false, fictitious or fraudulent; (3) the statement was material; (4) the statement was

made knowingly and willfully; and (5) the statement was made in connection with the application

for or receipt of federal workers’ compensation benefits. See United States v. Moore, 29 Fed. App’x

222, 224 (6th Cir. 2002). “A statement is material if it has a natural tendency to influence or is

capable of influencing the decision-maker to which it is addressed.” Id. at 225 (citing United States

v. Gaudin, 515 U.S. 506, 509 (1995)).



                                               - 32 -
No. 12-3074
United States v. Bagshaw

       Bagshaw argues that any misrepresentation of her physical abilities was immaterial because

“there was no medical testimony presented that Bagshaw is able to return to work.” If the

government had presented medical testimony that Bagshaw was not totally disabled, it seemingly

would have bolstered the government’s case substantially. It is somewhat puzzling that the

government presented no such testimony. Nonetheless, the government was not required to prove

that Bagshaw was able to return to work. The jury was not tasked with deciding whether Bagshaw

was entitled to disability benefits. Instead, the government was only required to prove that Bagshaw

misrepresented her physical abilities and that this misrepresentation was material.

       Bagshaw spends little time denying that she made false statements. Instead, she primarily

argues that her statements were not material, a required element for both the crime of mail fraud and

the crime of making false statements to obtain workers’ compensation benefits. Repeatedly,

Bagshaw argues that “[t]he government failed to present evidence that misrepresentations made by

Bagshaw, if indeed there were any, would have resulted in the discontinuation or reduction of her

benefits by OWC.” However, this line of argument is misplaced. Materiality is not such a high

hurdle. The test for materiality does not demand that Bagshaw’s benefits would have been

discontinued or reduced absent any given misstatement. Instead, the question is whether Bagshaw’s

false statements were capable of influencing the decision-maker to which she made them. For the

reasons stated below, the government introduced sufficient evidence from which a reasonable juror

could find that Bagshaw’s false statements were material.




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No. 12-3074
United States v. Bagshaw

       a. Counts 2-5: False Statements on 1032 Forms

       The 1032 forms required Bagshaw to “[r]eport ALL self-employment or involvement in

business enterprises,” including “farming; sales work; operating a business . . . ; providing services

in exchange for money, goods, or other services” and “activities such as keeping books and records,

or managing and/or overseeing a business of any kind, including a family business.” It further

required her to “[r]eport ANY work or ownership interest in any business enterprise, even if the

business lost money.” Yet Bagshaw never listed any such activities on the forms except investing

in alpacas.7 The pole camera video and the home movie clips depicted Bagshaw physically caring

for the alpacas. Bagshaw’s neighbor Pinchak testified that Bagshaw cared for the alpacas 75 percent

of the time. Pinchak stated that she “rarely” saw Jim Bagshaw helping with the farm. The

government introduced evidence of YLEO commission checks from 2008 totaling $243.46,

indicating that Bagshaw received outside income.8

       The 1032 forms further required Bagshaw to say whether she had “perform[ed] any volunteer

work for which ANY FORM of monetary or in-kind compensation was received.” Bagshaw wrote




       7
          Bagshaw argues that she used the term “invest” in an active sense and therefore was not
engaging in a deliberate scheme to defraud. Evidently she use the word in this sense when talking
with Agent Morgano at the alpaca event. But during the QAR interview, she used the word “invest”
in a strictly passive sense.
       8
        Bagshaw argues that these checks were “rebates” and “not true ‘commissions’ or income.”
But a reasonable juror could have concluded that these checks were for commissions, as indicated
by Casey Harris, legal counsel for YLEO. Also, although the checks were payable to Jim Bagshaw
and endorsed over to Karen, there is evidence in the record that Karen was the one primarily
involved in selling the YLEO products.

                                                - 34 -
No. 12-3074
United States v. Bagshaw

“no.” Yet an exhibit the government introduced at trial showed that Bagshaw received a

complementary stall, valued at $25, for volunteering as a clerk at an alpaca show in March 2008.

        Testimony introduced by the government indicated that misrepresentations as to business

activities were material. David Cattani, a senior claims examiner with the OWC, testified that the

accuracy of a claimant’s reporting “[was] everything to us, because again, we don’t see anything for

ourselves. We rely on what the claimant tells us.” The accuracy was crucial because “all [the

claimant’s] benefits are always contingent upon the injury being ongoing. As soon as [the OWC] can

establish that the injury is no longer there, then [the claimant is] not entitled to benefits any more.”

        Cattani further testified that statements about activities and earnings were significant because

benefits would be offset by any earning potential, and the OWC would compare activities listed for

consistency with the medical opinions. Cattani stated that it was “significant” not to have farming

activities included on the 1032 forms. He also testified that it would be “significant” not to include

activities as a salesperson or distributor of retail products because it “would show not only earnings,

but the capacity to run a business [or] do sales marketing.” He explained that the reporting “has

nothing to do with the income generated, it is the work being performed, which is a demonstration

of your ability to do something, and then we assign a value to that work to offset the wages.”

        Based on this testimony, we conclude that Bagshaw’s misrepresentations as to her business

activities on the 1032 forms were material. We view the statement denying the receipt of

compensation for volunteer activities to be immaterial. The only evidence of such compensation was

a complementary stall worth $25. In our view, this amount is so negligible as to render the false

statement immaterial. We also doubt whether the small amount of money received as YLEO

                                                 - 35 -
No. 12-3074
United States v. Bagshaw

commissions was material. Nonetheless, Bagshaw was convicted for her misstatements on the forms

as a whole. Each form falsely represented that Bagshaw only invested in alpacas, and these false

statements were material. Therefore, a reasonable juror could have found that Bagshaw made

material false statements on each of the four 1032 forms.

       Bagshaw also argues that she did not have a specific intent to defraud when answering the

questions on the 1032 forms because she did not understand the questions. She points to a record

of a 2004 phone call in which she asked an OWC representative questions about an overpayment.

The notation on the call record indicates that Bagshaw was confused and wanted assistance

completing forms. However, the note also states that Bagshaw was told that she could receive

assistance with questions, although the OWC could not complete the forms for her.

       Bagshaw also points to the QAR interview, in which she told Agent Dancer that she did not

know what else to list for business activities except for investing in alpacas. However, the interview

transcript demonstrates that she clarified for Agent Dancer that her only activity was “providing

funding” and that she was doing no care or bookkeeping. Despite these examples of possible

confusion, a reasonable juror could conclude that Bagshaw acted with the intent to defraud when

completing the 1032 forms.

       b. Count 6: Misrepresentations to Dr. Chauhan

       Dr. Chauhan viewed a video compilation showing Bagshaw engaging in various activities.

His opinion after viewing the video was that Bagshaw misrepresented her “physical capabilities and

medical condition during her examinations.” He further testified that he was “surprised at how much

she was able to do on the videotape.”

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No. 12-3074
United States v. Bagshaw

       The evidence supporting this particular count is probably the weakest of the fourteen counts,

because much of Dr. Chauhan’s testimony indicated that Bagshaw’s misrepresentations were not

material. Dr. Chauhan testified that Bagshaw’s misrepresentations to him were of a low degree and

were not material to his treatment because it was focused on alleviating her pain levels. He

performed an objective test known as the “Waddell test” to ensure that Bagshaw was not falsifying

her levels of pain. He stated that he had no concerns that she was feigning her back pain. Despite

her pain, he had encouraged Bagshaw to be active, since it was important for patients suffering from

chronic pain to occupy themselves and distract themselves from their pain. He stated that Bagshaw’s

back issues did not impose any physical restrictions, and that she could be “as active as she [could]

tolerate.” Even after watching the video, he testified that in his opinion Bagshaw was unable to

return to “full-time” “remunerative employment.”

       However, some of Dr. Chauhan’s testimony supports the jury’s finding. He stated that he

relied heavily upon Bagshaw’s subjective statements about her pain when treating her. He observed

that “pain is a very emotional and personal experience.” He stated that he tended to perform the

objective tests to rule out misrepresentation of pain early in the process of treating patients, and he

began treating Bagshaw in November, 2002. He did not retain Bagshaw’s Waddell test findings.

Although he did not think Bagshaw was capable of “full-time” employment and was concerned with

her ability to work on a regular basis, he seemed to leave open the possibility that she could work

part-time.

       David Cattani testified that due to the volume of claims, the Department of Labor was

“basically totally reliant” on the medical evidence it received. He further stated that “[w]hat

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No. 12-3074
United States v. Bagshaw

[claimants] tell their doctor is very important, too, because that trickles down in the medical opinion

as to what they can and cannot do.” Cattani stated that the USPS “work[ed] very hard” at

accommodating the disabilities of its workers. He testified that their forms often stated they could

“accommodate anything short of bed rest.” Based on these statements, a reasonable juror could have

found that Bagshaw’s misrepresentations to Dr. Chauhan were material.

       c. Count 7: Level of Back Pain

       After viewing footage of Bagshaw caring for her alpacas and hearing evidence of Bagshaw

volunteering at an alpaca convention, attending the YLEO conventions, and traveling, a reasonable

juror could have concluded that Bagshaw misrepresented the consuming level of her back pain.

       Further, a reasonable juror could have concluded that this statement was material. Bagshaw

argues that the transcript from the QAR interview was never made part of her Department of Labor

Office of Workers’ Compensation file, and therefore statements it contained could have not have

influenced the Department’s decisions regarding benefits. However, Agent Dancer testified that

statements made during the QAR interview prompted the Office of Inspector General to continue

its investigation and commence surveillance. From this testimony, a reasonable juror could have

concluded that Bagshaw’s statements during the interview influenced the actions of the Department

of Labor.

       Bagshaw furthers argues that the statements made during the QAR interview were not made

in connection with the application for or receipt of benefits—a required element of making false

statements to obtain workers’ compensation—because the QAR interview was designed to gather

evidence for prosecution, not to determine whether Bagshaw was entitled to benefits. However, a

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No. 12-3074
United States v. Bagshaw

reasonable juror could have concluded that the QAR interview was made in connection with the

application for or receipt of benefits because Agent Dancer stated that the purpose of the interview

was to investigate workers’ compensation fraud.

       d. Count 8: Husband Caring for Alpacas

       After hearing Pinchak testify that Bagshaw cared for the alpacas 75 percent of the time and

that Jim Bagshaw “rarely” cared for them, and after viewing the pole camera footage and home

movie clips, a reasonable juror could have concluded that Bagshaw misrepresented her involvement

in the alpaca business. A reasonable juror could also have concluded that this misrepresentation was

material.

       e. Count 9: No Physical Involvement with the Alpacas

       After viewing the pole camera footage and home movie clips and hearing Pinchak testify that

Bagshaw cared for the alpacas 75 percent of the time, a reasonable juror could have concluded that

Bagshaw misrepresented her physical involvement with the alpaca farm. A reasonable juror could

also have concluded that this misrepresentation was material.

       f. Count 10: No Income from Business or Investment Activities

       After hearing evidence about Bagshaw’s receipt of funds from the YLEO checks and the sale

of an alpaca, a reasonable juror could have concluded that Bagshaw misrepresented her receipt of

income from any business or investment activities. Although the $243.46 received as YLEO

commissions was minimal, the $1,200 received from the 2005 alpaca sale was more significant.

Also, testimony indicated that the OWC was interested primarily in the work capability represented

by the receipt of funds, not the amount of funds received.

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No. 12-3074
United States v. Bagshaw

       g. Count 11: No Volunteer Activities

       After hearing evidence about Bagshaw’s volunteering at the alpaca show, a reasonable juror

could have concluded that Bagshaw misrepresented her lack of volunteer activities. Testimony

indicated that any volunteer work would indicate to the OWC that the applicant was able to perform

some type of work.

       h. Count 12: No Driving for Alpaca Business

       After hearing testimony that Bagshaw transported an alpaca, a reasonable juror could have

concluded that Bagshaw falsely stated that she was not driving for her alpaca business. A reasonable

juror could have viewed this false statement as material, since if Bagshaw had stated that she drove

in connection with the alpaca business, she would have undercut her other statements about being

only passively involved.

       i. Count 13: No Traveling

       After hearing evidence that Bagshaw traveled to Salt Lake City, Los Angeles, and Erie,

Pennsylvania, a reasonable juror could have concluded that Bagshaw falsely represented that she

only traveled to Las Vegas. A reasonable juror could also have concluded that this misrepresentation

was material. Disclosure of this significant amount of traveling would have indicated that

Bagshaw’s pain was not as consuming as she indicated.

       j. Count 14: No Ability to Work Limited Duty or Limited Hours

       After hearing evidence of Bagshaw’s farm work, volunteering, conference attendance, and

traveling, a reasonable juror could have concluded that Bagshaw falsely stated that she was unable



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United States v. Bagshaw

to work limited duty or limited hours. Had Bagshaw stated that she thought she was able to return

to limited duty, that statement almost certainly would have influenced Agent Dancer’s actions.

       In sum, the government presented evidence to support each element of the counts charged.

Although the evidence was somewhat scarce, a reasonable juror could have found Bagshaw guilty

of each one of the counts. Therefore, we affirm the district court’s denial of Bagshaw’s motion for

judgment of acquittal.

                                      III. CONCLUSION

       We reiterate our uneasiness with the 24/7 video surveillance of curtilage conducted in this

case. Were we deciding a case where the footage captured within the curtilage was capable of

affecting the jury’s decision, our holding might be different. But we decline to announce a new rule

where the Fourth Amendment violation, if any, was harmless. Therefore, for the reasons discussed

above, we AFFIRM.




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No. 12-3074
United States v. Bagshaw

       KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. In this case,

the Government—without a warrant—used a hidden video camera to monitor surreptitiously and

continuously Bagshaw’s activities on her private, residential property for twenty-four days. Because

this kind of long-term video surveillance invaded Bagshaw’s legitimate expectation of privacy, I

would hold that the Government’s conduct violated the Fourth Amendment right to be free from

unreasonable searches.

                           I. FOURTH AMENDMENT ANALYSIS

       The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST . amend. IV.

In evaluating whether a search was reasonable under the Fourth Amendment, we ask “whether a

person has a ‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo,

476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring)). The district court found that Bagshaw did not have a reasonable expectation of privacy

because the area being continuously filmed was “visible from either adjoining lot,” and therefore

Bagshaw’s activities were knowingly exposed to the public. See United States v. Anderson-

Bagshaw, No. 1:11–CR–257, 2011 WL 3901880, at *3 (N.D. Ohio Sept. 6, 2011). This analysis

relies on prior cases holding that “[a]s a general proposition, the police may see what may be seen

‘from a public vantage point where [they have] a right to be.’” Florida v. Riley, 488 U.S. 445, 449

(1989) (quoting Ciraolo, 476 U.S. at 213). For example, the Court upheld against a Fourth

Amendment challenge aerial observation from “public navigable airspace” of an individual’s

marijuana plants in his backyard. Ciraolo, 476 U.S. at 213. The Court held that an individual could

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United States v. Bagshaw

not legitimately expect privacy in his backyard against “physically nonintrusive” observation by the

government when such a view was readily available to “a power company repair mechanic on a pole

overlooking the yard.” Id. at 213, 215. The majority likewise finds this precedent decisive as to the

video footage of Bagshaw’s backyard area.1 Along similar lines, the majority concludes that the

long-term video surveillance of the barnyard and pasture areas of Bagshaw’s property was not

subject to protection under the Fourth Amendment, relying on the open-fields doctrine. The majority

argues that the continuous monitoring of the barnyard and pasture areas was reasonable because “an

individual has no legitimate expectation that open fields will remain free from warrantless intrusion

by government officers.” Oliver v. United States, 466 U.S. 170, 181 (1984).

         These cases are not sufficient to reject Bagshaw’s Fourth Amendment challenge. Because

the intrusion caused by the search in this case was more severe, given its mode, intensity, and

duration, than the brief fly-overs and visual inspections condoned in Oliver and Ciraolo, those cases

are distinguishable from the facts presented here. See United States v. Cuevas-Sanchez, 821 F.2d

248, 251 (5th Cir. 1987) (distinguishing long-term video surveillance from one-time flyovers on the

basis of relative intrusiveness, and stating that “[i]t does not follow that Ciraolo authorizes any type

of surveillance whatever just because one type of minimally-intrusive aerial observation is

possible”). The search of Bagshaw’s property through the use of long-term, covert, continuous video

surveillance is different from and far more intrusive than the searches held to be reasonable in prior

cases.


         1
        I agree with the majority’s analysis dividing Bagshaw’s property into the backyard, barnyard,
and pasture areas, of which only the backyard constitutes curtilage.

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United States v. Bagshaw

       These differences matter, because the proposition that individuals do not have a reasonable

expectation of privacy in areas exposed to the public is not without limits—rather, the Supreme

Court has considered the intrusiveness of the search when analyzing the bounds of an individual’s

expectation of privacy. For example, in Bond v. United States, 529 U.S. 334 (2000), the Court held

that the Fourth Amendment was violated when police officers manipulated a bus passenger’s bag

in an exploratory manner. The Government had argued that because the passenger knowingly

exposed his bag to the public, he “lost a reasonable expectation that his bag would not be physically

manipulated.” 529 U.S. at 337. This argument relied on the prior Supreme Court precedents in

Ciraolo and Riley “for the proposition that matters open to public observation are not protected by

the Fourth Amendment.” Id. But the Court held that this proposition was not without limitation,

and that a search of an object or area exposed to the public could be unreasonable, given its relative

intrusiveness. See id. (distinguishing earlier cases allowing a search of an area or object exposed to

the public because the nature of the search was different in this case: “[p]hysically invasive

inspection is simply more intrusive than purely visual inspection”); see also United States v. Place,

462 U.S. 696, 707 (1983) (holding that although “a person possesses a privacy interest in the

contents of personal luggage,” a canine sniff of the bag did not violate the Fourth Amendment

because “the manner in which information is obtained through this investigative technique is much

less intrusive than a typical search”). Bond “reaffirmed the general principle that the nature of the

intrusion by the government can have an effect on whether a citizen has a legitimate expectation of

privacy.” United States v. Nerber, 222 F.3d 597, 601 (9th Cir. 2000). These cases stand for the idea



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No. 12-3074
United States v. Bagshaw

that expectations of privacy with respect to an area or object searched are not all-or-nothing; rather,

a person’s reasonable expectations of privacy depend on the intrusiveness of the search.

       Accordingly, just because society is willing to accept reasonable searches by the government

of open fields and curtilage on private property, this does not render nonexistent the constitutional

protections against unreasonable searches in those spaces. Cf. O’Connor v. Ortega, 480 U.S. 709,

731 (1987) (Scalia, J., concurring) (“Constitutional protection against unreasonable searches by the

government does not disappear merely because the government has the right to make reasonable

intrusions in its capacity as employer.”); Nerber, 222 F.3d at 601 (“[T]he legitimacy of a citizen’s

expectation of privacy in a particular place may be affected by the nature of the intrusion that

occurs.”). Although the public’s ability to access information or view a particular area affects the

legitimacy of an expectation of privacy, “the threat or possibility of access is not decisive when it

comes to the reasonableness of an expectation of privacy.” United States v. Warshak, 631 F.3d 266,

287 (6th Cir. 2010); see also United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991) (explaining

that “[t]he access of others does not defeat [a person]’s expectation of privacy in his office”). Thus,

that a “curious utility worker with a cheap pair of binoculars” could have viewed Bagshaw’s

backyard, barnyard, and pasture, see United States v. Anderson-Bagshaw, No. 1:11–CR–257, 2012

WL 774964, at *2 (N.D. Ohio Mar. 8, 2012), does not necessarily mean that the government had an

unfettered, unlimited ability to monitor her every move on her own property for weeks at a time. See

Cuevas-Sanchez, 821 F.2d at 251. The brief intrusion of the nosy neighbor or the undercover officer

is less invasive than prolonged video surveillance; that society is willing to accept the former

intrusion as reasonable does not wholly extinguish Bagshaw’s reasonable expectation of privacy that

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No. 12-3074
United States v. Bagshaw

her activities were not being secretly monitored by a hidden camera twenty-four hours a day for

several weeks.

        “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S.

248, 250 (1991). Here, the mode of the search (hidden video surveillance), its prolonged duration,

and its intensity (the continuous nature of the filming) make it unreasonable. We have recognized

that “[v]ideo surveillance in inherently intrusive.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d

489, 496 (6th Cir. 2008). We are far from alone in this observation: many other courts have stated

that covert video surveillance is a severe intrusion into a person’s privacy expectations, which

“provokes an immediate negative visceral reaction” and “raises the spectre of the Orwellian state.”

Cuevas-Sanchez, 821 F.2d at 251; see, e.g., Nerber, 222 F.3d at 603 (“Hidden video surveillance is

one of the most intrusive investigative mechanisms available to law enforcement.”); United States

v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) (“It is clear that silent video surveillance . . . results in a

very serious, some say Orwellian, invasion of privacy.”); United States v. Koyomejian, 970 F.2d 536,

551 (9th Cir. 1992) (Kozinski, J., concurring) (“As every court considering the issue has noted, video

surveillance can result in extraordinarily serious intrusions into personal privacy.”); United States

v. Mesa-Rincon, 911 F.2d 1433, 1445 (10th Cir. 1990) (finding video surveillance to be “extremely

intrusive”); United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984) (Posner, J.) (“We think it also

unarguable that television surveillance is exceedingly intrusive . . . and inherently indiscriminate,

and that it could be grossly abused—to eliminate personal privacy as understood in modern Western

nations.”); Carter v. Cnty. of L.A., 770 F. Supp. 2d 1042, 1050–51 (C.D. Cal. 2011) (“Covert video

surveillance is not a traditional tool. . . . Outside of a strip search or a body cavity search, a covert

                                                  - 46 -
No. 12-3074
United States v. Bagshaw

video search is the most intrusive method of investigation a government employer could select.

Secret videotaping goes against the grain of our strong anti-Orwellian traditions.”). That Bagshaw

was being monitored continuously by a hidden video camera, which could pan and zoom at the will

of Agent Morgano from the comfort of Morgano’s own home, is deeply troubling, given the Fourth

Amendment’s role in “guarantee[ing] the privacy, dignity, and security of persons against certain . . .

invasive acts by officers of the Government.” Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,

613–14 (1989).

       The Government seeks to downplay the severity of its intrusion by arguing that its use of the

hidden video camera merely enhanced what would have otherwise been a permissible investigation

technique of physical visual surveillance from a publicly available vantage point. See Appellee Br.

at 29–30; see also Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986) (permitting aerial

observation with enhancing camera technology of an industrial complex without a warrant, even

though the government used a camera that provided “more detailed information than naked-eye

views”). The use of hidden video cameras to aid visual surveillance has been sanctioned by one of

our sister circuits on this ground—as a mere improvement in efficiency. See United States v.

Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009) (considering long-term video surveillance and stating

that while the government “could have stationed agents to surveil Vankesteren’s property twenty-

four hours a day . . . . [t]hat the agents chose to use a more resource-efficient surveillance method

does not change our Fourth Amendment analysis”).

       However, there is more to the issue than merely increased cost-effectiveness—the

surreptitiousness of the observation which is enabled through the use of hidden video cameras means

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No. 12-3074
United States v. Bagshaw

that law-enforcement agents can observe more than they would be able to if they were using physical

surveillance. This appears to have been exactly the case in the Bagshaw investigation: the

investigators resorted to hidden video cameras because the physical presence of agents on or near

Bagshaw’s property was too visible. Agent Morgano testified during the suppression hearing that:

       We utilized the worker’s compensation analyst in his vehicle up to that point [before

       the pole camera was installed] conducting surveillance, but given the nature of it

       being a rural neighborhood and not heavily foot traffic in the businesses, he was very

       noticeable in his presence. So we opted to remove him from that situation.



R. 57 (Suppression Hearing Tr. at 12:21–13:1) (Page ID #697–98); see id. at 41:14–42:1 (Page ID

#726–27) (acknowledging that physical surveillance was not undertaken because of a concern that

Agent Morgano would be identified and noticed by Bagshaw). In other words, the surreptitiousness

of the surveillance is worrisome because “it evades the ordinary checks that constrain abusive law

enforcement practices: ‘limited police resources and community hostility.’” United States v. Jones,

565 U.S. at —, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) (quoting Illinois v. Lidster,

540 U.S. 419, 426 (2004)); see also J. Amy Dillard, Big Brother Is Watching: The Reality Show You

Didn’t Audition For, 63 OKLA . L. REV . 461, 498 n.231 (2011) (stating that “[t]echnologically

enhanced surveillance does not merely substitute for in-person surveillance” because it makes the

presence of the police invisible).

       As the increasing technical capacity of the government makes this kind of long-term hidden

video surveillance more feasible and readily available, individual privacy becomes threatened.

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No. 12-3074
United States v. Bagshaw

Courts are often confronted with increasingly intrusive forms of surveillance enabled by

technological advancements, and we must carefully consider “what limits there are upon this power

of technology to shrink the realm of guaranteed privacy.” Kyllo v. United States, 533 U.S. 27, 34

(2001); see also Jones, 132 S. Ct. at 962–63 (Alito, J., concurring) (explaining the ways in which

technological progress may influence privacy expectations); United States v. Garcia, 474 F.3d 994,

998 (7th Cir. 2007) (“Technological progress poses a threat to privacy by enabling an extent of

surveillance that in earlier times would have been prohibitively expensive.”). We recently

recognized in Warshak that “the Fourth Amendment must keep pace with the inexorable march of

technological progress, or its guarantees will wither and perish.” Warshak, 631 F.3d at 285. Thus,

we must carefully consider the ways in which the government’s capacity to monitor continuously

and surreptitiously an individual’s behavior through hidden video surveillance—without a

warrant—may impinge on the privacy and dignity guaranteed by the Fourth Amendment.

       As the majority points out, five Justices of the Supreme Court recently indicated in Jones that

there may be constitutional concerns with long-term warrantless surveillance of individuals. See

Jones, 132 S. Ct. at 964 (Alito, J., concurring) (“[S]ociety’s expectation has been that law

enforcement agents and others would not—and indeed, in the main, simply could not—secretly

monitor and catalogue every single movement of an individual’s car for a very long period.”); id. at

955 (Sotomayor, J., concurring) (agreeing with Justice Alito that long-term GPS monitoring offends

expectations of privacy). These concerns are founded upon a recognition that long-term monitoring

enables the government to obtain a different set of information than a single visual observation of

an area. Cf. id. at 955 (Sotomayor, J., concurring) (“GPS monitoring generates a precise,

                                               - 49 -
No. 12-3074
United States v. Bagshaw

comprehensive record of a person’s public movements that reflects a wealth of detail about her

familial, political, professional, religious, and sexual associations.”). This makes long-term

surveillance more intrusive than a fly-over or transitory visual observation. See id. at 956

(“Awareness that the Government may be watching chills associational and expressive freedoms.

And the Government’s unrestrained power to assemble data that reveal private aspects of identity

is susceptible to abuse.”); Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV . 1087,

1130–31 (2002) (“Being watched can destroy a person’s peace of mind, increase her self-

consciousness and uneasiness to a debilitating degree, and can inhibit her daily activities. . . . An

important dimension of privacy is informational control, which does not readily translate into spatial

terms.”); cf. United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J., dissenting) (“Authority is

hardly required to support the proposition that words would be measured a good deal more carefully

and communication inhibited if one suspected his conversations were being transmitted and

transcribed.     Were third-party bugging a prevalent practice, it might well smother that

spontenaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse—that liberates

daily life.”).

        In United States v. Oliver, 686 F.2d 356 (6th Cir. 1982) (en banc), aff’d, 466 U.S. 170 (1984),

even as we robustly affirmed the open-fields doctrine, we maintained that the Fourth Amendment

“would protect a person in an open field.” 686 F.2d at 360. This makes sense, because the Fourth

Amendment “protects people, not places.” Katz, 389 U.S. at 351. We explained that the Fourth

Amendment principles articulated by courts protect privacy by “establish[ing] an environment in

which individual emotional and mental processes can develop freely without surveillance or

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United States v. Bagshaw

interference.” Oliver, 686 F.2d at 360 (emphasis added). This important freedom is threatened by

the severely intrusive tactics used to monitor continuously Bagshaw’s activities on her residential

property—warrantless, long-term secret video surveillance. Bagshaw’s expectation that she would

not be monitored continuously on her own property is reasonable. In sum, I would hold that the

video surveillance obtained using the pole camera in this case was an unreasonable search which

violated Bagshaw’s Fourth Amendment rights.

                                    II. HARMLESS ERROR

       The next question that we must address is whether the constitutional violation was harmless

such that reversal of the convictions is not required. When evidence obtained in violation of the

Fourth Amendment is admitted improperly, reversal is required “[i]f there is a reasonable probability

that the evidence complained of contributed to the conviction.” United States v. Carnes, 309 F.3d

950, 963 (6th Cir. 2002); see Chapman v. California, 386 U.S. 18, 22–24 (1967). “‘To determine

whether the error was harmless under Chapman the question this court must ask is whether, absent

the improperly admitted [evidence], it is clear beyond a reasonable doubt that the jury would have

returned a verdict of guilty.’” Carnes, 309 F.3d at 963 (quoting United States v. Wolf, 879 F.2d

1320, 1324 (6th Cir. 1989)).




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No. 12-3074
United States v. Bagshaw

       The jury was shown twelve minutes and forty-six seconds of footage from the pole camera.2

This footage contained clips showing Bagshaw raking, mowing the pasture area, pulling a wagon,

pushing a wheelbarrow, bending, squatting, picking up small objects, carrying bags, moving a hose,

and bending over to care for an alpaca, among other things. I consider this evidence alongside the

other evidence presented at trial as it relates to each count for which the pole-camera footage might

have been relevant.3 “In determining whether an error is harmless, the reviewing court must take

account of what the error meant to [the jury], not singled out and standing alone, but in relation to

all else that happened.” United States v. Pugh, 405 F.3d 390, 400 (6th Cir. 2005) (internal quotation

marks omitted).

       Counts 1 through 6. Count 1 charged Bagshaw with devising a scheme to defraud the

government which involved an alleged “fail[ure] to reveal her ability to work and her work

activities” as well as alleged misrepresentations with respect to her medical condition. R. 3 (Indict.



       2
         Because I would hold that the entirety of the pole-camera footage was obtained in violation
of the Fourth Amendment, I consider the relative harmlessness of all of the pole-camera clips shown
to the jury. This is unlike the majority, which considers only the clips of the backyard area in its
harmlessness analysis. Additionally, although Bagshaw urges the court to suppress “the warrantless
pole camera surveillance and all fruits of this illegal search and seizure,” see Appellant Br. at 18,
Bagshaw does not appear to make the argument that all evidence obtained from the search of her
home—which occurred after the police obtained a search warrant—also should be suppressed.
Because Bagshaw does not make this argument, I do not consider whether the evidence obtained
during the execution of the search warrant was fruit of the poisonous tree that should also be
suppressed.
       3
         I exclude Counts 10, 11, 12, and 13 from this analysis because the pole-camera footage was
not relevant to demonstrating allegedly false statements relating to income Bagshaw received from
business or investment activities, Bagshaw’s volunteer activities at alpaca and fleece shows,
Bagshaw’s driving in relation to the alpaca business, or Bagshaw’s travel outside of Ohio.

                                                - 52 -
No. 12-3074
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at 2–3) (Page ID #9–10). Counts 2 through 5 charged Bagshaw with making false statements on

various EN-1032 forms, in which Bagshaw allegedly “failed to disclose the extent of her work

activities.” R. 3 (Indict. at 4–5) (Page ID #11–12). Count 6 charged Bagshaw with “conceal[ing]

her true medical condition and physical abilities from Dr. Amardeep Chauhan.” R. 3 (Indict. at 6)

(Page ID #13). These counts focus on alleged false statements made in connection with (i)

Bagshaw’s medical condition, and (ii) Bagshaw’s work activities.

        Regarding alleged misrepresentations with respect to Bagshaw’s medical condition or

physical capabilities, the pole-camera footage largely duplicated other video evidence presented at

trial. Although the pole-camera footage showed Bagshaw’s ability to bend over, squat, twist, and

carry heavy objects, the cruise footage and the home videos also displayed these abilities. Bagshaw

is seen pulling a heavy suitcase in the cruise footage, and she is seen bending, squatting, and twisting

in both the cruise footage and the home videos. Even if the jury had not been shown the improper

surveillance clips, given the other damaging video evidence demonstrating Bagshaw’s physical

abilities, it is clear beyond a reasonable doubt that a jury would have returned a verdict of guilty on

these counts.

        Similarly, regarding misrepresentations relating to the extent of Bagshaw’s work activities,

the pole-camera footage was duplicative of other video footage presented to the jury, as well as

testimony from Ensie Pinchak. The home videos were particularly harmful to the defense, because

they demonstrate Bagshaw’s active involvement with the alpaca farm. Further, there was testimony

from Pinchak regarding Bagshaw’s activities relating to the farm. See R. 139 (Trial Tr. at 975–78)



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(Page ID #2720–23). Given this other evidence, as to Counts 1 through 6, the pole-camera footage

was harmless.

       Count 7. Count 7 charged Bagshaw with falsely stating that her “back pain, it consumes my

brain and . . . I can’t focus on things ‘since’ the pain just always like interferes,” when Bagshaw

allegedly “was able to focus on matters related to the promotion and operation of a farm, taking

classes and seminars, . . . functioning during local and extended business and pleasure trips, and

performing physical labor at her residence/farm.” R. 3 (Indict. at 6) (Page ID #13). The pole-camera

footage demonstrated Bagshaw’s general ability to perform maintenance on her property, including

mowing the lawn and raking leaves, as well as her ability to bend and lift objects with no signs of

physical pain. To the extent that the footage showed that Bagshaw could conduct routine activities

without showing signs of pain, this evidence was duplicated by other video evidence which showed

Bagshaw raking leaves, pulling suitcases, bending, twisting, and showing alpacas at shows. The

pole-camera footage was thus harmless with respect to Count 7.

       Count 8. Count 8 charged Bagshaw with falsely stating that “[her] husband . . . takes care

of the alpacas and runs the business” when Bagshaw allegedly “engaged in substantial activities

related to the operation” of the alpaca farm. R. 3 (Indict. at 7) (Page ID #14). Because the majority

of the pole-camera footage showed Bagshaw raking, mowing, and picking up objects around the

pasture area, the footage was directly relevant to Count 8. However, there was other robust video

evidence that Bagshaw was involved in the alpaca farm, including physically caring for the animals,

assisting with the shearing of alpacas, and showing alpacas at shows. Further, as outlined above,

there was witness testimony indicating that Bagshaw was involved with the alpaca farm, including

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maintenance of the farm and transporting animals for veterinary care. Thus, there was no reasonable

probability that the pole-camera footage contributed to the conviction on Count 8. See Carnes, 309

F.3d at 963.

       Count 9. Count 9 charged Bagshaw with making a false statement when she answered “No”

in response to the question, “You’re not doing anything to physically care for the . . . animals?” R. 3

(Indict. at 8) (Page ID #15). The pole-camera footage shown to the jury contained four segments

showing Bagshaw either chasing after the alpacas or bending over the alpacas to care for them. The

jury was also shown the home videos, which contained footage of Bagshaw helping feed the animals,

caring for newborn alpacas, chasing the alpacas, and assisting with shearing the alpacas.

Additionally, Pinchak testified that she saw Bagshaw working with the animals and feeding the

animals two to three times a day. See R. 139 (Trial Tr. at 975–77) (Page ID #2720–22). Given the

direct video evidence in the home videos that showed Bagshaw physically caring for the animals and

Pinchak’s testimony, the additional four segments contained in the pole-camera videos were

harmless with respect to Count 9.

       Count 14. Count 14 charged Bagshaw with making a false statement when she answered

“No” in response to the question, “Do you think you could work limited duty or limited hours?” R. 3

(Indict. at 11) (Page ID #18). Similar to Count 7, to the extent the pole-camera footage showed

Bagshaw’s general ability to perform daily activities, this evidence was duplicated by the other video

evidence presented to the jury, as well as by the testimony of Pinchak. Given the cumulative nature

of the video evidence, the pole-camera footage was harmless with respect to Count 14.



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       Accordingly, I concur with the majority that the admission of the pole-camera footage was

harmless error.

                               III. MULTIPLICITOUS COUNTS

       I concur in the majority’s holding that Count 4 and Counts 7 through 14 are not muliplicitous,

because each involves proof of a different factual predicate. See United States v. Dedman, 527 F.3d

577, 600 n.10 (6th Cir. 2008) (“Separate allegedly false statements . . . are not mere multiple factual

predicates but rather are entirely separate offenses.” (internal quotation marks omitted)); United

States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980). However, I note that during the December 10,

2008 interview, when the allegedly false statements in Counts 7 through 14 were made, Agent

Dancer posed well over one-hundred questions to Bagshaw, many of which were aimed at only a few

aspects of the investigation—discovering the extent of Bagshaw’s physical capabilities, and

discovering the extent of her activities relating to the alpaca farm. See Gov’t Ex. 12A. A different

conclusion may have been warranted if the indictment had charged Bagshaw with multiple counts

of making essentially the same false statement in responding to rephrased questions that aimed at

a single aspect of the investigation. See Gebhard v. United States, 422 F.2d 281, 289–90 (9th Cir.

1970) (“[W]e do not think it proper that the government bludgeon a witness who is lying by

repeating and rephrasing the same question, thus creating more possible perjury counts.”); United

States v. Clarridge, 811 F. Supp. 697, 705 (D.D.C. 1992) (holding that artificial multiplication of

charges is improper, and that “[s]eparate counts are only appropriate where the ‘inquiries [are]

directed to a separate facet of the overall transaction being investigated’” (quoting United States v.



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Doulin, 538 F.2d 466, 471 (2d Cir. 1976))); see also United States v. Ragland, 3 F. App’x 279, 284

(6th Cir. 2001).

       For the foregoing reasons, I concur in the judgment.




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