                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0569n.06

                                            No. 11-3845

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                         FILED

UNITED STATES OF AMERICA,                                 )                         Jun 04, 2012
                                                          )                  LEONARD GREEN, Clerk
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   ON APPEAL FROM THE
                                                          )   UNITED STATES DISTRICT
BRIDGET MCCAFFERTY                                        )   COURT FOR THE NORTHERN
                                                          )   DISTRICT OF OHIO
          Defendant-Appellant.                            )




Before:          BOGGS and GRIFFIN, Circuit Judges; and BARZILAY, Judge.*

          BOGGS, Circuit Judge. The prosecution of Bridget McCafferty, formerly a judge on the

Cuyahoga County Common Pleas Court, arose out of the high-profile public-corruption and bribery

case against James Dimora, formerly Cuyahoga County Commissioner and Cuyahoga County

Democratic Party Chairman. Following a jury trial in which McCafferty was convicted of ten counts

of making false statements to FBI agents, in violation of 18 U.S.C. § 1001, she raises seven claims

on appeal.       First, that the district court improperly admitted testimony about ex parte

communications and the Ohio Code of Judicial Conduct, in violation of Fed. R. Evid. 404(b).

Second, that the district court erred in not playing a wiretap conversation during trial, in violation

of her right of confrontation under the Sixth Amendment. Third, that the indictment was improper,


          *
         The Honorable Judith M. Barzilay, Senior Judge, United States Court of International Trade,
sitting by designation.
No. 11-3845
United States v. McCafferty

as it did not set forth the objective truth claimed to be in contrast to her alleged false statements.

Fourth, that the district court erred in admitting a voice mail message into evidence. Fifth, that the

district court erred in admitting a statement of a co-conspirator. Sixth, that the district court erred

in refusing to dismiss certain counts or require the government to elect among multiplicitous counts.

Seventh, that the district court abused its discretion by varying upwards five levels in sentencing her.

Each claim is without merit. We affirm.

                                                   I

                                                   A

       In 2007, the United States launched a wide-ranging investigation into public corruption in

Cuyahoga County, Ohio. Prosecutors sought and received authorization to wiretap nine phones.

Over the course of eight months, the government intercepted more than 44,000 conversations, and

seized “a small mountain” of documentary materials. The primary targets of the investigation were

Frank Russo, the County Auditor, and James Dimora, the County Commissioner and Democratic

Party Chairman, both of whom were ultimately indicted for public-corruption offenses.1

                                                   B

       Intercepted conversations revealed that Dimora and Russo had contacted county judges

about pending cases, including then-Judge McCafferty. On September 23, 2008, FBI agents Curtis



       1
         On March 9, 2012, Dimora was found guilty by a jury of 32 counts relating to the corruption
probe, and is currently awaiting sentencing. 1:10-CR-387. Russo entered a guilty plea to an
information on September 16, 2010, and was sentenced on December 16, 2010. 1:10-CR-384. On
December 14, 2011, the United States filed a motion to reduce Russo’s sentence pursuant to Rule
35(b)(1) of the Federal Rules of Criminal Procedure. That motion is currently pending.

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United States v. McCafferty

and Oliver approached McCafferty in the driveway of her home. McCafferty invited the agents

inside her home after the agents told her they had questions about the corruption investigation.

       At first, McCafferty denied that Dimora had “ever attempted to influence any cases before

her court,” or “ever called her about a case,” other than saying “she was doing a good job.”

Similarly, McCafferty denied that she had ever spoken to Russo “about any cases in court” or given

him “any special consideration regarding cases.” Next, the agents asked about Steven Pumper, a

Dimora associate who was also a target of the corruption probe, and who later pleaded guilty to

corruption charges. McCafferty had presided over a case between Pumper’s company, DAS, and

a subcontractor, Letter Perfect. The case arose from a construction contract involving the stadium

of the Cleveland Browns. The case ultimately settled. McCafferty admitted that she called Pumper

privately to ask if he was okay after the settlement conference, but this was her only contact with

Pumper. McCafferty denied that she tried to “sway the negotiations for Steve Pumper.”

       After the agents reminded her that she could be subject for prosecution for making false

statements to federal officers and RICO charges, McCafferty expressed concern about a false

statement charge. When asked again if she had discussed any cases with Russo, her answer evolved,

and she denied having any “recollection of that” or any recollection of trying to settle the case

between DAS and Letter Perfect for less money. The agents terminated the interview because they

believed McCafferty was lying about her contacts with Dimora, Russo, and Pumper. The interview

lasted approximately ninety minutes.




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United States v. McCafferty

                                                 C

       On September 14, 2010, a federal grand jury returned an indictment against McCafferty on

a single count of making false statements to FBI agents, in violation of 18 U.S.C. § 1001 (Count 25

of a multi-defendant indictment). After McCafferty’s case was severed from the other parties, the

grand jury returned a supplemental indictment charging McCafferty with ten counts of making false

statements to FBI agents, in violation of 18 U.S.C. § 1001. Count 1 alleged that “MCCAFFERTY

denied that Dimora attempted to influence her actions in any of the cases before her court.” Count

2 alleged that “MCCAFFERTY denied that Dimora attempted to intervene in any of the cases before

her court.” Count 3 alleged that “MCCAFFERTY denied any involvement by Dimora in any of the

cases before her court.” Count 4 alleged that “MCCAFFERTY denied telling Pumper that she tried

to settle the DAS case for less money.” Count 5 alleged that “MCCAFFERTY denied trying to sway

the DAS case settlement negotiations for Pumper.” Count 6 alleged that “MCCAFFERTY denied

trying to settle the DAS case so that Pumper would pay less.” Count 7 alleged that “MCCAFFERTY

denied that Frank Russo ever spoke to her about any of the cases in her court.” Count 8 alleged that

“MCCAFFERTY said that her only conversations with Russo about her court would have been

Russo’s remarks that he heard from attorneys that she was doing a good job as a judge.” Count 9

alleged that “MCCAFFERTY said that the closest thing about a case that either Dimora or Russo

would have said to her was that he (Dimora or Russo) knew an attorney who said that he (the

attorney) was in MCCAFFERTY’s court.” Count 10 alleged that “MCCAFFERTY denied giving

Frank Russo any special consideration with regard to any of the cases before her court.”



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United States v. McCafferty

       McCafferty challenged the supplemental indictment on multiplicity grounds, and asserted

that counts 1, 2, and 3 were multiplicitous concerning McCafferty and Dimora; counts 5 and 6 were

multiplicitous concerning McCafferty and the DAS case; and counts 7, 8, and 9 were multiplicitous

with respect to McCafferty and Russo. Count 4, alone, was not alleged to be multiplicitous of any

other count. However, the court declined to require the government to elect between the allegedly

multiplicitous counts, and ruled “that the government should be permitted to present its case, as

charged, to the jury, given its representation that each of the statements set forth in the charges was

denied by the defendant.”

                                                  D

       After a four-day trial, McCafferty was convicted, and the district court denied McCafferty’s

motion for a new trial and judgment of acquittal. The district court varied upward by five levels

from the recommended Sentencing Guidelines range, and sentenced McCafferty to fourteen months

of imprisonment.

                                                  II

                                                  A

       During trial, the government offered Lori Brown, Chief Assistant at the Ohio Disciplinary

Counsel, to testify about ex parte communications and Ohio’s code of ethics for judges. McCafferty

objected that the testimony was highly prejudicial under Fed. R. Evid. 403, not sufficiently probative,

and inadmissible under Fed. R. Evid. 404(b). The district court ruled that the testimony would “aid

the jury because my experience is that lay people do not realize the ethical considerations that judges

have relative to talking about cases and oftentimes think there is nothing wrong with having ex parte

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United States v. McCafferty

discussions.” The court explained that, “without such expert testimony, it is unlikely that lay jurors

would . . . understand why certain conduct by a judicial officer, such as engaging in ex parte

conversations with parties, would be improper and unethical.” The court concluded that Brown’s

testimony “would explain why an upstanding citizen, who holds a prestigious and respected

position, would have incentive to lie to a federal agent.” Brown testified about the principles

embodied in the canons of ethics, and how violation of those canons “impairs [the] perception” that

everyone “is entitled to a fair proceeding,” and “affect[s] how the public perceives the judicial

system.”

       On appeal, McCafferty challenges this ruling, arguing that evidence that discussed how bad

“other acts” were should have been excluded. Further, McCafferty claims she had never denied

having unethical ex parte communications. Both FBI agents testified that McCafferty told them,

albeit after some nudging, that she spoke with Pumper during the pendency of the case, as well as

after the settlement. Because McCafferty did not dispute that she had acknowledged ex parte

communications, she asserts that Brown’s testimony was not necessary for the jury to hear.

McCafferty further alleges that the admission of this evidence was unfair and highly prejudicial, and

substantially outweighed any probative value. Alternatively, McCafferty argues that, even if the

evidence was admissible under Rule 404(b), Brown’s testimony went too far: she was “permitted

to explain the underlying principles and policies advanced by the canons—essentially allowing her

to condemn McCafferty as an unfair, unprincipled judge.” McCafferty moved for a mistrial after this

evidence was introduced. This request was denied, though a limiting instruction was given, telling

the jury that violation of the canons “was not a crime.”

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United States v. McCafferty

                                                   B

        We review rulings of admissibility under Rule 404(b) for an abuse of discretion. United

States v. Mack, 258 F.3d 548, 553 (6th Cir. 2001). Because “the draftsmen [of Rule 403] intended

that the trial judge be given a very substantial discretion in balancing probative value . . . and unfair

prejudice . . . , [this court has recognized that the district court] . . . should not be reversed simply

because an appellate court believes that it would have decided the matter otherwise . . . .” United

States v. Zipkin, 729 F.2d 384, 390 (6th Cir. 1984).

        The district court correctly held that one of McCafferty’s potential motives for lying to the

FBI agents was to avoid sanctions for ex parte communications in violation of the code of ethics.

Rule 404(b) states that evidence of a “wrong, or other act . . . may be admissible for another purpose,

such as proving motive.” In order for the jury to fully understand that possible motive, it was

reasonable for the government to offer a witness to testify about how ex parte communications were

considered under the judicial canons. The district court did not abuse its discretion by admitting the

testimony to establish a possible motive for McCafferty to make false statements to the FBI agents.

        However, as a threshold matter, it is unclear exactly what “other acts” Brown offered

testimony about that could potentially be inadmissible. Granted, her discussion about the ethical

implications of a judge engaging in ex parte communications tracked closely with McCafferty’s

course of conduct. However, Brown’s testimony did not reference or mention any actual act

McCafferty undertook. Rather her testimony was couched in hypotheticals. Rule 404(b) seems

inapposite.



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United States v. McCafferty

       With respect to Rule 403, any prejudicial effect of the testimony is substantially outweighed

by the probative value of explaining to the jury what the sanctions could be for a judge who engaged

in improper ex parte communications—removal from office and disbarment. Fed. R. Evid. 403. The

court instructed the jury that “[v]iolation of the canons is not a crime and the defendant, Bridget

McCafferty, is not charged with any such crime. You may consider this evidence only as evidence

of the defendant’s motive and for no other purpose.” With respect to the scope of Brown’s

statements about the principles and purposes of the code of ethics, the court’s limiting

instruction—which defense counsel helped to craft—was sufficient to cure any possible

misconceptions about the relevancy of the testimony. Because juries are presumed to follow curative

instructions, United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991), McCafferty cannot show

that the district court abused its discretion by admitting Brown’s testimony.

                                                III

                                                 A

       During direct examination, Russo testified that he, McCafferty, Dimora, and Pumper spoke

about the DAS case at a fund raiser in the Tremont area of Cleveland. As part of her defense,

McCafferty sought to establish that this conversation occurred at a fund raiser for Brendan Sheehan,

a judicial candidate, at the Fahrenheit restaurant in Tremont on May 29, 2008—three weeks after

the case had settled. This would show that the conversation was not inappropriate, as the case had

already been closed. In a wiretapped conversation recorded on May 28, 2008, Russo tells Dimora

that he will go to Sheehan’s fund raiser on May 29, 2008, and Dimora replies that he will join him.



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United States v. McCafferty

This conversation—which occurred before the Sheehan fund raiser—does not refer to McCafferty

or Pumper attending the fund raiser.

          On cross-examination, Russo testified that the fund raiser where McCafferty discussed the

DAS case may have been at the Fahrenheit restaurant and may have been for Sheehan, but he was

not sure: “It could have been Brendan Sheehan’s fund-raiser or [that of] a[n incumbent] judge. I

think it could have been possibly at Fahrenheit, but I couldn’t guarantee that I told them.” He noted

that “[t]hat was a year many judges were running. We had two or three fund-raisers that evening to

go to.”

          The defense attempted to introduce the audio of a conversation between Russo and Dimora,

recorded on May 28, 2008, and the government objected. The court ruled that it would not permit

the recorded call to be played in court, but allowed the defense to show Russo a transcript of the

phone call for the limited purpose of seeing whether it refreshed his recollection. Reading the

transcript did not refresh his recollection, and Russo could not testify whether the fund raiser where

the McCafferty conversation occurred was in fact Sheehan’s fund raiser. The court did not permit

the defense to play the audio.

                                                  B

          McCafferty argues that her inability to play the recording while cross-examining Russo

violated her Sixth Amendment right to confront the witness. The Sixth Amendment provides a

criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. Amend.

VI. The Supreme Court has explained that “the Confrontation Clause guarantees an opportunity for

effective cross-examination, not cross-examination that is effective in whatever way, and to whatever

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United States v. McCafferty

extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

“[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive

or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); accord United

States v. Beverly, 369 F.3d 516, 535 (6th Cir. 2004).

        McCafferty had sufficient opportunity to cross-examine Russo, and to refresh his recollection

about the fund raiser in question with the transcript. The district court’s decision did not violate her

right of confrontation, but simply prohibited her from playing a recording of a conversation—a

conversation that Russo could not authenticate as related to the fund raiser in question attended by

McCafferty.

        Limits on cross-examination are reviewed for abuse of discretion. United States v. Obiukwu,

17 F.3d 816, 821 (6th Cir. 1994) (limits on cross-examination are consistent with the right to

confront). While the defense could have impeached Russo based on any inconsistencies between

his conversation with Dimora about attending the Sheehan fund raiser and his testimony that he did

not remember the specific fund raiser at which the alleged conversation occurred, there was nothing

in the transcript or recording that would have permitted any impeachment. Rather, the transcript

only establishes that Russo and Dimora planned on going to Sheehan’s fund raiser the next

day—which is entirely consistent with Russo’s testimony. The defense offered no evidence that

McCafferty or Pumper were at the May 29, 2008 fund raiser by introducing any media accounts of



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No. 11-3845
United States v. McCafferty

the event, or even calling Sheehan to testify (Sheehan was not on the defense’s witness list). The

district court did not abuse its discretion in excluding the audio recording of the phone call.

                                                  IV

        The charges in the supplemental indictment referred to ten false statements that McCafferty

made to FBI agents, but did not indicate what the truths were. McCafferty argues that the district

court erred by not dismissing the supplemental indictment for its failure to state an offense.

McCafferty argues that under United States v. Eddy, in a prosecution for perjury, an indictment

alleging an offense premised on a defendant’s false statements must set forth the objective truth in

stark contrast in order to demonstrate their falsity. 737 F.2d 564, 567 (6th Cir. 1984). McCafferty

contends that the supplemental indictment was insufficient because it failed to specify “the allegedly

perjurious statements and the objective truth in stark contrast so that the claim of falsity is clear to

all who read the charge.”

        McCafferty claims that a prosecution for perjury must be based on an objective falsity, which

must be contrasted with an objective truth. This argument is flawed, both epistemologically and

legally. Rather, a false statement is a false statement, in and of itself.

        McCafferty disregards this court’s leading precedent to the contrary, United States v.

Blandford, 33 F.3d 685 (6th Cir. 1994). In Eddy, this court held that “in perjury cases, ‘[n]o

guessing is tolerated [in the drafting of a perjury indictment] and the indictment must set out the

allegedly perjurious statements and the objective truth in stark contrast so that the claim of falsity

is clear to all who read the charge.’” 737 F.2d at 567 (emphasis added). In Blandford, by contrast,



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United States v. McCafferty

we declined to “extend [its] ruling” in Eddy to prosecutions for making false statements to a federal

officers under 28 U.S.C. § 1001:

       Notwithstanding the fact that the indictment did not set forth the precise statements
       made by Blandford, we find the indictment satisfied the principles enunciated in
       Gray. The indictment alleged that Blandford had made material statements that were
       false or fraudulent and that he had done so knowingly and willfully. It set forth the
       nature of the statements as well as when and to whom they were made. It also
       specified that the statements pertained to an activity within the jurisdiction of a
       federal agency . . . . Count 4 of the indictment therefore presented Blandford with
       adequate notice of the offense for which he was charged.

33 F.3d at 704 (citations omitted). McCafferty provides no compelling arguments as to why

Blandford should be distinguished from her case.

       The supplemental indictment “clearly state[s] that the defendant made material false

statements and that she did so ‘knowingly and willfully.’” District Ct. Op. at 7. The supplemental

indictment further includes the date on which the statements were made, and notes that the

statements were made to FBI agents. McCafferty had more than “adequate notice of the offense for

which [s]he was charged.” 33 F.3d at 704. The district court did not err in failing to dismiss the

supplemental indictments.

                                                 V

       The FBI recorded a voicemail that McCafferty left for Russo, indicating that she had granted

a continuance to Joe O’Malley, an attorney appearing before her court in a criminal matter, so

O’Malley could provide assistance to Russo: so “Joe c[ould] be available for you to work on what

you need.” The district court admitted the voicemail at trial. McCafferty challenged the introduction

of this evidence, contending that no allegation in the indictment concerned any case involving


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United States v. McCafferty

O’Malley. McCafferty alleges that Russo had no interest in the matter in which O’Malley appeared,

and that Russo did not ask McCafferty for a continuance. Thus, she concludes, this conduct does

not fall within the ambit of Count 10 of the supplemental indictment.

       This court reviews the decision to admit evidence for abuse of discretion. United States v.

Sanders, 95 F.3d 449, 453 (6th Cir. 1996). In considering such claims, we “must view the evidence

in the light most favorable to the government by maximizing the probative value of the evidence and

minimizing its potential prejudice.” Ibid. “[T]he prejudice to be weighed is the unfair prejudice

caused by admission of the evidence. Evidence that is prejudicial only in the sense that it paints the

defendant in a bad light is not unfairly prejudicial pursuant to Rule 403.” Ibid.

       Count 10 of the supplemental indictment was worded quite broadly: “MCCAFFERTY denied

giving Frank Russo any special consideration with regard to any of the cases before her court.”

(emphasis added). This seems to cover any possible benefit given to O’Malley in a case in front of

her that could have benefitted Russo—whether alluded to in the indictment, or not. Further the fact

that McCafferty specifically told Russo about it, and noted how O’Malley could help him, suggests

that there was some special consideration given. The district court did not abuse its discretion by

introducing the recording.

                                                 VI

       The district court admitted a recording of a phone conversation between Pumper and

Dimora—in which Dimora told Pumper, “I had a nice talk with . . . Bridget”—ruling that it was a

statement of a co-conspirator, under Fed. R. Evid. 801(d)(2)(E). A district court may admit a

co-conspirator’s statements made in furtherance of a conspiracy where the government “show[s] by

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United States v. McCafferty

a preponderance of the evidence that: (1) a conspiracy existed; (2) the defendant against whom the

statement is offered was a member of the conspiracy; and (3) the statement was made in the course

of and in furtherance of the conspiracy.” United States v. Moss, 9 F.3d 543, 549 (6th Cir. 1993).

        McCafferty complains that the government did not show the existence of a conspiracy under

18 U.S.C. §§ 1341 and 1349 or Ohio Rev. Code §§ 2913.02 and 2913.05. McCafferty argues that

the government’s evidence only demonstrated a scheme by Dimora, Russo, McCafferty, and others

to deprive another of “honest services,” but did not involve a bribery or kick-back scheme. Under

the Supreme Court’s opinion in Skilling v. United States, she argues, this proffer was insufficient to

support the predicate conspiracy necessary to rely on the hearsay exception in Rule 801(d)(2)(E).

130 S. Ct. 2896 (2010).

        The district court held Skilling was inapposite, and we agree. By tilting the negotiations

towards Pumper in the DAS case, and inducing Letter Perfect to settle for a lower amount, the goal

of the conspiracy was to “to deprive another, Letter Perfect, of property or money in violation of 18

U.S.C. § 1349,” not honest services under 18 U.S.C. § 1346. District Ct. Op. at 3. Pressuring Letter

Perfect during settlement talks did not merely deprive it of “honest services,” but resulted in a direct

loss of money through a corrupt scheme in which she participated. The district court did not err in

admitting the statements of McCafferty’s co-conspirators based on this conspiracy under federal law.

                                                  VII

        McCafferty challenges the district court’s decision not to require the government to elect

between multiplicitous counts in the supplemental indictment. The district court chose to merge the

counts only for purposes of sentencing. This court “may reverse [a district court’s decision declining

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United States v. McCafferty

to require the government to elect between multiplicitous counts] only for an abuse of discretion.”

United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990). The Supreme Court has instructed

that the proper remedy for multiplicitous counts may include allowing the jury to consider all counts

that are reasonably supported by the evidence and addressing any multiple-punishment issues at

sentencing by merging overlapping convictions. Ball v. United States, 470 U.S. 856, 864-65 (1985).

       Because all of the charges derived from a single 90-minute interview, the jury would have

heard the same evidence, even if the government had chosen to bring fewer charges. Further, the

court provided Sixth Circuit Pattern Jury Instruction 2.01A, requiring the jury to consider each

charge separately, curing any potential prejudice. The district court did not abuse its discretion.

                                                VIII

                                                 A

       The district court determined that McCafferty’s offense level was six, with a guideline range

of 0-6 months. The court imposed an upward variance of five levels, raising McCafferty’s offense

level to eleven. With an offense level of eleven, the guideline range was 8-14 months. The court

imposed sentence at the high end of the range—14 months. McCafferty argues that the sentence is

substantively unreasonable, and that the district court abused its discretion by granting an upward

variance of five levels.

                                                 B

       The court identified two justifications for its upward variance: McCafferty’s “repeated false

statements” to the FBI and her position as a judge. In explaining that McCafferty’s “repeated false

statements” justified an upward variance, the court noted that McCafferty was given “ten

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United States v. McCafferty

opportunities to respond to the agents’ questions.” The court considered the fact that McCafferty

was a judge—“[t]o have a sitting judge lie repeatedly to federal agents necessitates a sentence that

is higher than the guidelines suggest.” “For a sitting judge to engage in this conduct shakes the very

core of our system of justice, a system that’s built upon the integrity and honesty of the individuals

who are given the privilege to serve. And the fact that she lied about improper conversations that

she was having about cases on her docket makes her conduct even more egregious.”

        The court found “that an upward variance is warranted because a sentence within the

guidelines is woefully inadequate and would substantially minimize the serious nature and impact

of this defendant’s conduct.” The court concluded that a “five-level adjustment to an offense level

11 would present the court with a guideline range that would be sufficient, but certainly not greater

than necessary, to comply with the purposes of sentencing.” With that offense level, “the court finds

that a high end sentence in this range will reflect the very serious nature of the defendant’s offenses,

will promote respect for the law, provide just punishment for the offense and will hopefully deter

others from engaging in such conduct.”

                                                   C

        McCafferty first argues that the court erred by relying on the fact that the agents asked her

the same question a number of ways. Nothing prevents the district court, under 18 U.S.C. § 3553(a),

from weighing all elements of her offense, including prevarication and repeatedly lying to FBI agents

when questions were phrased differently. If anything, with each rephrased question, the agents gave

McCafferty additional chances to tell the truth—she declined each offer. The district court properly



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United States v. McCafferty

relied on McCafferty’s repeatedly lying, in spite of the agents giving her multiple chances to be

truthful.

        Next, she argues that it was improper for the court to vary upward because McCafferty was

a judge. This case is indeed extraordinary. For a sitting judge to knowingly lie to FBI agents after

she had unethically steered negotiations in a case to benefit her associates is a shock to our system

of justice and the rule of law. The district court was correct to note that the defendant’s “history and

characteristics”—including her vocation as a judge—was relevant for purposes of sentencing.

U.S.S.G. § 3B1.3.

        Finally, McCafferty argues that an increase in the guideline range from 0-6 months to 8-14

months, assuming a one-month sentence was imposed,1 resulted in a 700% increase from the lower

end of the guideline range, and by 133% from the upper end of the guideline range. This sentence,

she contends, was substantively unreasonable. This court has held that “Gall ‘rejects . . . an

appellate rule that requires extraordinary circumstances to justify a sentence outside the Guidelines

range’ and disallows ‘the use of a rigid mathematical formula that uses the percentage of a departure

as the standard for determining the strength of the justifications required for a specific sentence[.]’”

United States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (quoting Gall v. United States, 552

U.S. 38, 47 (2007) (internal brackets and quotation marks omitted). Instead, Gall “‘permits district

and appellate courts to require some correlation between the extent of a variance and the justification

for it’” Ibid. (quoting United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008)). “Perhaps



        1
            The percentage increase when starting from zero months would be infinite.
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United States v. McCafferty

most importantly, Gall shows that the sentencing process involves an exercise in judgment, not a

mathematical proof.” United States v. Davis, 537 F.3d 611 (6th Cir. 2008). By explaining the severe

nature of McCafferty’s offense, and how it “shakes the very core of our system of justice,” the

district court established a proper rationale for the upward variance.

       The sentence was not substantively unreasonable, and the upward variance was not an abuse

of discretion.

                                                VIII

       The judgments and sentences of the district are AFFIRMED.




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