                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 11a0320p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                    No. 11-3140
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 JAY SCHMELTZ,
                                                 -
                                                N
                  Appeal from the United States District Court
                  for the Northern District of Ohio at Toledo.
               No. 09-00182-002—David A. Katz, District Judge.
                              Argued: October 14, 2011
                       Decided and Filed: December 20, 2011
               Before: ROGERS, COOK, and WHITE, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Neil S. McElroy, Toledo, Ohio, for Appellant. Angela M. Miller, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Neil S. McElroy, Toledo, Ohio, for Appellant. Angela M. Miller, Jessica Dunsay Silver,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Roger S.
Bamberger, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
                                 _________________

                                       OPINION
                                 _________________

       COOK, Circuit Judge. Federal prisoner Jay Schmeltz appeals his conviction for
falsifying a document in violation of 18 U.S.C. § 1519, alleging that the structure of his
indictment was duplicitous and that the district court’s failure to provide the jury with




                                            1
No. 11-3140         United States v. Schmeltz                                      Page 2


a specific unanimity instruction violated his right to a unanimous verdict. Finding no
error, we affirm.

                                            I.

       On May 30, 2004, doctors at St. Vincent’s Hospital discharged Carlton Benton,
releasing him into the custody of two deputies of the Lucas County Sheriff’s Office,
Patrick Mangold and defendant Jay Schmeltz. Benton, a pretrial detainee, had received
treatment at the hospital for seizures.

       After the hospital discharged Benton, the two deputies attempted to extricate him
from the web of handcuffs, medical equipment, and leg irons binding him to his hospital
bed. Benton resisted, and a thirty-minute struggle ensued. With the help of a third
deputy, mace, and blows to Benton’s torso and upper body, Schmeltz and Mangold
subdued him and shifted him into a wheelchair for easier transport. With Benton
restrained and in the wheelchair, the deputies were able to load him into a waiting van
and take him on the ten-minute drive to jail without further incident.

       Sergeant John Gray and several other deputies met Mangold and Schmeltz at the
jail to assist with Benton. Together, the officers escorted Benton, now out of the
wheelchair and on foot, to the booking area, his hands cuffed to a belly chain and leg
irons restricting his gait to a shuffle of “short, unbalanced steps.”

       After pausing in the booking area to consider where to take Benton, Defendant
Schmeltz shoved Benton in the direction of the elevator. Benton, unable to break his fall
because of his restraints, hit his head on the wall and fell to the floor. A video camera
set up in the booking area captured the incident.

       Schmeltz picked Benton up from the ground and, along with five other deputies,
took him to a medical unit on the second floor of the jail. Once in the cell, the officers
placed Benton on a bed, face down, and attempted to remove his restraints. Benton
resisted again, frustrating the officers’ attempts. Finally, Sergeant Gray, one of the
deputies assisting Schmeltz, subdued Benton with a “carotid artery restraint hold,” more
No. 11-3140        United States v. Schmeltz                                          Page 3


commonly known as a “sleeper hold,” that rendered Benton unconscious. As Benton lay
motionless on the bed, the officers removed his restraints and left the cell.

       Later that day, a nurse discovered Benton still unconscious while performing her
rounds. The nurse examined Benton, found that he was not breathing, and performed
CPR. Benton never regained consciousness and died two days later.

       Following the incident, Schmeltz prepared two “Corrections Officer Reports”
describing the events surrounding Benton’s transport from the hospital—one dated May
30, 2004, the other dated June 1, 2004. The earlier report followed the discovery of
Benton unconscious in his cell; the later report resulted from Schmeltz’s supervisor’s
request that he clarify one aspect of the earlier report. Neither report included any
account of Schmeltz’s shoving Benton or Gray’s rendering Benton unconscious with a
sleeper hold.

       An investigation followed Benton’s death. Ultimately, a grand jury charged
Schmeltz and three other officers with various crimes in connection with their use of
force on Benton and their alleged attempt to conceal their actions during the
investigation. This appeal targets only Counts 6 and 7 of Schmeltz’s indictment.

       Count 6 read:

       On or about May 30, 2004, in the Northern District of Ohio, Western
       Division, JAY M. SCHMELTZ, defendant herein, acting in relation to
       and in contemplation of a matter within the jurisdiction of an agency of
       the United States, knowingly falsified a document—specifically an
       official Correction Officer Report reflecting his actions, and the actions
       of his fellow corrections officers, in relation to uses of physical force on
       C.B. on May 30, 2004—with the intent to impede, obstruct, and
       influence the investigation and proper administration of that matter.
       Specifically, SCHMELTZ omitted from his official report any mention
       of his assault of C.B. in the Jail’s Booking area; any mention of John E.
       Gray’s use of a “sleeper hold” on C.B.; and any mention of the fact that
       Gray had rendered C.B. unconscious with the sleeper hold.
No. 11-3140        United States v. Schmeltz                                         Page 4


Count 7 charged as a separate crime Schmeltz’s submission of the second report, citing
the same three omissions. Both counts charged Schmeltz with falsifying an official
report in violation of 18 U.S.C. § 1519, which penalizes

       [w]hoever knowingly alters, destroys, mutilates, conceals, covers up,
       falsifies, or makes a false entry in any record, document, or tangible
       object with the intent to impede, obstruct, or influence the investigation
       or proper administration of any matter within the jurisdiction of any
       department or agency of the United States . . . or in relation to or
       contemplation of any such matter or case . . . .

       The jury found Schmeltz guilty of falsifying the May 30th report and not guilty
of the crime with respect to the later report. The district court sentenced him to twelve
months and one day’s imprisonment. Schmeltz appeals.

                                            II.

       This appeal marks the first time that Schmeltz challenges Count 6 as
unconstitutional or duplicitous. We thus review only for plain error. See United States
v. Boyd, 640 F.3d 657, 666 (6th Cir. 2011).

       At bottom, Schmeltz argues that Count 6 “set[] forth separate and distinct crimes
in one count” by basing the charge of falsifying a report on three separate omissions.
See United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v.
Davis, 306 F.3d 398, 415 (6th Cir. 2002)). Because Count 6 was duplicitous, Schmeltz
argues, the district court erred in not instructing the jury that it must unanimously agree
as to which of the three omissions supported a guilty finding, rather than agree that
Schmeltz generally falsified the report. Because Count 6 charged only one crime, we
find no error.

       Schmeltz takes issue with the district court’s instruction that

       In order to return a guilty verdict, all 12 of you must agree as to each
       count and each defendant that at least one way of violating the statute has
       been proved; however, all of you need not agree that the same way has
       been proved.
No. 11-3140         United States v. Schmeltz                                         Page 5


This instruction mirrors the Sixth Circuit Pattern Jury Instruction appropriate where “the
indictment alleges that the defendant committed a single element of an offense in more
than one way.” Sixth Circuit Pattern Jury Instructions § 8.03B(2) note (2011).

        The district court’s instruction was not erroneous.           We approved of a
conceptually similar instruction in United States v. Cromer, noting that “[a]lthough a
jury must unanimously find that the government has proven each element of a crime, it
‘need not always decide unanimously which of several possible sets of underlying brute
facts make up a particular element.’” No. 09-5853, 2011 WL 3715110, at *2 (6th Cir.
Aug. 25, 2011) (quoting Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707,
143 L.Ed.2d 985 (1999)). A charge for falsifying a document under § 1519 requires the
government to prove (1) that Schmeltz “knowingly . . . fals[ified] or[] ma[de] a false
entry in” his Correction Officer Report; (2) that the Correction Officer Report related to
a “matter within the jurisdiction of any department or agency of the United States”; and
(3) that Schmeltz falsified or made a false entry in the Correction Officer Report “with
the intent to impede, obstruct, or influence the investigation” of a matter within the
agency’s jurisdiction. See 18 U.S.C. § 1519; United States v. Hunt, 526 F.3d 739, 743
(11th Cir. 2008). Jurors could therefore disagree about what Schmeltz omitted from the
reports while unanimously agreeing on the ultimate issue: that Schmeltz knowingly
falsified his Corrections Officer Report with the intent to impede a federal investigation.

        Seizing upon the phrase “false entry in any record” in § 1519, Schmeltz argues
that Count 6 was duplicitous because the omissions from his report constitute separate
false entries and therefore present three separate violations of § 1519. See, e.g., United
States v. Dedman, 527 F.3d 577, 600 n.10 (6th Cir. 2008) (reasoning that a count
alleging multiple false statements in violation of 18 U.S.C. § 1001 may have been
duplicitous because the false statements constituted “entirely separate offenses”); United
States v. Duncan, 850 F.2d 1104, 1111 (6th Cir. 1988) (concluding that an indictment
alleging separate false statements for one count of violating 26 U.S.C. § 7206 was
duplicitous after finding that the “essence of the statute lies in the willful falsity of the
statement”), overruled on other grounds by Schad v. Arizona, 501 U.S. 624, 111 S.Ct.
No. 11-3140         United States v. Schmeltz                                      Page 6


2491, 115 L.Ed.2d 555 (1991). However, Schmeltz was not charged with making “a
false entry,” but rather the indictment alleged he “falsified a document.” Indeed as the
Government made clear at oral argument, the “false entry” charge is usually reserved for
entries made on pre-existing forms rather than narrative reports. Accordingly, the
present appeal turns on whether § 1519 criminalizes the creation of a false document, the
government’s view; or individual false statements, Schmeltz’s view.

        Under the circumstances that this case presents, the falsification statute plainly
criminalizes the creation of a false document. Apart from the statute’s prohibition of
“mak[ing] a false entry,” § 1519 proscribes several other means of tampering with a
document germane to a federal investigation: the statute punishes whoever “alters,
destroys, mutilates, conceals, covers up, [or] falsifies” a document. 18 U.S.C. § 1519.
Each of the listed verbs acts upon the entire “record, document, or tangible object.”
Accord S. Rep. No. 107-146, at 13 (2002) (“The intent of [§ 1519] is simple; people
should not be destroying, altering, or falsifying documents to obstruct any government
function.”).    Further, Schmeltz’s indictment alleged that he had “falsified a
document—specifically an official Correction Officer Report reflecting his actions.”

        The “falsifies” clause of § 1519 was thus intended to punish the falsification of
a document, rather than specific statements or omissions within a document.
Accordingly, Schmeltz could violate § 1519 once—and no more than once—by
falsifying his May 30th report with his omissions. Because Count 6 charged only one
offense, the district court did not err in instructing the jury.

                                             III.

        We accordingly AFFIRM Schmeltz’s conviction.
