United States v. Bennett (230 F. Supp. 3d 546, 2017)

ORDER DENYING DEFENDANT SHERRIE BOX BENNETT’S [104] MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, MOTION FOR NEW TRIAL PURSUANT TO RULES 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, AND DENYING DEFENDANT JERRY DEAN BENNETT’S [103], [105], [109] MOTIONS FOR JOINDER IN [104] MOTION

HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure filed by Defendant Sherrie Box Bennett, and the Motions for Joinder [103], [105], [109] filed by Defendant Jerry Dean Bennett. These Motions are fully briefed. After considering the Motions, the record as a whole, and relevant legal authority, the Court finds that the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial, and the Motions for Joinder [103], [105], [109] should all be denied. Neither Defendant is entitled to a judgment of acquittal or a new trial.

I. BACKGROUND

A. Factual background

Defendant Sherrie Box Bennett (“Ms. Bennett”) worked as a registered nurse at Biloxi Radiation Oncology Center (the “Clinic”) with Dr. Laurence Lines (“Dr. Lines”). Ms. Bennett also worked as office manager and essentially ran the Clinic. At some point, Dr. Lines began to suffer symptoms of dementia. According to the Government, Ms. Bennett began exerting power over Dr. Lines’ personal and business affairs.

Beginning at least as early as 2010, prescriptions using Dr. Lines’ name were being written to Ms. Bennett, her husband Defendant Jerry Dean Bennett (“Mr. Bennett”), and others in the Bennetts’ family. The Government maintains that some prescriptions were written by Dr. Lines himself, but that he was not aware of what he was doing. Other prescriptions were issued using Dr. Lines’ rubberstamp signature, while still others were called into pharmacies by Ms. Bennett.

On November 22, 2011, Biloxi Radiation Oncology Center, LLC, filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Petition [1] (Bankr. S.D. Miss. Nov. 22, 2011). The Clinic initially remained a debt- or-in-possession. On May 7, 2013, the United States Trustee filed a Motion to Convert or Dismiss, or Alternatively, to Appoint a Chapter 11 Trustee because “the Debtor ha[d] shown gross mismanagement of the Debtor’s affairs....” In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Mot. [304] (Bankr. S.D. Miss. May 7, 2013).

Attorney Kimberly R. Lentz was appointed as the Chapter 11 trustee in the bankruptcy proceeding. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [336] (Bankr. S.D. Miss. June 10, 2013). In a separate Order, the Bankruptcy Court also ordered that Trustmark National Bank dishonor any check presented for payment that was made payable to Dr. Lines or Ms. Bennett. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [337] (Bankr. S.D. Miss. June 10, 2013). The Bankruptcy Court required Trustmark to remove Dr. Lines and Ms. Bennett as authorized signatories on any existing debt- or-in-possession account. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [355] (Bankr. S.D. Miss. June 11, 2013).

On June 17, 2013, Ms. Lentz, as trustee, filed an adversary proceeding against Ms. Bennett. Lentz v. Bennett, No. 13-05024 Compl. [1] (S.D. Miss. June 17, 2013). The adversary complaint asserted claims against Ms. Bennett based upon her alleged gross mismanagement of the debtor’s financial affairs and her alleged transfer of debtor assets to herself and to Dr. Lines, over which Ms. Bennett subsequently took control. Id.

B. Procedural history

On August 4, 2015, a federal grand jury returned an 11-count Indictment [3] against Ms. Bennett and Mr. Bennett (collectively, “Defendants”). On April 5, 2016, the Grand Jury returned a First Superseding Indictment [42]. Count 1 of the First Superseding Indictment [42] charged Ms. Bennett and Mr. Bennett with conspiring to distribute and dispense controlled substances outside the scope of professional practice as prohibited by 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. 1st Superseding Indictment [42] at 1. Counts 2 through 11 charged that Defendants knowingly and intentionally distributed and dispensed a controlled substance outside the scope of professional practice on separate occasions between January 9, 2012, and April 5, 2013, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Id. at 1-5. Counts 12 through 14 charged Ms. Bennett alone with bankruptcy fraud, specifically knowingly and fraudulently appropriating to her own use, embezzling, spending, and transferring property of a debtor’s bankruptcy estate in violation of 18 U.S.C. § 153. Id. at 5-6.

The jury trial of this criminal case was set to commence on Tuesday, July 19, 2016, at 9:00 a.m. On Thursday, July 14, 2016, at 6:34 p.m., Ms. Bennett’s counsel filed a Motion for Trial Deposition [60]. Ms. Bennett asked the Court, pursuant to Federal Rule of Criminal Procedure 15, to permit her to depose Dr. Frank Pitruzzel-lo, a Radiologist Oncologist who works in Mobile, Alabama, before trial commenced. Mot. [60] at 1-2. Ms. Bennett sought to use Dr. Pitruzzello’s deposition testimony at trial. The Government filed a Response [61] in opposition to the Motion [60]. On July 15, 2016, the Court entered an Order [63] denying Ms. Bennett’s Motion [60].

The jury trial began on July 19, 2016, and continued through July 29, 2016. After the Government rested its case-in-chief, Defendants moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied Ms. Bennett’s Motion, and granted in part and denied in part Mr. Bennett’s Motion. The Court dismissed Counts 7, 8, 10, and 11 of the First Superseding Indictment as to Mr. Bennett. Order [80] at 2.

At the close of trial, the jury deliberated on July 28 and 29, 2016, and on July 29, 2016, returned a verdict of guilty as to Ms. Bennett on the charges contained in Counts 1-14 of the First Superseding Indictment, and a verdict of guilty as to Mr. Bennett on the charges contained in Counts 1-6 and 9 of the First Superseding Indictment.

After being granted additional time to do so by the Court, on September 29, 2016, Ms. Bennett filed the present Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Mr. Bennett filed Motions for Joinder [103], [105], [109], which evidence his joinder in Ms. Bennett’s Motion and which essentially seek the same relief. The Government filed Responses [106], [107] in opposition to Defendants’ Motions, without the benefit of a transcript. Ms. Bennett filed a Reply [108], in which Ms. Bennett recited sections of the trial transcript, and Mr. Bennett joined [109].

On October 21, 2016, the Court entered a Text Order directing the Government to respond on or before October 31, 2016, to the specific citations to the record contained in Ms. Bennett’s Reply [108]. On October 27, 2016, the Government filed a Motion [122] for Extension of Time, requesting until November 8, 2016, to respond. The Court granted the Government’s Motion [122] by Text Order entered on October 28, 2016.

On October 29, 2016, the Government filed its Response [123], which does not specifically address all of the record citations set forth in the Reply [108]. Nor did the Government cite any legal authority in the majority of the sections of its Reply [108]. However, the Government’s lack of response as to all of the issues raised by Defendants does not preclude the Court’s review of these issues. United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999) (quoting United States v. Rosa, 434 F.2d 964, 966 (5th Cir. 1970)).

Defendants contend that the Court should set aside their convictions or order a new trial for the following reasons:

(1) The Court erred in failing to grant Defendants’ Motions for Judgment of Acquittal at the close of the Government’s case-in-chief;

(2) The Court erred in omitting certain jury instructions;

(3) The Court erred by not granting Ms. Bennett’s Motion to Quash the Indictment for Prosecutorial Misconduct;

(4) The Court erred in denying Ms. Bennett’s ore tenus and written Motions for Mistrial;

(5) The Court erred in denying Ms. Bennett’s Motion to obtain a pretrial deposition;

(6) The Court erred in denying Ms. Bennett’s Motion for permission to enter a medical storage facility to secure evidence;

(7) As for Counts 12, 13, and 14 of the First Superseding Indictment [42], the Court erred in instructing the jury in the disjunctive, rather than the conjunctive, under 18 U.S.C. § 153(a);

(8) Prosecutorial misconduct in the prosecutor’s opening and rebuttal closing arguments mandates a judgment of acquittal or a new trial;

(9) The verdict should be set aside or a new trial granted because of alleged deficiencies in the discovery provided by the Government;

(10) The Court exhibited judicial bias; and

(11) Defendants have acquired new evidence, specifically the testimony of Anita Bonner Cotton.

Having considered Defendants’ Motion on the merits, Defendants are not entitled to the relief they seek.

II. DISCUSSION

A. Relevant legal authority

Federal Rule of Criminal Procedure 29(c)(1) provides that a defendant may move for judgment of acquittal, or renew such a motion, after the jury returns a guilty verdict. See Fed. R. Crim. P. 29(c)(1). “[A] motion for a judgment of acquittal is a challenge to the sufficiency of the evidence to sustain a conviction.” United States v. Uvalle-Patricio, 478 F.3d 699, 701 (5th Cir. 2007). In considering the sufficiency of evidence supporting a criminal conviction, the Court

reviews the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc).

Rule 33(a) provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Fifth Circuit has

stressed that motions for new trial are generally disfavored, see United States v. Eghobor, 812 F.3d 352, 363 (5th Cir. 2015), and that district courts have wide discretion with respect to Rule 33 motions, see United States v. MMR Corp., 954 F.2d 1040, 1047 (5th Cir. 1992) (citing United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983)).

United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016). Such motions “must be reviewed with great caution.” United States v. Smith, 804 F.3d 724, 734 (5th Cir. 2015) (quoting United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011)).

In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted “unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004) (citing United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997)). “A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant.” Id. (citation omitted).

United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011).

B. The Court did not err in failing to grant Defendants’ Motions for Judgment of Acquittal at the close of the Government’s case-in-chief.

At the close of the Government’s casein-chief, both Defendants moved for judgment of acquittal. See Tr. [115] at 131-43. The Court denied Ms. Bennett’s Motion, but granted in part and denied in part Mr. Bennett’s Motion. See id. at 190-94. The Court dismissed counts 7, 8, 10, and 11 as to Mr. Bennett. Id. at 194. Defendants now assert that the Court “errored [sic] in failing to find that the government’s evidence lacked sufficiency.” Mot. [104] at 2.

Defendants were both charged in Count 1 with conspiracy to distribute and dispense controlled substances outside the scope of professional practice, specifically Oxycodone, Oxymorphone, Hydrocodone and .Alprazolam, in violation of 21 U.S.C. § 846. As the Court instructed the jury, the elements of this offense are: (1) that two or more persons, directly or indirectly, reached an agreement to distribute or dispense a controlled substance outside the scope of professional practice; (2) the defendant knew of the unlawful purpose of the agreement; (3) that the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and (4) that the overall scope of the conspiracy involved Oxycodone, Oxymorphone, Hydrocodone and Alprazolam. Tr. [116] at 230-31.

Counts 2 through 11 charged Defendants with knowingly and intentionally distributing and dispensing a controlled substance outside the scope of professional practice, in violation of 21 U.S.C § 841(a)(1) and 18 U.S.C. § 2. These controlled substances included Oxycodone, a Schedule II narcotic drug controlled substance (Counts 2-4, 9); Hydrocodone, a Schedule III narcotic drug controlled substance (Counts 5, 7, 10-11); Alprazolam, a Schedule IV non-narcotic drug controlled substance (Count 6); and Oxymorphone, a Schedule II narcotic drug controlled substance (Count 8). For the jury to find Defendants guilty of this crime, the Government had to prove each of the following beyond a reasonable doubt as to each Defendant: (1) that the Defendant distributed or dispensed a controlled substance; (2) that the Defendant acted knowingly and intentionally; (3) that the substance distributed or dispensed was in fact the substance charged in the respective count of the Indictment; and (4) that the Defendant was distributing or dispensing for other than a legitimate medical purpose and outside the usual course of professional practice. Tr. [116] at 232-33.

Counts 12-14 charged that Ms. Bennett, as an agent and employee of Biloxi Radiation Oncology Center, LLC, knowingly and fraudulently appropriated to her own use, embezzled, spent, and transferred property belonging to the debtor’s bankruptcy estate in violation of 18 U.S.C. § 153. According to the First Superseding Indictment, the property at issue consisted of a Trustmark Bank check number 1372 in the amount of $16,636.00 dated January 25, 2013, as to Count 12; a Trustmark Bank check number 1422 in the amount of $10,000.00 dated March 22, 2013, as to Count 13; and a Trustmark Bank check number 1445 in the amount of $28,000.00 dated April 3, 2013, as to Count 14.

As the Court instructed the jury, to find Ms. Bennett guilty of any of these charges, the Government had to prove each of the following beyond a reasonable doubt:

First, that on or about November, 2011, continuing through July, 2013, a bankruptcy case docketed as Case Number 11-52727, substantively consolidated with Case Number 11-52820, was pending in the United States Bankruptcy Court for the Southern District of Mississippi, and Biloxi Radiation Oncology Center, LLC was the Debtor;

Second, that the property described in the indictment was part of the bankruptcy estate of the Debtor;

Third, that defendant Sherrie Box Bennett had access to the property by virtue of her participation in the administration of the bankruptcy estate as an agent and employee of the debtor-in-possession of the bankruptcy estate; and

Fourth, that defendant Sherrie Box Bennett knowingly and fraudulently embezzled, spent, transferred, or appropriated to defendant Sherrie Box Bennett’s own use property belonging to the bankruptcy estate.

Tr. [116] at 236-37.

The Court has reviewed the record. Considering the evidence and all reasonable inferences in the light most favorable to the prosecution both at the time Defendants made their ore terms Motions for Judgment of Acquittal at trial and at the close of all evidence at trial, the Court concludes that a rational trier of fact could have found each of the essential elements beyond a reasonable doubt with respect to the charges contained in Counts 1 through 14 of the First Superseding Indictment as to Ms. Bennett, and in Counts 1-6 and 9 of the First Superseding Indictment as to Mr. Bennett. See Vargas-Ocampo, 747 F.3d at 303. Defendants are not entitled to any relief on this basis.

C. The Court did not err in omitting certain jury instructions.

Defendants next maintain that the Court erred by “fail[ing] to grant the defendants’ preemptory [sic] instruction and other more specific defining instructions which addressed issues such as good faith defense, specific intent regarding fraud, and address regulations versus the law.” Mot. [104] at 2. Defendants sought an instruction directing the jury that “merely failing to follow regulations and guidelines, while evidence, was not enough, standing alone, to convict.” Id. at 11. According to Defendants, “[t]his was important to the Bennetts because the prosecutor tried so hard to merge this in the mind of the jury to obtain a conviction for the alleged failure to follow regulations.” Id.

The Government responds that

the Court properly instructed the jury and defendant makes no credible argument as to why she was entitled to additional instructions. Defendant, throughout the trial continued to make reference to the medical regulations, which set out the standard of care, as mere “guidelines.” These regulations are binding on medical practitioners and in fact, through the regulatory scheme, determine whether an otherwise valid prescription is not valid. See United States v. Brown, 553 F.3d 768 (5th Cir. 2008) (admissibility of regulations). An invalid prescription is a violation of 21 U.S.C. § 841(a)(1). Defendant’s instruction was unnecessary and did not accurately reflect the law.

Resp. [106] at 2.

The Fifth Circuit has held that

[a] district court abuses its discretion in omitting a requested jury instruction only if the requested language “(1) is substantively correct; (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present effectively a particular defense.”

United States v. Lucas, 516 F.3d 316, 324 (5th Cir. 2008) (quoting United States v. Simkanin, 420 F.3d 397, 401 (5th Cir. 2005)).

Defendants maintain that several instructions should have been given by the Court, including a peremptory instruction “to find the defendant, Sherrie Bennett, Not Guilty, with respect to all counts of the indictment.” Proposed Instruction D(l) No. 1 [104-1] at 4. There was no basis in law or fact for this peremptory instruction. Nor did either Defendant raise an objection at trial to the Court omitting this instruction from its final jury instructions. See Tr. [116] at 124-29.

Defendants also argue that the following instruction should have been given by the Court:

During the trial, you have received evidence regarding certain regulations, rules and guidelines. Even though the use of a rubber stamp in lieu of a physician’s signature and/or the failure to keep a medical chart when prescribing certain controlled substances and/or telephonically calling in a schedule II controlled substance to a pharmacy may be inappropriate or a violation of the rules, such an act is not done in violation of the offense unless it was done corruptly or if it was intended at the time it is done with the specific intent to violate the elements of the crimes charges [sic] as set forth in these jury instructions.

Furthermore, if the defendant has a good faith belief that she/he was acting in accordance with the proper rules, regulations and guidelines, then that good faith belief is a defense to the crime charged.

Proposed Instruction D(1) No. 2 [104-1] at 5.

This jury instruction was not an accurate statement of the law, and the Court correctly refused it. Acting “corruptly” was not an element of any of the charges, and giving this instruction would only have served to confuse and mislead the jury. The federal regulation to which the Government referred at trial, see 21 C.F.R. § 1306.04(a), is considered an interpretative regulation, and the Government charged and proved violations of the appropriate criminal statutes, not merely the related regulations, United States v. Brown, 553 F.3d 768, 791 & n.71 (5th Cir. 2008) (citing United States v. Ogle, 201 Fed.Appx. 979 (5th Cir. 2006)). The “use of duly issued regulations in clarifying the scope and contour of criminal law” is “irreproachable” and “commonplace.” Id.

As the Fifth Circuit has explained,

[t]o convict the defendants of illegally dispensing controlled substances in violation of 21 U.S.C. § 841(a)(1), the Government was réquired to prove “(1) that [they] ... dispensed a controlled substance, (2) that [they] acted knowingly and intentionally, and (3) that [they] did so other than for a legitimate medical purpose and in the usual course of [] professional practice.” United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978)). The third element is not expressly required by the text of § 841, but relevant regulations provide that a controlled substance can be dispensed by a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a).

United States v. Armstrong, 550 F.3d 382, 396-97 (5th Cir. 2008), overruled in part on other grounds by United States v. Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010). “Both prongs [of the regulation] are necessary for a prescription to be legitimate .... ” Id. at 397. In accordance with that regulation, “a practitioner is unauthorized to dispense a controlled substance if the prescription either lacks a legitimate medical purpose or is outside the usual course of professional practice.” Id. (emphasis in original).

At trial, the Government referenced and introduced the Mississippi State Board of Medical Licensure’s rules and regulations as Exhibit “G-31,” the Mississippi State Board of Medical Licensure’s Administrative Code as Exhibit “G-31a,” and the Mississippi Board of Pharmacy’s regulations as Exhibit “G-32.” As the United States District Court for the Eastern District of Louisiana has explained,

in order to prove guilt under the statute, the government is allowed to produce evidence that the defendant violated state regulations on medical practice. While violation of a state statute regulating medical practice would not be evidence of guilt per se under the [Controlled Substances Act], these violations remain persuasive and relevant, particularly if the government can show a pattern of consistent violations.

United States v. Prejean, 429 F.Supp.2d 782, 801-02 (E.D. La. 2006), aff'd sub nom. Armstrong, 550 F.3d at 382.

The Court’s jury instructions included an accurate statement of the law, including a correct statement of what constitutes “good faith.” Tr. [116] at 234. The lack of an additional good faith defense instruction did not prevent Defendants from presenting a good faith defense, nor did it preclude the jury from considering such a defense. Moreover, Defendants did not raise an objection to the Court’s failure to include this instruction in the final jury instructions. See Tr. [116] at 124-29.

Defendants also assert that the following instruction should have been given:

Even though giving a judge something of value may be inappropriate or a violation of the ethical rules, such an act is not done corruptly so as to constitute a bribery offense unless it is intended at the time it is given to affect a specific action the judge officially will take in a case before him, or may take in a case that may be brought before him.

A gift or favor bestowed on a judge solely out of friendship, to promote good will, or for motive wholly unrelated to influence over official action does not violate the bribery statutes.

Unnumbered Proposed Instruction [104-1] at 6. There was no legal or evidentiary basis to support giving this particular jury instruction, and it was wholly irrelevant to the offenses charged in this case. Defendants also did not raise any objection at trial to the Court omitting this instruction. See Tr. [116] at 124-29.

Defendants’ Motion, to the extent it is premised upon the failure to give the foregoing particular jury instructions, is not well taken and should be denied.

D. The Court did not err in denying Ms. Bennett’s Motion to Quash the Indictment for Prosecutorial Misconduct.

Defendants contend that the Court committed reversible error when it overruled a Motion seeking to “quash[ ] the indictment for prosecutorial misconduct.” Mot. [104] at 2. It appears that Defendants are referring to Ms. Bennett’s Motion to Quash Indictment [39], which was filed on February 16, 2016, and which sought to quash the original Indictment [3]. Ms. Bennett’s Motion [39] challenged information the Government included in its Motion to Disqualify [32] Defendants’ previous counsel, some of which was included in a subsequent newspaper article [39-1].

Defendants have not offered any additional argument in support of their position that the Court erred in denying Ms. Bennett’s Motion [39]. For the same reasons stated in the Court’s previous Order [41] denying Ms. Bennett’s Motion to Quash [39], the Court finds that Defendants’ present Motion [104] should be denied as to this issue.

E. The Court did not err in denying Ms. Bennett’s ore tenus and written Motions for Mistrial.

Defendants contend that the Court should have granted a mistrial on grounds that their Fifth Amendment rights were violated during trial. Mot. [104] at 2-5. According to Defendants,

1. The first time that the Bennetts’ 5th amendment right was violated, was when the Mississippi attorney general’s officer, Jamie Thompson, testified that he began his involvement in the case at bar when he was contacted by the DEA and Mississippi Bureau of Narcotics, and asked to investigate the Bennetts, and he testified in the government’s case in chief on direct, that when they attempted to question the Bennetts at their home, that the Bennetts advised that they did not want to speak because they had an attorney and that Mr. Bennett (alleged coconspirator of his wife, Sherrie) slammed the door in their face. This was a violation of their 5th amendment constitutional rights.

2. The second time that Sherri [sic] Bennett’s constitutional rights were violated was when the bankruptcy trustee, Lentz, testified in the government’s case in chief, on direct, that she instituted adversarial proceedings against Sherrie Bennett, in bankruptcy court, “seeking relief with regard to some fraudulent transfers, the (3) checks she has [sic] written in spring of 2013,[”] but when the court tried to have a hearing, that Sherrie Bennett “said that she wanted to have a lawyer present” and refused to address the claim.

Id. at 4. According to Defendants, as to the second purported violation,

[t]his violation was further emphasized by the fact that the government had previously established, with an earlier witness, Chris Steiskal, ... that the bankruptcy judge chastised her for trying to file a pleading while not being an attorney, and informed her that she would be referred to the authorities. Thus, she was already on notice that she was being criminally accused, which was magnified by the testimony of Lentz. While there was no objection to Steis-kal’s comment, the defendants will submit that there also was no claim that Sherrie Bennett asserted her 5th amendment right to not address the bankruptcy judge’s charge.

Id. at 5 n.4. Defendants maintain that their objection was not to the failure of either to receive any Miranda warnings, but “the government’s production of direct evidence to make the Bennetts appear guilty because they decided to ‘hide’ behind an attorney rather than respond to the allegations.” Id. at 5 (footnote omitted).

Jamie Thompson (“Mr. Thompson”) works with the Office of the Attorney General for the State of Mississippi, supervising a unit that deals with the investigation of abuse, neglect, and financial exploitation of vulnerable persons in the State of Mississippi. Tr. [112] at 236. Mr. Thompson was contacted about Dr. Lines by an agent with the Mississippi Bureau of Narcotics who was assigned to the Drug Enforcement Administration’s Diversion Division and by someone from the Mississippi Board of Medical Licensure. Id. at 238. Mr. Thompson, another investigator from his office, and Beth Zoeller from Adult Protective Services visited Dr. Lines’ home to assess its condition. Id. at 239-40.

Mr. Thompson testified that he had no contact with Jerry Bennett on this particular day. Id. at 249. However,

[t]here was another occasion that we went by there actually to try to interview the Bennetts in their home, and Mr. Bennett, Mr. Jerry Bennett, was actually the one who said, you know, We have nothing to say, and slammed the door in our face, so that was the end of our conversations with them. He informed us that he did have an attorney, and so we respected his right to counsel and didn’t—

Id. at 249-50. Ms. Bennett’s counsel then objected at sidebar, outside the hearing of the jury.

Christopher Steiskal (“Mr. Steiskal”) is a trial attorney with the Office of the United States Trustee in Jackson, Mississippi. Tr. [112] at 190. At trial, Mr. Steiskal testified about the January 13, 2012, “341 hearing” that he conducted in the bankruptcy case, and that he had subsequently filed a motion in the bankruptcy case to convert the case to a Chapter 7 proceeding, dismiss the case out of bankruptcy, or appoint a Chapter 11 trustee. Id. at 191-94, 199, 207-08.

Mr. Steiskal further testified as to a June 6, 2013, hearing where United States Bankruptcy Judge Katherine Samson inquired about a handwritten pleading submitted by Ms. Bennett. Id. at 210-13. According to Mr. Steiskal, Judge Samson asked Ms. Bennett if she was an attorney, and Ms. Bennett responded “no.” Id. at 212. Mr. Steiskal’s testimony continued as follows:

[Q.] And so what happened with that motion?

A. Well, the Court asked her if she was an attorney; she answered no. And the Court stated that this document would be stricken from the record because it was not filed by an attorney and that the Court would, you know, refer Ms. Bennett to the proper authorities for—because by filing a document and not being an attorney, you’re practicing law without a license.

Q. All right. Did the Court enter an order regarding that ruling?

A. Yes. The Court entered a subsequent order striking the—striking this document.

Id. at 213. Defense counsel did not lodge a contemporaneous objection to this testimony.

Ms. Lentz is a bankruptcy attorney and Chapter 7 panel bankruptcy trustee. Tr. [113] at 68. Ms. Lentz testified as to the rarity of appointing a trustee in a Chapter 11 bankruptcy case, her appointment in the Clinic’s bankruptcy case, and her filing of an adversary complaint against Ms. Bennett in the bankruptcy proceeding along with a motion for preliminary injunction. Id. at 68, 90-93. When Ms. Lentz was asked, “what did you do after this motion was filed? Was an order entered?,” she responded,

[t]here was a—yes, there was a—well, what happened—I believe what happened was is that when we—we went to the bankruptcy court to have a trial, and there’s—Ms. Bennett showed up and said that she wanted to have a lawyer present, and so rather than entering a preliminary injunction—

Id. at 93. Ms. Bennett’s counsel raised an objection and made an ore tenus motion, which was heard outside the presence of the jury. Id.

Although Defendants assert that their objection is not based upon Miranda, at trial Ms. Bennett’s counsel argued that Mr. Thompson had violated Mr. Bennett’s Fifth Amendment right to remain silent and failed to read Mr. Bennett his Miranda rights. Tr. [112] at 250-51. Defense counsel also cited the case “Hale v. State” as a ground for mistrial. Id. at 251. The Court denied the request for a mistrial and gave a curative instruction. Id. at 252. During Ms. Lentz’s testimony, counsel also objected regarding Ms. Bennett requesting an attorney at an adversary bankruptcy proceeding. The Court overruled this objection. See Tr. [113] at 93-96.

Later that same day, after the lunch break, the Court instructed the jury as follows:

In a moment, we’re going to resume the direct examination of Ms. Lentz. Before we do that, I did want to clarify one thing that occurred earlier. When Ms. Lentz was testifying, there was an objection Mr. Crosby made about a statement that Ms. Lentz made about her believing that Ms. Bennett had an attorney at the bankruptcy proceeding. I just want to make sure I explain to you that statement is not relevant, and so I direct you to disregard it. It has really nothing to do with what we’re here on. So I want to make sure that we’re clear on that.

Id. at 106.

Ms. Bennett then filed a Motion for Mistrial [72], which the Court denied. See Order [77] at 1; see also Tr. [115] at 81-87. The Court determined that Defendants’ reliance upon Hale and Miranda in this context was misplaced, and that there was no right to counsel as to either Defendant at the relevant times. Tr. [115] at 82-87.

Defendants have not cited any additional legal authority in support of these grounds to their Motion. For the reasons the Court stated on the record at trial, Defendants’ requests for mistrial were properly denied.

F. The Court did not err in denying Ms. Bennett’s Motion to obtain a pretrial deposition and denying Ms. Bennett’s Motion for permission to enter a medical storage facility to secure evidence.

Defendants assert that the Court erred by denying Ms. Bennett’s Motion for Trial Deposition [60] filed on Thursday, July 14, 2016, at 6:34 p.m., and her Motion Requesting Order Allowing Attorney and Client to Visit Premises and Inspect Records [64] filed on Sunday, July 17, 2016, at 9:18 p.m. Mot. [104] at 2, 5-7.

The jury trial in this matter was scheduled to, and did, commence on July 19, 2016, at 9:00 a.m. As for the requested trial deposition, the Court was not persuaded that Ms. Bennett had shown that exceptional circumstances existed or that she should otherwise be allowed to depose Dr. Pitruzzello on the eve of trial. Order [63] at 3 (citing Fed. R. Crim. P. 15(a)(1)). Nor did the Court find that the interests of justice compelled such a last-minute deposition. Id. Moreover, Ms. Bennett had not shown that Dr. Pitruzzello was unavailable to testify at trial within the meaning of the Federal Rules of Evidence, such that any such deposition testimony would have been inadmissible. Id. at 3-4 (citing Fed. R. Evid. 804(a)). The Court is not persuaded that any of Defendants’ arguments change this result.

As for Ms. Bennett’s request to visit the premises of a medical storage facility and inspect records, the Court found that the Motion [64] was grossly untimely under the Court’s Trial Order [49], and that Ms. Bennett had not shown good cause for the delay in making her request. Order [69] at 4-7 (citing Fed. R. Crim. P. 12(c)(3); U.L. Cr. R. 47(H)). The Court also determined that

while Defendant frames her Motion as one to inspect the premises of the Medical Centers, Defendant in substance appears to be seeking particular categories of documents from those facilities, as stated in her Motion [64]. Defendant has not adequately explained why she has not issued, or could not issue, a subpoena for these documents through the normal procedure, or why any such procedure has not provided, or would not provide, Ms. Bennett with the relief she now seeks.

Id. at 7 (citing Fed. R. Crim. P. 17).

For the same reasons stated in the Court’s prior Orders [63], [69], the Court did not err in denying Ms. Bennett’s Motions [60], [64].

G. The Court did not err in instructing the jury in the disjunctive, rather than the conjunctive.

Ms. Bennett asserts that the Court “allowed the government to constructively amend the indictment by virtue of the jury instructions that allowed the jury to convict in the disjunctive rather than the conjunctive.” Mot. [104] at 2. Ms. Bennett appears to argue that her right under the Fifth Amendment to a grand jury indictment was violated based upon a purportedly constructive amendment to the First Superseding Indictment.

At issue are Counts 12, 13, and 14 of the First Superseding Indictment [42], which each charged that on separate occasions Ms. Bennett “knowingly and fraudulently appropriated to her own use, embezzled, spent, and transferred property” of the bankruptcy estate. 1st Superseding Indictment [42] at 5 (emphasis added). The text of the relevant statute, 18 U.S.C. § 153(a), uses the disjunctive “or,” rather than the conjunctive “and.” See 18 U.S.C. § 153(a). The jury was therefore instructed that the fourth element of these offenses was that Ms. Bennett “knowingly and fraudulently embezzled, spent, transferred, or appropriated to [her] own use property belonging to the bankruptcy estate.” Tr. [116] at 237 (emphasis added).

“The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment.” United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991). “The indictment cannot be broadened or altered except by the grand jury.” Id. (quotation omitted). “A constructive amendment occurs when it permits' the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defendant on a materially different theory or set of facts than that with which [he or] she was charged.” United States v. McMillan, 600 F.3d 434, 451 (5th Cir. 2010) (quotation omitted). “A constructive amendment violates the defendant’s right under the Fifth Amendment to a grand jury indictment.” Id. (quotation omitted).

The Fifth Circuit has stated, however, that “[i]t is well-established in this Circuit that a disjunctive statute may be pleaded conjunctively and proved disjunctively.” United States v. Holley, 831 F.3d 322, 328 n.14 (5th Cir. 2016) (quoting United States v. Haymes, 610 F.2d 309, 310 (5th Cir. 1980)). Even if an “indictment list[s] ... different ways of violating [a statute] using ‘and’ rather than ‘or,’ the Government still only ha[s] to prove that [defendant]” violated the statute in one of these possible ways. Id. at 328. The Court therefore properly instructed the jury using the disjunctive, and there was no constructive amendment to the First Superseding Indictment. Defendants’ Motion on this ground should be denied.

H. The prosecutor’s statements in his opening statement and closing argument do not mandate a judgment of acquittal or a new trial.

Defendants complain about several comments made by the prosecutor during the course of his opening statement and closing argument. The United States Supreme Court has explained the federal prosecutor’s role in the criminal justice system as follows:

[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which -is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction ás it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); see also United States v. Anchondo-Sandoval, 910 F.2d 1234, 1238 (5th Cir. 1990).

The Court’s goal is to make a criminal trial “a neutral arena for the presentation of evidence upon which alone the jury must base its determination of a defendant’s innocence or guilt....” United States v. Carter, 953 F.2d 1449, 1460 (5th Cir. 1992) (quoting United States v. Garza, 608 F.2d 659, 662 (5th Cir. 1979)). The Fifth Circuit has therefore “condemned suggestions that evidence not presented at trial would compel a finding of guilty” and “efforts to create the impression that the government, which possesses a ‘vast investigatory network’ and whose determinations may both have a stamp of credibility and invoke jurors’ loyalty, has already made an extrajudicial determination of guilt.... ” Id.

The Fifth Circuit generally applies “a two-step analysis to claims of prosecutorial misconduct.” United States v. Weast, 811 F.3d 743, 752 (5th Cir. 2016) (quotation omitted). The Court first assesses “whether the prosecutor made an improper remark. If so, then [the Court] ask[s] whether the defendant was prejudiced.” Id. (quotation omitted). According to the Fifth Circuit,

[t]he prejudice step sets a high bar.... The determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict. [The Fifth Circuit] generally look[s] to three factors in deciding whether any misconduct casts serious doubt on the verdict: (1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

Id. (quotation omitted).

“In attempting to establish that a prosecutor’s improper comments constitute reversible error, the criminal defendant bears a substantial burden.” United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001). The Court must “test the magnitude of the prejudicial effect of the prosecutor’s remarks by considering them in the context of the trial and attempting to ascertain their intended effect.” Id. at 291. The prosecutor’s argument “must be considered in light of the argument to which it responded.” United States v. Canales, 744 F.2d 413, 424 (5th Cir. 1984).

“A criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone.” United States v. Valas, 822 F.3d 228, 243 (5th Cir. 2016). “A prosecutor’s argument is reversible error only when so improper as to affect a defendant’s substantial rights.” Id. (quoting United States v. Vaccaro, 115 F.3d 1211, 1215 (5th Cir. 1997)). “The determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” Id. (quoting United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)); see also United States v. Smith, 814 F.3d 268, 276 (5th Cir. 2016). If a “prosecutor’s misconduct substantially affected the fairness, integrity, and public reputation of [the] proceedings, a new trial is warranted.” Smith, 814 F.3d at 277.

Here, Defendants challenge several statements made by the prosecutor in his opening statement and closing argument. The Court addresses each in turn.

1. The prosecutor’s statement that Defendants could have subpoenaed medical records, even if improper, did not affect Defendants’ substantial rights.

Defendants argue that the prosecutor engaged in misconduct in his rebuttal closing argument when he asserted that Defendants

could have subpoenaed medical records, which was an improper shifting of the burden of proof upon the defense, and further, it was misconduct due to the misrepresentation of the facts, intentionally, because the prosecutor was well aware of the difficulty in securing the attendance of the above referenced doctor, and the efforts made by the defense to secure the medical records he claimed did not exist.... The prosecutor did not merely comment upon the failure of the defense to produce the records, which was improper, but he also misrepresented the truth, in that he claimed that the records did not exist. He also made himself a witness by making such a statement of fact, which was beyond mere argument.

Mot. [104] at 7.

The Government responds that

[w]hile qualifying the statement that the defense has no burden at all, the prosecution pointed out, quite correctly, that the defendant has the subpoena power of the Court and could have produced witnesses and documents, if any existed, that would have corroborated their defense. It is more than a fair inference that such failure was due to the absence of such evidence.

Resp. [106] at 2. The Government states that

Defendants’ claim that because the prosecution knew that defendant had attempted to rummage through storage facilities the weekend before trial and, according to their counsel, had tried to subpoena Dr. Petrocelli and had been denied the ability to take a last minute deposition, the prosecution was acting falsely. If this argument held any water, defense strategy in all such cases where there is no evidence supporting their claims should be to wait until the very last minute before trial to seek evidence, whether it exists or not, have its requests denied because of tardiness, and thereby preclude the prosecution from noting the lack of any corroborating evidence. Allowing such tactics would turn defense counsels’ dilatoriness into brilliant trial strategy.

Id. at 2-3 n.3.

According to Defendants, “the government’s own witness, Lentz, testified during the direct that Ms. Bennett told her about off-premises storage of medical records .... ” Reply [108] at 23. The Government responds that

[t]he defendant here conflates the fact that there was a medical storage facility with the question of whether there were medical files that would have proven that Dr. Lines was competently praetic-ing medicine during the relevant time frame. The government was not then and is not now aware of any medical files that would have shown what defense alleges.

2d Resp. [123] at 4.

During his initial closing argument, the prosecutor argued that through 2011, 2012, and 2013, “[y]ou didn’t see any medical records from any person that Dr. Lines treated during this period. Not one, ladies and gentlemen. Not a single one.” Tr. [117] at 11. “[T]here’s [sic] no records that show he was treating anyone.” Id. No reference was made at this point to any failure of Defendants themselves to produce evidence or to the ability of Defendants to subpoena records. The prosecutor simply pointed to the overall lack of such evidence in the record before the jury.

In Ms. Bennett’s closing argument, Ms. Bennett’s counsel argued in relevant part as follows:

Mr. Meynardie said, “Well, they didn’t produce medical records” and, “They didn’t produce this.” Well, you know, remember, they—it’s their burden to produce records. If they want to rebut, they have the power, unlimited power, and authority to rebut anything.

Id. at 37.

In rebuttal, the prosecutor responded that

it’s absolutely true that the defense has no burden whatsoever to put on any evidence. None. They don’t have to put on a witness, they don’t have to put on a document, they don’t have to do anything. But nothing stops them from it. Nothing stops them from issuing a subpoena for the bank [sic] records they claim that the government hid from you.

MR. CROSBY: I’m going to object that he’s now trying to shift the burden by that improper rebuttal. I’m objecting to that. And also the prosecutor—I don’t want to make a speaking objection, but the Court is aware of rule—request rulings, and he cannot say something that’s not correct.

THE COURT: All right.

MR. MEYNARDIE: I haven’t—Your Honor, I haven’t attempted to shift the burden. I will not shift the burden. The burden belongs to the government, and I have never tried to shift the burden.

THE COURT: All right. Well, ladies and gentlemen, you’ve been instructed more than once, and I remind you again, the defendants are under no obligation to present any evidence whatsoever. So remember that at all times. Go ahead, Mr. Meynardie.

MR. MEYNARDIE: They don’t have to put on anything, but they have subpoena power. And the reason we didn’t put on any of those patient records or any of those patients is because they don’t exist. We asked the clinic—and I think there’s actually a document in there where the clinic responded to a subpoena where we were asking for them and they said, “We don’t have them.”

MR. CROSBY: Your Honor, I’ve got— I have to object because of what he just—the subpoena power and ruling of the Court. He cannot make a misstatement. And he’s now mis-1 don’t—

THE COURT: Well, I know what you’re talking about, Mr. Crosby, and if we need to address that at sidebar, we will, but I think—I know what the rulings are. And under the rulings, then, there’s no—I would overrule the objection to the extent that issue is being raised. Again, ladies and gentlemen, no inference whatsoever can be drawn from the fact the defendants may or may not have produced any evidence whatsoever. They are under no obligation to do so. All right? Go ahead.

MR. MEYNARDIE: They’re not under an obligation, but they can.

Id. at 99-101.

When discussing the Clinic’s response to the Government’s subpoena for records, the prosecutor did not reference a specific exhibit number, but it appears the one to which he was referring was Exhibit “G-61.” This exhibit is a letter from Cedar Lake Oncology, one of the clinics where Ms. Bennett and Dr. Lines had worked, to the prosecutor responding to a July 13, 2016, subpoena requesting clinical records for seven specific individuals: Henry D. Box, Jo D. Box, Tracy Box, James Box, Dorothy Bennett, Sherrie Bennett, and Jeffrey [sic] Bennett. See Ex. “G-61.” The Clinic’s letter states that “[o]n searching the clinic files, the above listed individuals do not have a medical record at the Radiation Oncology Clinic.” Id.

There is no one specific item of evidence in the record that the Court has located which indicates that the Government sought every medical file from Cedar Lake Oncology, where Dr. Lines was treating patients in 2011, 2012, or 2013, and was told by the Clinic in response that there were none, as the prosecutor suggested. However, a prosecutor may discuss during closing arguments “properly admitted evidence and any reasonable inferences or conclusions that can be drawn” from the evidence presented at trial. United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008). Based upon the evidence presented at trial by the Government, a reasonable inference or conclusion could be drawn that there were no medical records presented at trial to indicate that Dr. Lines was treating patients during the time periods relevant to this case. See id.

As for the statement regarding the Clinic’s response to the Government’s subpoena, even if Defendants have shown that the prosecutor’s statements on this subject were incorrect or improper, they have not shown prejudice. First, the Court instructed the jury more than once that “[t]he questions, statements, objections, and arguments made by the lawyers are not evidence.” See Tr. [116] at 224; see also Tr. [110] at 25, 26; Tr. [115] at 99; Tr. [117] at 3, 109. Juries are presumed to follow a court’s instructions, United States v. McCarty, 36 F.3d 1349, 1355 (5th Cir. 1994), and there was no indication here that the jury did not follow this instruction.

Any prejudicial effect from the prosecutor’s statements was minimal, and there was substantial evidence presented against Defendants during trial. In this nearly two-week trial, the jury heard almost six full days of testimony from 35 different witnesses, and received over 200 exhibits which were admitted into evidence. The Government presented incriminating evidence regarding Dr. Lines’ competency, the control both Defendants exerted over Dr. Lines, the records for improperly issued prescriptions for controlled substances written to or for both Defendants, and the funds which Ms. Bennett surreptitiously obtained from the Clinic’s bankruptcy estate through Dr. Lines. Ms. Bennett testified on her own behalf, and the jury heard and obviously rejected her version of events relating to the controlled substance prescriptions and the bankruptcy estate’s property.

Where there are “numerous witnesses, pieces of evidence, and issues placed before the jury,” the Fifth Circuit has declined to say that “the prosecutor’s statements overshadowed what had come before and unduly prejudiced the [defendants’] case.” United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999). The Court also acted to mitigate any prejudicial effect by instructing the jury to base their decision “solely on the legally admissible evidence and testimony.” Tr. [116] at 225. Accordingly, based upon the record as a whole, the prosecutor’s remarks did not prejudice Defendants’ substantive rights. Gallardo-Trapero, 185 F.3d at 321.

With respect to the prosecutor’s statements about any power Defendants had to issue subpoenas, the Fifth Circuit has stressed that it does

not approve of comments reflecting on the lack of evidence presented by a defendant in a criminal case.... Such a course of action is a parlous one at best, of necessity sailing close to implying that the defendant is obligated to produce evidence of his innocence.

United States v. Anchondo-Sandoval, 910 F.2d 1234, 1238 (5th Cir. 1990) (quotation omitted).

In this case, however, the prosecutor’s comments in rebuttal were in response to defense counsel’s closing argument. Specifically, counsel for Ms. Bennett argued that it was the Government’s burden to produce records, and if the Government “want[s] to rebut, they have the power, unlimited power, and authority to rebut anything.” Tr. [117] at 37.

After reviewing the prosecutor’s comments and the context in which they were made, the Court concludes that the comments did not result in an impermissible shift of the burden of proof in this case. “The comments were merely a response to defense counsel’s arguments that the government failed to produce” certain items of evidence. United States v. Virgen-Moreno, 265 F.3d 276, 292 (5th Cir. 2001).

Furthermore, the Court gave a clear instruction to the jury that the Government had “the burden of proving each defendant guilty beyond a reasonable doubt,” Tr. [116] at 223, and that “the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence,” id at 227. During the prosecutor’s argument, the Court provided further curative instructions, reiterating that the defense had no burden whatsoever to put on any evidence at trial and that no inference whatsoever could be drawn from the fact that Defendants may or may not have produced any evidence. Tr. [117] at 100-101.

Even if improper, the Court finds that the prosecutor’s comments were not so egregious as to rise to the level of reversible error because Defendants’ substantive rights were not affected. See Anchondo-Sandoval, 910 F.2d at 1238. The Court gave appropriate cautionary instructions following the prosecutor’s remarks, and the general instructions to the jury further underscored the Government’s burden. See id. “Whatever prejudice may have resulted from the improper comments should have been neutralized by the [C]ourt’s instruction.” Id.

2. The prosecutor’s comments which arguably bolstered credibility of witnesses, even if improper, did not affect Defendants’ substantial rights.

Defendants argue that the prosecutor injected his own credibility into his rebuttal arguments thereby bolstering the credibility of certain witnesses, including that of the Bankruptcy Trustee, Kim Lentz, and Government agents who testified. Mot. [104] at 7-8; Reply [108] at 24, 33 (citing United States v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008)). According to the Government, in its rebuttal the prosecutor “addressed Mr. Bennett’s counsel’s outrageous claim that the case was manufactured and that the government agents and the prosecutor fabricated the case to advance their careers.” 2d Resp. [123] at 5.

During Ms. Bennett’s counsel’s closing, he argued as follows with respect to Ms. Lentz’s profiting from the bankruptcy:

Even Kim Lentz, who met with [Dr. Lines], she claims that whenever she fired Dr. Lines and Sherrie, that they— that they left but she called Dr. Lines back in, in all her detailed notes, for which she was paid ungodly hundreds of thousands of dollars, her, her husband, and junior, paid all these hundreds of thousands of dollars that she can’t even remember how much they were paid it was so much, getting paid, you know, hundreds of thousands to do what Sherrie Bennett got no extra money to do, by the way. You know, Sherrie Bennett’s money never went up. She was paid— her salary was set all the way back in the Dahlhauser days, but when she had to take on this new task of bankruptcy issues, she got no extra pay. But even Kim Lentz did not write down a single note in all her detailed notes that there was something wrong with Dr. Lines, because that clearly would be an issue that you should address. That would be of concern with anybody.

Now, two months later at the final hearing in the bankruptcy, they’re talking about the fact that they got—they talk— they start talking about, you know, paying this back and what’s going on, and they decide to appoint Kim Lentz. You know, keep in mind that the decisions made there are by a civil standard, by a preponderance of the evidence, not beyond a reasonable doubt. And also Ms. Lentz would not have been there if Sherrie Bennett was there. She gets appointed, she makes hundreds of thousands of dollars for her family and her firm, but they get zero if Sherrie Bennett is there and if Dr. Lines is there.

* * ⅜

You know, you saw a few weeks after Ms. Lentz took over that the—they tried to put the $1.5 million money from BP, that would have saved the company, that would have taken it out of bankruptcy, Ms. Lentz wouldn’t have gotten hundreds of thousands of dollars because it would have been out of bankruptcy, but the money—all the work Sherrie did to get that BP money available would have saved it. Dr. Lines could have kept his employees, kept his company going, but the trustee, they put a hold on that and kept it in bankruptcy.

Tr. [117] at 54, 65, 70.

As for Mr. Bennett’s counsel, he argued in closing as follows as to Ms. Lentz:

As Mr. Meynardie told you, it’s a doctor’s case, but no doctors- are charged. Why are we here? I can tell you several hundred thousand reasons we’re here, maybe half a million reasons we’re here. We’re here because Kim Lentz stood to make a lot of money for her and her firm, over $300,000 between her and her husband. She said, “I worked on the case 18 months.” That didn’t mean she worked every day, y’all. Remember, she’s going to 341 hearings, she’s having other hearings, she’s doing other things. That might have been a few hours a month. It took 18 months to close the case out, but she made over $300,000. That’s the reason we’re here, and that’s why this case is fabricated. That’s why they called Dr. Fineburg and got that letter that when I asked him, “Who did you write this to?”

“Oh, I don’t know. I’m forgetting now.”

He was starting to get forgetful. He couldn’t tell us anything about that letter, and it’s been three years ago. He could remember stuff ten years ago, but he couldn’t remember stuff three years ago.

[Ms. Lentz] gets that letter, she calls Stan Ingram u