996 F.

2d 312
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff-Appellee,

v.
Kathleen Joan JOHNSON, Defendant-Appellant.
No. 92-8054.

United States Court of Appeals, Tenth Circuit.

June 23, 1993.

Before LOGAN, SEYMOUR, and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT*
BALDOCK, Circuit Judge.

Defendant appeals her convictions for bank fraud, 18 U.S.C. 1344, and
fraudulent use of a false social security number, 42 U.S.C. 408(g)(2).
Defendant claims that (1) her statutory right to a speedy trial was violated, (2)
statements by the prosecutor during cross-examination of Defendant amounted
to prosecutorial misconduct, and (3) a jury instruction constructively amended
the false social security number charge as alleged in the indictment and the
indictment insufficiently charged this crime. We have jurisdiction under 28
U.S.C. 1291.

In November 1991, Defendant was charged in a two count indictment. Count 1

charged that Defendant, beginning in December 1984, executed a scheme to
obtain funds under the custody of Rocky Mountain Federal Savings and Loan
Association by means of false and fraudulent pretenses and representations.
Defendant, while attending the University of Wyoming, applied for and
received federal student financial aid. On the financial aid applications,

Defendant falsely stated that she was a United States citizen.

Count 2 charged that:
3

On or about May 21, 1987, in the District of Wyoming, [Defendant], with the
intent to deceive, falsely represented a social security account number, which
number is not the social security account number assigned to [Defendant], towit:

On the 1987 Form W-4A, [Defendant], falsely represented that Defendant's

social security account number was hjs-wd-rynnwhen, in fact, the social
security number assigned to [Defendant] is wtn-lo-jgtk

In violation of 42 U.S.C. 408(g)(2).

On January 28, 1992, Defendant appeared before the district court and entered
a plea of not guilty. Defendant's trial was initially set for March 2, 1992, but
was continued by the court due to a conflict with another criminal case. The
time for trial under the Speedy Trial Act, 18 U.S.C. 3161-74, was to expire
on March 17, 1992. In the meantime, the district judge discovered that he had
cancer and required immediate surgery. The Government notified Defendant
that the trial had to be delayed due to the judge's impending surgery and
Defendant consented to the Government's request for a continuance.1 On
March 5, 1992, the Government filed a motion for a continuance or exclusion
of time. On the same day, the court granted the Government's motion,
excluding, for purposes of the Speedy Trial Act, the computation of time
between March 17, 1992 and the commencement of trial. 18 U.S.C. 3161(h)
(8)(A). In the order the court stated, "the ends of justice served hereby would
outweigh the interest of the public and the Defendant in a speedy trial."

The district judge returned to the bench in late April. On May 28, 1992, the
court sent notice that Defendant's trial would commence on June 15, 1992. On
June 2, 1992, Defendant filed a motion to dismiss on the ground that her right to
a speedy trial was violated. The district court denied the motion finding that
Defendant was not prejudiced, Defendant had failed to request an earlier trial
date, and due to the judge's medical emergency, the ends of justice served by
the granting of the continuance outweighed the interests of the public and
Defendant in a speedy trial. Defendant's trial was thereafter commenced one
hundred and forty-four days--without taking excludable time into account--after
Defendant appeared before the court. During this entire time, Defendant
remained free on bail.

After a four-day trial, the jury convicted Defendant on both counts. Defendant
was sentenced to four months imprisonment to be followed by three years of
supervised release. After Defendant served thirty days of her four month
sentence, the court granted Defendant's motion for release pending appeal.

I.
9

Defendant first contends that the district court erred in denying her motion to
dismiss based on her statutory right to a speedy trial. Defendant claims that the
court violated the Speedy Trial Act by granting the ends of justice continuance
without setting forth appropriate reasons on the record. When reviewing the
district court's grant of a continuance upon the court's weighing of facts proper
to its consideration, we review for abuse of discretion. United States v. Theron,
782 F.2d 1510, 1513 n. 1 (10th Cir.1986). When a factual finding is at issue we
review for clear error, and when considering the legal standards that the district
court applied we review de novo. Id.

10

The Speedy Trial Act requires that trial commence "within seventy days from
the filing date (and making public) of the information or indictment, or from
the date the defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs." 18 U.S.C. 3161(c)
(1). The same section, however, also provides that certain "periods of delay
shall be excluded ... in computing the time within which the trial ... must
commence." Id. 3161(h). Included among the Act's periods of excludable
delay is:

11 period of delay resulting from a continuance granted by any judge on his own
[a]ny
motion or at the request of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.
12

Id. 3161(h)(8)(A). Time is excludable under this subsection only if "the court
sets forth, in the record of the case, either orally or in writing, its reasons for
finding that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a speedy trial. Id.
Although the court must make the requisite findings contemporaneously with
the granting of an ends of justice continuance, these findings may be entered on
the record after the fact. United States v. Doran, 882 F.2d 1511, 1516 (10th
Cir.1989). If entered after the fact, however, it must be clear from the record
that the court did consider the factors identified by the Act when it granted the
continuance. Id. at 1516-17.

13

First, contrary to Defendant's assertion, the Speedy Trial Act is not violated
simply because the court failed to enter its findings supporting an ends of
justice continuance at the time it granted the continuance. See Doran, 882 F.2d
at 1516 (findings may be entered at later date provided that balancing occurred
contemporaneously with granting of continuance). Further, in its order granting
the continuance, the court specifically stated that "the ends of justice served
hereby would outweigh the interest of the public and the Defendant in a speedy
trial." This language makes it clear that, at the time it granted the continuance,
the court struck the proper balance. See Doran, 882 F.2d at 1517 (citing with
approval Third Circuit case, United States v. Brooks, 697 F.2d 517, 521-22 (3d
Cir.1982), cert. denied, 460 U.S. 1073 (1983), where order granting
continuance referred to ends of justice and findings supporting determination
were not entered until defendant filed motion to dismiss).

14

We now turn to the issue of whether the court's findings, entered in the record
when the court denied Defendant's motion to dismiss, support the court's earlier
grant of an ends of justice continuance. In denying Defendant's motion to
dismiss, the court specifically found that the judge's medical emergency
required that the continuance be granted. Defendant does not, nor could she,
seriously contend that the judge's illness was an inappropriate ground for
granting an ends of justice continuance. Rather, Defendant complains that the
court technically violated the Speedy Trial Act by granting the continuance
without mentioning, on the record, any of the specific factors listed in
subsection B of 3161(h)(8).

15

Subsection B of 3161(h)(8) lists examples of legitimate reasons for granting

an ends of justice continuance. Doran, 882 F.2d at 1516. One example listed in
subsection B is whether the failure to grant the continuance "would be likely to
make a continuation of such proceeding impossible, or result in a miscarriage of
justice." 18 U.S.C. 3161(h)(8)(B)(i). The subsection B list, however, is
nonexclusive, Doran, 882 F.2d at 1516, and as such, a district court may grant
an ends of justice continuance without necessarily considering any of the listed
factors. In any event, the court's statement in the instant case that "this Judge's
medical emergency provided no alternative but to reset the defendant's trial,"
makes it clear that the court relied on subsection B(i)--i.e., that a continuation
of the proceeding would be impossible without a continuance. Moreover, "[t]he
legislative history of the Speedy Trial Act indicates that the illness of a judge
was precisely the kind of situation which would justify a continuance under
[subsection B(i) ]." United States v. Ferris, 751 F.2d 436, 441 (1st Cir.1984)
(citing S.Rep. No. 1021, 93rd Cong., 2nd Sess., reprinted in A. Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974 (Fed. Judicial
Center 1980), at 162). We therefore conclude that the continuance was not

granted in violation of the Speedy Trial Act.2

II.
16

Defendant's second claim is that the prosecutor engaged in misconduct

justifying reversal of her conviction. Defendant claims that the prosecutor
made improper and prejudicial comments during her cross-examination of
Defendant.

17

On direct examination, Defendant testified that, in 1979, she and her then
husband, John Johnson, filled out the appropriate immigration forms for
Defendant to become a United States citizen. This testimony, if credited by the
jury, supported Defendant's defense that she believed that she was a United
States citizen when she applied for and received federal student financial aid.
On cross-examination of Defendant, the prosecuting attorney attempted to
show that Mr. Johnson never filled out immigration forms for Defendant. The
cross-examination went as follows:

18 Now my understanding is that John Johnson never did fill out any forms for
Q.
immigration for you; isn't that correct?
A. I have no idea where you got that information.
19
Q. Did he fill out any forms for you?
20
A. We filled out forms together.
21
Q. And he should recall that?
22
A. He should recall that.
23
24 If I told you I had a conversation with Mr. Johnson a couple of days ago and he
Q.
said he never filled out any form for immigration, what would your answer be, that
he's mistaken?
25

At this point, Defendant objected that the question was beyond the scope of
direct and that it referred to a witness not available to testify. The court
overruled the objection stating that the witness could be brought in on rebuttal.
Defendant answered the question, "I would be very surprised." The
Government did not call Mr. Johnson on rebuttal.

26

We apply a two-step analysis in reviewing a claim of prosecutorial misconduct.

United States v. Lonedog, 929 F.2d 568, 572 (10th Cir.), cert. denied, 112 S.Ct.

164 (1991). First, we determine whether the conduct was improper, and, if so,
we must then determine whether it warrants reversal. Id. Misconduct does not
warrant reversal if it is harmless error. Id. In determining whether error is
harmless we consider "the curative acts of the district court, the extent of the
misconduct, and the role of the misconduct within the case as a whole." Id.
(citations omitted). "This court will overturn a jury verdict based on a
prosecutor's comments if they 'were enough to influence the jury to render a
conviction on grounds beyond the admissible evidence presented.' " United
States v. Santiago, 977 F.2d 517, 519 (10th Cir.1992) (quoting United States v.
Dickey, 736 F.2d 571, 596 (10th Cir.1984), cert. denied, 469 U.S. 1188
(1985)).
27

We agree that, given the fact that Mr. Johnson did not testify, the prosecutor's
statement that she had spoken with Mr. Johnson and he told her that he never
filled out immigration forms for Defendant was improper. Cf. United States v.
Ellzey, 936 F.2d 492, 496 (10th Cir.) (prosecutor improperly expressed
personal belief), cert. denied, 112 S.Ct. 400 (1991). However, we conclude that
the statement was harmless error. The prosecutor's statement arose during a few
brief moments in a trial that lasted four days. Defendant, during the crossexamination, reiterated her testimony, on direct, that she and Mr. Johnson did
fill out the forms. Any residual prejudice was cured by the court's later
instructions to the jury that it must base its verdict on the evidence, and
evidence does not include arguments made by the lawyers. See id. at 498.
Finally, the record contains ample evidence from which the jury could
conclude that Defendant knew that she was not a United States citizen when
she applied for and received financial aid. For example, an investigator for the
Immigration and Naturalization Service ("INS") testified that the INS never
received an immigration form completed by Defendant and Mr. Johnson;
Defendant's former lawyer testified that although he received the blank forms
from the INS, he could not recall Defendant and Mr. Johnson completing such
forms and returning them to him; Defendant testified that she was never
informed by the INS that she had become a citizen; and an investigator for the
Department of Education testified that Defendant told him in 1991 that she has
never been a United States citizen. Therefore, the jury did not render a
conviction on grounds beyond the admissible evidence presented, making the
prosecutor's statements harmless error.

III.
28

Defendant contends that a jury instruction on the false social security number
charge constructively amended count 2 of the indictment because it contained
the words, "for any purpose" whereas count 2 of the indictment did not.

Defendant also claims that, because count 2 of the indictment did not charge
Defendant with having a purpose when she falsely represented a social security
number, the indictment was insufficient.
29

In United States v. Darrell, 828 F.2d 644, (10th Cir.1987), we stated that in
order to prove a violation of 42 U.S.C. 408(g)(2), the Government must prove
that the defendant "(1) for any purpose, (2) with intent to deceive, (3)
represented a particular social security account number to be his or another
person's, (4) which representation was false." Id. at 646-47. These elements
were taken directly from the language of the statute. See id. at 646; 42 U.S.C.
408(g)(2). The instruction defined the elements of the offense charged in count
2 of the indictment against Defendant by tracking this language. Defendant's
first argument, as we understand it, is not that the instruction, standing alone, is
an incorrect statement of the law; rather, Defendant claims that because count 2
of the indictment did not recite the words "for any purpose," the jury instruction
is a constructive amendment of the indictment.

30

"The Fifth Amendment requires that a felony defendant be tried only on an

offense alleged in a grand jury indictment." United States v. Phillips, 869 F.2d
1361, 1364 (10th Cir.1988), cert. denied, 490 U.S. 1069 (1989). After an
indictment has been returned, its charges may not be broadened through
amendment effected by a court's instructions to the jury. Id. A jury instruction
constructively amends an indictment if, together with the evidence presented at
trial, the possibility is raised that the defendant was convicted of an offense
other than that charged in the indictment. Hunter v. New Mexico, 916 F.2d 595,
599 (10th Cir.1990), cert. denied, 111 S.Ct. 1693 (1991). "In order to rise to
this level, the change in the indictment must be more than the addition or
deletion of nonessential factual averments. Rather, the amendment must
effectively alter the substance of the indictment." Id. A jury instruction that
broadens an indictment by expanding the bases of criminal liability is an
impermissible constructive amendment. United States v. Sloan, 811 F.2d 1359,
1363 (10th Cir.1987); see also Phillips, 869 F.2d at 1371-72 (Seymour, J.,
dissenting).

31

The instruction did not constructively amend count 2 of the indictment. By

adding the words, "for any purpose," the instruction, if anything, narrowed the
indictment, requiring the Government to prove something more--i.e., that
Defendant actually had a purpose in falsely representing her social security
number--than what the indictment would have required the Government to
prove. Defendant has cited no authority, nor can we find any, that a narrowing
of an indictment, as opposed to an altering or broadening of an indictment,
amounts to constructive amendment. Furthermore, Defendant has not alleged,

nor could she, that the instruction raised the possibility that Defendant was
convicted of an offense other than violation of 42 U.S.C. 408(g)(2). The
addition of the words "for any purpose," did not change the meaning of the
charge from that presented to the grand jury, alter the Government's theory of
the case, nor result in any prejudice to Defendant. See e.g., United States v.
Hornung, 848 F.2d 1040, 1046-47 (10th Cir.1988), cert. denied, 489 U.S. 1069
(1989). The substance of count 2 remained the same--i.e., that Defendant, with
the intent to deceive, falsely represented a particular social security number as
her own on a 1987 W-4A form.
32

Defendant also claims that count 2 of the indictment is insufficient for failing
to allege that Defendant had a purpose in falsely representing a social security
number. Defendant claims that because the indictment did not include words
"for any purpose," she was not put on notice that she would have to defend
against the allegation that she had a purpose.

33

An indictment is generally sufficient if it contains the essential elements of the

offense charged. United States v. Brown, No. 92-6233, 1993 U.S.App. LEXIS
13129, at * 33-35 (10th Cir. June 4, 1993). An indictment is not insufficient
merely because it fails to recite the language of the underlying statute. United
States v. Haddock, 956 F.2d 1534, 1542 (10th Cir.1992). Rather, where there is
a challenge to an indictment asserting the absence of an element of the offense,
the indictment is sufficient if it contains words of similar import to the alleged
missing element. Brown, 1993 U.S.App. LEXIS 13129, at * 35-36. An
indictment is insufficient if it fails to put the Defendant on fair notice of the
charge against which he must defend. Haddock, 956 F.2d at 1542.

34

Even assuming, as Defendant argues, that an essential element of violating 42

U.S.C. 408(g)(2) is that the defendant have a purpose in falsely representing a
social security number--no matter what that purpose may be--count 2 of the
indictment does not fail. Count 2 does allege that Defendant had a purpose in
falsely representing a social security--i.e., it alleges she did so to fill out a 1987
W-4A form. See United States v. Barel, 939 F.2d 26, 34 (3d Cir.1991)
(allegation that defendant used another's social security number to open bank
account is within "for any purpose"); United States v. Silva-Chavez, 888 F.2d
1481, 1483 (5th Cir.1989) ("for any purpose" clause includes allegation of use
of false social security number in application for driver's license). Furthermore,
because count 2 of the indictment specifically cited the statute on which the
charge was based, Defendant was given adequate notice of the charges she
faced. See United States v. Chilcote, 724 F.2d 1498, 1505 (11th Cir.), cert.
denied, 467 U.S. 1218 (1984).

35

AFFIRMED.

This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3

On appeal, Defendant claims that she only consented to a three-week

continuance

Although the issue as to whether all of the delay in Defendant's trial was
attributable to the judge's illness was interjected at oral argument by questions
from the court, Defendant failed to raise this issue or any authorities in support
of this issue in her brief. We therefore consider the issue waived and we decline
to address it. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n. 1
(10th Cir.1992) (issue not addressed in brief is waived); Boone v. Carlsbad
Bancorporation, Inc., 972 F.2d 1545, 1554 n. 6 (10th Cir.1992) (issue raised
without supporting argument or authority is waived)