Case: 14-12462 Date Filed: 05/07/2015 Page: 1 of 25
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 14-12462
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 2:13-cr-00016-LGW-JEG-1
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`UNITED STATES OF AMERICA,
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`SCHELLA HOPE,
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`versus
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`Plaintiff-Appellee,
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`Defendant-Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Georgia
`________________________
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`(May 7, 2015)
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`Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
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`PER CURIAM:
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`Schella Hope appeals her numerous convictions for conspiracy to commit
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`Case: 14-12462 Date Filed: 05/07/2015 Page: 2 of 25
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`health-care fraud, 18 U.S.C. § 1349; health-care fraud, 18 U.S.C. § 1347;
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`aggravated identity theft, 18 U.S.C. § 1028A; money laundering, 18 U.S.C.
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`§ 1956(a)(1)(A)(i); and engaging in money-laundering transactions of over
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`$10,000, 18 U.S.C. § 1957. Hope raises four challenges to her convictions, all of
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`which we review for plain error. After careful consideration, we affirm.
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`I. General Background
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`The 59-count superseding indictment alleges that, beginning in January 2005
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`and continuing through 2011, Hope stole approximately $4 million from Medicaid
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`by submitting thousands of phony claims for nutrition services that were not
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`provided, not provided as billed, or not medically necessary, and that were not
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`entitled to Medicaid reimbursement.
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`Hope was a licensed dietician who owned Hope Nutritional Services, LLC
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`(HNS), which purported to provide nutrition services and counseling for children
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`enrolled in Head Start through the state of Georgia. Head Start is a government-
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`funded program that provides services to low-income children up to five years old,
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`the majority of whom were recipients under the Georgia Medical Assistance
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`Program (Medicaid). Medicaid covers certain nutritional counseling services
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`ordered by a physician or provided by a licensed dietician.
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`In broad terms, the superseding indictment alleged the nature of the health-
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`care fraud scheme as follows. Hope obtained a Medicaid provider number, hired
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`2
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`medical doctors with no background in treating children to serve as “medical
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`directors” of HNS, and contracted with Head Start centers in order to obtain a list
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`of children enrolled in the centers along with their Medicaid numbers. Using the
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`Medicaid numbers, Hope submitted false claims to Medicaid for services that were
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`not provided. To avoid detection, Hope and others created false documentation to
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`reflect the purported services by, for instance, using “signature stamps” to make it
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`look as if a doctor had prescribed the services. When the fraud began to be
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`detected, she recruited a co-conspirator, Arlene Murrell, to, inter alia, continue to
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`submit false claims under Murrell’s Medicaid provider number. When Murrell
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`received Medicaid reimbursement checks, she issued checks to HNS that
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`corresponded to approximately 80% of the Medicaid checks’ value. Hope also
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`submitted false claims for nutrition services under the name of another licensed
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`dietician, Marissa Garcia, without her permission.
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`We briefly review some of the evidence presented at Hope’s five-day trial.
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`In short, the evidence was consistent with the superseding indictment.1 HNS
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`employees traveled to Head Start centers throughout the state of Georgia to weigh
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`and measure children and test their hemoglobin levels by pricking their fingers for
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`blood. The HNS employees did not have any training for this work apart from
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`taking an online course. At the Head Start centers, HNS employees received a list
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`1 Hope does not challenge the sufficiency of the evidence to support her convictions.
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`3
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`of the children’s Medicaid information for billing. The Head Start director
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`testified that Head Start was not supposed to give out children’s Medicaid
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`information.
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`At Hope’s direction, HNS
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`employees prepared
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`“cookie-cutter”
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`documentation concerning each child, including nearly identical prescriptions,
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`nutritional assessments, nutritional counseling notes, and physician plans of care.
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`The HNS employees who testified at trial indicated that they did not see Hope
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`provide any nutritional counseling to children. Nonetheless, Hope directed her
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`employees to affix her signature to the records. In addition, Hope directed HNS
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`employees to use a doctor’s signature stamp on patient forms, and employees also
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`used blank prescriptions and plans of care, which were pre-signed by doctors
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`without their authorization.
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`On follow-up visits to the Head Start centers, Tonya Hope, the defendant’s
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`sister-in-law, purportedly provided nutritional counseling. At Hope’s direction,
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`Tonya falsely identified herself as a “nutritionist” by signing her name as such and
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`occasionally wearing a lab coat. Tonya was neither a nutritionist nor a registered
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`dietician. Tonya testified that she, and not Hope, provided the nutritional
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`counseling, although the relevant patient forms were signed with Hope’s signature.
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`The government also presented evidence that Hope billed for services provided on
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`days when she was on vacation.
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`Hope directed employees at HNS to file a certain number of Medicaid
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`claims per day. Early on, employees were supposed to bill only fifty patients per
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`day. Later, however, Hope sent an intraoffice memorandum telling employees to
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`submit 100 claims per day. Rocio Sloan, who was employed at HNS for
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`approximately eight years, testified that Hope directed Sloan and others to submit
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`claims to Medicaid, regularly held meetings about billing, and tracked the number
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`of claims submitted to Medicaid each day.
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`Several parents and guardians of Head Start children testified. They
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`generally stated that they were not aware of any nutritional problems with their
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`children, never took their children to a physician for a nutritional consultation, and
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`did not fill out any forms regarding a nutritional assessment.
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`
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`After Hope presented witnesses and testified in her defense, the jury
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`deliberated for just over two hours and returned a verdict finding Hope guilty on
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`all 58 counts remaining in the superseding indictment.2 She was sentenced to a
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`total term of 192 months in prison. Hope now appeals.
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`II. Standard of Review
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`Hope concedes that plain-error review applies to her arguments on appeal
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`because she did not object to the alleged errors before the district court. United
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`States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To demonstrate plain
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`2 Before trial, on the government’s motion, one count of engaging in money-laundering
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`transactions (Count 55) was dismissed without prejudice.
`5
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`error, a defendant must establish that there is “(1) an error (2) that is plain and (3)
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`that has affected the defendant’s substantial rights; and if the first three prongs are
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`satisfied, we may exercise discretion to correct the error if (4) the error seriously
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`affects the fairness, integrity, or public reputation of judicial proceedings.” United
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`States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
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`A “plain” error is one that is “clear” or “obvious.” United States v. Olano,
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`507 U.S. 725, 734, 113 S. Ct. 1170, 1777 (1993); see United States v. Lett, 483
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`F.3d 782, 790 (11th Cir. 2007) (explaining that a “plain error” must be “plain
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`under controlling precedent or in view of the unequivocally clear words of a statute
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`or rule”). For an error to affect substantial rights, in most cases the error “must
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`have been prejudicial: It must have affected the outcome of the district court
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`proceedings.” Olano, 507 U.S. at 734, 113 S. Ct. at 1777-78.
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`III. Discussion
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`Hope raises four issues on appeal. First, Hope argues, her aggravated
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`identity-theft convictions must be reversed because health-care fraud is not a
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`qualifying predicate felony for that offense. Second, she contends, the district
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`court plainly erred by referencing punishment when instructing the jury on
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`aggravated identify theft. Third, Hope challenges the government’s presentation of
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`“wealth evidence” during trial. And finally, she asserts, the prosecutor committed
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`misconduct in closing arguments.
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`A.
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`Aggravated Identity-theft Convictions
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`Hope first contends that she was wrongfully convicted of aggravated identity
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`theft, in violation of 18 U.S.C. § 1028A, because health-care fraud is not an
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`enumerated predicate felony under that statute.
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`When applying a criminal statute, we “generally must follow the plain and
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`unambiguous meaning of the statutory language.” United States v. Albertini, 472
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`U.S. 675, 680, 105 S. Ct. 2897, 2902 (1985). Courts should interpret the words of
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`a statute in context and avoid constructions that would render statutory language
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`superfluous or inoperative. Hibbs v. Winn, 542 U.S. 88, 101, 124 S. Ct. 2276,
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`2286 (2004).
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`Hope has not shown error, plain or otherwise. Section 1028A provides for
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`an additional two-year term of imprisonment when, “during and in relation to any
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`felony violation enumerated in subsection (c),” a defendant “knowingly transfers,
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`possesses, or uses, without lawful authority, a means of identification of another
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`person.” 18 U.S.C. § 1028A(a)(1). A “felony violation enumerated in subsection
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`(c),” in turn, means any offense that is a felony violation of, among others, “any
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`provision contained in chapter 63 (relating to mail, bank, and wire fraud).” 18
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`U.S.C. § 1028A(c)(5). Health-care fraud is prohibited in chapter 63 of Title 18.
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`See 18 U.S.C. § 1347. Thus, by the plain terms of the statute, health-care fraud is
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`included within the ambit of predicate felonies described by § 1028A. See 18
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`U.S.C. § 1028A(c)(5).
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`Hope contends that the appended parenthetical, “(relating to mail, bank, and
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`wire fraud),” limits the scope of predicate chapter 63 offenses to solely “mail,
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`bank, and wire fraud.” We disagree.
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`In United States v. Herring, 602 F.2d 1220 (5th Cir. 1979),3 this Court’s
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`predecessor rejected the same construction of 18 U.S.C. § 1961 that Hope seeks to
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`apply to § 1028A. 602 F.2d at 1223. Section 1961 defines “racketeering activity”
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`to include “sections 2314 and 2315 (relating to interstate transportation of stolen
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`property).” Id.; see 18 U.S.C. § 1961. The defendant in Herring argued that his
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`conviction under 18 U.S.C. § 2314, for interstate transportation of securities
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`converted or taken by fraud, was not “racketeering activity” as defined by § 1961
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`because it did not involve “interstate transportation of stolen property,” as
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`identified in the parenthetical. Herring, 602 F.2d at 1223.
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`The Court in Herring rejected the defendant’s contention, holding that “the
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`reference
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`to
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`the
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`interstate
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`transportation of
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`stolen property
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`in
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`the
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`parenthetical . . . was intended merely to aid the identification of [the section]
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`rather than to limit the proscriptions of that section.” Id. The Court explained that
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`the defendant’s restrictive reading of the parenthetical would undermine the
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`remedial purposes of the statute—to eradicate organized crime. Id. And, further,
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`3 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
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`Court adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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`[i]f Congress had intended to exclude the interstate transportation of property
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`obtained by fraud from its definition in section 1961, it specifically could have
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`limited the incorporation of section 2314” as it did the incorporation of another
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`section. Id.
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`Guided by Herring, we conclude that the reference to mail, bank, and wire
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`fraud in the parenthetical after “any provision in chapter 63,” 18 U.S.C.
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`§ 1028A(c)(5), serves only an explanatory or descriptive purpose and does not
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`limit the scope of predicate felonies under chapter 63.4 See Morales v. Trans
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`World Airlines, Inc., 504 U.S. 374, 383-84, 112 S. Ct. 2031, 2037 (1992)
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`(explaining that the ordinary meaning of the phrase “relating to” is a broad and
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`expansive one). A restrictive reading of § 1028A(c)(5) would “undermine the
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`remedial purposes that Congress intended,” which was to combat identity theft.
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`See Herring, 602 F.2d at 1223. And if Congress had intended to exclude health-
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`care fraud from its definition of predicate felony violations, it expressly could have
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`done so as it did in other parts of § 1028A.5 Furthermore, Hope’s proposed
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`4 Section 1028A(c)’s list of enumerated felonies contains eleven subparts, each of which
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`has a similar parenthetical providing a general description of the offenses to which they pertain.
`18 U.S.C. § 1028A. Some subparts refer to specific statutory sections, such as “section 911
`(relating to false personation of citizenship),” 18 U.S.C. § 1028A(c)(3), while others refer to
`chapters, as in this case. See United States v. Abdur-Rahman, 708 F.3d 98, 101 (2d Cir. 2013)
`(providing a general description of these subparts).
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`5 For example, § 1028A(c) lists qualifying predicate felonies as including a felony
`violation of “any provision contained in this chapter (relating to fraud and false statements),
`other than this section or [§] 1028(a)(7).” See 18 U.S.C. § 1028A(c)(4) (emphasis added).
`9
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`construction would render superfluous the language “any provision in Chapter 63”
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`by equating it to “mail, bank, and wire fraud.” See Hibbs, 542 U.S. at 101, 124 S.
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`Ct. at 2286.
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`Accordingly, we conclude that Hope was properly convicted of aggravated
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`identity theft based on the predicate felony of health-care fraud.6
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`B.
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`Jury Instructions
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`Hope next argues that the district court plainly erred by referring to issues of
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`punishment when instructing the jury on the offense of aggravated identity theft.
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`We disagree.
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`In general, “juries are not to be informed of or concerned with the
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`consequences of their verdicts.” United States v. Thigpen, 4 F.3d 1573, 1577 (11th
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`Cir. 1993) (en banc). Except in limited cases, the jury has no sentencing
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`functioning, and matters of punishment should not be considered in arriving at a
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`verdict as to guilt or innocence. Id. Informing jurors about the consequences of
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`their verdicts tends to draw jurors’ attention away from their sole role as judges of
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`the facts and to open the door to compromise verdicts or confusion of the issues to
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`be decided. Id. We have specifically stated that “[t]his court does not approve of
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`6 We also note that our interpretation is consistent with other circuit courts’ construction
`of the predicate felony definitions in § 1028A(c). See, e.g., Abdur-Rahman, 708 F.3d at 101-02;
`United States v. Harrell, 637 F.3d 1008, 1010-12 (9th Cir. 2011); United States v. Persichilli,
`608 F.3d 34, 40-41 (1st Cir. 2010).
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`10
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`informing a jury of a minimum or maximum punishment.” United States v. Cox,
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`696 F.2d 1294, 1296 (11th Cir. 1983).
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`Here, when instructing the jury on the offense of aggravated identity theft,
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`the district court began by stating, consistent with this Circuit’s pattern jury
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`instruction, “Now the law provides for an enhanced penalty when anyone commits
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`aggravated identity theft during and in relation to other certain specified felony
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`offenses.” (emphasis added). Thus, the court made a passing reference to
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`punishment that arguably violated the “canon that juries are not to be informed of
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`or concerned with the consequences of their verdicts.” Thigpen, 4 F.3d at 1577.
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`However, a reference to punishment in jury instructions alone does not
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`necessarily constitute error. For example, in Cox, the judge gave the jury the
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`following instruction: “the Judge, under the law, is permitted to impose anything
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`from a term of probation or a fine up to the maximum term of imprisonment that
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`Congress has set.” 696 F.2d at 1298. Noting that this Court “prefers no reference
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`to sentencing whatsoever,” we nonetheless found that the instruction was not
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`erroneous because it “in no way intimated what punishment [the judge] might be
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`inclined to give,” and the judge “consistently informed the jury that potential
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`punishment was not their concern.” Id. at 1298-99.
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`Similarly, in this case, the district court’s passing reference to sentencing in
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`no way intimated the likely consequences of finding Hope guilty. The court did
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`not state that a two-year term of imprisonment applies. See 18 U.S.C.
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`§ 1028A(a)(1). And a jury might reasonably infer that finding Hope guilty of any
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`additional offense, particularly one with “aggravated” in its title, might result in an
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`“enhanced penalty,” whether instructed by the court to that effect or not. The
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`reference to “enhanced” also serves to highlight that aggravated identity theft is a
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`crime in addition to the predicate felony of health-care fraud.
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`And the district court expressly told the jury that punishment was not their
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`concern. Later in its instructions, the court stated, “You must never consider
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`punishment in any way to decide whether the Defendant is guilty. If you find the
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`Defendant guilty, the punishment is for the Judge alone to decide later.” Further,
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`the court instructed, “Remember that, in a very real way, you’re judges—judges of
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`the facts. Your only interest is to seek the truth from the evidence in the case.” We
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`presume that juries follow the court’s instructions. Thigpen, 4 F.3d at 1577.
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`Therefore, in view of the court’s express instructions not to consider punishment in
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`any way and only “to seek the truth from the evidence in the case,” Hope has not
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`shown that mere reference to an “enhanced penalty” was erroneous. See Cox, 696
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`F.2d at 1298-99; see also United States v. Cochran, 683 F.3d 1314, 1319 (11th Cir.
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`2012) (we analyze the objected-to portion of the instruction in light of the entire
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`charge, keeping in mind that apparently prejudicial isolated comments may be
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`innocuous in context).
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`Nor do the circumstances indicate that the “enhanced penalty” instruction
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`had any effect on the outcome of the case. United States v. Prather, 205 F.3d
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`1265, 1271 (11th Cir. 2000) (stating that reversal on plain error is only appropriate
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`if the challenged instruction “was probably responsible for an incorrect verdict,
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`leading to substantial injustice” (internal quotation marks omitted)). In short, the
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`court did not err in giving the “enhanced penalty” instruction.
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`C.
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`Admission of “Wealth Evidence”
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`Hope next argues that the district court plainly erred in allowing the
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`government to introduce evidence of her wealth, luxury purchases, vacation
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`expenses, and automobile leases. She asserts that the admission of such “wealth
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`evidence” constituted plain error because the evidence was irrelevant to the issues
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`before the jury and biased the jury against her.
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`For instance, at trial, during its case in chief, the government elicited
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`testimony from the case agent regarding a “rare elite type of corporate card” issued
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`to HNS. He described various charges on the card, including numerous purchases
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`of luxury items (with details of particular purchases and specific dollar amounts),
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`stays at luxury resorts, and lease payments for “high-end” BMW automobiles.
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`Another witness testified that she had reviewed HNS’s financial records, which
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`showed payments on boat loans, jewelry, and the BMW automobiles. Then, after
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`Hope testified in her defense that the billing process had been a bureaucratic
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`nightmare, the prosecutor cross-examined Hope about numerous luxury purchases
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`and whether these were part of her “nightmare.” Specifically, the prosecutor
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`referred to luxury purchases from high-end designers such as Chanel, Gucci, and
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`Louis Vuitton. The prosecutor cited this evidence in closing arguments.
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`Whether evidence of wealth is properly admissible depends on the specific
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`facts of the case. See United States v. Nill, 518 F.2d 793, 802 (5th Cir. 1975) (“A
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`man’s wealth is wholly irrelevant to his guilt or innocence in a criminal
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`prosecution unless the wealth is directly connected to the offense for which he is
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`standing trial.”). On the one hand, “[u]se of a defendant’s wealth to appeal to class
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`bias can be highly improper and can deprive that defendant of a fair trial.” United
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`Bradley, 644 F.3d 1213, 1271 (11th Cir. 2011) (internal quotation marks omitted).
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`But on the other, “evidence of wealth or extravagant spending may be admissible
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`when relevant to issues in the case and where other evidence supports a finding of
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`guilt.” Id.
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`We have noted that it is often difficult to determine whether wealth evidence
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`is “intended to appeal to class bias or to establish a fact in issue.” Id. Therefore, a
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`court’s determination of whether wealth evidence is relevant under Rule 401, Fed.
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`R. Evid., and whether the evidence’s probative value is substantially outweighed
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`by its unfair prejudice under Rule 403, Fed. R. Evid., must turn on the specific
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`facts of the case. Id.; see also United States v. Jackson-Randolph, 282 F.3d 369,
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`378 (6th Cir. 2002) (delineating factors to analyze whether wealth evidence is
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`unfairly prejudicial). Rule 403 is “an extraordinary remedy that should be used
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`sparingly,” and in reviewing Rule 403 issues “we look at the evidence in the light
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`most favorable to its admission, maximizing its probative value and minimizing its
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`undue prejudicial impact.” United States v. Flanders, 752 F.3d 1317, 1335 (11th
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`Cir. 2014) (quotation marks omitted), cert. denied, (U.S. Jan. 26, 2015) (No. 14-
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`7642).
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`Here, the admission of evidence regarding Hope’s wealth and luxury
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`purchases was not erroneous because it was relevant to the issues in the case, and
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`other evidence supports Hope’s guilt. See Bradley, 644 F.3d at 1271. Some of the
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`evidence was relevant to establishing the fraudulent nature of specific claims. For
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`example, evidence of Hope’s expenditures while on vacation showed that
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`Medicaid was billed for services on dates when Hope was not at HNS.
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`The wealth evidence was also relevant to rebutting Hope’s defenses to the
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`charges. As part of her defense, Hope contended that she used the $4 million to
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`put into her practice and to pay her employees, who, according to her attorney’s
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`opening statement, “put that money in their bank account.” Evidence of Hope’s
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`lavish personal spending during the period in which the offenses occurred supports
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`the opposite inference—that the majority of the money was going directly to Hope
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`for her personal benefit. Hope also argued that she did not knowingly commit
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`fraud, but rather that the overpayments were the result of billing errors. The
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`wealth evidence was relevant to this defense because it supports an inference that
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`Hope did not honestly believe that she was receiving payments from Medicaid as a
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`result of billing errors or other mistakes, and also that she was the person
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`responsible for the scheme.
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`The evidence also goes to Hope’s motive to commit the offenses. Hope
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`argues that motive was irrelevant by pointing to the prosecutor’s statement to the
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`jury that he did not “need to show you why somebody committed a crime.”
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`However, the fact that motive is not an element of the offense requiring proof does
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`not mean that it is irrelevant. As we have stated, “Evidence, not part of the crime
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`charged but pertaining to the chain of events explaining the context, motive and
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`set-up of the crime, is properly admitted if linked in time and circumstances with
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`the charged crime, or forms an integral and natural part of an account of the crime,
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`or is necessary to complete the story of the crime for the jury.” United States v.
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`Williford, 764 F.2d 1493, 1499 (11th Cir. 1985); see also Fed. R. Evid. 404(b)(2)
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`(noting that evidence of prior bad acts may be admissible for the purpose of
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`proving motive).
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`In sum, the evidence of Hope’s wealth and spending was relevant to facts at
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`issue in Hope’s trial. See Bradley, 644 F.3d at 1271-72. In addition, a substantial
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`amount of other credible evidence of the illegal activity was presented. See id. at
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`16
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`Case: 14-12462 Date Filed: 05/07/2015 Page: 17 of 25
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`1271. In view of these facts, we cannot say that the probative value of the wealth
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`evidence was substantially outweighed by a danger of unfair prejudice. See
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`Flanders, 752 F.3d at 1335. Therefore, the district court did not commit error,
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`plain or otherwise, in admitting the evidence.
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`D.
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`Prosecutorial Misconduct
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`Hope contends
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`that
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`the government’s closing argument constituted
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`prosecutorial misconduct because it included several unduly inflammatory
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`statements and an improper “Golden Rule” argument.
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`The sole purpose of closing argument is to assist the jury in analyzing the
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`evidence presented at trial. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.
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`1997). To establish prosecutorial misconduct in closing argument, the defendant
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`must show that the prosecutor’s remarks were (1) improper and (2) prejudicially
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`affected her substantial rights. United States v. Lopez, 590 F.3d 1238, 1256 (11th
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`Cir. 2009). We first explain the comments Hope challenges on appeal, then
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`address whether they were improper, and finally proceed to the question of
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`prejudice.
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`1.
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`The prosecutor’s comments
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`Hope points to the following four allegedly improper comments by the
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`prosecutor: first, in discussing the data regarding the large number of claims Hope
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`submitted to Medicaid for services, the prosecutor stated, “Are you kidding me
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`Case: 14-12462 Date Filed: 05/07/2015 Page: 18 of 25
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`with this? Really? 7,000 kids? 7,000 kids in one month. You all can do the math.
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`That’s like 225 kids a day. 940 kids on September 11th of 2006. It makes me sick
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`to think that September 11th, I’m going to remember it for this (indicating).”
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`Second, in reference to testimony that untrained HNS employees pricked the
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`fingers of Head Start children purportedly to obtain hemoglobin measurements, the
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`prosecutor stated,
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`What was truly horrifying to me -- and I don’t know if
`you caught this -- but you’ve got some folks that are up
`there testifying about how they’re pricking the fingers of
`these children -- no training, nothing. They’re stabbing
`these little kids.
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`How would you feel, ladies and gentlemen, if you sent
`your kid to some center and have some stranger, high
`school educated person, that’s going bing and stabbing
`your kid with a pin? I don’t think you’d be too happy.
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`Third, the prosecutor commented on Marissa Garcia, an HNS employee who
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`testified at trial, as follows: “And you heard Marissa Garcia. Marissa Garcia is
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`probably one of the funniest witnesses that I’ve seen in quite a long time. She got
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`up there, and she was honest.”
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`Finally, in rebuttal closing argument, the prosecutor stated,
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`Ladies and gentlemen, counsel quotes for you a Biblical
`verse. Let me quote for you from the Old Testament, one
`other thing I’d like you to think about when you go back
`there, one of the Ten Commandments. You might have
`heard of it. “Thou shalt not steal.” That’s what this case
`has been about.
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`2. Whether the comments were improper
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`Improper suggestions, insinuations, or assertions that are calculated to
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`produce a wrongful conviction by misleading the jury or appealing to the jury’s
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`passion or prejudice are forbidden in closing arguments. United States v.
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`Rodriguez, 765 F.2d 1546, 1559-60 (11th Cir. 1985). However, “there is no
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`prohibition on colorful and perhaps flamboyant remarks if they relate to the
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`evidence adduced at trial.” Bailey, 123 F.3d at 1400 (internal quotation marks
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`omitted).
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`Remarks can also be improper “if they attempt to bolster the credibility of a
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`witness based on the government’s reputation or through alluding to evidence not
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`admitted at trial.” Lopez, 590 F.3d at 1256. Improper bolstering occurs if the “jury
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`could reasonably believe that the prosecutor was indicating a personal belief in the
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`witness’ credibility.” Id. (quotation marks omitted). However, this prohibition
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`does not forbid prosecutors from arguing credibility based on evidence admitted at
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`trial. Id.; see United States v. Schmitz, 634 F.3d 1247, 1270 (11th Cir. 2011) (“We
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`have no doubt that there are some cases where a prosecutor is justified in arguing
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`during closing arguments that a particular witness is lying, if that is an inference
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`supported by the evidence at trial.”).
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`We agree with Hope that the prosecutor’s closing arguments contained some
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`clearly improper statements. First, the prosecutor’s reference to September 11
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`was, in context, improper and appears calculated solely to appeal to the jury’s
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`passion or prejudice. While the reference to the number of claims HNS submitted
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`on September 11, 2006, in and of itself, was based on the evidence presented, the
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`prosecutor went further. In stating that “it “makes [him] sick” to think that he’ll
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`remember September 11 for Hope’s Medicaid fraud, the prosecutor implied that
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`the juries should also be disgusted not solely by the evidence of Hope’s actions but
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`rather by some specious connection to an emotionally charged event. Therefore,
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`the remark was improper because it was intended solely to inflame.
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`Second, the prosecutor made an improper appeal to the jurors’ emotions by
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`asking the jurors to place themselves in the position of parents whose children
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`were “stabb[ed] with a pin” by HNS employees without medical backgrounds or
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`training. See United States v. McGarity, 669 F.3d 1218, 1246 (11th Cir. 2012); cf.
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`Grossman v. McDonough, 466 F.3d 1325, 1348 (11th Cir. 2006) (habeas case
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`discussing improper “Golden Rule” arguments under Florida law). Alone, the
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`prosecutor’s simple use of the word “stab” as opposed to “prick” would not have
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`been improper because it related to evidence admitted at trial and emphasized the
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`government’s position that the services HNS provided to Head Start children were
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`fraudulent. But, in context, the remarks—particularly the invitation to the jurors to
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`put themselves in the positions of the children’s parents—plainly were an improper
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`appeal to the jurors’ emotions.
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`We do not find that the other remarks challenged by Hope were improper.
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`With respect to the statement that Garcia was “honest,” the prosecutor did not
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`improperly vouch for a witness’s credibility. After stating that Garcia was honest,
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`the prosecutor went on to discuss her testimony and the other evidence introduced
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`at trial. Therefore, in context, we understand the prosecutor’s “honest” remark to
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`be an argument in favor of finding Garcia credible based on her behavior on the
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`stand and the evidence admitted. See Lopez, 590 F.3d at 1