*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50889

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIE BOWSER,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

(A-95-CR-158-ALL)

_________________________________________________________________

November 19, 1997

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Marie Ann Bowser appeals from her convictions for embezzling

and conspiring to embezzle funds in excess of $5,000 from a

federally funded state agency, the Texas Employment Commission

(“TEC”), in violation of 18 U.S.C. §§ 371, 641, 666 and for

knowingly making a false oath or account in a bankruptcy proceeding

in violation of 18 U.S.C. § 152. She challenges her conviction

under 18 U.S.C. § 666 (Count 2) on duplicity grounds, and argues
1Bowser does not challenge on appeal her conviction of Count

3--violation of 18 U.S.C. § 641.

2

that the conspiracy count must also fall by reason of the same

error. She challenges her conviction under 18 U.S.C. § 152 (Count

4) for Gaudin error.1 Bowser further claims the district court

erroneously enhanced her sentence under the Guidelines. After a

careful review of the record and the parties’ briefs, we reverse

Bowser’s conviction under § 152, uphold her remaining challenged

convictions, and affirm the sentence enhancement.

I

The acts charged in Count 2--violation of § 666--comprise a

single scheme with the actual offense being the entire scheme and

not each individual transaction. The consolidation here was proper

and the indictment not duplicitous even though each bad act alone

could constitute an offense. See United States v. Robin, 693 F.2d

376, 378 (5th Cir. 1982).

Furthermore, with respect to her lack of unanimity argument,

the government did not have to prove any dissimilar facts to obtain

a conviction under Count 2; Bowser admitted to cashing each check.

The only disputed issue was whether she possessed a culpable mens

rea when she did so. That was the only issue before the jury with

respect to Count 2 and there is no possibility that the verdict was
2Our opinion upholding Bowser’s conviction under Count 2

effectively moots her argument that the conspiracy count must fall.

3

not unanimous. Bowser’s arguments with respect to Count 2 are

meritless.2

II

Bowser also maintains that her conviction of Count 4--

knowingly making a false oath in a bankruptcy proceeding in

violation of 18 U.S.C. § 152--should be reversed. She argues that

the court committed Gaudin error when it refused to submit the

issue of materiality to the jury and that her conviction of this

offense must be reversed. We agree.

The government did not object to the court’s instruction

regarding materiality. In fact, the court utilized the instruction

proffered by the government. The record clearly demonstrates that

the government never questioned the validity of materiality as an

essential element of the offense. As such, the government is bound

by the law of the case and materiality is an element in this

action. United States v. Taylor, 933 F.2d 307, 309-10 (5th Cir.

1991).

The district court, over defense objection, ruled that the

question of materiality was a question of law and instructed the

jury that it need not consider whether “the false statements were
4

material. This is a question of law which the court has determined

has been satisfied.”

It is generally agreed that a defendant has a right guaranteed

by the Fifth and Sixth Amendments to have a jury pass on all

elements of a charge lodged against her. United States v. Gaudin,

115 S.Ct. 2310, 2318, 2320 (1995). A unanimous Supreme Court has

held that this mandates a jury finding beyond a reasonable doubt as

to the element of materiality. Id. (“The trial judge’s refusal to

allow the jury to pass on the ‘materiality’ of Gaudin’s false

statements infringed that right.”) (discussing 18 U.S.C. § 1001).

When this element is withheld from the jury, as in this case, this

court has determined that harmless error review is inapplicable and

the conviction is fatally flawed. United States v. Pettigrew, 77

F.3d 1500, 1511 (5th Cir. 1996) (discussing 18 U.S.C. § 1006).

Because the trial court committed Gaudin error and Bowser timely

objected to such error, Pettigrew mandates that we vacate Bowser’s

conviction under 18 U.S.C. § 152.

III

Bowser further contends that the district court erred by

imposing a 2-level upward adjustment for obstruction of justice. 

While stated somewhat unartfully, the district court’s finding of

perjury is not clearly erroneous. Bowser’s arguments with respect
5

to this issue are unpersuasive and we affirm the district court’s

application of the enhancement provision.

IV

In conclusion, Bowser’s argument that Count 2 of the

indictment was duplicitous and subjected her to a nonunanimous

verdict is meritless. However, we reverse Bowser’s conviction

under 18 U.S.C. § 152 because she properly preserved her objection

to the court’s Gaudin error and Pettigrew mandates that we not

allow her conviction of that offense to stand. Finally, the

district court did not clearly err when it found that Bowser

perjured herself, and we affirm the court’s sentence enhancement

under the Guidelines.

For the foregoing reasons, the judgment of the district court

is AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings not inconsistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.