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

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________
U NITED S TATES OF A MERICA , Plaintiff-Appellee,

v. J AY S CHMELTZ , Defendant-Appellant. X - - - - > , - - - N No. 11-3140

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 09-00182-002—David A. Katz, District Judge. Argued: October 14, 2011 Decided and Filed: December 20, 2011 Before: ROGERS, COOK, and WHITE, Circuit Judges.

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

_________________ OPINION

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

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a specific unanimity instruction violated his right to a unanimous verdict. Finding no error, we affirm.
I. On May 30, 2004, doctors at St. Vincent’ s Hospital discharged Carlton Benton, releasing him into the custody of two depu ties of the Lucas County Sheriff’s Office, Patrick Mangold and defendant Jay Schmeltz. Benton, a pretrial detainee, had received treatment at the hospital for seizures. After the hospital discharged Benton, the two deputies attempted to extricate him from the web of handcuffs, medical equipmen t, and leg irons binding him to his hospital bed. Benton resisted, and a thirty-minute struggle ensued. With the help of a third deputy, mace, and blows to Benton’s to rso and upper body, Schmeltz and Mangold subdued him and shifted him into a wheelch air for easier transport. With Benton restrained and in the wheelchair, the deputie s were able to load him into a waiting van and take him on the ten-minute drive to jail without further incident. Sergeant John Gray and several other de puties met Mangold and Schmeltz at the jail to assist with Benton. Together, the officers escorted Benton, now out of the wheelchair and on foot, to the booking area, his hands cuffed to a belly chain and leg irons restricting his gait to a shuffle of “short, unbalanced steps.” After pausing in the booking area to cons ider where to take Benton, Defendant Schmeltz shoved Benton in the direction of th e elevator. Benton, unable to break his fall because of his restraints, hit his head on th e wall and fell to the floor. A video camera set up in the booking area captured the incident. Schmeltz picked Benton up from the gr ound and, along with five other deputies, took him to a medical unit on th e second floor of the jail. Once in the cell, the officers placed Benton on a bed, face down, and attempted to remove his restraints. Benton resisted again, frustrating the officers’ attempts. Finally, Sergeant Gray, one of the deputies assisting Schmeltz, subdued Benton w ith a “carotid artery restraint hold,” moreNo. 11-3140 United States v. Schmeltz Page 3
commonly known as a “sleeper hold,” that rendered Benton unconscious. As Benton lay motionless on the bed, the officers removed his restraints and left the cell. Later that day, a nurse discovered Benton still unconscious while performing her rounds. The nurse examined Benton, found that he was not breathing, and performed CPR. Benton never regained consciousness and died two days later. Following the incident, Schmeltz prepar ed two “Corrections Officer Reports” describing the events surrounding Benton’s tr ansport from the hospital—one dated May 30, 2004, the other dated June 1, 2004. The earlier report followed the discovery of Benton unconscious in his cell; the later report resulted from Schmeltz’s supervisor’s request that he clarify one aspect of the earlier report. Neither report included any account of Schmeltz’s shoving Benton or Gr ay’s rendering Benton unconscious with a sleeper hold. An investigation followed Benton’s death. Ultimately, a grand jury charged Schmeltz and three other officers with various crimes in connection with their use of force on Benton and their alleged attempt to conceal their actions during the investigation. This appeal targets only Counts 6 and 7 of Schmeltz’s indictment.
Count 6 read: On or about May 30, 2004, in the Northern District of Ohio, Western Division, JAY M. SCHMELTZ, defendant herein, acting in relation to and in contemplation of a matter with in the jurisdiction of an agency of the United States, knowingly falsified a document—specifically an official Correction Officer Report re flecting his actions, and the actions of his fellow corrections officers, in relation to uses of physical force on C.B. on May 30, 2004—with the intent to impede, obstruct, and influence the investigation and proper administration of that matter. Specifically, SCHMELTZomitted from his official report any mention of his assault of C.B. in the Jail’ s Booking area; any mention of John E. Gray’s use of a “sleeper hold” on C. B.; and any mention of the fact that Gray had rendered C.B. unconscious with the sleeper hold

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Count 7 charged as a separate crime Schme ltz’s submission of the second report, citing the same three omissions. Both counts char ged Schmeltz with falsifying an official report in violation of 18 U.S.C. § 1519, which penalizes [w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matte r within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter or case . . . . The jury found Schmeltz guilty of fals ifying the May 30th report and not guilty of the crime with respect to the later report. The district court sentenced him to twelve months and one day’s imprisonment. Schmeltz appeals.
II. This appeal marks the first time that Schmeltz challenges Count 6 as unconstitutional or duplicitous. We thus review only for plain error. See United States v. Boyd , 640 F.3d 657, 666 (6th Cir. 2011). At bottom, Schmeltz argues that Count 6 “set[] forth separate and distinct crimes in one count” by basing the charge of falsifying a report on three separate omissions. See United States v. Kakos , 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v. Davis , 306 F.3d 398, 415 (6th Cir. 2002)). Becau se Count 6 was duplicitous, Schmeltz argues, the district court erred in not instru cting the jury that it must unanimously agree as to which of the three omissions supported a guilty finding, rather than agree that Schmeltz generally falsified the report. Because Count 6 charged only one crime, we find no error.
Schmeltz takes issue with the district court’s instruction that In order to return a guilty verdict, all 12 of you must agree as to each count and each defendant that at least one way of violating the statute has been proved; however, all of you need not agree that the same way has been proved.No. 11-3140 United States v. Schmeltz Page 5
This instruction mirrors the Sixth Circuit Pattern Jury Instruction appropriate where “the indictment alleges that the defendant committed a single element of an offense in more than one way.” Sixth Circuit Pattern Jury Instructions § 8.03B(2) note (2011). The district court’s instruction was not erroneous. We approved of a conceptually similar instruction in United States v. Cromer , noting that “[a]lthough a jury must unanimously find that the governme nt has proven each element of a crime, it ‘need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element. ’” No. 09-5853, 2011 WL 3715110, at *2 (6th Cir. Aug. 25, 2011) (quoting Richardson v. United States , 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)). A charge for fals ifying a document under § 1519 requires the government to prove (1) that Schmeltz “kno wingly . . . fals[ified] or[] ma[de] a false entry in” his Correction Officer Report; (2) th at the Correction Officer Report related to a “matter within the jurisdiction of any depart ment or agency of the United States”; and (3) that Schmeltz falsified or made a fals e entry in the Correction Officer Report “with the intent to impede, obstruct, or influen ce the investigation” of a matter within the agency’s jurisdiction. See 18 U.S.C. § 1519; United States v. Hunt , 526 F.3d 739, 743 (11th Cir. 2008). Jurors could therefore di sagree about what Schmeltz omitted from the reports while unanimously agreeing on the ultimate issue: that Schmeltz knowingly falsified his Corrections Officer Report with the intent to impede a federal investigation. Seizing upon the phrase “false entry in any record” in § 1519, Schmeltz argues that Count 6 was duplicitous because the omissions from his report constitute separate false entries and therefore present three separate violations of § 1519. See, e.g. , United States v. Dedman , 527 F.3d 577, 600 n.10 (6th Cir. 2008) (reasoning that a count alleging multiple false statements in violation of 18 U.S.C. § 1001 may have been duplicitous because the false statements c onstituted “entirely separate offenses”); United States v. Duncan , 850 F.2d 1104, 1111 (6th Cir. 1988) (concluding that an indictment alleging separate false statements for onecount of violating 26 U.S.C. § 7206 was duplicitous after finding that the “essence of th e statute lies in the willful falsity of the statement”), overruled on other grounds by Schad v. Arizona , 501 U.S. 624, 111 S.Ct.No. 11-3140 United States v. Schmeltz Page 6
2491, 115 L.Ed.2d 555 (1991). However, Schmeltz was not charged with making “a false entry,” but rather the indictment allege d he “falsified a document.” Indeed as the Government made clear at oral argument, the “f alse entry” charge is usually reserved for entries made on pre-existing forms rather than narrative reports. Accordingly, the present appeal turns on whether § 1519 criminalizes the creation of a false document , the government’s view; or individual false statements , Schmeltz’s view. Under the circumstances that this case pr esents, the falsification statute plainly criminalizes the creation of a false documen t. Apart from the statute’s prohibition of “mak[ing] a false entry,” § 1519 proscribes several other means of tampering with a document germane to a federal investigation: the statute punishes whoever “alters, destroys, mutilates, conceals, covers up, [or] falsifies” a document. 18 U.S.C. § 1519. Each of the listed verbs acts upon the entire “record, document, or tangible object.” Accord S. Rep. No. 107-146, at 13 (2002) (“The intent of [§ 1519] is simple; people should not be destroying, altering, or fals ifying documents to obstruct any government function.”). Further, Schmeltz’s indictment alleged that he had “ falsified a document —specifically an official Correction Officer Report reflecting his actions.” The “falsifies” clause of § 1519 was thus intended to punish the falsification of a document, rather than specific statements or omissions within a document. Accordingly, Schmeltz could violate § 1519 once—and no more than once—by falsifying his May 30th report with his omissions. Because Count 6 charged only one offense, the district court did not err in instructing the jury.
III. We accordingly AFFIRM Schmeltz’s conviction.