UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4220

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

PHYLLIS DOTY,

Defendant – Appellant. 

Appeal from the United States District Court for the Southern District of West Virginia, at 

Charleston. David A. Faber, Senior District Judge. (2:18-cr-00034-1)

Submitted: March 11, 2020 Decided: October 21, 2020

Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by unpublished opinion. Judge Richardson wrote the opinion, in which Judge 

Motz and Judge Wynn joined.

James McCall Cagle, Charleston, West Virginia; Jeaneen J. Legato, LEGATO LAW, 

PLLC, Charleston, West Virginia; for Appellant. Michael B. Stuart, United States 

Attorney, Erik S. Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

West Virginia, for Appellee.
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RICHARDSON, Circuit Judge:

A jury convicted Defendant Phyllis Doty on eight counts of wire fraud, mail fraud, 

theft from a federally funded program, and aggravated identity theft. Doty argues that the 

charges against her are multiplicitous, duplicitous, and motivated by prosecutorial 

vindictiveness. But finding no error in the district court’s rejection of these claims, we 

affirm.

I. Background

From 1998 to 2013, Doty served as a curriculum director and from 2013 to 2016, as 

the school superintendent in Logan County, West Virginia. As superintendent, Doty was 

an agent of the Logan County Board of Education (“Board”), which annually received

more than $10,000 a year in federal Title I grants. 

In 2015, the FBI began to investigate the misuse of Logan County school funds. 

The investigation revealed that Doty had used school funds for personal purchases and had 

directed the Board to purchase Apple devices that Doty then gifted to family members or 

sold on eBay. The eBay account used to sell the devices, “jack1545,” was registered to 

Doty’s husband, Jack Doty, at the Dotys’ home address and was linked to an email address 

that Doty shared with her husband. These eBay sales used a PayPal account that was also 

linked to Doty. Bank records confirmed the deposit of the PayPal transactions into the 

Dotys’ joint bank account. In 2011, for instance, Doty used the Board’s funds to buy ten 

iPods, seven of which she promptly sold on eBay. 

In 2013, Doty again used the Board’s money to buy Apple products for personal use 

and resale. In July 2013, Doty bought six iPads for $3,924. She stated on the requisition
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form that five of the iPads were for “Board Members.” J.A. 63. Apple shipped the iPads 

to the Board’s address. Four of those iPads were then registered to Doty’s family members. 

Then in December 2013, Doty again used money from the Board to buy $1,180 worth of 

iPods, claiming falsely that they were “for Christmas Choral Performance” and were to be 

given to school music teachers. J.A. 477–80. Instead, she gave three to family members 

for Christmas and sold another on eBay. 

In 2015, Doty used Board funds totaling $6,800 to purchase items to supply and 

decorate her son’s wedding. See, e.g., J.A. 177−80. Doty falsely specified on the Board’s

requisition form that the items were for “Competitions” and that they were to be shipped

to the middle school. The items remained unattended and boxed at the school until Doty 

retrieved them for the wedding.

A federal grand jury returned a five-count indictment against Doty in February 

2018. That indictment included two wire-fraud counts, 18 U.S.C. § 1343, two counts of 

theft from programs receiving federal benefits, 18 U.S.C. § 666(a)(1)(A), and one mailfraud count, 18 U.S.C. § 1341. After a flurry of motions, the district court granted Doty’s 

motions to dismiss the two theft counts without prejudice because the conduct charged did 

not fall within a one-year period in which the school was alleged to have received more 

than $10,000 of federal benefits. J.A. 151–52.1

 The grand jury superseded the indictment 

1 The relevant portions of 18 U.S.C. § 666 read: 

(a) Whoever, if the circumstance described in subsection (b) of this section 

exists—

(1) being an agent of an organization, or of a State, local, or Indian 

tribal government, or any agency thereof—

(Continued)
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in July 2018 to correct the timing error, reinstate the theft counts, and add another wirefraud count. As the investigation continued to reveal the extent of Doty’s fraudulent

conduct, the grand jury again superseded the indictment in August 2018 to add charges. In 

total, Doty was charged with four wire-fraud counts (Counts 1–3 and 7), one mail-fraud 

count (Count 6), two counts of theft from programs receiving federal benefits (Counts 4–

5), and one count of aggravated identity theft (Count 8). 

Doty entered a not-guilty plea and sought to dismiss the second superseding 

indictment for multiplicity, duplicity, and prosecutorial vindictiveness. The district court 

denied her motions, and the jury found Doty guilty on all eight counts. She was sentenced

to 42 months’ imprisonment for Counts 1–7 and a consecutive 24-month term for Count 8. 

The court also ordered Doty to pay $25,083.10 in restitution along with $800 of special 

assessments. 

After trial, Doty moved for a judgment of acquittal or, in the alternative, a new trial, 

alleging prosecutorial vindictiveness, trial error, insufficient evidence, and other matters. 

(A) embezzles, steals, obtains by fraud, or otherwise without 

authority knowingly converts to the use of any person other 

than the rightful owner or intentionally misapplies, property 

that—

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control 

of such organization, government, or agency; . . .

shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the 

organization, government, or agency receives, in any one year period, 

benefits in excess of $10,000 under a Federal program involving a grant, 

contract, subsidy, loan, guarantee, insurance, or other form of Federal 

assistance.
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She then moved to supplement her post-judgment motion based on newly discovered 

evidence—a recently conducted Board audit that covered her tenure as superintendent. The 

district court denied these motions in a memorandum opinion. See J.A. 334−56. After the 

district court entered judgment, Doty timely filed a notice of appeal. We have jurisdiction 

under 28 U.S.C. § 1291.

II. Discussion

A. Multiplicity

Doty first contends that the indictment should have been limited to one fraud count 

instead of multiple mail- and wire-fraud counts. Charging a single offense in multiple

counts is multiplicitous. See United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005).

And the “‘danger’ of a multiplicitous indictment is that a defendant might thereby receive

multiple punishments for the same crime.” Id. We review this claim de novo. See United 

States v. Stewart, 256 F.3d 231, 247 (4th Cir. 2001).

Concerns about multiplicitous indictments find their roots in the Double Jeopardy 

Clause. See U.S. CONST. amend. V; United States v. Schrader, 675 F.3d 300, 313 (4th Cir. 

2012). The Double Jeopardy Clause ensures that “[n]o person shall . . . be twice put in 

jeopardy” for the “same offence,” U.S. CONST. amend. V (emphasis added), “not for the 

same conduct or actions,” Gamble v. United States, 139 S. Ct. 1960, 1965 (2019). So to 

address Doty’s argument, we must first identify what constitutes an offense. The Supreme 

Court has stated that “offence” originally meant “the Violation or Breaking of a Law,” so 

an “offence is defined by a law.” Id. (cleaned up). In our federal system, Congress 

possesses the power to define criminal offenses by statute. See Whalen v. United States, 
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445 U.S. 684, 689 & n.3 (1980) (“[W]ithin our federal constitutional framework the 

legislative power . . . to define criminal offenses . . . resides wholly with the Congress.”). 

The wire-fraud statute (much like the mail-fraud statute) makes it a crime for anyone

“having devised or intending to devise any scheme or artifice to defraud” to “transmit[] or 

cause[] to be transmitted by means of wire, radio, or television communication in interstate 

or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of 

executing such scheme or artifice.” 18 U.S.C. § 1343. The government must prove (1) 

that the defendant devised a scheme to defraud, and (2) that, to execute the scheme, the 

defendant transmitted any writing or signal by wire in interstate commerce. United States 

v. Curry, 461 F.3d 452, 457 (4th Cir. 2006). Mail fraud requires the same two elements—

substituting use of the mail for use of a wire. See 18 U.S.C. § 1341; Schmuck v. United 

States, 489 U.S. 705, 721 (1989); United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 

2001).

We have explained that in a mail- or wire-fraud prosecution, “it is settled that each 

mailing or wire transmission in furtherance of the fraud scheme constitutes a separate 

offense, and it may be separately punished.” United States v. Jefferson, 674 F.3d 332, 367 

(4th Cir. 2012). This conclusion, we reasoned, complied with double-jeopardy principles 

because although multiple mail- or wire-fraud offenses charged in an indictment may arise

from a single fraud scheme, each separate mailing or wiring is being punished, not the 
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overall scheme itself. Id. So long as multiple mailings or wirings occur, multiple counts 

for the same type of conduct may stand.2 

The indictment here charges separate mail- and wire-fraud offenses based on each 

use of a wire or the mail by Doty. J.A. 163−65, 168−69. As a result, the multiple counts 

were not multiplicitous.

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B. Duplicity

Doty contends that her two government-theft offenses charged under § 666(a)(1)(A) 

are duplicitous. Charging multiple offenses in a single count is duplicitous. United States 

v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993); see also United States v. Stanley, 597 F.2d 

866, 871 (4th Cir. 1979) (Federal Rule of Criminal Procedure 8(a) requires a separate count 

2 Similarly, in Ebeling v. Morgan, the defendant was convicted of six counts of 

opening mail bags after opening six mail bags in succession. 237 U.S. 625, 627–28 (1915). 

The Court considered the language of the statute: “Whoever shall tear, cut, or otherwise 

injure any mail bag . . . with intent to rob or steal . . . shall be . . . imprisoned not more than 

three years.” Id. at 629. This language, the Court held, dictated that each act of opening a 

mail bag could be the basis of a separate count. Id. For the “offense is complete” when 

each bag is cut. Id. The statute in Ebeling, like the mail- and wire-fraud statutes, 

criminalizes an individual action that completes the offense. And each action can be 

charged in a separate count. 

3 The well-known double-jeopardy-clause test derived from Blockburger v. United 

States prohibits punishing a defendant for “two distinct statutory” offenses unless “each 

provision requires proof of a fact which the other does not.” 284 U.S. 299, 304 (1932). 

Doty’s claim that she could not be prosecuted for mail fraud, wire fraud, theft from a 

program receiving federal funds, and aggravated identity theft is meritless as each offense 

requires proof of an element that the others do not.

Doty also claims that the aggravated-identity-theft count, 18 U.S.C. § 1028A, is 

multiplicitous of the theft counts, 18 U.S.C. § 666(a)(1)(A). But as § 1028A(a)(1) concerns 

those who “knowingly transfer[], possess[], or use[], without lawful authority, a means of 

identification of another person,” the elements of this offense are satisfied by a different 

set of facts.
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for each offense). Like multiplicity, concerns about duplicitous indictments spring from 

the Double Jeopardy Clause. See U.S. CONST. amend. V; United States v. Burfoot, 899

F.3d 326, 337 (4th Cir. 2018). As this is a question of law, we review this claim de novo. 

Section 666(a)(1)(A) punishes an agent of a state, local, or tribal government who

“embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to 

the use of any person other than the rightful owner or intentionally misapplies, property” 

valued at $5,000 or more that is owned by or under the control of the government 

organization, when that organization “receives, in any one year period, benefits in excess 

of $10,000 under a Federal program.” 18 U.S.C. § 666(a)(1)(A), (b). A conviction thus

requires the government to prove that (1) the defendant was an agent of a state, local, or 

tribal government organization; (2) in a one-year period, the government organization 

received more than $10,000 of federal benefits; (3) the defendant embezzled, stole, 

obtained by fraud, knowingly converted to another, or intentionally misapplied property; 

(4) the property was owned by or in the custody, care, or control of the government 

organization; and (5) the property was worth at least $5,000. See United States v. AbuShawish, 507 F.3d 550, 554 (7th Cir. 2007).

The second superseding indictment charged two § 666(a)(1)(A) offenses, with each 

count including Doty’s conduct during a one-year period: from July 2013 to June 2014

(Count 4) and from January 2015 to December 2015 (Count 5). In doing so, Count 4 

included Doty’s use of Board money to buy iPads for $3,924 in July 2013 and iPods for 

$1,180 in December 2013. Count 5 included two orders of wedding supplies bought with 
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the Board’s money, one in February 2015 for $2,069.90 and another in March 2015 for 

$4,833.20.

Doty contends that each count contains more than one offense, rendering the 

indictment impermissibly duplicative. But the two uses of the Board’s money that make 

up Count 4—the July 2013 and the December 2013 Apple purchases—do not constitute 

separate offenses. For each theft fails to meet § 666(a)(1)(A)’s $5,000 threshold. Cf. 

United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999) (“An offense is committed when 

it is completed, that is, when each element of that offense has occurred.” (internal citations 

omitted)). The same is true of the wedding supply purchases charged under Count 5. The 

money used for either the February 2015 purchase or the March 2015 purchase standing 

alone was not sufficient to constitute an offense. So Doty’s claim that these counts are 

duplicitous fails, as the counts do not “join[] in a single count [ ] two or more distinct and 

separate offenses.” Burns, 990 F.2d at 1438 (quoting 1 Charles A. Wright, Federal 

Practice and Procedure § 142, at 469 (2d ed. 1982)).

Doty also suggests that § 666(a)(1)(A) prohibits aggregating “property” to reach the 

$5,000 threshold. We disagree. Section 666(a)(1)(A) prohibits “embezzl[ing], steal[ing], 

obtain[ing] by fraud, . . . knowingly convert[ing] . . . or intentionally misappl[ying] . . .

property that . . . is valued at $5,000 or more.” Nothing in that prohibition requires the 

“property” to be a single item or to have been taken at a single moment in time. The 

“property” may include the money used to buy a single item, like a lone iPad, or to buy a 

group of items, like six iPads. And the statute does not demand that the “property” be 

taken at a single moment in time. Cf. Schaffer v. United States, 362 U.S. 511, 517–18 
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(1960) (holding that related shipments over time may be aggregated to meet the $5,000 

threshold in 18 U.S.C. § 2314); United States v. Smith, 373 F.3d 561, 567−68 (4th Cir. 

2004) (noting that embezzling property under 18 U.S.C. § 641 may occur over time).

Because the statute is not limited either to a single item of property or property taken at a 

single moment in time, the two counts properly combined purchases to satisfy the $5,000 

threshold. See, e.g., United States v. Cruzado-Laureano, 404 F.3d 470, 484 (1st Cir. 2005)

(“The total value of funds stolen can be aggregated to satisfy the $5,000 minimum that 

triggers criminal liability under § 666.”).

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C. Prosecutorial vindictiveness

Before trial, Doty moved to dismiss several counts for prosecutorial vindictiveness. 

She claimed that the government improperly presented the grand jury with additional 

charges: one of the previously dismissed § 666(a)(1)(A) counts, two new wire-fraud 

4 We do not suggest, and need not find, that this aggregation has no bounds. 

Although the statute does not explicitly articulate a temporal limitation, it does provide a 

context clue. See United States v. Valentine, 63 F.3d 459, 462–63 (6th Cir. 1995). To be 

prosecuted under § 666(a), “the circumstance described in subsection (b) of [that] section 

[must] exist[].” 18 U.S.C. § 666(a). The relevant “circumstance” is that the government 

organization “receives, in any one year period, benefits in excess of $10,000 under a

Federal program.” § 666(b). And the one-year period must be “a continuous period that 

commences no earlier than twelve months before the commission of the offense or that 

ends no later than twelve months after the commission of the offense” and may include 

“time both before and after the commission of the offense.” § 666(d)(5). Conditioning the 

commission of the offense on the “exist[ence]” of this “circumstance” at least suggests a 

temporal limit. See, e.g., Valentine, 63 F.3d at 463; United States v. Hines, 541 F.3d 833, 

837 (8th Cir. 2008). We also need not determine whether this aggregation is limited to 

takings that are somehow related, because the takings in each count were related as part of 

a common scheme or plan. Cf. Schaffer, 362 U.S. at 517–18 (approving aggregation of 

related shipments of stolen goods); Hines, 541 F.3d at 837 (approving aggregation of 

multiple transactions that were part of a single plan or scheme).
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counts, and the aggravated-identity-theft count. And she claimed that the government did 

so without providing new evidence and only after her successful pretrial motion to dismiss 

the two § 666(a)(1)(A) counts. The district court denied Doty’s motion. We review this

denial for an abuse of discretion. United States v. Najjar, 300 F.3d 466, 480 (4th Cir. 

2002). 

“[A] prosecutor violates the Due Process Clause of the Fifth Amendment by 

exacting a price for a defendant’s exercise of a clearly established right or by punishing the 

defendant for doing what the law plainly entitles him to do.” United States v. Wilson, 262 

F.3d 305, 314 (4th Cir. 2001). To satisfy her claim, Doty “must show, through objective 

evidence, that (1) the prosecutor acted with genuine animus toward [her] and (2) [she]

would not have been prosecuted but for that animus.” Id. In other words, the charges must 

be brought “solely to ‘penalize’ the defendant and could not be justified as a proper exercise 

of prosecutorial discretion.” United States v. Goodwin, 457 U.S. 368, 380 n.12 (1982).

Bringing new charges in a superseding indictment before trial fails to create a 

presumption of vindictiveness. See Bordenkircher v. Hayes, 434 U.S. 357, 363–64 (1978)

(indicting a defendant on more serious charges after he rejected a plea bargain did not 

create a presumption of vindictiveness); see also Wilson, 262 F.3d at 315 (“[A] 

prosecutor’s charging decision is presumptively lawful.”). Doty has not made a “showing 

sufficiently strong to overcome the presumption of prosecutorial regularity” and has not 

otherwise provided evidence of actual prosecutorial animus. Wilson, 262 F.3d at 315−16; 
12

see also Appellant’s Br. 15−19 (failing to raise evidence of animus). We thus affirm the 

district court’s rejection of this argument.5

* * *

Phyllis Doty’s conduct was proscribed by statute and properly prosecuted. And so

we hold that the judgment of the district court is

AFFIRMED.

5 Doty also alleges that insufficient evidence supported the verdicts. “[V]iewing the 

evidence in the light most favorable to the government,” we reject Doty’s largely 

conclusory argument that no “rational trier of facts could have found the defendant guilty.” 

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). 

Finally, Doty objects to the district court’s restitution order. She first claims that 

the calculation reflected what she alleges was her husband’s conduct, instead of her own. 

Second, she claims that the value of the wedding supplies should not have been included

because those supplies were eventually returned to and used by the school. Appellant Br. 

29. Considering the evidence presented at trial, the district court did not err in finding that 

the relevant conduct was Doty’s, not her husband’s. And, even if Doty eventually left 

behind decorative urns, a colonnade, and other wedding accoutrements, the district court 

did not abuse its discretion in ordering full restitution of their purchase price. See 18 U.S.C. 

§ 3664(e) (“Any dispute as to the proper amount or type of restitution shall be resolved by 

the court by the preponderance of the evidence.”); United States v. Stone, 866 F.3d 219, 

224 (4th Cir. 2017) (reviewing preserved objections to restitution orders for abuse of 

discretion).