United States v. Carroll ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4968
MICHELANGELO CARROLL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-7-PJM)
Submitted: July 22, 1997
Decided: November 6, 1997
Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Christopher M. Davis, Washington, D.C., for Appellant. Lynne A.
Battaglia, United States Attorney, Stephen S. Zimmermann, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michelangelo Carroll appeals his conviction and sentence for
unlawful issuance of money orders on February 4 and 5, 1994, 18
U.S.C. § 500 (1994), during the course of his employment as a Rock-
ville, Maryland, post office window clerk. Carroll was acquitted on
three counts of conspiracy, theft of government monies, and misap-
propriation of government funds. He contends that the district court
abused its discretion in admitting evidence that an unexplained short-
age occurred in his personal cash drawer in November 1993. He also
maintains that the district court clearly erred in finding that he abused
a position of trust. United States Sentencing Commission Guidelines
Manual § 3B1.3 (1996). We affirm.
Afeni Berry Rucker worked part-time as a window clerk in the
same post office as Carroll between August 1993 and March 1994.
During that time, she was accepting checks stolen and forged by her
sister and various friends and using them as a cover for thefts from
her own cash drawer. Rucker was expected to testify at Carroll's trial
that he told her in late 1993 or early 1994 that he had previously
stolen money from his cash drawer and deflected blame for the short-
age by pretending that the duplicate key to his drawer had been
stolen, when in fact he possessed both keys. The government
expected Rucker to testify that, on the basis of this conversation,
Rucker invited Carroll to join her ongoing scheme. Before Rucker
testified, the district court held that the evidence was admissible under
Fed. R. Crim. P. 404(b) to show intent and plan.
In fact, Rucker testified that Carroll never discussed a shortage in
his drawer with her, but did tell her that he wanted to be involved in
her scheme. Later testimony concerning the November shortage by
the manager of the post office and a postal inspector who investigated
Carroll was also admitted. In addition, Rucker and her sister, Safonia
Williams, testified that in January and February 1994 Carroll accepted
seven checks stolen from Sonya Groover and either cashed them or
converted them to money orders, even though post office regulations
do not permit window clerks to accept checks for cash or as payment
for money orders.
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Rule 404(b) permits evidence of other crimes, wrongs, or acts to
prove motive, opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident. It is treated as an inclusive rule
in this circuit, excluding only evidence which has no purpose except
to show criminal disposition. See United States v. Sanchez, 118 F.3d
192, 195 (4th Cir. 1997). Under the Rule, evidence which is relevant
(to any issue other than character), necessary, and reliable is admissi-
ble. Id. Such evidence may still be excluded if it is more prejudicial
than probative. Id. at 196.
The government contends that evidence of the November shortage
in Carroll's drawer and his scheme to deflect the blame for it were not
excludable under Rule 404(b) under any theory because the evidence
was intrinsic to the charged offenses. See United States v. Chin, 83
F.3d 83, 88 (4th Cir. 1996). Other criminal conduct is intrinsic to the
charged offense if it is "`inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary pre-
liminaries to the crime charged.'" Id. (quoting United States v.
Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)). Although the gov-
ernment offered evidence of Carroll's November shortage as Rule
404(b) evidence, its proffer before Rucker's testimony indicates that
the government expected that her testimony would establish Carroll's
November shortage as a "necessary preliminary" in that Rucker
decided to invite Carroll into her scheme after he disclosed his to her.
But because she testified that Carroll never discussed the November
shortage with her, admission of other witnesses' testimony about it
cannot be justified on the ground that it was intrinsic evidence.
However, a plea of not guilty puts the defendant's intent at issue;
evidence of similar prior crimes then becomes relevant to prove crim-
inal intent. See Sanchez, 118 F.3d at 196; United States v. Brewer, 1
F.3d 1430, 1434 (4th Cir. 1993). Carroll testified that he accepted all
the Groover checks as payment for postage, which would have been
perfectly legal. Circumstantial evidence that Carroll had previously
stolen money from his drawer was thus relevant to prove that he
accepted the Groover checks with criminal intent. The evidence was
necessary because Carroll denied Rucker's and Williams' allegations
that he knowingly accepted the Groover checks with criminal intent.
The evidence, which consisted of testimony by the post office branch
manager and the investigator, as well as post office records, was reli-
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able. The evidence was not the kind which would unfairly inflame the
jury against Carroll, as shown by the mixed verdict which resulted.
Therefore, the district court did not abuse its discretion in admitting
the evidence.
After Carroll's conviction, the probation officer recommended an
adjustment for abuse of a position of trust under USSG § 3B1.3. Car-
roll objected, arguing that his position was similar to a bank teller, a
position to which the guideline specifies that the adjustment does not
apply. USSG § 3B1.1, comment. (n.1). He further argued that his
offense was not difficult to detect. At sentencing, the district court
found that the adjustment applied, relying on United States v.
Milligan, 958 F.2d 345, 347 (4th Cir. 1992).
The guideline provides that a two-level adjustment be made if the
defendant "abused a position of public or private trust," which is
defined in the commentary as a position "characterized by profes-
sional or managerial discretion (i.e., substantial discretionary judg-
ment that is ordinarily given considerable deference)." USSG
§ 3B1.3, comment. (n.1). A person in such a position is "subject to
significantly less supervision than employees whose responsibilities
are primarily non-discretionary in nature." Id. The adjustment does
not apply to "an ordinary bank teller or hotel clerk" who embezzles
or steals because they do not fit this description. Id. The adjustment
does apply to postal service employees who engage in theft or
destruction of undelivered mail. Id.
The district court's decision is reviewed under the clearly errone-
ous standard. United States v. Helton, 953 F.2d 867, 869 (4th Cir.
1992). In Milligan, the Eleventh Circuit affirmed the adjustment for
a post office window clerk who was audited every four months and
who obtained (through pretense) a duplicate computer disk for record-
keeping because the combination of these factors showed that he
enjoyed significantly more trust than a bank teller. See Milligan, 958
F.2d at 347. Carroll argues that he lacked special access to a computer
system and that, as a result, his offense was not difficult to detect. He
points out that lax supervision cannot transform an ordinary job into
a position of trust. See Helton, 953 F.2d at 870.
Like Milligan, Carroll was audited only at four-month intervals.
Moreover, in his post office, the accounting records were such that
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even an audit of his drawer could not enlighten his supervisors as to
exactly what he had been doing during that four-month period or on
any given day. There was no way to determine whether a shortage in
his drawer was caused by inadvertent mistakes on Carroll's part or by
theft. Therefore, we find that Carroll's position involved something
more than lax supervision, and the district court did not clearly err in
finding that Carroll had been placed in a position of trust and in mak-
ing the adjustment.
The conviction and sentence are accordingly affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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