United States v. Greer ( 1998 )

REVISED, April 6, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10997
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARTHA WEST GREER,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
March 11, 1998
Before GARWOOD, DUHE’, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Martha West Greer (“Greer”), appeals her criminal conviction
for embezzling funds from the United States Postal Service (“Postal
Service”) in violation of 18 U.S.C. § 1711. Greer contends (1)
that there is insufficient evidence to support her conviction, (2)
that her indictment was wrongfully obtained with perjured
testimony, and (3) that the district court erroneously entered an
order of restitution. We affirm.
I. BACKGROUND
Greer worked for the Postal Service as the head window teller
at the Berry Street station from October 1993 to August 1994.1 As
head window teller, Greer was responsible for the contents of her
window drawer, as well as the contents of a safe located at the
station. Her window drawer, referred to in postal parlance as a
“flexible credit account,” housed cash, stamps, and money orders
used to conduct day-to-day business at her walk-up window. The
safe, referred to as the “unit reserve,” stored stamps and money
orders used to replenish the tellers’ drawers. Greer, who
established the combination to the unit reserve safe soon after
becoming head window teller, was the only person with access to the
safe’s contents.
On a typical day, Greer worked at her walk-up window and
assisted the other tellers, sometimes replenishing their drawers
with stamp stock from the unit reserve. At the end of each day,
Greer collected the other tellers’ drawers and calculated the
station’s overall balance. These duties sometimes kept Greer at
the station until 7:30 p.m. Before departing for the night, Greer
was responsible for locking the unit reserve safe and the station
itself. This entailed activating the Berry Street station’s
security system, which utilized a motion detector for the area
1
Greer had worked for the Postal Service for more than ten
years. It is unclear what positions she held before becoming head
window teller.
2
immediately surrounding the unit reserve.2
According to official policy, tellers were to be audited at
least three times a year, with audits occurring no more than 120
days apart. None of the tellers were given advance warning of the
audits. In the ten months that Greer served as head window teller,
her flexible credit account was audited four times and her unit
reserve was audited three times. None of those audits revealed
shortages in excess of allowable tolerances.
Postal policy further dictated that Greer’s flexible credit
account and unit reserve were to be audited at the same time. This
rarely occurred, however. During Greer’s tenure as head window
teller, her unit reserve and flexible credit account were audited
together only once, in August 1994. That audit, which occurred on
August 18, examined both accounts simultaneously and revealed
nothing unusual.
On August 30, 1994, Greer informed her supervisor that it
appeared as if another person had gained access to the unit reserve
safe, as the stamps were in disarray. An inspection of the safe
revealed a shortage of $44,006 in postal stock. The next morning
postal inspectors Carl Aarons (“Aarons”) and Randall Till (“Till”)
audited Greer’s flexible credit account and unit reserve and
confirmed that Greer was short $44,006. A full investigation
ensued, and in October 1995 Greer was indicted in United States
District Court on one count of embezzlement in violation of 18
2
All of the station’s employees knew the code for
deactivating the alarms.
3
U.S.C. § 1711. Greer was convicted by jury trial and subsequently
sentenced to 18 months imprisonment. The court ordered Greer to
pay full restitution in the amount of $44,006.
Greer’s attorney moved for judgment of acquittal at the close
of the government’s case, at the end of trial, and after the
verdict was returned. All three motions were denied. Greer timely
filed the instant appeal. She challenges the lawfulness of her
conviction as well as the propriety of the restitution order.
II. DISCUSSION
A.
Greer argues that the district court erred in denying her
motion for judgment of acquittal because there is insufficient
evidence to support her conviction for embezzlement under 18 U.S.C.
§ 1711. We review a district court’s denial of a motion for
judgment of acquittal de novo. United States v. Myers, 104 F.3d
76, 78 (5th Cir.), cert. denied, 117 S. Ct. 1709 (1997). In
evaluating the sufficiency of the evidence, our standard of review
is whether, viewing the evidence in the light most favorable to the
government, a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. United States
v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd, 462
U.S. 356 (1983).
In this case, the Government was required to prove beyond a
reasonable doubt (1) that Greer was a postal employee, (2) that
postal funds came into her possession in her capacity as a postal
4
employee, and (3) that Greer converted those funds to her own use.
18 U.S.C. § 1711. On appeal, Greer disputes only the third
element. Thus, we confine our inquiry to whether there is
sufficient evidence that Greer wrongfully converted the missing
postal funds.
The government’s theory at trial was that Greer embezzled
$44,006 by pocketing cash from stamp sales at her window. The
government alleged that Greer would account for the resulting
shortages on a daily basis by making false “error correct” entries
on the books of her flexible credit account.3 The government
theorized that Greer was able to hide her embezzlement from routine
audits by executing, on paper, false transfers of stamp stock from
her flexible credit account to the unit reserve shortly before an
audit was to occur. The government alleged that the transfers
worked to conceal the shortage by lowering the amount of postal
stock that was expected to be in the flexible credit account. The
government claimed that Greer used the same technique, albeit in
reverse, to hide shortages in her unit reserve.
With regard to the August 18 audit, which examined both
accounts together and revealed no existing shortages, the
government explained that Greer was able to avoid detection by
requisitioning an additional $33,582 in stamp stock several days
before the audit. The government asserted that Greer used the new
stamps to increase the amount of actual postal stock in her two
3
An “error correct” is an entry made by the clerk to correct
an erroneous entry for the sale of item (like stamps) from the
window drawer.
5
accounts to acceptable levels. The government posited that Greer
was able to avoid detection by failing to place the requisition on
the books until the day after the audit.
Obviously, the $33,582 requisition could not fully cover the
$44,006 in stamp stock that was ultimately found missing. The
government, however, explained that Greer made up the difference by
transferring, on paper, roughly $9,500 worth of postal stock to the
category of “redeemed stock.”4 The government advised that while
redeemed stock is normally counted during an audit, the redeemed
stock in the unit reserve was not counted during the August 18
audit. Instead, the auditor accepted Greer’s assessment that there
was $12,404 worth of redeemed stock in the unit reserve. Thus, the
government concluded that the results of August 18 audit were
unreliable.
On appeal, Greer argues that the government’s theory is not
supported by the evidence. Specifically, Greer contends that there
is no evidence that she knew when the audits would occur or which
accounts would be audited. That evidence is critical, Greer
maintains, because the government’s theory is based on the
assumption that she was able to avoid detection by initiating false
transfers between the accounts shortly before an audit was to
4
“Redeemed stock” is the term used to refer to unusable or
damaged stamps. Redeemed stock is transferred to the unit reserve
under the designation of “redeemed stock.” It is segregated from
usable stock, but remains part of the unit reserve’s balance for
accounting purposes.
6
occur. Greer reasons that without proof of advance knowledge, we
are left with the implausible conclusion that her scheme succeeded
on luck alone. We do not find Greer’s argument persuasive.
It is true that the record contains no direct evidence that
Greer had advance knowledge of the audits. There is not, for
example, evidence that Greer was in possession of a confidential
audit schedule. But Greer forgets that a defendant’s knowledge may
be proven with circumstantial evidence. See United States v.
Branch, 91 F.3d 699, 737 (5th Cir. 1996), cert. denied, 117 S. Ct.
1467 (1997). And in that regard, the record contains ample
evidence that Greer had advance knowledge of the audits.
Shortly before every audit Greer would mysteriously initiate
numerous transfers of stamp stock between her two accounts.
Similarly, Greer requisitioned new stamps just days before the
August 18 audit, and inexplicably waited four days before placing
the new stamps on the books. As in a securities fraud case, where
unusual trading activity is circumstantial evidence that a
defendant used inside information, Greer’s aberrant conduct before
the audits suggests that Greer knew when an audit was about to
occur. Minimally, Greer’s conduct gives rise to a reasonable
inference that Greer, through experience or otherwise, was able to
predict audits with a significant degree of certainty.
Importantly, even if we assume there is no evidence of advance
knowledge, Greer’s argument must fail because it does nothing to
address the large quantity of evidence that was marshaled against
Greer at trial. At trial, the government showed that Greer was the
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only employee with access to the unit reserve safe. Although Greer
reported that the safe had been robbed, there was no evidence of
forcible entry and the station’s security system was neither
triggered nor turned off the night before. Curiously, the would-be
thief left behind more than $120,000 worth of stamp stock and money
orders.
An examination of postal records showed that Greer entered
error corrects more frequently than her fellow clerks, often in
amounts nearing $1,000. Andrew Smith, a window clerk who had been
with the postal service for eleven years, testified that an error
correct of more than $100 was considered large and a cause for
concern. Greer’s personal banking records revealed that Greer was
making large cash deposits in her checking account on an almost
daily basis. Those deposits generally correlated with Greer’s
error corrects.
As noted, the evidence also showed that Greer initiated an
unusual number of transfers between her two accounts in the days
preceding an audit. Those transfers frequently involved large
amounts of stamp stock and were often questionable in nature. The
day before the August 18 audit, for instance, Greer executed six
separate transfers between her flexible credit account and unit
reserve that failed to effect a net change in either account.
Finally, the government’s case was bolstered by evidence that
the $33,582 stock requisition was delivered to the Berry Street
Station on August 15, 1998, but not placed on the books until
August 19, the day after the audit. There was evidence that Daniel
8
Christopherson, a fellow employee, saw Greer place the requisition
in her unit reserve before the August 18 audit. Inspector Aarons
corroborated this account by explaining that the inventory lists
produced during the August 18 audit show that all of the stamp
stock in the requisition can be accounted for in Greer’s two
accounts as of the date of that audit. Greer admits, without
explanation, that she transferred $9,500 in stamp stock to redeemed
stock the day before the August 18 audit.
These facts are sufficient for a rationale jury to conclude
that Greer embezzled the missing postal funds. That conclusion
stands regardless of whether we accept Greer’s contention that
there is insufficient evidence that she had advance knowledge of
the audits. Accordingly, we reject Greer’s sufficiency of the
evidence claim.
B.
Greer contends that her indictment should have been dismissed
because postal inspector Aarons committed perjury when he testified
before the grand jury. Greer alleges that Aarons told the grand
jury that Greer’s flexible credit account and unit reserve had
never been subjected to a simultaneous audit when, in fact, such an
audit had occurred on August 18. According to Greer, Aarons’
perjured testimony was unduly prejudicial because it prevented the
jury from learning of the results of the August 18 audit which,
having revealed nothing unusual, were inconsistent with the
government’s theory. Bank of Nova Scotia v. United States, 108 S.
Ct. 2369, 2374 (1988). Relying upon United States v. Williams, 504
9
U.S. 36, 46 (1992), Greer further contends that Aarons’ testimony
was so critical to the deliberative process that its tainted
character destroyed the integrity of the grand jury’s screening
function.5
The government contends that Greer is barred from raising this
issue on appeal as it was never raised below. Greer concedes that
she never challenged the indictment in the district court, and that
we must review this issue for plain error only. Accordingly, Greer
must show that (1) an error occurred, (2) the error was clear or
obvious, and (3) the error affected her substantial rights and
influenced the district court proceedings. United States v. Olano,
113 S. Ct. 1770, 1777-78 (1993); United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.
1196 (1995). When these elements of plain error are present, a
court may exercise its discretion to correct the error if it
"seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings." Calverley, 37 F.3d at 164. Having
5
In Williams, the Supreme Court held that courts may not use
their supervisory power over their own procedures "as a means of
prescribing . . . standards of prosecutorial conduct in the first
instance." United States v. Williams, 504 U.S. 36, 47 (1992).
Instead, that supervisory power can be used to dismiss an
indictment only where the purported misconduct "amounts to a
violation of one of those ‘few, clear rules which were carefully
drafted and approved by this Court and by Congress to ensure the
integrity of the grand jury's functions.’" Id. at 46 (quoting
United States v. Mechanik, 475 U.S. 66, 74 (1986)). The statutory
prohibition against making a false declaration before a grand jury,
set forth in Title 18 U.S.C. § 1623, was cited by the Williams
Court as an example of one such rule. Id. at 46 n.6.
10
reviewed the record, the parties briefs, and the applicable law, we
conclude that Greer has not established plain error.6
First, Greer has not shown that Aarons committed perjury when
testifying before the grand jury. Additionally, Greer has not
demonstrated that Aarons’ testimony plainly constitutes a
“violation of one of those 'few, clear rules which were carefully
drafted and approved by this Court and by Congress to ensure the
integrity of the grand jury's functions.'" Williams, 504 U.S. at
46 (quoting United States v. Mechanik, 475 U.S. 66, 74 (1986)).
Accordingly, we deny Greer’s claim that plain error resulted from
the district court’s failure to dismiss her indictment.
C.
Greer contends that the district court erred in ordering
restitution given her present and future inability to pay that
award. Under Title 18 U.S.C. § 3664(d), a defendant has the burden
of demonstrating that she lacks the financial resources to comply
with a restitution order. 18 U.S.C. § 3664(d); United States v.
Reese, 998 F.2d 1275, 1281 (5th Cir. 1993). In determining whether
restitution should be ordered, a district court is required to
consider “[t]he amount of the loss sustained by any victim as a
result of the offense, the financial resources of the defendant,
the financial needs and earning ability of the defendant and the
defendant’s dependents, and such other factors as the court deems
6
Our review of this issue was severely hampered by Greer’s
failure to include a copy of the transcript of the grand jury
proceeding (if there is one) in the appellate record.
11
appropriate.” 18 U.S.C. § 3664(a). Normally, when a restitution
order is appealed the standard of review is whether the district
court abused its discretion in directing restitution. Reese, 998
F.2d at 1282. However, because Greer never raised this issue in
the district court, we review the decision for plain error. United
States v. Stedman, 69 F.3d 737, 741 (5th Cir. 1995), cert. denied,
116 S. Ct. 2512 (1996).
Here, Greer has not shown that the district court committed
plain error in ordering restitution. At sentencing the district
court expressly adopted the findings of fact contained in Greer’s
presentence report. Those findings include numerous references to
Greer’s financial status that satisfy the mandatory factors that a
district court must consider under 18 U.S.C. § 3664(a).
Because Greer’s ability to pay was considered, we cannot say
that the restitution decision constitutes the type of clear or
obvious error required under our plain error standard. Greer’s
challenge to the restitution order is rejected.
IV.
For the foregoing reasons, the district court is AFFIRMED.
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