United States v. Bobbie Sinko ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0370n.06
No. 09-2374
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jun 02, 2011
)
LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BOBBIE JEAN SINKO, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. A jury convicted Bobbie Jean Sinko for committing several offenses
against the United States during her tenure as an employee of the United States Postal Service
(USPS). Because ample evidence supports her convictions, we affirm.
I.
Sinko was the bulk-mail clerk at the Mount Pleasant, Michigan Post Office, and her
responsibilities included accepting bulk mail from customers, processing it, and collecting its
postage due.
A postal investigation revealed that Sinko had been providing free delivery to two of her
customers. Postal inspectors discovered that, during a five-year period, Sinko failed to collect over
No. 09-2374
United States v. Sinko
$400,000 in postage from English Direct Mail Services, owned by Matthew English, as well over
$30,000 from English’s client, Central Michigan University (CMU).
When questioned about the missing postage, Sinko explained it away as a careless error by
a lackluster employee. She claimed that she was overworked and behind in her processing, and that
English must have taken advantage of her oversights. She also speculated that some of the missing
postage may have been due to computer error.
But the evidence told a different story: one of a quid-pro-quo relationship between Sinko and
English. The inspectors found that English had employed three of Sinko’s sons; that he had written
$48,000 in checks to Sinko’s son, Mike Andrews, long after he was an employee; and that, on some
of the checks, the “pay to” name had been altered from “Postmaster” to “Mike Andrews.”
A federal grand jury indicted Sinko on 32 counts of knowingly converting bulk-mail services
to English’s use, and 13 counts of knowingly converting them to CMU’s; 1 count of conspiracy to
defraud the USPS; and 4 counts of misappropriating federal postal funds. See 18 U.S.C. §§ 2, 371,
641, 1711. It also indicted English on various related counts. English pleaded guilty, and Sinko
proceeded to trial.
At trial, Sinko unsuccessfully moved for acquittal based on insufficient evidence. Her
defense then tracked her initial explanation to the inspectors: she made processing errors, English
took advantage of them, and the checks had nothing to do with postage. Her defense also included
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United States v. Sinko
evidence that other employees sometimes handled the bulk mail, and that they sometimes sent it for
delivery without first receiving payment.
The jury convicted Sinko of certain counts under each charge, and the district court sentenced
her to a term of 33 months’ imprisonment with restitution ordered in the amount of $354,498.
II.
Sinko now challenges the denial of her motion for acquittal. Because she failed to renew the
motion at the close of all the proofs, we limit our review “to determining whether there was a
manifest miscarriage of justice,” which “occurs only if the record is devoid of evidence pointing to
guilt.” United States v. Childs, 539 F.3d 552, 558 (6th Cir. 2008) (internal quotation marks and
citation omitted).
On the conversion counts, the record includes abundant evidence that Sinko “convert[ed] to
. . . the use of another . . . any . . . thing of value of the United States or of any department or agency
thereof.” 18 U.S.C. § 641. Postal inspectors testified that, when investigating Sinko’s workstation,
they found many incomplete postage statements from English and his clients. They further testified
that Sinko admitted to her billing errors and attributed them to being behind on her work, and that
a full review of the office’s records established that Sinko failed to collect nearly $500,000 worth
of postage from her customers.
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United States v. Sinko
And the record is rife with evidence that Sinko accomplished this conversion “knowingly.”
The government showed the jury $48,000 worth of negotiated checks from English to Sinko’s son
Andrews, who shared a joint checking account with his mother. On many of these checks, the jury
could clearly see “Postmaster” crossed out and replaced with “Mike Andrews.” When called by the
government, Andrews testified that he never requested or received the checks; he never obtained any
of their proceeds; he never altered any of the ones written to the postmaster; and his mother cashed
the checks herself.
English’s own testimony stretches any remaining doubt beyond the breaking point. He stated
that, every so often, Sinko would ask him for a check in her son’s name, and that, if he refused, he
believed that he would have to begin paying for his mailings. When asked about the checks that had
been altered, English testified that he had originally written them as payment for bulk-mailing fees.
On some of these checks, he made the alteration at Sinko’s request; on others, the alteration was
made without his knowledge.
This same evidence supports Sinko’s conspiracy count. See 18 U.S.C. § 371 (“If two or
more persons conspire either to commit any offense against the United States, or to defraud the
United States, or any agency thereof . . . , and one or more of such persons do any act to effect the
object of the conspiracy, . . . each shall be [punished].”). It demonstrates that Sinko and English
engaged in, and acted in furtherance of, a conspiracy to violate § 641: Sinko fulfilled her quid by
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United States v. Sinko
sending English’s mail without payment, he returned his quo by providing checks to Sinko and
employment to her sons.
As to the counts charging that Sinko “convert[ed] to h[er] own use, or deposit[ed] in any
bank, . . . any money or property coming into h[er] hands or under h[er] control . . . in the execution
. . . of h[er] . . . employment,” 18 U.S.C. § 1711, we again find ample record support: the altered
checks; English’s testimony that he originally wrote the checks as payment for bulk-mailing fees and
changed some of them at Sinko’s instruction; and Andrews’s testimony that he never altered them.
All confirm Sinko’s work-related conversion—and, if that were not enough, a postal inspector
testified that Sinko admitted to altering two of the checks herself.
To defend, Sinko offers two arguments. First, she contends that the CMU counts should be
reversed because the university later paid its postage due. This recovery of converted funds,
however, offers no absolution from the criminal conversion. Second, Sinko argues that the
government failed to prove that she “had exclusive use” of her office’s bulk-mail services. But this
is not an element of any of her crimes. And to the extent that Sinko raises this argument to suggest
that someone else bore responsibility for the billing failures, it is of no moment in her challenge to
the denial of acquittal. Because we find that the record is not “devoid of evidence pointing to guilt,”
we look no further. Childs, 539 F.3d at 558.
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III.
For these reasons, we affirm.
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