United States v. Monique Bowling ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2110
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONIQUE S. BOWLING,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cr-00153-PPS-JEM-1 — Philip P. Simon, Judge.
____________________
ARGUED FEBRUARY 27, 2020 — DECIDED MARCH 10, 2020
____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Monique Bowling purchased over
$1.3 million worth of computer equipment on the City of
Gary, Indiana’s vendor accounts and then sold the devices for
cash, leaving the city to foot the bill. This all occurred at a time
when the City of Gary was already in dire financial condition.
The grand jury returned an indictment against Bowling for
theft from a local government that received federal funds,
18 U.S.C. § 666. A jury convicted Bowling of the charge and
2 No. 19-2110
the district court sentenced her to 63 months in prison. On ap-
peal, Bowling contends that the district court lacked subject-
matter jurisdiction, abused its discretion in admitting certain
testimony, and erred in enhancing her sentence for obstruct-
ing justice through her malingering. We affirm the conviction
and sentence.
I
Bowling worked for the City of Gary, Indiana for almost
twenty-five years. By all accounts, Bowling was a model em-
ployee for almost the entirety of her tenure with the city. She
started out as a secretary in 1991 and worked her way up to
the position of a network administrator, the second-ranking
employee in Gary’s IT department. As a network administra-
tor, Bowling had access to the city’s computer network and
email system, and in addition to resolving IT issues, one of
her job responsibilities included ordering computer equip-
ment for the city. Though she had the authority to place or-
ders on the city’s credit accounts with vendors, she did not
have the ability to make payments. The authority to approve
and pay vendors rested solely with the city’s controller.
A
In May 2013, Bowling began ordering new Apple prod-
ucts from CDW, one of the city’s technology vendors, seem-
ingly for the city. The purchases started off small, only one to
two devices at a time. Over time, however, she grew bolder,
and after a year or so, Bowling was ordering up to fifty de-
vices at a time. By April 2015, she had ordered 1,517 Apple
products from CDW, as well as Best Buy and Verizon. In all,
Bowling’s purchases totaled $1,337,114.06.
No. 19-2110 3
Almost all of Bowling’s orders were for Apple iPads,
though she also purchased about fifty MacBooks, one iMac,
and one iPod Touch. She sold the iPads and MacBooks for
cash, typically $500 to $600 for the iPads and $700 for the Mac-
Books. She sometimes traded them for other items of value as
well. Her sales were so widespread that the products ended
up all over the world, with at least one device being registered
on every continent except Antarctica.
To conceal her scheme, Bowling submitted duplicate
CDW invoices from legitimate purchases for payment. This
flow of money successfully kept the city’s credit lines open for
a time. But as her orders grew in size and frequency, the
fraudulent purchases far outstripped the duplicate invoices
she could process for payment and the balance ballooned. As
the debt continued to pile up and exceeded one million dol-
lars, CDW froze the city’s account and turned it over to one of
its senior recovery analysts, Vida Krug. Once an account is
turned over to her, Ms. Krug will deal strictly with mayors,
comptrollers, CEOs, CFOs, and the like, that have the direct
authority to make or release payments. Thus, Ms. Krug first
reached out to Gary’s mayor and left a message explaining
that the city had quite a large debt it owed to CDW. Ms. Krug
then spoke to Celita Green, the city’s controller. Ms. Green
was unaware that the city owed such a large amount to CDW
and asked for copies of all the outstanding invoices. Ms. Krug
sent the invoices via FedEx, but the package never made it to
Ms. Green; Bowling had intercepted it when it arrived at city
hall, signing for the package using a fake name. The FedEx
receipt was later found in Bowling’s desk.
In another effort to forestall her inevitable downfall, Bowl-
ing accessed Ms. Green’s email account and sent a fabricated
4 No. 19-2110
message to Ms. Krug to reassure CDW that everything was all
right with the city’s credit account. The email explained that
the city was experiencing a “cash flow issue” but that Ms.
Green had directed Bowling to “process more payments” and
that Ms. Green and Bowling were going to work together to
“resolve the outstanding balances on this account.” Ms. Krug
did not believe that Ms. Green actually sent the email because
it was inconsistent with their telephone conversation and rid-
dled with grammatical errors. The email was later recovered
from Ms. Green’s deleted folder.
Bowling’s scheme quickly unraveled, and the city soon
terminated her as a result of the city’s and the state police’s
investigations.
B
A grand jury indicted Bowling on six fraud-related counts.
She first went to trial on one count of theft from a local gov-
ernment that received federal funds, 18 U.S.C. § 666, and after
that trial and conviction, the government dismissed the re-
maining counts with prejudice.
Three weeks before trial was scheduled to begin, Bowl-
ing’s counsel moved to continue the trial date because he had
been unable to communicate with Bowling. According to de-
fense counsel, Bowling’s husband informed him that Bowling
had been “unable to speak for approximately six months and
that her family provides for her basic needs.” Thus, counsel
moved for a hearing to determine Bowling’s mental compe-
tency to stand trial and requested a court-ordered psycholog-
ical examination pursuant to 18 U.S.C. § 4241. The district
court granted the motion and ordered Bowling to undergo an
No. 19-2110 5
in-custody psychological evaluation within a Bureau of Pris-
ons facility.
Bowling was committed to the Federal Medical Center in
Carswell, Texas (FMC Carswell), for the examination. Dr.
Amor Correa, a licensed forensic psychologist, evaluated
Bowling over an approximately two-month period. Dr. Cor-
rea diagnosed Bowling as malingering. The “essential fea-
ture” of malingering, Dr. Correa explained, is the “intentional
production of false or grossly exaggerated symptoms, moti-
vated by external incentive and not attributable to a mental
disorder.” See also Am. Psychiatric Ass’n, Diagnostic and Sta-
tistical Manual of Mental Disorders 726–27 (5th ed. 2013). One
such external incentive is “evading criminal prosecution.” Id.
at 726. In Dr. Correa’s professional opinion, Bowling was
competent to stand trial.
The district court held a competency hearing, at which Dr.
Correa testified. Based on Dr. Correa’s forensic psychology
report and testimony, the court found that Bowling was com-
petent to stand trial.
C
The case proceeded to a three-day jury trial on the charge
of theft from a local government that received federal funds
under 18 U.S.C. § 666(a)(1)(A). To convict Bowling of this of-
fense, the government had to prove the following elements:
(1) Bowling was an agent of the City of Gary; (2) she know-
ingly stole or obtained by fraud property; (3) the property she
stole was owned by or under the care, custody, or control of
the City of Gary; (4) the property had a value of $5,000 or
more; and (5) the City of Gary, in any one-year period, re-
ceived more than $10,000 in federal funds. See United States v.
6 No. 19-2110
Abu-Shawish, 507 F.3d 550, 556 (7th Cir. 2007); 18 U.S.C.
§ 666(a)(1)(A), (b). At the beginning of the third day of trial,
the parties stipulated to the following fact regarding the re-
ceipt of federal funds: “[T]he City of Gary, Indiana received
more than $10,000 in federal benefits and funding between
April 1, 2014 and April 1, 2015.”
The evidence at trial was overwhelming and largely un-
controverted. The government presented testimony from sev-
enteen witnesses, including Ms. Green, Ms. Krug, and several
purchasers of the iPads. Bowling did not testify and did not
present any witnesses. The jury deliberated for just under one
hour before returning a guilty verdict.
At sentencing, the probation office recommended a two-
level sentencing enhancement for obstruction of justice based
on Bowling’s malingering, or having “faked mental illness,”
which “caused the trial to be delayed for a year.” Bowling ob-
jected and introduced testimony from Dr. Robert Coyle, a
neuropsychologist who examined Bowling about four
months after trial. Dr. Coyle opined that Bowling was not ma-
lingering at the time of his evaluation, but also testified that
he thought that Bowling was just misdiagnosed at FMC Car-
swell. Notably, however, after the trial concluded, Bowling
was able to provide verbal answers to both the probation of-
ficer and Dr. Coyle.
The district court overruled Bowling’s objection to the ob-
struction of justice enhancement. The judge found by a pre-
ponderance of evidence that Bowling’s “conduct was obstruc-
tive in nature such that it unnecessarily and unduly pro-
longed these proceedings.” With the two-level obstruction of
justice enhancement, Bowling’s total offense level was 26 and
No. 19-2110 7
her criminal history category was I, which resulted in a
Guidelines range of 63 to 78 months.
The district court sentenced Bowling to 63 months’ impris-
onment, the low end of her advisory range, and ordered her
to pay restitution totaling $1,386,430.28.
II
Bowling presents three issues on appeal. At the threshold,
Bowling argues that the district court lacked subject-matter
jurisdiction over her case and that the court should dismiss it.
Failing that, Bowling challenges the admission of a single line
of testimony at trial and the two-level obstruction of justice
sentencing enhancement.
A
We can easily dispose of Bowling’s jurisdictional
challenge. Section 666 prohibits theft from an organization,
local government, or agency that receives funds under a
federal assistance program. 18 U.S.C. § 666(a)(1)(A). The so-
called federal-funds element of § 666 requires that “the
organization, government, or agency receives, in any one year
period, benefits in excess of $10,000 under a Federal
program.” Id. § 666(b). The relevant local government here is
the City of Gary, not, as Bowling suggests, the discrete IT
department. And she stipulated that Gary received more than
$10,000 in federal funds in one-year. Bowling argues,
however, that the IT department specifically did not receive
any federal funds and that the lack of an affirmative
connection between the charged theft and the federal funds
renders a federal court without jurisdiction.
But the district court’s subject-matter jurisdiction is sup-
plied by 18 U.S.C. § 3231, not 18 U.S.C. § 666. “The district
8 No. 19-2110
courts of the United States shall have original jurisdiction, ex-
clusive of the courts of the States, of all offenses against the
laws of the United States.” 18 U.S.C. § 3231. Bowling was in-
dicted for violating a federal criminal statute, an offense
against the laws of the United States. The district court’s juris-
diction was secure. See United States v. Grossi, 143 F.3d 348, 351
(7th Cir. 1998).
Any failure of proof on the federal-funds element goes to
the merits, not the district court’s authority to hear the case.
Bowling, though, assures us that she is not challenging either
the indictment or the sufficiency of the evidence as to the
federal-funds element. So this issue need not detain us.
We note that, however she characterizes it, any argument
that the government must establish an affirmative connection
between the theft and federal funds has been repeatedly and
squarely rejected. See, e.g., Sabri v. United States, 541 U.S. 600,
605 (2004) (“readily dispos[ing]” of the position that “the stat-
ute must require proof of connection with federal money as
an element of the offense”); Salinas v. United States, 522 U.S.
52, 56–57 (1997) (finding the “expansive, unqualified lan-
guage” of § 666 “does not support the interpretation that fed-
eral funds must be affected to violate” the statute); id. at 57
(“The prohibition is not confined to a business or transaction
which affects federal funds.”); United States v. Spano, 401 F.3d
837, 839 (7th Cir. 2005) (explaining that “a plain reading of the
statute requires no nexus between the bribe and the federal
funds received”). It is easy to see why: money is fungible and
“money can be drained off here because a federal grant is
pouring in there.” Sabri, 541 U.S. at 606. Thus, the federal-
funds element was met when the parties stipulated that the
No. 19-2110 9
City of Gary as a whole received more than $10,000 in federal
benefits in a one-year period.
B
Next, Bowling challenges the district court’s decision to
admit part of Ms. Krug’s testimony. When the city’s account
with CDW went into recovery, Ms. Krug explicitly stated that
she would deal only with Ms. Green, the city’s controller.
Shortly thereafter, however, Ms. Krug received an email pur-
portedly from Ms. Green’s email account, copying Bowling,
essentially assuring Ms. Krug that everything was fine with
the account and that Bowling would be processing payments.
At trial, the government asked Ms. Krug a series of questions
regarding what she thought when she “received this e-mail
that indicated it came from Celita Green.” Ms. Krug first ex-
plained that “[w]hen I read the e-mail, I felt there was some-
thing wrong. I don’t believe it came from Celita Green.” The
government followed up to draw out why Ms. Krug thought
that. Ms. Krug testified that she made it clear to both Ms.
Green and Bowling “that the only person [she] wanted to deal
with was” Ms. Green and, in turn, Ms. Green also made it
“very clear” to her that she “would be dealing solely with Ms.
Green.” After laying that foundation, the government then
asked the question, “So when you received this e-mail, what
did you think?” Ms. Krug responded, “I thought there was
some kind of fraud going on.”
Bowling objects to the use of the word “fraud” on two ev-
identiary grounds: first, that it was improper lay opinion tes-
timony under Federal Rule of Evidence 701; and second, that
it also constituted improper propensity evidence under Fed-
eral Rule of Evidence 404(b). At trial, however, Bowling ob-
jected to the testimony only on relevance grounds and then
10 No. 19-2110
argued at a sidebar that it was also improper lay testimony. A
party must state the specific ground for an objection to pre-
serve the evidentiary error for appellate review. Fed. R. Evid.
103(a)(1)(B). A general objection to “relevance” at trial will not
preserve an objection under Rule 404(b) for review. United
States v. Mejia, 909 F.2d 242, 246 (7th Cir. 1990). Thus, only
Bowling’s Rule 701 objection is properly preserved on appeal.
We review a preserved challenge to the district court’s ev-
identiary ruling for abuse of discretion. United States v. Saun-
ders, 826 F.3d 363, 370 (7th Cir. 2016). A trial court abuses its
discretion only if no reasonable person could take that view.
United States v. Rainone, 816 F.3d 490, 497 (7th Cir. 2016). Even
if we find an abuse of discretion, we will reverse only if “ad-
mission of the evidence affected the defendant’s ‘substantial
rights.’” United States v. Richards, 719 F.3d 746, 758 (7th Cir.
2013) (quoting Fed. R. Crim. P. 52(a)).
Lay testimony that is in the form of an opinion is permis-
sible if it is rationally based on the witness’s perception, help-
ful to understanding the witness’s testimony, and not based
on specialized knowledge. Fed. R. Evid. 701; see also United
States v. Hilliard, 851 F.3d 768, 779–80 (7th Cir. 2017). “The rule
is a sensible elaboration of Rule 602, which requires that a lay
witness’s testimony be based on personal knowledge.” United
States v. Giovannetti, 919 F.2d 1223, 1226 (7th Cir. 1990). Cer-
tainly, a witness has personal knowledge of her own mental
processes and is competent to testify regarding them. A dis-
trict court’s decision to admit “such testimony is not problem-
atic.” Giovannetti, 919 F.2d at 1226.
The question posed to Ms. Krug was carefully worded to
elicit Ms. Krug’s personal thoughts at the time she received
the subject email, and the responsive “fraud” testimony
No. 19-2110 11
concerned only her own thoughts upon receipt of that email.
She was not drawing an inference from the evidence or offer-
ing a legal opinion or conclusion that Bowling had in fact
committed fraud regarding the computer orders. Instead, Ms.
Krug testified as to her reaction at the time based on her own
perception. Although Ms. Krug used the word “fraud,” a le-
gal term in certain circumstances, the clear import of the tes-
timony was that Ms. Krug used the term in the colloquial
sense. See United States v. Locke, 643 F.3d 235, 242 (7th Cir.
2011) (holding witnesses’ use of the word “fraud” in the col-
loquial sense, “employing the vernacular of their financial
professions,” was not improper lay testimony). A witness’s
informal use of a term that may also be legal in character does
not inexorably turn that testimony into improper lay testi-
mony.
The nature of Ms. Krug’s testimony is even more transpar-
ent given the clarification on the followup question. After
Bowling’s objection and a short sidebar, the government re-
asked, “what was your impression when you received this e-
mail?” and Ms. Krug answered that her “impression was that
there was something wrong, that I did not believe it came
from Celita Green.” Ms. Krug testified based on her personal
perception of the email at the time she received it and that
testimony was appropriate under Rule 701.
On appeal Bowling further contends that the “fraud” tes-
timony was improper propensity evidence. Because she did
not object on this specific ground at the trial court, she for-
feited the objection and the claimed evidentiary error is re-
viewed for plain error only. United States v. Price, 418 F.3d 771,
779 (7th Cir. 2005). Rule 404(b) bars evidence of a crime,
wrong, or other act if the purpose is to “show that on a
12 No. 19-2110
particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). But the law is clear that
“Rule 404(b) does not apply to direct evidence of the crime
charged.” United States v. Ferrell, 816 F.3d 433, 443 (7th Cir.
2015). Ms. Krug’s testimony about the email “fraud”—used
colloquially—was not other-act evidence to show that Bowl-
ing had a propensity to steal; it was direct evidence of her
theft from the city. She was charged with obtaining the prop-
erty by fraud. Moreover, conduct taken for the purpose of
thwarting discovery of the crime or postponing the investiga-
tion of the crime is part of the charged crime. See United States
v. O’Connor, 874 F.2d 483, 486 (7th Cir. 1989). Bowling sent the
email, purportedly from the city’s controller, to CDW to “pre-
serve[] the appearance of propriety” and keep “everything co-
pacetic” so that CDW would hold off from further escalating
its complaint with the city. United States v. Mankarious,
151 F.3d 694, 705 (7th Cir. 1998). As such, Ms. Krug’s testi-
mony about the email was direct evidence of Bowling’s at-
tempt to stall the city’s ultimate discovery of her theft by
fraud. There was no error, plain or otherwise, admitting the
testimony under Rule 404(b).
C
Bowling received a two-level sentencing enhancement for
obstruction of justice because the district court found that she
faked mutism and caused a one-year delay in the proceed-
ings. The application of the Sentencing Guidelines is a mixed
question of law and fact. We review the district court’s factual
findings supporting the obstruction of justice enhancement
for clear error. United States v. DeLeon, 603 F.3d 397, 402 (7th
Cir. 2010). We will not disturb the district court’s factual find-
ings as long as they are “plausible in light of the record in its
No. 19-2110 13
entirety.” Id. (quoting United States v. Powell, 576 F.3d 482, 498
(7th Cir. 2009)). We review de novo whether those factual
findings adequately support the application of the sentencing
enhancement. Id.The obstruction of justice sentencing enhancement pro-
vides that a defendant’s offense level shall be increased by
two levels if:
(1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra-
tion of justice with respect to the investigation, pros-
ecution, or sentencing of the instant offense of con-
viction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense … .
U.S.S.G. § 3C1.1. The application notes provide a nonexhaus-
tive list of examples of obstructive conduct, which includes
the commonly thought of obstructive behaviors such as wit-
ness intimidation, perjury, destroying evidence, escaping cus-
tody, and so on. Id. cmt. n.4. Certainly, obstructive conduct
can “vary widely in nature,” id. cmt. n.3, and the enhancement
envisions circumstances beyond conduct directly connected
to the commission of the crime that would no less be obstruc-
tive and impede the administration of justice.
There is no question that malingering or feigning incom-
petence may constitute an obstruction of justice for purposes
of a sentencing enhancement. We have held that it does, and
so has every other circuit to address the issue. United States v.
Wilbourn, 778 F.3d 682, 684 (7th Cir. 2015); see also, e.g., United
States v. Nygren, 933 F.3d 76, 86 (1st Cir. 2019) (collecting
cases). Bowling does not ask us to overrule our precedent, but
14 No. 19-2110
nonetheless asks us to depart from Wilbourn’s holding based
on perceived factual distinctions. Whatever factual differ-
ences may exist, they are irrelevant here.
The district court’s factual finding that Bowling was ma-
lingering was not clearly erroneous and is more than a plau-
sible finding in light of the record. The court found Dr. Cor-
rea’s forensic psychology report and opinion that Bowling
was malingering “very, very persuasive.” Bowling was eval-
uated over the course of a two-month period at FMC Carswell
and Dr. Correa and her staff administered several psycholog-
ical tests. One such test in particular was the Test of Memory
Malingering, which Bowling scored well-below “scores typi-
cally obtained even by patients with cognitive impairment,
traumatic brain injury, or dementia,” and “below-chance on
all three trials.” Further, Dr. Correa’s report contained well-
documented evidence of Bowling’s linear thinking and high
cognitive ability, including Bowling’s extensive email com-
munications with her family regarding her legal proceedings
and family matters while housed at FMC Carswell. It also par-
ticularly struck the court that Bowling was able to communi-
cate verbally both before and immediately after the trial, and
it was only the period in which the trial loomed that Bowling
remained mute. In arriving at its finding, the district court
placed much more weight on Dr. Correa’s forensic psychol-
ogy report and testimony than that of Dr. Coyle, Bowling’s
expert, because Dr. Coyle evaluated Bowling a year later and
during a more narrow timeframe. Based on all of the evi-
dence, the district court found that Bowling deliberately ex-
aggerated her symptoms and remained mute to unnecessarily
delay the proceedings. We see no reason in the record to upset
the district court’s well-supported finding.
No. 19-2110 15
Finally, as a policy matter, Bowling suggests that if we
hold that feigning incompetence is an obstruction of justice,
we will discourage lawyers from seeking competency exami-
nations for their clients. The concern is overstated. First, Wil-
bourn has been the law of this circuit for several years now
and there is no evidence that defense attorneys have been de-
terred from requesting competency examinations in its wake.
Second, and more fundamentally, the Guidelines state that
the enhancement should not punish a defendant for the exer-
cise of a constitutional right, U.S.S.G. § 3C1.1 cmt. n.2, and a
defendant has the right to be deemed competent to stand trial.
It is not an obstruction of justice to merely request a compe-
tency examination, even if the defendant is ultimately
deemed competent. It is only an obstruction of justice to in-
tentionally feign incompetence for the purpose of delaying or
attempting to avoid the criminal proceedings. That is a dis-
tinction with an important difference. We are confident that
counsel will continue to request competency examinations
whenever they reasonably believe that their client may not be
mentally competent to stand trial. Defendants who deliber-
ately exaggerate their symptoms do so at their own peril and
risk receiving an enhanced sentence.
III
For the foregoing reasons, we affirm the district court’s
judgment.