United States v. Stevenson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSFebruary 6, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-6218
BRENDA D. STEVENSON, (D.C. No. 5:11-CR-00294-D-1)
(W. D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Brenda D. Stevenson appeals her convictions on four counts of
embezzlement under 18 U.S.C. § 656. Stevenson asserts that the government
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
lacked sufficient evidence for a reasonable jury to find her guilty beyond a
reasonable doubt. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
I
From 2008 to 2009, Stevenson was a branch manager at Bank of the West
in Oklahoma City. R. Vol. 3, at 4. In late 2009, a Bank of the West customer
noticed that an unauthorized $11,000 withdrawal was made on April 10, 2009,
from his certificate of deposit account. Id. at 4-5. The customer notified the
bank of the improper withdrawal, and an internal bank auditor began investigating
certificate of deposit accounts. Id. During this audit, three additional improper
withdrawals, made in May 2009, were discovered for $5,000, $2,000, and
$10,000. Id. at 5. All four transactions indicated Stevenson’s employee
identification number as the withdrawing bank employee, and the April 10 teller
tape listed Stevenson’s employee identification number on a cash-out withdrawal
for $11,000. R. Vol. 4, at 18-19, 30, 34, 37, 44. On September 6, 2011, a federal
grand jury indicted Stevenson on four counts of embezzlement in violation of 18
U.S.C. § 656. R. Vol. 1, at 6-7. And, on January 11, 2012, a jury found her
guilty on all counts. Id. at 14. On July 23, 2012, the district court sentenced
Stevenson to imprisonment for twelve months and one day for each count, which
it ordered she serve concurrently, followed by two years of supervised release.
Id. at 15-17.
2
II
We review de novo whether the government presented sufficient evidence
to support a conviction. United States v. Dunmire, 403 F.3d 722, 724 (10th Cir.
2005). When reviewing the sufficiency of the evidence, we view the facts in
evidence in the light most favorable to the government, but do not weigh
conflicting evidence or second guess the fact-finding decisions of the jury.
United States v. Bagby, 696 F.3d 1074, 1080 (10th Cir. 2012). Our determination
turns on “whether a reasonable jury could find guilt beyond a reasonable doubt,
based on the direct and circumstantial evidence, together with the reasonable
inferences to be drawn therefrom.” United States v. Summers, 414 F.3d 1287,
1293-94 (10th Cir. 2005) (quotation omitted). “[W]e evaluate the sufficiency of
the evidence by considering the collective inferences to be drawn from the
evidence as a whole.” United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir.
2004) (quotation omitted). While “a conviction cannot be sustained if obtained
by ‘piling inference on inference,’” proof beyond a reasonable doubt may be
established, “in whole or in part, through the use of circumstantial evidence open
to interpretation by the jury.” Summers, 414 F.3d at 1294-95 (quoting Dunmire,
403 F.3d at 724). Sufficient evidence “raise[s more than] a mere suspicion of
guilt.” Dunmire, 403 F.3d at 724 (quotation omitted).
III
Stevenson asserts that the government failed to present sufficient evidence
3
at trial to support her conviction for four counts of embezzlement in violation of
18 U.S.C. § 656. A conviction under § 656 “requires the government to prove
that (1) the defendant was a bank officer or director (2) of a national or federally
insured bank (3) from which the defendant willfully misapplied[, or embezzled,]
funds and (4) that the defendant acted with intent to injure or defraud the bank.”
United States v. Flanders, 491 F.3d 1197, 1208 (10th Cir. 2007). Stevenson
contests the third element, that she embezzled the funds.
Stevenson claims that the evidence “[a]t best, . . . raised only a mere
suspicion of guilt” because “[n]o surveillance video from the bank showed who
made the . . . withdrawals,” no electronic record established that she made the
withdrawals, and “[n]o one testified that . . . [she] took the money.” Aplt. Br., at
16, 22. She goes on to cite numerous portions of the record that she argues
demonstrate the lack of sufficient evidence for a conviction. Specifically, she
cites coworkers’ testimony that “a good way” to embezzle money would be to use
a different employee’s identification number, which, she argues, could easily be
obtained. Id. at 17, 20 (discussing the possibility that another employee could
have obtained Stevenson’s identification number from her Rolodex); R. Vol. 4, at
167. She hypothesizes about her coworkers’ possible motives to use her
employee identification number, such as financial troubles and a subordinate’s
desire to obtain her managerial position. Id. at 20. She also cites ambiguity
regarding one transaction on April 10, 2009, where $8,533.03 was sold from
4
Stevenson’s employee identification number to an unknown employee
identification number designated teller number 2. Id. at 7, 20-21; R. Vol. 4, at
79-80. She emphasizes that her role as bank supervisor meant she was often
conducting business outside the bank and, as a salaried employee, did not
maintain a timecard. Accordingly, she asserts, there was no evidence that she was
at the bank on the dates of the improper withdrawals. Aplt. Br., at 6. In fact, she
claims, the evidence establishes that she was not at the bank on the withdrawal
dates. Id. at 17-18 (citing bank records showing that Stevenson went to
Oklahoma City, the bank’s location, Moore, and Frederick, Oklahoma on one of
the withdrawal dates). Moreover, she points to evidence that three of her
coworkers were at the bank on three of the four withdrawal dates. Id. at 19.
These unresolved ambiguities, Stevenson argues, require that her convictions be
vacated.
Stevenson’s argument is unpersuasive. The record more than adequately
supports the jury’s finding that she embezzled bank funds on four occasions. The
government offered the following evidence: all the withdrawals were processed
under Stevenson’s employee number; Stevenson deposited a total of $24,159.99
into her personal bank account during this period, and, on three of the four
withdrawal dates, she deposited amounts slightly less than the amount embezzled
on the date of withdrawal; a coworker identified her handwriting on the first two
withdrawals, which were approved by “B. Stevenson”; and, finally, Stevenson
5
lived beyond her means during the relevant time period, gambling at least $72,690
at a local casino during April, May, and June of 2009. R. Vol. 4, at 18-19, 30, 34,
37, 44, 110, 204-06, 233-35; R. Vol. 2, at 65, 81.
Viewing the evidence as a whole, the reasonable inference, “flow[ing] from
logical and probabilistic reasoning,” is that Stevenson embezzled the funds.
Summers, 414 F.3d at 1295. While Stevenson has “offered an elaborate
explanation for everything,” we do not “‘weigh conflicting evidence or second-
guess the fact-finding decisions of the jury’” when reviewing the sufficiency of
the evidence. United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011)
(quoting United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007)). The jury
found Stevenson guilty of four counts of embezzlement and the record is more
than adequate to support those findings.
IV
Accordingly, we AFFIRM Stevenson’s convictions on four counts of
embezzlement.
Entered for the Court
Mary Beck Briscoe
Chief Judge
6