United States v. Semyya Cunningham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4664
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SEMYYA LANISE CUNNINGHAM,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:17-cr-00177-LO-1)
Argued: January 31, 2019 Decided: February 27, 2019
Before MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge
Motz and Judge Quattlebaum concurred.
ARGUED: John Marcus McNichols, WILLIAMS & CONNOLLY LLP, Washington,
D.C., for Appellant. Grace Lee Hill, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public
Defender, Todd M. Richman, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia; Stephen L. Wohlgemuth,
WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant. G. Zachary
Terwilliger, United States Attorney, Matthew Burke, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:
A jury convicted Semyya Cunningham of multiple federal crimes arising from an
alleged scheme in which she sought to obtain the proceeds of a life insurance policy
without the policyholder’s knowledge or consent. Cunningham contends that the district
court erred in admitting certain statements by the deceased victim under Federal Rule of
Evidence 807, the residual exception to the hearsay rule. Finding no abuse of discretion,
we affirm.
I.
Cunningham worked as an insurance agent for the Western Reserve Life
Assurance Company of Ohio, also known as the Transamerica Life Insurance Company
(“Transamerica”). In April 2014, she sold an insurance policy to her childhood friend
Kourtnee Green. The policy contained an “accelerated death benefit” option, which gave
Green the right, if diagnosed with a terminal illness, to elect to receive a portion of the
proceeds before her death. When Green enrolled in the policy, she selected her mother,
Senoria Rogers, and her twin brother, Kasey Green, as the beneficiaries under the policy.
In July 2014, Green was diagnosed with terminal cancer and moved into her
mother’s residence in Surprise, Arizona. Rogers cared for Green until her death,
including handling matters such as taking her to chemotherapy treatment and managing
her finances.
After learning of Green’s diagnosis, Cunningham changed the contact information
and address on the policy to her own. She also changed the policy beneficiaries from
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Rogers and Green’s twin brother to two of Cunningham’s friends. These friends
acknowledged at trial that they were mere acquaintances of Green. In October 2014,
Cunningham made a claim for payment of the accelerated death benefit. Transamerica
paid the claim in January 2015, mailing a check for $182,131.75 to Cunningham’s
residence. Cunningham deposited these funds into Green’s bank account. Cunningham
then transferred the funds into her own bank account through a personal check, drawn on
Green’s account, which she later was alleged to have forged.
Several days later, Rogers learned of the substantial deposit and withdrawal on
Green’s account and asked Green about these transactions. Green replied that she did not
know the source of the deposit, that she did not know why she was receiving the funds,
and that she neither wrote nor provided the check drawn on her account to Cunningham
(the “Rogers statements”). Rogers called Transamerica and alleged that Cunningham had
committed fraud on Green’s policy. This conversation was recorded.
In February 2015, Cunningham called Green. During the call, Green told
Cunningham that she was unaware of the check that had been drawn on her bank account.
Cunningham stated that she had withdrawn the money and asked Green to acknowledge
that Green had signed both the Transamerica check and the subsequent personal check
made out to Cunningham. Overhearing this conversation, Rogers told Green that if she
lied on behalf of Cunningham by saying that she intended Cunningham to receive the
proceeds, Green would have to go live with Cunningham or her twin brother.
Transamerica began investigating the alleged fraud following Rogers’s call.
Cheryl O’Donnell, a fraud investigator for Transamerica, interviewed Rogers and Green
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during a phone call, which was not recorded. During the interview, Green stated that she
did not change the contact information or beneficiaries under the policy; that the newly
designated beneficiaries were friends of Cunningham’s, not Green’s; and that Green did
not submit the claim for accelerated death benefit or transfer the proceeds to Cunningham
(the “O’Donnell statements”).
Green later signed several sworn forgery affidavits for her bank and insurance
company. She and Rogers were also interviewed together by the local police, and Green
again confirmed the forgery allegations.
In March 2015, Green changed the beneficiaries on the policy back to Rogers and
her twin brother and submitted a claim for payment of the accelerated death benefit,
which Transamerica approved. Six months later, Green died of cancer.
II.
Cunningham was indicted by a grand jury on two counts of mail fraud in violation
of 18 U.S.C. § 1341, one count of wire fraud in violation of 18 U.S.C. § 1343, and two
counts of engaging in monetary transactions in criminally derived property in violation of
18 U.S.C. § 1957. The indictment alleged that Cunningham engaged in a scheme to
defraud whereby she sought to obtain the proceeds of a life insurance policy held by
Green without Green’s knowledge or consent.
Green died before the indictment and was therefore unavailable to testify at trial
regarding her intent as to the policy proceeds. The government moved in limine to admit
the Rogers and O’Donnell statements (collectively, the “statements”) under Rule 807, the
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residual hearsay exception. The district court held a hearing on this motion at which both
Rogers and O’Donnell testified. The district court also considered various audio
recording submissions from both parties, including the telephone conversation between
Transamerica and Rogers in which Rogers claimed to be Green. In an oral ruling, the
district court determined that the statements, although hearsay, were admissible under the
residual hearsay exception.
The case proceeded to trial, and the statements were admitted into evidence
through Rogers and O’Donnell. At the close of the government’s case, Cunningham
moved for a judgment of acquittal. The district court denied the motion, and the jury
convicted Cunningham on all counts.
After the trial, the district court issued a written, supplemental order on its
admission of the statements under the residual exception. In that order, the district court
held that the government established its burden under Rule 807 to justify admission and
explained its reasoning in reaching that decision. 1
Cunningham was sentenced to a term of imprisonment of twenty-four months.
This appeal followed.
III.
A district court’s ruling on the admission of hearsay under the residual exception
is reviewed for abuse of discretion. United States v. Shaw, 69 F.3d 1249, 1254–55 (4th
1
The district court’s written decision is the decision referred to in this opinion.
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Cir. 1995). If we determine that the court abused its discretion in admitting hearsay
statements, we proceed to review that evidentiary ruling for harmless error under Federal
Rule of Criminal Procedure 52. United States v. Burfoot, 899 F.3d 326, 341–42 (4th Cir.
2018); United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
IV.
Cunningham contends that the district court erred in admitting the Rogers and
O’Donnell statements under Rule 807’s residual hearsay exception. Rule 807 is “a
narrow exception” to the rule against hearsay that “should be utilized only after much
consideration and examination.” United States v. Dunford, 148 F.3d 385, 392, 394 (4th
Cir. 1998) (internal quotation marks omitted). A court may admit hearsay under the
residual exception only upon finding that (1) the hearsay has circumstantial guarantees of
trustworthiness equivalent to those of the recognized exceptions, (2) it is offered as
evidence of a material fact, (3) it is more probative than any other evidence that the
proponent can reasonably obtain, and (4) admitting it will best serve the purposes of the
Federal Rules of Evidence and the interests of justice. Fed. R. Evid. 807(a).
Cunningham’s sole challenge is to the first element--that the statements have
circumstantial guarantees of trustworthiness--which we have described as the “most
important.” Dunford, 148 F.3d at 393. In considering whether the district court abused
its discretion in finding sufficient circumstantial guarantees of trustworthiness, we look to
the “total context in which the statements were made.” Id.; see Idaho v. Wright, 497 U.S.
805, 820 (1990) (“[T]he ‘particularized guarantees of trustworthiness’ required for
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admission . . . must likewise be drawn from the totality of circumstances that surround
the making of the statement and that render the declarant particularly worthy of belief.”)
(emphasis added).
On appeal, Cunningham first argues that it was error to admit the statements
because they lacked circumstantial guarantees of trustworthiness. She further argues that
the error was not harmless. As explained below, we reject Cunningham’s first argument;
we therefore need not reach the question of harmless error.
We conclude that the district court did not abuse its discretion in admitting the
statements because they had circumstantial guarantees of trustworthiness. We find it
useful to consider Cunningham’s arguments in the context of the district court’s
reasoning regarding the statements’ circumstantial guarantees of trustworthiness. We
therefore summarize the district court’s analysis before turning to whether the court
abused its discretion in admitting the statements.
A.
The district court found that the Rogers statements were trustworthy in light of the
totality of the circumstances in which they were made. In particular, the court
emphasized the specific relationship that Green and Rogers shared. It observed that the
mother and daughter shared a close relationship “[b]y all accounts.” J.A. 204. Indeed,
Rogers cared for Green for over a year as she battled cancer until Green’s death,
including by bathing her, preparing all of her meals in accordance with a special cancer
diet book, managing her finances, and taking her to hours-long chemotherapy
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appointments multiple times a week. The district court further noted that the statements
were made in Rogers’s and Green’s mutual home.
The district court found that the O’Donnell statements were trustworthy as well. It
reasoned that Green made these statements to notify Transamerica of a problem with her
benefits. Therefore, she had an incentive to speak truthfully to ensure that the policy’s
proceeds were given to her beneficiary of choice and to avoid violating state and federal
law.
The district court noted in particular that Green had “little if any motivation” to lie
to either Rogers or O’Donnell about whether she intended Cunningham to receive the
insurance benefits. J.A. 205. It expressly rejected Cunningham’s arguments against
admission of the statements. First, the district court rejected Cunningham’s theory that
the Rogers statements were not trustworthy because Green’s will was overborne by
Rogers, who had previously told Green that she would evict her if she lied on behalf of
Cunningham. The court found that this statement was likely mere “bluster.” Id. In any
event, the district court reasoned, Cunningham presented no evidence to suggest that
Green was persuaded to lie because of that alleged “threat” in light of evidence showing
that Green “was willing and able to contradict her mother, as evidenced by their
conversation with the Surprise, Arizona police department.” Id.Second, the district court rejected Cunningham’s argument that the O’Donnell
statements were not trustworthy because Rogers had previously impersonated Green in a
phone call to Transamerica when Rogers initially reported fraud on Green’s account.
Upon listening to the audio recordings of that prior conversation, the district court
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concluded that Rogers had correctly identified herself at the beginning of the phone call.
The district court accepted Rogers’s explanation that she failed to correct the insurance
representative’s misidentification of Rogers as Green later on during the call because
Rogers was acting on Green’s behalf, at her request, due to her weakened state.
Consequently, the district court found that both statements had circumstantial guarantees
of trustworthiness.
B.
Against the backdrop of the district court’s analysis, we turn to Cunningham’s
various arguments as to why the district court abused its discretion. Cunningham argues
that the district court erred by (1) discounting her version of events in favor of Rogers’s
and O’Donnell’s, (2) considering Green’s relationship with Rogers and the fact that the
statements were made in an intimate setting, (3) admitting the statements where cross-
examination of Green would be of more than marginal utility, and (4) relying on
corroborating evidence to establish the statements’ trustworthiness. We address each
argument in turn.
First, Cunningham argues that the district court should have accepted her version
of events over that of Rogers’s and O’Donnell’s. Regarding the Rogers statements,
Cunningham points out that Green did not deny having given Cunningham the proceeds
until Rogers discovered the policy and proceeds by accident. At that point, according to
Cunningham, it would have been difficult for Green to tell Rogers that she had decided to
give the proceeds not to her, but to someone outside her immediate family. With respect
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to the O’Donnell statements, Cunningham contends that Rogers pressured Green to
maintain this narrative in conversations with O’Donnell and threatened to evict Green if
she contradicted Rogers. 2 As summarized above, however, the district court considered
and rejected each of these arguments, determining that Cunningham’s account was not as
credible as Rogers’s or O’Donnell’s. And we find no basis for concluding that this
determination was an abuse of discretion.
Second, regarding the Rogers statements in particular, Cunningham argues that the
district court erred in crediting Green’s close relationship with Rogers and the fact that
the statements were made in an intimate setting, their mutual home, as a basis for the
statements’ trustworthiness. In support of this argument, Cunningham cites the Eighth
Circuit’s decision in United States v. End of Horn, 829 F.3d 681 (8th Cir. 2016), for the
proposition that a statement made to a former intimate partner is not inherently
trustworthy. Notwithstanding that End of Horn is not binding on this court, it is also
distinguishable. There, the district court “did not address why [the statement in question]
had ‘circumstantial guarantees of trustworthiness.’” Id. at 686. In contrast, the district
court here gave several reasons for why the statement had circumstantial guarantees of
trustworthiness and did not rely on the fact of the relationship alone as an indicator of
2
The crux of Cunningham’s argument both on brief and at oral argument is that
the substantiated facts are fully consistent with her narrative of the events. But this is not
dispositive of the Rule 807 inquiry, and the district court did not abuse its discretion in
declining to accept Cunningham’s version of the events. For example, the district court
did not err in discrediting Cunningham’s explanation for why she had changed Green’s
beneficiaries to two women who were not friends of Green and who later testified against
Cunningham at trial.
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circumstantial trustworthiness. Instead, as we have described, the district court
thoroughly examined the circumstances surrounding the statements at issue and found--
“in the total context in which the statements were made”--that they were worthy of belief.
Dunford, 148 F.3d at 393. While it is true that the district considered, as part of this
analysis, the fact that the Rogers statements were made in Green and Rogers’s home,
Cunningham offers no authority for the proposition that this consideration when
combined with others is improper, let alone an abuse of discretion.
Third, Cunningham argues that under the residual exception, hearsay is not
permitted where cross-examination of the absent speaker would be of more than
“marginal utility.” See Shaw, 69 F.3d at 1253 (“Th[e] trustworthiness requirement--
which serves as a surrogate for the declarant’s in-court cross-examination--is satisfied if
the court can conclude that cross-examination would be of ‘marginal utility’”).
According to Cunningham, cross-examination of Green would have corroborated
Cunningham’s version of the facts: that Green was pressured by Rogers to say that she
did not intend for Cunningham to receive the policy’s proceeds, when in fact that was
Green’s desire. But as we recognized in Shaw, that cross-examination would be of only
marginal utility is just one indicia of trustworthiness; it is not dispositive. Id. Indeed, in
Dunford, we held that the statements at issue were admissible without addressing whether
cross-examination would have been of marginal utility. 148 F.3d at 393–94. The fact
that Green was unavailable for cross-examination and would have purportedly verified
Cunningham’s theory of the case, therefore, does not by itself provide a basis on which to
find that the district court abused its discretion by admitting the statements.
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Finally, Cunningham argues that the district court erred in relying on
corroborating evidence to establish the statements’ trustworthiness, when corroboration is
not relevant to the trustworthiness inquiry and is therefore impermissible. See Shaw, 69
F.3d at 1253 n.5 (“Trustworthiness must emanate from the circumstances of a hearsay
statement, not from its consistency with other evidence offered in the case.”). Here,
however, the district court anchored its findings in the specific circumstances surrounding
each of the statements--not the statements’ consistency with other evidence in the case.
For example, the district court clarified that the Rogers statements were made once Green
“learn[ed] that her bank account contained a deposit of approximately $180,000, and after
subsequently learning that the money had been removed from the account via a check
made payable to [Cunningham].” J.A. 202. The district court then went on to analyze
the Rogers statements’ trustworthiness in that specific context. In other words, the
district court did not “look[] beyond the immediate circumstances of the deceased
witnesses’ statements to other corroborating evidence in the record.” Shaw, 69 F.3d at1253 n.5. Indeed, Cunningham fails to point to any portion of the district court’s opinion
suggesting that it did otherwise. Accordingly, this argument also fails.
Considering “the total context in which the statements were made,” we therefore
find that the district court did not abuse its discretion in finding sufficient circumstantial
guarantees of trustworthiness. Dunford, 148 F.3d at 393. In admitting the Rogers
statements, the district court considered the nature of Green’s relationship with her
mother, where the statements were made, and the circumstances at the time the
statements were made. And in admitting the O’Donnell statements, the district court took
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into account the lack of motivation Green had to lie to O’Donnell and, conversely, the
incentive she had to speak truthfully to O’Donnell with respect to the policy’s proceeds.
Finally, the court considered Cunningham’s counter-narrative and explained its reasoning
for discounting her version of the events. Accordingly, we hold that the district court did
not abuse its discretion in admitting the statements. We therefore need not address the
question of whether the district court’s decision constitutes harmless error.
V.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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