U.S. v. Yack, 97-3491

• Decision Date: 09 April 1998
• Docket Number: No. 97-3491,97-3491
• Citation: 139 F.3d 1172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cheryl YACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1172

139 F.3d 1172

UNITED STATES of America, Plaintiff-Appellee, v. Cheryl YACK, Defendant-Appellant.

No. 97-3491.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1998.

Decided April 9, 1998.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for Plaintiff-Appellee.

Richard F. James, Luke A. Casson (argued), James, James & Manning, Dyer, IN, for Defendant-Appellant.

Before CUMMINGS, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Cheryl Yack appeals from her conviction following a jury trial for embezzling $115,000 from the Calumet National Bank (now known as Bank Calumet) of Indiana, in violation of 18 U.S.C. § 656, and for making false entries in the bank's records, in violation of 18 U.S.C. § 1005. Her contention in this appeal is that she was denied the effective assistance of counsel.

Yack began working for the bank in 1980 and became head teller at its Schererville branch in 1986. As head teller she was the custodian of the vault and one of only three people who had keys to open it. The other two were Martha Sandoval, the branch manager, and Lana Thompson, the assistant manager.

As one would hope, banks require tellers to balance their drawers by tracking the cash. At Bank Calumet at the time in question, if, for instance, a teller took in cash from a customer, she was required to generate a cash-in ticket. If she gave out money, as in a withdrawal, she had to generate a cash-out ticket. At the end of the day she was required to prepare a cash-out ticket for all the checks she cashed. Tellers also had cash limits. For a regular teller the limit was $12,000. To maintain the limit the teller would "buy" money from the vault, generating a cash-in ticket for her drawer and a cash-out ticket for the vault. The various cash tickets were sent to the proof department for processing and were photographed on microfilm.

At the end of a day the teller counted the cash in her drawer and also counted "cash items." Cash items were notations regarding money which a teller had given out but for which she had not yet received reimbursement--an IOU. Cash items were not sent to the proof department nor were they microfilmed, and they did not show up on the teller tape. When the teller received compensation for the IOU she filled out a cash-out ticket and removed the cash item. When tellers were audited the legitimacy of the cash items was not verified; the items were simply counted.

At the Schererville branch, cash items were fairly small. One exception was money shipments from Schererville to another branch of the bank, the Inland Schererville branch. The Inland branch ordered cash every day but Wednesday to replenish its tellers and to maintain about $112,000 in its main cash box. The orders were for whatever amount was needed to accomplish that purpose. The Inland manager or assistant manager called in the cash order and then wrote a check to Bank Calumet. Items were transported between the branches by Brinks messenger, the cash going to Inland and Inland's check to Schererville.

As head teller, Yack was usually responsible for the Inland orders. She would buy money from the vault to fill the order, creating a cash-out for the vault and a cash-in for her drawer. The bank had a dual control policy, which meant that Yack was required to take another employee into the vault to verify the count of the money for the shipment. After verification the money was put into a bag, which was then tagged and sealed. The tag indicated the date, the amount of money in the bag, and the names of the persons who put it together. A Brinks log book was then prepared with the date, the number of bags in the shipment, and the destination. The bag remained in the vault until the Brinks messenger picked it up, at which time he was required to verify the value of shipment from the tags and sign the log book, indicating the number of items he was taking out of the vault.

The money was taken to Inland on one day and the check from Inland was returned to the Schererville branch the next day. Because of the one-day delay, the head teller carried the Inland order as a cash item in her teller drawer. If she were going to be gone the next day, she would sell the cash item to another teller. As head teller with these responsibilities, Yack was not subject to the $12,000 teller cash limit, but usually had over $100,000 in cash and tickets in her drawer.

About once a month the Schererville branch also shipped money and food stamps to the Federal Reserve. The procedure for these shipments differed a bit from the Inland shipments in that there was a separate Brinks log book for these shipments. A bank employee filled out the log book indicating what was being shipped, the date, and the amount; the messenger signed the book and indicated the number of items he received. The bank employee was also required to inform the main office of the shipment. The employee also made out a general ledger ticket indicating that there was a shipment to the Federal Reserve, a cash-out ticket for the vault, and a three-part, deposit-of-currency form. Two copies of the latter form were used as a tag on the Federal Reserve bag. The third copy was retained by the bank. The form showed which two employees prepared the shipment. After signing the log book and noting the number of items taken, the Brinks messenger would take the original page and leave a carbon copy in the Brinks log book.

A critical time for purposes of the charges against Yack is December 1994. As the government sees it, on the 7th she prepared a food-stamp shipment to the Federal Reserve. She filled out the documents, including the log book. Gerald Thomas, the Brinks messenger, signed for the shipment of food stamps to the Federal Reserve. On December 9th the assistant manager of Inland called in a replenishment order for $25,057.70 cash and prepared a check for that amount. Later that day the manager of Inland called in an additional order for $50,000 in currency. Yack bought money from the vault for the Inland order, showing a cash-in ticket to her drawer.

Also on December 9th Yack had teller Sophie Zdravski verify a count of $115,000, which Yack said was a shipment to the Federal Reserve. The money was counted, sealed in a bag, tagged for the Federal Reserve, and left in the vault. Yack prepared a cash-out ticket for the vault. That afternoon, Thomas, the Brinks messenger, arrived at the bank. He entered the vault with Yack, picked up two bags tagged for Inland, and signed the log book for the Inland shipment indicating that he was picking up two bags. Videotape from the bank's surveillance cameras shows Thomas leaving with two bags. He delivered two bags to Inland; those bags contained the $25,057.70 and $50,000 shipments.

After the two bags were taken away, Yack created paperwork for sales of cash from her drawer to the vault. She had previously prepared a cash-in ticket to the vault for the money. Because she was going on vacation, she sold the cash items for the two Inland orders to another teller, making Yack's teller drawer balance for December 9.

As to the Federal Reserve shipment, the government contends that Yack did not telephone the main office to report that she was making a shipment. She did, however, complete a general ledger debit ticket indicating a $115,000 shipment. She wrote her initials and those of her manager, Martha Sandoval, on the ticket. However, Sandoval was not aware that a shipment was contemplated. But when the main office of Bank Calumet learned of the supposed shipment and did not get credit from the Federal Reserve...