U.S. v. Crossley
| Decision Date | 16 March 2000 |
| Docket Number | Nos. 99-4076,99-4080,s. 99-4076 |
| Citation | 224 F.3d 847 |
| Parties | (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Rebecca K. Crossley (99-4076); Starla Grubich (99-4080),Defendants-Appellants. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 99-00114--James S. Gwin, District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Debra Kanevsky Migdal, Akron, Ohio, for Rebecca Crossley
Mark H. Ludwig, COLE CO., L.P.A., Akron, Ohio, for Appellants.
Christian H. Stickan, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
Before: NORRIS, MOORE, and COLE, Circuit Judges.
Rebecca K. Crossley and Starla Grubich each were convicted of conspiracy to commit mail fraud and of a single mail fraud violation. On appeal, Crossley argues: (1) that the district court erred in denying her motion for a continuance of trial because she did not have thirty days between her first appearance through counsel and her trial as required under the Speedy Trial Act and because she was deprived of her Sixth Amendment right to prepare an adequate defense and her Fifth Amendment right to due process; and (2) that the district court erred in denying her motion for judgment of acquittal because there was insufficient evidence to support her conspiracy and mail fraud convictions. Grubich makes the following claims in her appeal: (1) that her mail fraud conviction was barred by the statute of limitations; (2) that she is entitled to a new trial because the district court violated the Speedy Trial Act; (3) that the district court erred in denying her motion to suppress statements made to FBI agents during an interview in which she was not advised of her Miranda rights; and (4) that the district court erred in denying her motion for judgment of acquittal of her conspiracy and mail fraud convictions. For the reasons stated below, we AFFIRM the convictions of Crossley and Grubich.
Rebecca K. Crossley and Starla Grubich both were involved in an insurance scam conspiracy operating out of a branch office of Republic Claims Service Company in Akron, Ohio. Republic Claims is an insurance company based in Phoenix, Arizona that provides insurance for the customers of its parent company, U-Haul of America. It handles all damages claims from customers who rent trucks, trailers, or storage rooms from U-Haul. According to Republic Claims's standard practice, a claim filed in the Akron office initially would be handled by an adjuster, who would set up a file, investigate the claim, and determine whether a claim should be paid. The head clerk then would input the data into the computer, which would be sent to Republic Claims's home office in Phoenix via modem, and a check automatically would be issued. The check then would be mailed out by regular mail the same or the next business day.
In March of 1995, Republic Claims discovered that Martin Latson, an adjuster in the Akron office, was making false claims on behalf on claimants who were not part of the original claim file and was receiving checks for these false claims. Ernie Bernard McCalister also participated in the scam by receiving several checks from Republic Claims in exchange for a portion of the proceeds. At Latson's request, McCalister sought other individuals to act as nominees to receive checks based on false claims. He would approach a potential nominee, ask if he or she would cash an insurance check in return for a portion of the proceeds, and if the person agreed McCalister would ask for his or her name, address, and social security number. Once he obtained this information, McCalister would pass it along to Latson, who would use it to file a false claim and generate a claim check from Republic Claims.
McCalister approached both Crossley and Grubich to become nominees in the scam. McCalister and Grubich worked together at Camp Roulston, a military juvenile facility. Grubich had indicated to McCalister that she wanted to purchase a new computer, and McCalister told her that if she cashed a check for him, he would give her a portion of the proceeds to buy a computer plus any additional amount necessary for the purchase. Grubich agreed to McCalister's proposal, gave him her required personal information, received a check in the mail, cashed it, and then purchased a new computer with part of the proceeds. The check made out to Grubich was dated April 12, 1994, for the amount of $4,000. McCalister then approached Grubich's roommate, Crossley, about becoming a nominee. Crossley agreed to participate and gave him her personal information. Republic Claims then issued a check in her name and sent it to the Akron office. McCalister gave the check to Crossley, who cashed it for him, and kept a portion of the money. Crossley's check from Republic Claims was dated April 26, 1994, for the amount of $3,562.
In the course of investigating this scheme, FBI Agent William P. Delagrange interviewed Crossley on May 14, 1997, and confronted her with a copy of the check from Republic Claims that she had endorsed. Crossley told Delagrange that she had received the check in exchange for entering computer data for McCalister. She then told him that she cashed the check, used $1,000 of the proceeds to buy a computer monitor, and gave the remaining balance to McCalister. Crossley then was interviewed by FBI Special Agent Dennis Archey on November 7, 1997. She told Archey that she had not entered any computer data for McCalister. Rather, she explained that McCalister had asked her to do some work for his new computer business and that he had offered to contribute half of the purchase price of a new computer printer for her if she cashed the check. Grubich also was interviewed by Archey on September 30, 1997, at Camp Roulston. When asked about the check she had cashed, Grubich explained that McCalister had told her that he needed her to cash the check in order to limit his tax exposure. Grubich admitted that she cashed the check and used $500 of the proceeds to purchase a new computer and that McCalister had contributed another $300 for the purchase.
Crossley and Grubich were both charged with conspiracy to commit mail fraud and with individual mail fraud violations in an indictment issued on April 14, 1999. Crossley was arraigned on May 6, 1999, and Grubich was arraigned on May 13, 1999. Trial began on June 7, 1999, and lasted for a day and a half. Both Crossley and Grubich testified at trial and admitted to cashing the checks, but denied any knowledge of the insurance scam. Crossley testified that McCalister asked her to cash a check for his new insurance business because he did not have a bank account yet. She also stated that once she received the check, she cashed it and gave the entire amount to McCalister. Similarly, Grubich testified that McCalister asked her to cash a claim check because he needed some help with his new insurance business. After she cashed the check, Grubich stated that she gave all of the money to McCalister. Grubich also testified that she had purchased her new computer with money she had been saving and that McCalister had contributed $100 to $150 but never told her that this money was a payment for cashing the check.
The jury found both Crossley and Grubich guilty of conspiracy to commit mail fraud and of one count of mail fraud. Following the district court's entry of judgment, Crossley and Grubich each filed a timely notice of appeal.
Crossley asserts that the district court erred in denying her motion for a continuance on two grounds: first, that the district court violated the minimum thirty-day waiting period for trial required by the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), and second, that the district court deprived Crossley of her Sixth Amendment right to prepare an adequate defense and her Fifth Amendment right to due process.
The Speedy Trial Act provides in pertinent part that:
Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.
18 U.S.C. § 3161(c)(2). This provision "was passed to address the concern that a defendant be allowed sufficient time to prepare for trial." United States v. Grosshans, 821 F.2d 1247, 1252 (6th Cir.), cert. denied, 484 U.S. 987 (1987).
It appears that we have never been presented with the opportunity to examine when a defendant "first appears through counsel" in order to trigger the Speedy Trial Act's thirty-day waiting period. In United States v. Daly, 716 F.2d 1499, 1505 (9th Cir. 1983), cert. dismissed, 465 U.S. 1075 (1984), the Ninth Circuit concluded that a defendant's appearance at a bail hearing with counsel, appointed solely for the purpose of representing him at that hearing and not at trial, did not constitute the defendant's first appearance through counsel to begin the thirty-day period. The court reasoned that the Speedy Trial Act was enacted to guarantee a defendant a minimum of thirty days to prepare a defense and that in order "[t]o fulfill this policy, the 30-day period should commence only after the indictment or information has been filed and made public and a defendant has first appeared with counsel engaged or appointed to represent him at trial." Id.; see also United States v. Storm, 36 F.3d 1289, 1293 (5th Cir. 1994) (...
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