270 F.3d 986 (6th Cir. 2001), 00-4230, United States v Everett

Docket Nº:00-4230
Citation:270 F.3d 986
Party Name:United States of America, Plaintiff-Appellee, v. Justine Theresa Everett, Defendant-Appellant.
Case Date:October 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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270 F.3d 986 (6th Cir. 2001)

United States of America, Plaintiff-Appellee,


Justine Theresa Everett, Defendant-Appellant.

No. 00-4230

United States Court of Appeals, Sixth Circuit

October 12, 2001

Submitted: June 6, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 99-00363-Solomon Oliver, Jr., District Judge.

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[Copyrighted Material Omitted]

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Thomas E. Getz, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

COUNSEL On BRIEF: Gordon S. Friedman, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant.

Before: BATCHELDER and MOORE, Circuit Judges; BERTELSMAN, District Judge. [*]


BERTELSMAN, District Judge.

In this appeal, Justine Theresa Everett seeks a reversal of her conviction on one count of bank fraud and complicity.


The Appellant was a certified public accountant. From 1988 until 1992 Appellant worked for an accounting firm. While at the firm, she worked on the account for Mark Stein's Expert Auto Body, Inc. In May 1992 Appellant left the firm to establish her own practice. At Stein's request, Appellant continued to do accounting work for his business.

Co-defendant Kathy Mariani worked for the same accounting firm as Appellant. Appellant introduced Mariani to Stein. At about the same time Appellant left the firm, Stein hired Mariani to work for him as a bookkeeper. Mariani's duties included doing accounts receivable, accounts payable, and recording all the checks written into a check register. Mariani was a co-signer on Stein's business accounts, but she generally signed Stein's name to checks. Mariani testified that Appellant was never listed with the bank as an authorized signer on the account. On occasion, however, Stein and/or Mariani told Appellant she could sign Stein's name to specific checks. 1

When Mariani quit her job at Stein's Auto Body, her replacement discovered discrepancies in the business records compared to the bank records. She obtained copies of the checks in question. One check, in the amount of $5,000, was made payable to the Appellant, but recorded in the check registry as a payment to a vendor. The other checks were connected to Mariani. After Stein reported the theft to the police, an FBI financial analyst reviewed Stein's bank records and bookkeeping records. He found negotiated checks totaling $96,648.47 that had been issued to the Appellant or made payable to cash and endorsed by Appellant. The agent testified that nearly all of the checks were issued out of proper sequence, falsely recorded in the check registers or not recorded at all, and many contained incorrect information in the memo section of the check.

As a result of the FBI's investigation, Appellant and Mariani were jointly charged in a two count indictment. Both counts charged bank fraud and complicity, although each count concerned a different bank. Prior to trial, Mariani pleaded guilty to bank fraud for her conduct in

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writing unauthorized checks to herself. Appellant proceeded to trial.

At trial, the government introduced four checks made payable to Appellant to which Appellant admitted to signing Stein's name. Appellant testified that these four checks were sent to her post-dated and without signature for her services. When she questioned Mariani about the unsigned checks, Appellant stated that Mariani told her she could sign Stein's name to the checks herself.

Mariani testified that she knew Appellant was writing unauthorized checks to herself because she saw her do it, and she also saw cancelled checks written to the Appellant, by the Appellant, that Mariani knew were unauthorized. Mariani testified that Appellant had asked her on many occasions to issue checks for services Mariani knew Appellant had not performed. After issuing an unauthorized check, either Mariani or Appellant would enter false information in the check register to conceal the illegitimacy of the checks. Mariani also explained that before she left her employment with Stein, she and Appellant packed up all the bank records and old checks so that Appellant could take them to Florida with her. Mariani testified that the purpose of moving the bank records and checks was to prevent detection of their scheme.

After presentation of the evidence, the trial court granted Appellant's motion to dismiss count two of the indictment because the checks in question in count two had been signed by Mariani, an authorized signatory. Thus, the bank would not be subject to a risk of loss even if the checks were written for an unauthorized purpose. The trial court sent count one to the jury. The jury returned a verdict of guilty, and Appellant was sentenced to fourteen months of incarceration. Appellant now appeals her conviction.


Appellant makes seven arguments as to why her conviction should be reversed. We will discuss each issue in turn.

ISSUE 1: Appellant argues she was authorized to sign Stein's name, thus there was no bank fraud.

Appellant argues that Stein, owner of the auto body shop, authorized her to sign his name on the checks in question. She argues that the signing of another's name, when authorized by that person to do so, is not forgery and cannot be a...

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