U.S. v. Carter

• Decision Date: 07 November 1983
• Docket Number: No. 82-2174,82-2174
• Citation: 720 F.2d 941
• Parties: 14 Fed. R. Evid. Serv. 803 UNITED STATES of America, Plaintiff-Appellee, v. Janyce CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 941

720 F.2d 941

14 Fed. R. Evid. Serv. 803

UNITED STATES of America, Plaintiff-Appellee, v. Janyce CARTER, Defendant-Appellant.

No. 82-2174.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1983.

Decided Nov. 7, 1983.

John M. Cutrone, Chicago, Ill., for defendant-appellant.

Daniel Purdom, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before POSNER and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

COFFEY, Circuit Judge.

Defendant-appellant, Janyce Carter, appeals her conviction and sentence in the United States District Court, Northern District of Illinois, for participating in an unauthorized loan of postage stamps and an attempt to conceal such loan, in violation of 18 U.S.C. Sec. 371, 18 U.S.C. Sec. 1711, and 18 U.S.C. Secs. 2073, 2. We affirm.

I.

As of April 15, 1982, Janyce Carter had worked for the United States Postal Service for sixteen years. In August of 1980 Carter was assigned to the Irving Park Postal Station, Chicago, Illinois, as a distribution window clerk. Her responsibilities included the selling of stamps and the performing of other postal transactions with the public.

Prior to beginning her duties as a distribution window clerk, Carter attended a two-day training seminar to review the procedure used in conducting window transactions and to learn her responsibilities in accounting for postal funds. As part of the program Carter received and signed a Public Funds Statement. ¹ Carter also received a supply of stamps and cash known as her stamp credit. In acknowledgement of this stamp credit, Carter signed a fixed credit receipt which provided, in part, "withdrawal of fiscal funds for personal use, whether temporary or permanent, may subject employees ... to removal from office, ... and criminal prosecution for violation of Title 18, Section 641 or 1711 United States Code." Carter also received a Daily Financial Report form which the Postal Service requires each distribution window clerk to use in recording the "stamp sales, ... the various transactions conducted by the window clerk and the cash they have received incident to those transactions."

Though Daily Financial Reports are completed and filed on a daily basis, audits occur periodically. The Postal Service, through its Postal Supervisors, audits each distribution window clerk three or four times a year to determine if their stamp credit is within certain tolerance levels. ² If a distribution window clerk's stamp credit exceeds the tolerance level allowed, the clerk must repay the excess amount to the Postal Service and await a decision by Postal authorities as to whether or not a suspension is in order. Internal audits are also performed by the Chicago Post Office through Postal System Examiners on a surprise basis or upon the request of a supervisor. Postal authorities attempt to conduct audits without the knowledge of the various window clerks, but, because the audits are made on a somewhat regular basis and because of the employees' rumor mill, clerks usually know of the audits in advance.

The evidence at trial revealed that on the morning of April 15, 1981, Carter learned that she was to be audited by Postal authorities. Carter immediately phoned Anna Shelby, a distribution window clerk at the Wicker Park Postal Station, Chicago, Illinois, and asked for a stamp loan in order that she (Carter) might cover her stamp credit deficiency. ³ During the lunch hour on April 15, 1981, Shelby loaned Carter $4,500.00 worth of stamps. That evening, a Postal System Examiner audited Carter's Daily Financial Report and despite the $4,500.00 "stamp loan" earlier in the day, the Examiner still found that Carter had a deficit of $1,137.48. Carter agreed to repay this amount to the Postal Service. Later that evening Shelby phoned Carter to determine when the stamps would be returned. Carter informed Shelby that because Carter expected more audits in the next few weeks, she could not return the stamps immediately. During the next three months Shelby frequently phoned Carter asking for return of the stamps and was repeatedly told that Carter was unable to return them at that time. Carter on one occasion stated that she was attempting to secure a loan in order to repay the amount in money rather than stamps. During the period in question Shelby was falsifying her Daily Financial Report.

In late July of 1981, Shelby learned that Postal Systems Examiners were going to audit the Wicker Park Postal Station. When she informed Carter of this audit, Carter again refused to return Shelby's stamps. Shelby, in turn, borrowed $4,500.00 worth of stamps from Shirley McNeary and "came up clear" on the audit. Shortly thereafter, Shelby returned the borrowed stamps to McNeary. A week later the Postal Supervisors conducted their own audit and determined that Shelby's Daily Financial Report showed a $4,500.00 deficit. Shelby was placed on an immediate emergency suspension (twenty-nine days). On August 24, 1981, Shelby informed Postal Inspector Hull, an investigator for the United States Postal Service, that the reason for her $4,500.00 deficit was the previous stamp loan to Carter. Shelby, at that time, agreed to cooperate with the Postal Service in an effort to apprehend Carter. Pursuant to the agreement, Postal authorities taped phone conversations between Shelby and Carter on September 1, 2, and 6 of 1981. On September 6, 1981, the following conversation took place:

Shelby--"I'm not paying it, okay, okay, then okay. I won't pay it .... Listen okay, well I won't pay any attention to them. What I'm saying is tomorrow is even a holiday and they're even talking about bringing me downtown, okay? What I'm saying to you is I loaned them to you in good faith, right? Huh?"

Carter--"Yes, Ann."

Shelby--"Huh?"

Carter--"Yes, yes Ann."

Following this conversation the Government called for a Federal Grand Jury investigation and on April 14, 1982, the Grand Jury issued a three count indictment against Carter for the following: (1) conspiring to participate in the unauthorized loaning of postage stamps in violation of 18 U.S.C. Sec. 371; (2) advising and participating in the unauthorized loaning of postage stamps in violation of 18 U.S.C. Sec. 1711; and (3) willfully concealing the unauthorized loan in violation of 18 U.S.C. Secs. 2073, 2. At trial, the jury returned a verdict of guilty on all counts. The trial judge sentenced Carter to two concurrent seven-year terms in the custody of the Attorney General on counts II and III of the indictment, to be followed by a five year probationary period as to count I of the indictment.

On appeal, Carter contends:

(A) That the agreement required to violate 18 U.S.C. Sec. 1711 precludes a finding of conspiracy to violate 18 U.S.C. Sec. 1711 as alleged in count I of the indictment.

(B) That the Government's evidence to convict under 18 U.S.C. Sec. 2073 failed to show appellant's knowledge and, therefore, could not support the jury's verdict.

(C) That the district court abused its discretion by allowing the Government to elicit testimony concerning a "NSF" check for $1,800.50.

(D) That the prosecutor's closing argument, which speculated as to why appellant had changed her previous testimony, constituted reversible error.

(E) That the trial judge's sentencing constituted an abuse of discretion.

We shall consider these issues individually.

II.

A. CONSPIRACY AND THE SUBSTANTIVE OFFENSE

Appellant claims that count I of the Government's indictment alleges that Janyce Carter conspired to participate in the unauthorized loaning of postage stamps in violation of 18 U.S.C. Sec. 1711. Appellant reasons that the substantive offense, an unauthorized loaning of postage stamps, requires an agreement between two parties, namely the lender and the borrower, and thus precludes a charge of conspiracy based upon the same agreement. Relying upon Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946), appellant contends that the agreement which is the subject of the substantive offense cannot be used as the basis for a finding of conspiracy where there is no ingredient in the conspiracy not present in the completed crime.

We do not reach this issue for two reasons. First, appellant's failure to present this legal issue to the district court results in a waiver of that issue on appeal. As this court has stated on numerous occasions, "it is a well-established general proposition that a litigant cannot present to this court as a ground for reversal an issue which was not presented to the trial court and which it, therefore, had no opportunity to decide." Holleman v. Duckworth, 700 F.2d 391, 394-95 (7th Cir.1983). See also Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981); United States ex rel. Moore v. Brierton, 560 F.2d 288, 291 (7th Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978). Because the 753 page trial record and accompanying pleadings are void of any argument even resembling appellant's contention that the substantive offense and the conspiracy merge, we do not reach this issue.

Second, even if the issue were properly before us a complete reading of count I of the indictment reveals that the conspiracy "to knowingly participate in the unauthorized loaning of ... postage stamps" not only included participation in the unauthorized loaning of postage stamps, but also included concealing the unauthorized loan and thereby defrauding the United States Postal Service. ⁴

Count I of the indictment, when read in its entirety, thus alleges that Carter agreed to conceal the unauthorized loan by causing Shelby to falsely enter $8,164.02 as the "Closing Balance" on her May 1, 1981 Daily Financial Report. Appellant makes no argument that a conspiracy to conceal a loan cannot exist. In fact, such a conspiracy satisfies the test set forth by the United States Supreme Court for a violation of 18...