U.S. v. Ford, 85-3161

• Decision Date: 12 February 1988
• Docket Number: No. 85-3161,85-3161
• Citation: 840 F.2d 460
• Parties: 24 Fed. R. Evid. Serv. 1060 UNITED STATES of America, Plaintiff-Appellee, v. Claudia A. FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 460

840 F.2d 460

24 Fed. R. Evid. Serv. 1060

UNITED STATES of America, Plaintiff-Appellee, v. Claudia A. FORD, Defendant-Appellant.

No. 85-3161.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1987.

Decided Feb. 12, 1988.

Raymond D. Pijon, Chicago, Ill., for defendant-appellant.

Stephen Crocker, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, CUDAHY, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant Claudia Ford appeals her conviction for conspiring with Gregory Little to rob a federally insured savings and loan. Ford was also convicted for using two firearms in the commission of the robbery, and for taking $19,000 from the savings and loan by force and intimidation while assaulting and jeopardizing the lives of the employees. We affirm.

I.

In 1985, Claudia Ford was the manager of the Lake Street branch of Great American Federal Savings and Loan Association ("Great American"), a federally insured savings and loan located at 230 North Michigan Avenue in Chicago. This branch utilized six cash drawers for tellers, two of which were "work fund drawers." ¹ Each drawer had a number, and Ford was assigned drawer 501, a work fund drawer, in June of 1985.

At the end of every day, each employee assigned a drawer counts the exact amount of money in his respective drawer and enters the result on a tally sheet. This number is then compared with the teller's daily transaction printouts to assure that the final counts were the same for that day. The only available method for the bank to verify the accuracy of the physical count was to audit the drawer contents.

The bank had a policy of auditing an employee's drawer before the employee left on vacation. Ford was scheduled for an audit on June 14, 1985 as she was leaving on vacation that day. The day before the scheduled audit, Ford closed out her blotter for drawer 501 by stating that it contained $60,653.73 in cash. According to Gregory Little, Ford called him that day and asked him if he wanted to make some big money fast. Ford was having an extramarital affair with Little, a college student, and she picked up most of their expenses and had authorized Little to use her credit cards.

Ford called Little later that afternoon and again that evening to tell him that she had devised a scheme to rob her bank. They agreed to meet for breakfast the following morning. Little came to the breakfast meeting on June 14 with a .9 millimeter gun. Ford presented her plan: she would enter the bank and signal to Little if the coast was clear, then let him into the bank. Ford instructed Little to knock out the bank guard to add some authenticity to the robbery. Ford left first for the bank. Little stopped to buy some vacuum-cleaner bags to put the money in and took a bus to Great American Savings and Loan.

Ford arrived at Great American first. When Little arrived, Ford gave him a "thumbs-up" signal, so he entered the bank and went with Ford to a back lunchroom-storage area. Ford produced a bag from which she pulled nylon hose and a .38 caliber revolver. Little was to put one nylon stocking over his head, use the others to tie up the guard and Ford, and use the gun to hit the guard. Ford went out to the tellers' area to unlock the cash drawers, taking with her the bags Little had brought. She returned to the back room five minutes later, but left upon noting that the guard had arrived.

By this time, at about 7:45 a.m., a teller had also arrived, and the teller and the guard were waiting in the building lobby outside the bank entrance. Ford had relocked the door, so the guard began looking for his keys. Ford eventually came to let them in, relocking the door behind them. The guard went to his desk and the teller headed toward the back room. Ford physically blocked the teller with her body from entering the back room. At this time, the teller returned to the tellers' area.

Ford called softly to the guard and accompanied him to the back room with her hand placed on his shoulder. Ford directed the guard into Little's grasp, and Little struck the guard with his gun, dropping the guard to his knees. Little struck the guard several more times, despite Ford's protesting not to kill him.

The teller took cover under the tellers' counter. Ford came out into the lobby area and circled it, while saying in a lowered voice, "help, we're being robbed." She returned to the doorway of the back room, and the teller overheard Little tell Ford, "Claudia, calm down." Ford went to the tellers' area and began tossing money into a pile on the floor. She filled two bags with money from this pile, but one of the bags ripped when Little picked it up. Ford took the teller's purse and instructed Little to fill it with money. Little departed with the purse and bag, leaving the remaining money in the pile on the floor.

Dawn Ritrovato, the branch's management trainee, heard the bank guard calling for help from inside the bank as she entered the building lobby. Ritrovato alerted the lobby guard and attempted to enter the bank. Ford met her at the bank's lobby door, told her they were being robbed, and pressed the holdup alarm. Ritrovato thought she recognized Little as she saw him exit through a side entryway because she had previously seen Little call upon Ford at the bank.

The police arrived and began an investigation at the scene. As they took statements, bank employees began auditing the drawers. All of the cash from the floor was placed in Ford's drawer, number 501, and the drawer was found to contain $18,537.73.

Meanwhile, Little returned to the place where he had left his car, and he locked his .9 millimeter gun and the money in the trunk. He returned later to take the gun and the money back to his house where he counted the money and discerned that he had taken between $19,000 and $19,500. Little went out to buy some drugs and returned home to find FBI agents waiting for him. The agents found Little in possession of $19,315. Three days later, the FBI agents returned to the bank and discovered a packet of $5,000 in currency under the teller station and the .38 revolver Little had used in the robbery hidden under a newspaper.

When Ford was initially questioned by police, she told them that when she arrived at the bank she heard a voice from the back room say, "We know who you are and we have your staff," and that when she went back to the storage room she was confronted by two robbers. Later that afternoon she gave a statement to the police admitting that she had been involved in the bank robbery with Little and a third person and that they had planned it for three weeks. In the evening Ford told the FBI agents that Little had coerced her into robbing the bank when she tried to end their affair. Ford claimed that Little threatened to expose their relationship to her husband unless she allowed Little to rob the bank. She asserted that on the morning of the robbery, she let Little and another man into the bank before the teller and the guard arrived.

At trial, Ford testified that the robbery scheme was entirely Little's idea. According to Ford, Little contacted her on June 13, 1985 and insisted that they meet for breakfast, not telling her why. Ford said that she met Little for breakfast and left after ten minutes without learning what Little wanted, except that he asked her for $5,000. Ford claimed that Little followed her to the bank and implored her to speak with him. She testified that she let him in, and while her back was turned he was joined by another man. Ford stated that Little and his accomplice put stockings over their heads, and Little placed a gun to her head and ordered her to open the tellers' drawers.

Ford testified that when the guard and the teller arrived, Little ordered her to let them in, but not to alert the guard or the teller or he would kill them all. According to Ford, Little told her to bring the guard back to where Little was hiding after the guard and the teller were in the bank. She stated that as Little gathered the money, one of his bags broke, and she offered him the teller's purse as a substitute to speed his departure from the bank. When Ritrovato arrived, Ford alerted her to the robbery as the two robbers fled. Ford explained that when the police arrived, she did not identify Little to the police because she had "mixed emotions and [she] didn't want to be involved." During testimony about her financial plight, Ford acknowledged that she owed about $10,000 in charges on her credit cards and that $2,000 of that amount had been charged by Little. She also admitted that she paid $1,200 each month on her credit cards out of a monthly net income of $1,400.

On the day before trial, the government moved in limine for permission under Federal Rule of Evidence 404(b) ² to present evidence and argue to the jury that Ford had embezzled money from cash drawer 501 at Great American prior to the June 14, 1985 robbery. The government sought to prove the embezzlement to establish Ford's motive for arranging the robbery: namely, to prevent the discovery of a cash shortage in her drawer at her audit time. The court deferred ruling on this motion; at the close of the government's case, the judge held that the government had not demonstrated by clear and convincing evidence that Ford had embezzled money from the bank, and that therefore the government could not make this argument to the jury. Because the court had previously prohibited any mention of embezzlement in opening statements, the jury never heard the word "embezzle" throughout the course of the trial, and the government did not argue that Ford had taken money from her cash drawer. Neither side referred to any audit evidence or any figures in closing arguments.

The jury did hear evidence of auditing procedures used by the bank, including the following facts: that Ford was scheduled for an audit on June 14, 1985; that Ford...