U.S. v. Hill

• Decision Date: 08 November 1994
• Docket Number: No. 93-3247,93-3247
• Citation: 40 F.3d 164
• Parties: 41 Fed. R. Evid. Serv. 450 UNITED STATES of America, Plaintiff-Appellee, v. Erica HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 164

40 F.3d 164

41 Fed. R. Evid. Serv. 450

UNITED STATES of America, Plaintiff-Appellee, v. Erica HILL, Defendant-Appellant.

No. 93-3247.

United States Court of Appeals Seventh Circuit.

Argued June 14, 1994.

Decided Nov. 8, 1994.

Barry Rand Elden, Asst. U.S. Atty., Ross O. Silverman (argued), Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Camille B. Conway (argued), Office of the Federal Defender Program, Chicago, IL, for defendant-appellant.

Before ESCHBACH, COFFEY, and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

A jury convicted Erica Hill, a former postal employee, of stealing and cashing a United States treasury check from the mail in violation of 18 U.S.C. Secs. 510(a) and 1709. The district court sentenced Hill to three years probation on condition that she participate in work release for the first thirty days of probation, and ordered her to make restitution in the amount of the check. On appeal, Hill challenges the sufficiency of the evidence offered in support of her conviction as well as the exclusion of evidence under Fed.R.Evid. 404(b) that she failed to steal "test letters" from the mail. We affirm.

I. FACTS

In February 1991, Anita Henry filed a federal individual income tax return for the year 1990. One month later, the Internal Revenue Service ("IRS") notified Henry that she would receive a tax refund of $712.87 within six weeks. On May 10, 1991, the IRS in Kansas City mailed a United States treasury check in the amount of $712.87 to Henry at 1170 West Erie Street, Chicago, Illinois 60622. In the ordinary course of the mail, this check would have first arrived at the Main Post Office in downtown Chicago. At the Main Post Office, the check would have been segregated by zip code for delivery through the Wicker Park Post Office. At the Wicker Park Post Office, the check would have been further separated by street address for delivery on carrier route 8.

The treasury check would have arrived at the Wicker Park Post Office on the morning of May 12 or 13, 1991. Since May 12 was a Sunday, the check would not have been processed until Monday, May 13. On May 13, Erica Hill was a mail handler at the Wicker Park Post Office where she was assigned to sort mail by street address for carrier route 8. Hill worked from 6 a.m. at the Wicker Park Post Office to 12:00 p.m. that day. During this time frame, Hill, in the usual course of postal business, would have received Henry's check and sorted it for delivery by a mail carrier. Henry did not receive the check. When Henry called the IRS to inquire about the check, she was informed that the check had been processed and would arrive shortly. During the month of July 1991, Henry received a letter from the IRS notifying her that the check had been cashed at the Manufacturer's Bank in Chicago with an enclosed copy of the negotiated check that allegedly contained Henry's endorsement but where in fact it was in someone else's. Henry stated that she had never been in Manufacturer's Bank nor had she ever authorized anyone to cash the check.

In September 1991, Henry took a copy of the check to the Manufacturer's Bank and showed it to Angelo Mazzoni, a Vice President in the Consumer Services Department of the bank. Mazzoni's initials were inscribed on the back of Henry's check, indicating that he had authorized the cashing of the check. Mazzoni explained that the bank had a policy of cashing checks for postal service employees as a courtesy to the Wicker Park Post Office which was located directly across the street from the bank. The bank cashed checks for any postal employee regardless of whether he or she had an account with the bank. The only requirement was that a bank officer initial his or her approval on an employee's check before cashing it. If postal employees were in uniform or had previously done business at the bank, no identification was required before a bank officer would authorize the cashing of a check.

Mazzoni could tell from the codes on the back of Henry's check that the check had been cashed at Manufacturer's Bank on May 13, 1991, at teller window no. 7. Mazzoni could also tell from the same codes that the check had been cashed as the 41st transaction of the day, and that the person who cashed the check did not have an account at the bank. Mazzoni obtained the teller tape from teller window no. 7 which showed that on May 13 two of the bank's customers, Mr. Lonski and Mr. Marks, had conducted the 40th and 42nd transactions, respectively.

Mazzoni instructed another bank employee, Audrey Brady, to use the bank's videotape to identify the person who came to teller window no. 7 at 10:34 a.m. between customers Lonski and Marks. The videotape reflected a woman wearing a postal uniform. When bank officials displayed the videotape to supervisors at the Wicker Park Postal Office, they identified Hill. In September 1991, Mazzoni confronted Hill with the bank's videotape and transaction records, and Hill denied cashing the check.

The matter was referred to postal authorities. At that time, Hill was still working for the Wicker Park Postal Office and was responsible for stamping "Return to Sender" on undeliverable mail. On October 8, 1991, postal inspectors placed three "test letters" that were undeliverable in Hill's mail tray containing food stamp coupons, a credit card, and a greeting card. Postal inspectors observed Hill properly handle the "test letters," mark them "Return to Sender," and forward them for further processing.

On March 25, 1993, a federal grand jury returned a two-count indictment against Hill. Count One of the indictment charged Hill with having embezzled a United States treasury check from the mail which had been entrusted to her as a postal employee for delivery in violation of 18 U.S.C. Sec. 1709. Count Two of the indictment charged Hill with having cashed a United States treasury check bearing a falsely made and forged endorsement in violation of 18 U.S.C. Sec. 510(a).

On May 11, 1993, after a two-day jury trial, Hill was found guilty of both counts of the indictment. On August 31, 1993, the district court sentenced Hill to concurrent terms of three years probation on each count of conviction with the first thirty days of probation to be served in a work release program. The court also ordered Hill to pay the Manufacturer's Bank $712.87 in restitution.

II. ISSUES

On appeal, Hill contends that the prosecution failed to prove beyond a reasonable doubt that she embezzled, forged, and cashed Anita Henry's treasury check in violation of 18 U.S.C. Secs. 1709 and 510(a). Hill also contends that the district court improperly excluded evidence pursuant to Fed.R.Evid. 404(b) concerning her failure to steal three "test letters" from the mail.

III. ANALYSIS

A. Sufficiency of the Evidence

In challenging the sufficiency of the evidence to support her convictions, Hill bears a heavy burden, United States v. Goines, 988 F.2d 750, 758 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993), and " '[o]nly where the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.' " United States v. Tipton, 964 F.2d 650, 657 (7th Cir.1992) (quoting United States v. Redwine, 715 F.2d 315, 319(7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984)). The standard for determining the sufficiency of the evidence at trial is "whether, after reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When the trier of fact is a jury we must "defer to reasonable inferences drawn by the jury and the weight it gave to the evidence." United States v. Beverly, 913 F.2d 337, 360 (7th Cir.1990), cert. denied, 498 U.S. 1052, 111 S.Ct. 766, 112 L.Ed.2d 786 (1991).

1. Count One

To prove that Hill violated 18 U.S.C. Sec. 1709, the government was required to demonstrate that (1) Hill was an employee of the United States Postal Service; (2) the check came into Hill's possession for the purpose of being conveyed by mail; and (3) Hill embezzled the check. 18 U.S.C. Sec. 1709; United States v. Roberson, 650 F.2d 84, 87 (5th Cir.), cert. denied, 454 U.S. 1100, 102 S.Ct. 675, 70 L.Ed.2d 642 (1981); United States v. Rodriguez, 613 F.2d 28, 29 (2d Cir.) (per curiam), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Hill does not dispute that she was employed by the Postal Service at the time of the offense, but argues that the government failed to establish that she ever possessed or embezzled the check.

Contrary to Hill's argument, the jury was convinced, as are we, that the evidence established that the check came into Hill's possession on May 13, 1991, in the ordinary course of her postal employment. The evidence also established that Hill was the person who possessed and cashed the check on May 13, 1991. Viewing all the evidence in the light most favorable to the government, a rational jury could have found Hill guilty of postal embezzlement beyond a reasonable doubt.

In her brief, Hill argues that the evidence was insufficient to prove that she possessed and embezzled Henry's check for three reasons. First, Hill points to the absence of fingerprints on the check. Roger Ball, a latent print analyst for the Postal Service, testified that he examined the check and was unable to identify any fingerprints on the check. Ball also testified that people often handle documents without leaving fingerprints. Based on this testimony, a jury could reasonably infer that Hill still handled the check even though she left no prints.

Second, Hill argues that other postal employees had access to the check as it traveled through the mail stream. As the government...