U.S. v. Humphrey

• Decision Date: 30 January 2002
• Docket Number: No. 00-5180.,00-5180.
• Citation: 279 F.3d 372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cheryl HUMPHREY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 372

279 F.3d 372

UNITED STATES of America, Plaintiff-Appellee, v. Cheryl HUMPHREY, Defendant-Appellant.

No. 00-5180.

United States Court of Appeals, Sixth Circuit.

Argued December 4, 2001.

Decided and Filed January 30, 2002.

COPYRIGHT MATERIAL OMITTED

Sarah R. Shults (argued and briefed), Assistant United States Attorney, Greenville, TN, for Plaintiff-Appellee.

Paula R. Voss, Federal Defender Services, Knoxville, TN, Nikki C. Pierce (argued and briefed), Federal Defender Services of Eastern TN, Greeneville, TN, for Defendant-Appellant.

Before KENNEDY, MOORE, and COLE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Cheryl Ann Humphrey ("Humphrey") appeals her jury conviction and sentence for one count of embezzling bank funds, in violation of 18 U.S.C. § 656, and five counts of making false entries in bank records with the intent to defraud, in violation of 18 U.S.C. § 1005. She argues: 1) that the district court abused its discretion over the method of exercising peremptory challenges and the admission of evidence; 2) that the evidence is insufficient to support the convictions; and 3) that the district court improperly increased the offense level under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3B1.3 (2000) for abuse of a position of trust or use of a special skill. We AFFIRM Humphrey's convictions. Because we conclude that the district court erroneously applied U.S.S.G. § 3B1.3, we VACATE Humphrey's sentence and REMAND for resentencing.

I. BACKGROUND

From 1975 to 1996, Humphrey was employed as a bank and vault teller for Hamilton Bank, later known as SunTrust Bank ("Bank"), of Johnson City, Tennessee. When she became a vault teller in 1990, Humphrey acted as the head teller for ten of the Bank's branches; her responsibilities included counting the contents of the Bank's vault, which stored cash, loose coin, and food stamps, and conducting various transactions with the Federal Reserve Bank ("Reserve"). Humphrey handled the shipment of food stamps to the Reserve for credit in the Bank's accounts.

In late 1995, Robert Odie Major ("Major"), who had recently been named Bank president, became concerned when he received an audit that showed an unusually high amount of food stamps in the Bank's vault. By early 1996, the Bank implemented new procedures that required the shipment of food stamps on a weekly basis. On March 7, 1996, Humphrey prepared the shipment of $651,403 worth of food stamps to the Reserve. The ticket for this shipment was approved by two employees, as required by the Bank's dual control policy. However, when the Bank interviewed Tommi Turbyfill ("Turbyfill") in the course of investigating a previous shipment that the Reserve had not cleared, Turbyfill denied approving the March 7 shipment or signing the ticket.

On September 3, 1996, Major confronted Humphrey about this discrepancy. When Humphrey admitted that she had signed Turbyfill's initials on the ticket, he gave her the option of resigning or being terminated. Humphrey chose to resign; she did not question the Bank's dual control policy or the reason for her termination. After Humphrey's resignation, groups of two and four Bank employees counted the cash in the vault and discovered a total loss in excess of $510,000.

On February 24, 1998, a federal grand jury indicted Humphrey on one count of embezzling funds in violation of 18 U.S.C. § 656 and six counts of making false entries in violation of 18 U.S.C. § 1005. Before trial, the district court granted the Government's motion to dismiss Count 7 and the forfeiture portion of Count 1. Humphrey pleaded not guilty and proceeded to trial, where a jury found her guilty of all charges. On November 9, 1999, Humphrey filed a motion for a judgment of acquittal or for a new trial, arguing that the evidence was insufficient to sustain any of her convictions and that the district court had erred in admitting coin bags filled with styrofoam "peanuts" into evidence. The district court overruled Humphrey's motion. On February 1, 2000, the district court entered judgment and sentenced Humphrey to thirty-six months on each of the six counts, to be served concurrently, and a five-year term of supervised release. On February 8, 2000, Humphrey filed a timely notice of appeal.

II. ANALYSIS

A. Peremptory Challenges

Humphrey first argues that the district court erred in refusing to allow her to "backstrike" during the jury selection process.¹ We note as a general matter that we review a district court's method for exercising peremptory challenges for an abuse of discretion. United States v. Mosely, 810 F.2d 93, 96 (6th Cir.), cert. denied, 484 U.S. 841, 108 S.Ct. 129, 98 L.Ed.2d 87 (1987). In this case, however, the issue was not properly raised before the district court; therefore, it was not preserved for us to review. Instead of objecting to the content of the district court's rule against backstriking, defense counsel argued that he had forgotten or overlooked the rule, of which he had actual notice, because he was sick with the flu. Defense counsel did not raise a legal issue but essentially requested that the district court give him an opportunity to correct his mistake. Defense counsel did argue that the Government could not show prejudice, but this contention provides insufficient support for an objection. We thus decline to review this claim.

B. Evidentiary Problems

We review a district court's admission of evidence for an abuse of discretion. United States v. Hart, 70 F.3d 854, 858 (6th Cir.1995), cert. denied, 517 U.S. 1127, 116 S.Ct. 1368, 134 L.Ed.2d 534 (1996); see also Trepel v. Roadway Express, Inc., 194 F.3d 708, 716-17 (6th Cir.1999) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), for the proposition that all evidentiary decisions are reviewed for an abuse of discretion). "The scope of this discretion has been broadly construed, and the trial court's actions are to be sustained unless manifestly erroneous." Persian Galleries, Inc. v. Transcon. Ins. Co., 38 F.3d 253, 257 (6th Cir.1994) (internal quotation marks and citation omitted).

1. Admission of Coin Bags

Humphrey claims that the district court abused its discretion in admitting 107 coin bags as demonstrative evidence. At trial, the Government introduced as Government Exhibit 6a a vault cash form dated May 21, 1996, and verified by Humphrey that showed an inventory of $214,167.45 in loose coin. The Government also introduced a videotape dated May 21, 1996, that showed the area inside the Bank's vault where loose coin was stored. The purpose of the demonstrative evidence was to show the jury what 107 coin bags would look like and to establish that the vault did not contain that many coin bags. Six of the 107 bags were filled with coins; the remainder were stuffed with styrofoam peanuts to the approximate size of the bags filled with coins.

Defense counsel objected to the demonstration, arguing that the evidence was prejudicial because the bags filled with styrofoam were bigger than those filled with coins.² The district court thought otherwise. After hearing from an expert witness who stated that the bags filled with styrofoam were representative of and "about the same size" in volume as the bags filled with coins, the district court admitted the exhibit, noting that defense counsel could raise this issue on crossexamination. Joint Appendix ("J.A.") at 215-16. Defense counsel proceeded to do so. Witnesses for the Government later testified that they did not see that much loose coin in the Bank's vault on May 21, 1996, or on any other day.

Under Federal Rule of Evidence 403, evidence that is relevant "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Id. In admitting the coin bags into evidence, the district court did not expressly weigh their probative value against the danger of unfair prejudice, but it did recognize that the Government wanted the jury to see what the bags would look like in the Bank's vault. Reviewing this evidentiary decision, we are not persuaded that the district court abused its discretion. Humphrey observes on appeal that the Government could have introduced "a photograph of 217[sic] bags of actual coins placed inside the vault" or used "[o]ther means of demonstration." Appellant's Br. at 31. The question before the district court, however, was whether the probative value of the coin bags was substantially outweighed by the danger of unfair prejudice. Although the amount at issue was in excess of $214,000, which would have filled 214 coin bags, the Government introduced half that number. We therefore conclude that the district court did not abuse its discretion in admitting the coin bags as evidence.

Humphrey also contends that Government witnesses should not have been allowed to testify about the number of coin bags that were depicted in the Bank's surveillance video of the vault. We conclude that this argument lacks merit. Not only did defense counsel fail to object at trial, but also Federal Rule of Evidence 704 provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact," with a limited exception not pertinent here. The witnesses were Bank employees and it appears that they testified about their personal knowledge of the vault's contents. Their testimony was thus clearly admissible.

2. Exclusion of Memo

Humphrey argues that the district court abused its discretion in excluding as hearsay a Bank memo dated August 20, 1996, about a shipment of food stamps from the Bank's Johnson City branch, where Humphrey worked, to the Nashville branch, where Van Ray Peeks, Sr. ("Peeks"), was the head teller. At trial, defense counsel asked Peeks whether he had "any independent recollection of the dates when those inquiries occurred." J.A. at 388. Peeks answered that h...