United States v. Parker

• Decision Date: 23 May 2013
• Docket Number: No. 12–1991.,12–1991.
• Citation: 716 F.3d 999
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ruby PARKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

716 F.3d 999

UNITED STATES of America, Plaintiff–Appellee,

v.Ruby PARKER, Defendant–Appellant.

No. 12–1991.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2013.

Decided May 23, 2013.

Kenneth Yeadon (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Dallas Craig Hughes (argued), Attorney, Law Offices of D. Craig Hughes, Houston, TX, for Defendant–Appellant.

Before MANION, TINDER, and HAMILTON, Circuit Judges.

TINDER, Circuit Judge.

Ruby Parker, a former teller at LaSalle Bank, N.A., in Chicago, Illinois, was charged with and convicted of three counts of bank fraud, 18 U.S.C. § 1344, and one count of embezzlement by a bank employee, 18 U.S.C. § 656. She was sentenced to 30 months' imprisonment. Parker now appeals her conviction and sentence. She claims a statutory speedy trial violation, challenges the sufficiency of the evidence and evidentiary rulings, and argues that the court erred in applying a sentencing enhancement for obstruction of justice. We affirm the convictions but vacate the sentence and remand the case for resentencing.

I. Background

In 2004, Parker was employed as a part-time teller at the Gateway Branch of LaSalle Bank, in Chicago, Illinois. In or around March 2004, her supervisor assigned to her the task of reconciling the branch's temporary checks to the temporary check issuance forms. Temporary checks were blank checks that LaSalle Bank kept behind the teller counter for customer use. Parker disregarded her supervisor's instructions, however, knowing that no one at the branch was monitoring the checks. A federal investigation into a March 2006 robbery at the Gateway Branch led to the allegation that Parker stole eight temporary checks drawn on the accounts of four LaSalle Bank customers. The checks were then cashed. The eight checks totaled approximately $76,450; because some of the funds were returned, the actual loss to LaSalle Bank was approximately $49,890.

On April 27, 2010, Parker was charged in an indictment with bank fraud and embezzlement by a bank employee. Two days later, she appeared before the district court for her initial appearance and arraignment and pled not guilty. Over the next sixteen months, Parker was represented by four different appointed counsel and eventually proceeded pro se. On February 16, 2011, the district court ordered a competency evaluation of Parker. In June 2011, although she was represented by counsel, Parker filed a pro se motion to dismiss the indictment on several grounds, including an alleged speedy trial violation. On September 1, 2011, the district court denied her motion to dismiss. Various other pretrial motions were filed over the course of the proceedings, and several trial continuances were requested and granted. On November 7, 2011, more than eighteen months after her arraignment, Parker's jury trial commenced.

At trial, the government presented evidence, including the testimony of co-schemer Travis Olivera, that in September 2004, Parker approached Olivera about a check-cashing scheme. She told him that she would provide him with checks to cash and split the proceeds of the checks between Olivera, herself, and the persons Olivera recruited to cash the checks. Parker provided Olivera with eight temporary checks she had stolen from her employer, LaSalle Bank. Olivera in turn provided the checks to others (“runners”) he had recruited to deposit the checks into their own bank accounts and then withdraw the proceeds. Olivera gave one-third of the proceeds to the runners and split the remainder with Parker. The evidence established that in September and October 2004, LaSalle Bank was insured by the Federal Deposit Insurance Corporation (“FDIC”).

The evidence also supported a finding that in September and October 2004, Parker was an employee of LaSalle Bank and obtained the eight temporary checks through her employment. Olivera arranged for the checks to be cashed in the total amount of $76,450. Photographs and bank records showed that Parker accessed three of the four victim customer accounts close in time to when the checks were written on the victims' LaSalle Bank accounts. Parker's actions, including her agreement to split the proceeds with Olivera and others, supported a finding of intent to defraud LaSalle Bank.

Parker testified at trial and denied having any involvement in the check-cashing scheme, specifically denying that she took any of the eight checks at issue. The jury convicted Parker on all counts. The court sentenced her to 30 months' imprisonment, which included an enhancement for obstruction of justice. Parker appeals her conviction and sentence.

II. DiscussionA. Speedy Trial Act

Parker first argues that her right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., was violated. (She does not argue a Sixth Amendment violation.) Specifically, Parker maintains that the district court erred in its statutory findings for several delays and wrongly excluded those delays after the time for excluding them had passed. A review of the proceedings from indictment until trial relevant to the speedy trial issue sets the context for our discussion.

As noted, on April 29, 2010, Parker had her initial appearance and was arraigned, which started the speedy trial clock. The district court set a June 1, 2010 deadline for filing pretrial motions, set a status hearing for June 7, 2010, and excluded the period of delay pursuant to 18 U.S.C. § 3161(h)(1)(D). Attorney Daniel McLaughlin was appointed defense counsel. Parker sought an extension of time within which to file pretrial motions, and at the June 7 status hearing, her motion was granted and the court set a status hearing for July 13, 2010, excluding the time pursuant to § 3161(h)(1)(D). Then on July 12, 2010, Attorney McLaughlin moved to withdraw as counsel for Parker based on a conflict of interest. The next day the court granted the motion and set a status hearing for August 3, 2010, excluding the time pursuant to § 3161(h)(1)(D). On August 3, new counsel, Linda Amdur, entered an appearance for Parker. At the August 3 status hearing, the court extended the deadline for filing pretrial motions and set a status hearing for September 16, 2010, excluding the time pursuant to § 3161(h)(1)(D).

On September 14, 2010, Parker's counsel filed seven pretrial motions. At the September 16 status conference, the court set deadlines for additional pretrial motions and the government's disclosures, and scheduled a jury trial for February 14, 2011. The court also set a status hearing for November 10, 2010, excluding the time pursuant to § 3161(h)(1)(D). At the arraignment and the first three status hearings, the court did not state its specific reasons for excluding the time. In its September 1, 2011 ruling on Parker's motion to dismiss, however, the district court provided its specific reasons for excluding the periods of time following the four hearings on April 29, June 7, August 3, and September 16: for purposes of continuity of counsel and effective preparation, citing § 3161(h)(7)(A) and (B)(iv). The court also found that the ends of justice were served by giving defense counsel the opportunity to prepare and that the need for such an opportunity outweighed the interestsof the public and the defendant in a speedy trial.

At the November 10 status hearing, Parker orally moved to proceed pro se. At the request of defense counsel, the status hearing was continued to November 17, 2010, and again continued to December 15, 2010, to allow Parker time to consider her request to proceed pro se and consult with her attorney. The court ordered the time excluded in the interest of justice and for continuity of counsel under § 3161(h)(7)(A) and (B). The status hearing was later reset for December 13, 2010.

At the December 13 status hearing, the court found that Parker could not represent herself because she claimed that she did not understand the nature of the charges. The court granted Attorney Amdur's leave to withdraw, advised Parker that it would appoint another lawyer for her, and continued the status hearing until January 5, 2011. The court found that the ends of justice supported the exclusion of time for continuity of counsel pursuant to § 3161(h)(7)(A) and (B).

On January 3, 2011, Attorney Douglas J. Rathe, anticipating appointment as Parker's counsel, requested a continuance of trial, indicating that he had not yet contacted Parker and that given the volume of discovery, he was seeking a continuance to determine if there were any defenses that could be raised. He also said that a continuance would allow him and Parker to meet on a number of occasions to determine the best course of action. At the hearing on January 5, 2011, the court did appoint Attorney Rathe to represent Parker. The court granted the motion to continue trial and excluded the time for continuity of counsel.

On January 13, 2011, Attorney Rathe moved to withdraw as Parker's attorney because of a conflict of interest. At the status hearing that same date, the court granted the motion and appointed Attorney John Kennedy as counsel for Parker. The court set a status hearing for February 3, 2011, and excluded the time for continuity of counsel pursuant to § 3161(h)(7)(A) and (B). Then at the February 3 status hearing, the court continued the status hearing to February 16, 2011, at the implicit request of defense counsel. (The transcript shows that defense counsel stated he had met with Parker but they needed to talk more.) The minute entry for February 3 indicates that time was excluded pursuant to § 3161(h)(7)(A) and (B). The transcript of the hearing reveals that the reason for the ends of justice finding was continuity of counsel.

On February 16, the court ordered an evaluation of Parker's competence and set a hearing for February 24, 2011, excluding the time pursuant to § 3161(h)(1)(A). The period of delay was automatically excluded until ...