US v. Weller, No. 99-3268

• Decision Date: 04 January 2001
• Docket Number: No. 99-3268
• Citation: 238 F.3d 1215
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAREN R. WELLER, Defendant-Appellant,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1215

238 F.3d 1215 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAREN R. WELLER, Defendant-Appellant,

No. 99-3268

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 4, 2001

Appeal from the United States District Court for the District of Kansas. (D.C. No. 98-CR-40112) [Copyrighted Material Omitted] Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), for the District of Kansas, Topeka, Kansas, for Defendant-Appellant.

James E. Flory, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, HENRY, and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

Karen Weller was convicted of embezzling money from the Fidelity Bank and Trust Company in Topeka, Kansas, in violation of 18 U.S.C. 656. She asserts on appeal that the district court should have granted her motion for judgment of acquittal, or alternatively granted her a new trial. She also claims the district court erroneously increased her sentence. We affirm.

I Background and Proceedings Below

On June 3, 1996, $32,000 in cash was taken from the night deposit vault at a branch of Fidelity Bank. At the time of the offense, Karen Weller was the manager of that branch. Three employees were working at the bank that afternoon: Ms. Weller, Sharon McDaniel, and David Easterling. At 4:30 p.m. Mr. Easterling and Ms. McDaniel audited the vault's contents. Ms. McDaniel then went home, leaving Mr. Easterling and Ms. Weller to finish closing the bank. Each bank employee who was allowed access to the bank after hours was given a different alarm code. The bank's records indicate that the alarm was secured at 6:18 p.m. by someone using Ms. Weller's alarm code. The two employees then left the bank. Ms. Weller went to a nearby mall where she made a purchase with a credit card at 6:37 p.m.

The vault from which the money was stolen had two locking mechanisms, one operated by a key and the other by a time-delay combination lock. The latter could be engaged by turning the dial through a specified sequence of numbers, which locks the door and activates a delay period of approximately ten minutes. If the combination is not utilized, the time-delay function is rendered inoperative, enabling someone to enter the vault with only a key and without the ten-minute delay period. On June 3, Ms. Weller secured the vault with the key, unobserved by Mr. Easterling. She testified at trial that she did not remember whether she had spun the combination to engage the second locking device and accompanying time-delay mechanism.

Bank policy prevents any employee from possessing both the key and the combination to the vault. On the day of the theft, Mr. Easterling had custody of the key and gave it to Ms. Weller to secure the vault. The two employees then placed the key in an envelope, sealed and signed the envelope, and placed it in a teller drawer. This contravened bank policy, which required that the signed, sealed envelope be placed inside a locked safe deposit box.

The bank's records indicate that at 7:18 p.m. that evening, the bank was entered by someone using Ms. Weller's alarm code and resecured approximately four minutes later. The next morning, two tellers arrived at work and opened the vault. They observed that the cash box had been opened and the reserve cash was missing. The thief had not taken any one dollar bills, mutilated bills, or "bait money."¹ The envelope containing the vault key appeared to have been opened. It also appeared that the time-delay combination lock had not been activated the night before, allowing quick access to the safe using the key alone.

After discovery of the theft, Ms. Weller was placed on administrative leave and then fired from her position at the bank. She was later charged in a one-count indictment with embezzlement and misapplication of $32,000 from the bank in violation of section 656. She was convicted of embezzlement following a jury trial, sentenced to fifteen months' imprisonment, and ordered to pay $32,000 in restitution to the bank.

II Discussion

Ms. Weller raises five arguments on appeal. First, she contends the government failed to prove embezzlement or misapplication of monies as those crimes are defined by statute. Second, she claims the indicted charge was duplicitous and the district court erroneously refused to require the government to elect whether to proceed with proof that she either embezzled or misapplied the bank funds. She also contends the court impermissibly admitted evidence of her poor financial situation to provide motive for the crime, and denied her request to use a contested document to refresh her recollection while testifying. Finally, Ms. Weller challenges the court's upward adjustment of her sentence based on its finding that she committed perjury during trial testimony. We review each claim in turn.

A. Proof of Embezzlement and Misapplication

The statute under which Ms. Weller was charged, 18 U.S.C. 656, applies wherever the employee of a federally insured bank "embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits" of that bank. Ms. Weller argues that the evidence was insufficient to convict her of either embezzlement or misapplication of funds, the two actions with which she was charged. Embezzlement requires proof of "'fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.'" United States v. Holmes, 611 F.2d 329, 331 (10th Cir. 1979) (quoting Moore v. United States, 160 U.S. 268, 269 (1895)). Ms. Weller suggests that, because the crime occurred after the bank had closed for the business day, her presence was unauthorized and therefore her possession of the funds was not lawful. In other words, she claims the evidence might be sufficient to support a conviction for burglary and larceny, but not for embezzlement.

We agree with the district court that the distinction Ms. Weller attempts to draw concerning the timing of the crime and her authority to be present in the bank is not relevant to the question of whether, as the bank's branch manager, she had lawful possession of the money or was a person to whom the money had been entrusted. The relevant inquiry is not one of timing, since "[a]ll crimes of embezzlement involve an unlawful act at some point." United States v. Campbell, 52 F.3d 521, 524 (5th Cir. 1995) (per curiam). Rather, the question is whether a bank employee has been given "all the means for effective access to and control of the money by virtue of a special trust placed in her by her employer." United States v. Whitlock, 663 F.2d 1094, 1107 (D.C. Cir. 1980) (per curiam); see also Campbell, 52 F.3d at 524 (employee had constructive legal control of funds where bank had vested her with "control and authority over the funds in the usual course of routine banking transactions"). As branch manager, Ms. Weller was given an alarm code, the combination to the safe, and access to the safe key, and as such she was a person to whom the bank's money had been entrusted. See, e.g., Whitlock, 663 F.2d at 1112 ("by virtue of [defendant's management position] and the special access she was given to the key and the combination, the funds in the vault were under her effective control" and she was guilty of embezzlement).

Because Ms. Weller was found guilty of embezzlement and the evidence was sufficient to convict her on that count, we need not consider the weight of evidence relating to the alternative charge of misapplication of funds. See United States v. Bell, 154 F.3d 1205, 1209 (10th Cir. 1998) ("if an indictment charges several acts in the conjunctive, the jury's 'verdict stands if the evidence is sufficient with respect to any one of the acts charged.'") (quoting Griffin v. United States, 502 U.S. 46, 56-57 (1991)).

B. Duplicity

Ms. Weller also argues that her indictment for "embezzlement and willful misapplication of funds" was duplicitous and that the government should have been required to elect one charge or the other before proceeding. She stresses the danger that some jury members might vote to convict on embezzlement and others on willful misapplication, effectively denying her the right to a unanimous jury verdict. The district court considered this issue before trial and determined that the charge was not duplicitous and that any danger of non-unanimity could be cured by appropriate limiting instructions.

If embezzlement and misapplication are separate offenses in section 656, a charge of "embezzlement and misapplication" would be improperly duplicitous. If, however, they are merely different means of committing a single offense, no duplicity issues arise. See generally Richardson v. United States, 526 U.S. 813, 817 (1999) (stressing that a jury cannot convict unless it finds unanimously that each element of a crime has been proven, but that the jury need not always agree on which of several underlying facts make up that element).

We are convinced that the enumerated actions are alternative means of violating section 656, not separate offenses. As the Eleventh Circuit determined in United States v. Acosta, 748 F.2d 577, 579 (11th Cir. 1984):

Section 656 of Title 18 embraces but a single generic offense, the offense of willfully taking the money of a bank by one of its employees, which offense may be committed in several alternative ways: embezzling (a taking), abstracting (a taking), purloining (a taking) and misapplying (a taking).

See also United States v. Marquardt, 786 F.2d 771, 779-80 (7th Cir. 1986) ("any proof sufficient to support embezzlement necessarily is sufficient to support misapplication") (quoting Acosta, 748 F.2d at 580); but see United States v. Frederick, 551 F.Supp. 1035, 1043 (D.Kan. 1982)...