USA v. Ross

• Decision Date: 16 March 2000
• Docket Number: No. 98-50071,98-50071
• Citation: 206 F.3d 896
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEBORAH JEAN ROSS, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 896

206 F.3d 896 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEBORAH JEAN ROSS, Defendant-Appellant.

No. 98-50071

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 6, 2000

Filed March 16, 2000

COUNSEL: David Katz, Los Angeles, California, for the defendant appellant.

Robert E. Dugdale, George S. Cardona, Assistant United States Attorneys, Los Angeles, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Jr., District Judge, Presiding. D.C. No. CR-97-00328-TJH

Before: J. Clifford Wallace, Harry Pregerson and Sidney R. Thomas, Circuit Judges.

OPINION

THOMAS, Circuit Judge:

Deborah Jean Ross appeals from her conviction for misappropriation of postal funds in violation of 18 U.S.C. S 1711. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.

I

Ross was a twenty-six year employee of the United States Postal Service ("Postal Service"), whose duties included selling money orders to the public. United States postal money orders are designed to be issued sequentially in exchange for cash, and postal clerks trained to sell them accept responsibility for money orders in 100-count sets. The clerks are held personally responsible for the value of any money orders that are sold but not properly accounted for to the Postal Service.

The Postal Service accounts for the proceeds from money order sales in several ways. The postal clerk is required to turn in a "voucher" that documents the amount and serial number of each money order sold, as well as the date on which it was sold and the office where it was sold. The clerk must also record the transaction in a computer, which generates a "money order tape" and an electronic transmission that is sent to the central Postal Service accounting office responsible for reconciling money order proceeds. Finally, the clerk is required to document each sale on a Daily Financial Report Form by listing the serial numbers and amounts of the money orders sold each day.

In March of 1995, the Postal Service discovered that 81 money orders from two separate 100-count sets were cashed at the post office in Los Angeles where Ross worked, but that the proceeds were never remitted to the Postal Service. Soon thereafter, it was confirmed that, in January and February of 1995, Ross had signed for and taken possession of the two money order sets at issue. However, she did not submit any cash or vouchers for the 81 money orders on the dates that they were sold. She did not report the money orders lost or stolen. Although she did later report and remit money from some of the sales of the 81 unaccounted for money orders, this was not accomplished until weeks after the money orders had already been cashed.

On April 25, 1995, Ross was suspended from her employment with the Postal Service. On that day, postal inspectors discovered four carbon copies of postal money orders in Ross's possession. Carbon copies of money orders, along with the money orders themselves, are given to the customers at the time of purchase. The carbon copies matched four of the 81 money orders at issue, but they did not list Ross as the payor or the payee. In total, the 81 money orders were worth in excess of $15,000.

On April 11, 1997, a federal grand jury returned an indictment, charging that Ross, in violation of 18 U.S.C.S 1711, had "unlawfully used, embezzled, hypothecated, and converted to her own use, more than $1,000 that had come into defendant's possession and control in the execution of and under color of her office and employment." At trial, the defense argued that the incriminating carbon copies were not actually found in Ross's possession as the government claimed, suggesting that the postal inspectors had planted them in Ross's purse. The defense also argued that someone other than Ross could have stolen the money order proceeds and tampered with her accounting records. Following a four day jury trial, Ross was found guilty. She now timely appeals.

II

The district court did not err in granting the government's unopposed motion in limine "to exclude any evidence of defendant's intent to pay back proceeds embezzled from the United States." A motion in limine is a proper vehicle by which the government may challenge the sufficiency of an affirmative defense before trial. See United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989). Although we generally review the district court's ruling on a motion in limine only for an abuse of discretion, see United States v. Rude, 88 F.3d 1538, 1549 (9th Cir. 1996), we review the decision de novo if the order precludes presentation of a defense. See Aguilar, 883 F.2d at 692.

The government based its motion on the theory that intent to repay is not a defense to misappropriation of postal funds under 18 U.S.C. S 1711, citing Withrow v. United States, 420 F.2d 1220, 1224-25 (5th Cir. 1969). Although we have not previously considered this question, we agree with the Fifth Circuit's conclusion, which is consistent with our analysis of similar statutes. See, e.g., United States v. McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995) (intent to repay not a defense to the crime of providing a false statement to a bank); United States v. Alcantar, 832 F.2d 1175, 1179 (9th Cir. 1987) (intent to repay not a defense to embezzlement and conversion of bank funds); United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986) (good faith intent to repay not a defense to mail fraud); United States v. Coin , 753 F.2d 1510, 1511 (9th Cir. 1984) (per curiam) (intent to repay not a defense to embezzlement of tribal funds); United States v. Faulkner, 638 F.2d 129, 130 (9th Cir. 1981) (intent to repay not a defense to embezzlement from interstate shipments). As we explained in Coin, 753 F.2d at 1151,"[s]uch crimes are complete when the misapplication or embezzlement occurs." Indeed, to date we have refused to extend the repayment defense beyond the unique realm of check-kiting cases. See Alcantar, 832 F.2d at 1179. There is no reason to apply a different analysis to 18 U.S.C S 1711. Thus, the district court properly granted the government's motion in limine to preclude evidence of the legally unviable defense.

Ross further argues that the order granting the motion was "over-broad" because it precluded her from presenting evidence that she had, in the past, overpaid funds to the Postal Service, thereby effectively offsetting any monies that were unaccounted for in 1995. Our review of this claim is limited to plain error because Ross failed to raise it in the district court below. See United States v. Lui, 941 F.2d 844, 846 (9th Cir. 1991). The order, by its terms, does not specifically exclude such evidence. Thus, there was no error, much less plain error, in the scope of the district court's order granting the government's motion in limine.

III

We also reject Ross's contention that her indictment was insufficient because it failed to specify criminal intent. "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions." United States v. Bailey, 444 U.S. 394, 414 (1980) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). "Criminal intent is an element of a violation of S 1711." United States v. Morrison, 536 F.2d 286, 287 (9th Cir. 1976).

Because Ross did not object to the sufficiency of the indictment in the district court, we review for plain error. See Fed. R. Crim. P. 52(b). Moreover, where an objection to the sufficiency of an indictment is untimely, as in this case, we will construe the indictment liberally in favor of validity. See United States v. Chesney, 10 F.3d 641, 643 (9th Cir. 1993) (citing United States v. Pheaster, 544 F.2d 353, 361 (9th Cir. 1976)).

Construed liberally, the indictment in this case, which alleged Ross had "unlawfully used, embezzled, hypothecated, and converted to...