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.
716 F.3d 999
The judge decided that the defendant was indeed the boss, because he had “brought all of this together, whether it‘s finding drivers, whether it‘s steering the co-conspirators to particular terminal yards, to particular types of products, and then your finding suitable fences whether here or over in Michigan, or elsewhere, to take these goods, that‘s what your role in all of this is more than amply demonstrated to have been.” The defendant responds that really all this just followed from his being the contact person with the fences (his brother‘s role was similar but apparently quite minor); that he just conveyed to the other gang members the fences’ “orders” (what kind of cargoes they wanted) and where the fences wanted the stolen cargoes delivered.
But his role as contact person made him the gang‘s leader, or so the judge could find. The defendant used his information about what the fences wanted to find unguarded truck yards containing trucks likely to contain cargoes that the fences would buy, to direct the other members to those truck yards, and to tell them (after consultation with the fences) which trucks in the yards to steal and where to deliver the cargoes to the fences. The fences paid him for the cargoes and he split the money among the gang‘s members (including himself). So he was the paymaster. He brought his brother and one other person (a driver) into the gang, so was a recruiter, and he searched out warehouse space in which to store stolen merchandise to await directions from the fences. Without him or someone in his position the gang would have fallen apart. The gang needed a leader in order to function, and he was the leader.
AFFIRMED.
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,
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 coschemer 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
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. Discussion
A. Speedy Trial Act
Parker first argues that her right to a speedy trial under the Speedy Trial Act,
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
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
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
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
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
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
At the hearing, the court continued the status hearing until September 7, 2011, to allow Parker to decide whether she wanted to proceed pro se and set a jury trial for September 19, 2011. The government moved to exclude time due to the pendency of the pretrial motions, the interest of justice due to the complexity of the case, and for the filing of additional motions. The court stated on the record that it excluded the time until the next status conference in the interest of justice to give Parker an opportunity to decide whether she wants to make additional motions and for continuity of counsel. The minute entry for September 1 indicates that time was excluded pursuant to
On September 7, 2011, the court granted Parker‘s request to proceed pro se and requested Attorney Kennedy to be standby counsel. The minute entry indicates that time was excluded pursuant to
At the September 15, 2011 final pretrial conference, Parker moved to continue the trial date, and the court set a status hearing on September 19, 2011, to allow Parker time to determine how much more time she needed for trial preparation. The court ordered the time excluded based on a finding that the ends of justice would be served by allowing Parker to provide further information in support of her motion to continue the trial pursuant to
“We review the district court‘s legal interpretations of the [Speedy Trial] Act de novo, and its decisions to exclude time for an abuse of discretion.” United States v. Wasson, 679 F.3d 938, 943 (7th Cir.2012), cert. denied, U.S., 133 S.Ct. 1581, 185 L.Ed.2d 576 (2013). Ab-
The Act generally gives a defendant the right to a trial beginning within seventy days after she is charged or makes an initial appearance, whichever is later.
Furthermore, the Act excludes from the speedy trial calculation any “delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”
“Although the Act is clear that the findings must be made, if only in the judge‘s mind, before granting the continuance (the continuance can only be ‘granted ... on the basis of [the court‘s] findings‘), the Act is ambiguous on precisely when those findings must be ‘se[t] forth, in the record of the case.‘” Zedner, 547 U.S. at 506-07. We have held that ends-of-justice findings need not be made contemporaneously on the record and concluded that Zedner supports our conclusion. Wasson, 679 F.3d at 945-46; see also Zedner, 547 U.S. at 507 (“at the very least the Act implies that those findings must be put on the record by the time a district court rules on a defendant‘s motion to dismiss under
Parker acknowledges that a court‘s ends-of-justice findings need not be put on the record at the time the court grants the continuance. However, she argues that had the government not requested the court to make its findings on the record, this would be a different claim. She cites no authority or other reason to establish that this should matter. The government did request the court to make findings, and the court made explicit findings regarding the exclusions of time on April 29, 2010, June 7, 2010, August 3, 2010, and September 16, 2010, when it ruled on her motion to dismiss. Parker also argues that where the court makes its findings 12 to 16 months after the fact, it is not reasonable to conclude that, in her words, the “court conducted the mandatory balancing contemporaneously with the granting of the continuance,” as Zedner requires. See Zedner, 547 U.S. at 506-07. But she gives us no reason to second-guess the district court‘s findings in its September 1 order that it had made such findings contemporaneously. The record in this case, including the pretrial filings and transcripts of the pretrial status hearings, demonstrates that the court‘s explicit findings made when ruling on the motion to dismiss accurately represent its reasons for excluding the time when the court ordered the time excluded.
Next, Parker complains that in numerous instances, the district court ordered time excluded, but it failed to consider the factors that the Act provides should be considered in determining whether to grant a continuance under
As our discussion demonstrates, the record refutes any claim of a Speedy Trial Act violation.
B. Sufficiency of the Evidence
Parker next challenges the sufficiency of the evidence on all counts. She was charged with and convicted of three counts of bank fraud in violation of
In challenging the sufficiency of the evidence, Parker‘s arguments miss the mark. She first complains that the evidence at trial failed to adequately explain how or why the temporary checks admitted into evidence were numbered, and she submits that every temporary check she ever handled was not numbered. Parker also challenges the grant of immunity given to Olivera. Finally, she complains that the government did not account for the money she should have obtained from the check-cashing scheme. Parker‘s arguments are directed at the weight to be given the evidence and the credibility of witnesses. Our task, however, is to determine whether the record contains any evidence which, when viewed most favorably to the government, could support a finding of guilt beyond a reasonable doubt. As Parker acknowledges, Olivera‘s testimony “truly inculpated her.” In fact, the government presented evidence to establish the essential elements of bank fraud under
C. Ruling on Government‘s Motion in Limine
Parker claims that the district court abused its discretion in ruling on the government‘s motion in limine because the jury was not allowed to know all related facts surrounding her Equal Employment Opportunity Commission (“EEOC“) action against LaSalle Bank, which she claims deprived her of a complete defense. We review a ruling excluding evidence under Rule 403 for an abuse of discretion. See United States v. Taylor, 701 F.3d 1166, 1172-73 (7th Cir.2012).
On or about January 8, 2004, Parker filed a charge of discrimination against LaSalle Bank with the EEOC, alleging sexual harassment by a co-worker. The EEOC sent notice of the charge to LaSalle Bank and subsequently notified the bank that it had found that Parker‘s claim was supported by probable cause. On February 2, 2005, Parker and LaSalle Bank entered into a settlement agreement pursuant to which Parker received $33,750 in exchange for her resignation and release of her EEOC charge against the bank. The bank waived all actions against Parker arising out of her employment based on Parker‘s “warranty and representation that she did not participate in the theft and fraudulent use of temporary checks from the Gateway Branch in 2004.”
Before trial, the government moved in limine to preclude Parker from eliciting evidence or making argument related to her EEOC charge and any findings by the EEOC. The district court granted the motion in part, ruling that the EEOC findings were not independently admissible. The
At trial, the government called bank investigator Margie Szewczyk and teller manager Leslie Jones as witnesses. The district court conducted a voir dire examination of Szewczyk outside the jury‘s presence. Szewczyk said that near the end of her investigation, she became aware that Parker had a claim pending against the bank involving an HR (Human Resources) issue. Szewczyk also said that she did not know that the claim involved the EEOC or a discrimination claim. Based on this testimony, the court ruled that Parker‘s counsel could cross-examine Szewczyk for bias on whether she was aware that Parker had a claim against the bank involving HR, but barred any reference to the EEOC.
Szewczyk testified on cross-examination that, a few days before she interviewed Parker in November 2004, she had learned Parker had filed a claim involving human resources against LaSalle Bank. Szewczyk stated that she was not given any details about Parker‘s claim; she was aware that there was some issue with HR, she believed it was a lawsuit and thought it involved discrimination.
The district court also examined Jones outside the jury‘s presence. Jones stated that, not long after she began working at the bank, in about March 2004, she learned through “talk ... in the bank” of Parker‘s lawsuit against the bank and EEOC charge alleging harassment. Jones said that she learned the EEOC charge was resolved by settlement “months later,” but she didn‘t know any of the details. Based on this testimony, the district court allowed Parker‘s counsel to cross-examine Jones for bias. Jones testified on cross-examination that, shortly after she began working at the bank, she heard that Parker had filed the EEOC charge against the bank for harassment.
Parker also offered testimony about her EEOC charge, stating that when she resigned from the bank she was on the payroll but not working “because of other issues like retaliation and sexual harassment.” The district court sustained the government‘s objection and then conducted a voir dire examination of Parker outside the jury‘s presence. Parker claimed that Szewczyk and Jones discussed the EEOC complaint with her. The district court ruled that Parker could testify about statements made by Szewczyk and Jones regarding the EEOC claim in an attempt to show bias.
Parker testified that on about November 18, 2004, she was interviewed by bank investigator Szewczyk and Szewczyk told her, regarding the EEOC charge, that “I was making everyone‘s job hard.” Parker added that “[i]t was a lot of things said at a lot of different times. It was just a hostile situation.” Parker also testified that in March or April 2004, Jones told her that:
I was making everyone‘s—their job hard to deal with because of the complaint.... That it was going to be people losing their jobs about the complaint if it came to pass. Or once they did the investigation and found that everything were [sic] true, and then the investigators came back with their decision, that people would end up losing their jobs because of that.
The government recalled Szewczyk and Jones in rebuttal. Both of them denied saying what Parker had claimed they had said in reference to her EEOC charge.
Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence; and
Parker‘s EEOC charge against the bank and the facts surrounding the charge were of no consequence in this action other than to show a witness‘s bias. And, obviously, a witness cannot be biased based on information of which she is unaware. The voir dire of Szewczyk established that she was aware of Parker‘s claim against the bank, and the voir dire of Jones established that she was aware of Parker‘s EEOC charge. The district court allowed Parker to cross-examine these witnesses on their awareness of her claim or EEOC charge in an effort to show bias. We find no abuse of discretion in the district court‘s ruling on the government‘s motion in limine and its decision to limit the use of evidence about the EEOC charge to show bias on the part of Szewczyk and Jones.
D. Parker‘s Right to Call Defense Witnesses
Parker argues that she was deprived of her right to offer the testimony of witnesses and compel their attendance. She submits that “she was deprived of her right to call witnesses in her defenses based on a confusing set of circumstances relating to who was ultimately responsible for getting those witnesses to court.”
A defendant has a Sixth Amendment right to present witnesses in her defense. United States v. George, 363 F.3d 666, 670 (7th Cir.2004). But “the right is not unlimited. The defendant ‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability.‘” Harris v. Thompson, 698 F.3d 609, 626 (7th Cir.2012) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)), cert. denied, U.S., 133 S.Ct. 2766, 186 L.Ed.2d 218 (2013). A defendant‘s right to compulsory process is violated “only when a court denies the defendant an opportunity to secure the appearance at trial of a witness ‘whose testimony would have been relevant and material to the defense.‘” United States v. Williamson, 202 F.3d 974, 979 (7th Cir.2000) (quoting Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)).
The record establishes that Parker was not denied the opportunity to present witnesses in her defense or compel their attendance at trial. The district court did not prohibit Parker from calling witnesses and securing their appearance at trial. On September 7, 2011, Parker decided to represent herself, and the court asked Attorney Kennedy, who had been her counsel, to be standby counsel. The court explained to Parker at the hearing that she “will be in charge.... [Standby counsel] is there to offer any assistance or advice that you might ask for. But the decisions about the case will be made by you, and you will be proceeding to represent yourself at trial.” It wasn‘t until after trial commenced and Parker had given an opening statement that Parker requested representation by counsel, and standby counsel was appointed to represent her. Thus, for two months leading
“An attorney ... has a duty to consult with the client regarding important decisions, including questions of overarching defense strategy,” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), but counsel is not required “to obtain the defendant‘s consent to ‘every tactical decision,‘” id. (quoting Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining the client‘s approval)). A “lawyer‘s decision to call or not to call a witness is a strategic decision generally not subject to review. The Constitution does not oblige counsel to present each and every witness that is suggested to him.” United States v. Best, 426 F.3d 937, 945 (7th Cir.2005) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.1997)). Indeed, Parker acknowledges that the decision whether to call a witness was her attorney‘s to make.
Of course, whether to testify in her own defense was Parker‘s decision to make. But whether to call any other witnesses was her lawyer‘s decision. The record shows that Parker‘s attorney consulted with her about whether to call any other witnesses and he decided against it. The attorney explained on the record that in another case, he had called a witness his client wanted to testify, and “watched that whole case fall apart.” He was “not inclined to do it again.” Thus, the record establishes that Parker was not deprived of her constitutional right to present witnesses in her defense or to compel their attendance at trial.
E. Obstruction of Justice Enhancement
Lastly, Parker contends that the district court‘s findings were insufficient to justify application of an obstruction of justice enhancement to her sentence. Under U.S.S.G. § 3C1.1, a district court may enhance a defendant‘s offense level if she “willfully obstructed or impeded, or attempted to obstruct or impede” the investigation into her offense. A finding that the defendant committed perjury supports this enhancement. United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); United States v. Gomez, 712 F.3d 1146 (7th Cir.2013); U.S.S.G. § 3C1.1, cmt. n. 4(B). “A defendant commits perjury if, while testifying under oath, [s]he ‘gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.‘” United States v. Johnson, 680 F.3d 966, 981 (7th Cir.) (quoting Dunnigan, 507 U.S. at 94), cert. denied, U.S., 133 S.Ct. 672, 184 L.Ed.2d 477 (2012).
To apply the enhancement based on perjury, “the district court should make a finding as to all the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent.” Id. Separate findings of each element of perjury, though preferable, are unnecessary if the court makes a finding that “encompasses all of the factual predicates for a finding of perjury.” Dunnigan, 507 U.S. at 95; see also
We agree with Parker that the district court‘s findings in this case are insufficient. Parker gave testimony at trial: (1) denying any involvement in the check-cashing scheme and (2) claiming that she had conversations with Szewczyk and Jones about the investigation of her EEOC charge. Regarding Parker‘s denial of involvement in the scheme, we asked government counsel at oral argument to identify the judge‘s statement that most clearly indicates a finding of willful falsity. Counsel could not point to any such statement, but instead argued that the evidence proved Parker‘s guilt beyond a reasonable doubt. Moreover, we are troubled by the judge‘s comment at sentencing, made while addressing the obstruction enhancement, that “Ms. Parker may even believe herself that she didn‘t negotiate these checks.” This comment seems to suggest an absence of willfulness.
As government counsel conceded at oral argument, the district court never made an explicit finding of falsity as to Parker‘s testimony about the EEOC claim. Counsel argued instead that it was clear from the record that the judge thought Parker‘s testimony was false. While it is true that the judge noted that “the investigation had begun even before the investigators were aware of any EEOC claim,” and “[t]here was no support for it other than Ms. Parker‘s suspicion or imagination,” implicit findings are insufficient to support the obstruction enhancement in this case. These comments concern Parker‘s attempt to suggest that the bank investigators had improper motivations and were trying to “stick something on her because they were angry about [the EEOC charge].” Sent. Tr. 15. The court‘s comments do not directly relate to Parker‘s testimony about conversations she allegedly had with Szewczyk and Jones.
The government argues that any failure by the court to make findings as to the elements of perjury was harmless because the record contains ample evidence that Parker perjured herself at trial. We disagree. This case is unlike United States v. Savage, 505 F.3d 754, 764 (7th Cir.2007), and United States v. Saunders, 359 F.3d 874, 879 (7th Cir.2004) (court observed that defendant “took the stand and told a lie which no one would believe“), where the sentencing court found the defendant‘s testimony at issue was false but omitted findings as to willfulness and materiality, and we found the lack of precise findings harmless. The district court‘s comments leave us unsure as to whether the court found that Parker‘s denial of involvement in the scheme was willful. As for her testimony about the EEOC investigation, in making findings, the court focused almost entirely on the question of whether her testimony was material, but did not address whether the testimony was false. We do not suggest that the enhancement for obstruction of justice cannot be justified, provided that the appropriate findings are made. But in the context of this sentencing, the insufficiency of the findings about Parker‘s testimony cannot be considered harmless, and the obstruction enhancement appears to have been an important factor in the determination of the sentence imposed.
For the foregoing reasons, we AFFIRM Parker‘s convictions, but we VACATE her sentence and REMAND this case for resentencing.