USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14358
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIFFANY CULLIVER FRANKLIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:20-cr-00044-LSC-SMD-1
____________________
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 2 of 11
2 Opinion of the Court 21-14358
Before JORDAN, NEWSOM, and BLACK, Circuit Judges.
PER CURIAM:
Tiffany Franklin challenges her convictions and sentences
for one count of embezzlement by a bank employee, in violation
of
18 U.S.C. § 656 (Count 1); two counts of bank fraud, in violation
of
18 U.S.C. § 1344(1) (Counts 2 and 3); and three counts of wire
fraud, in violation of 18 U.S.C § 1343 (Counts 5, 6, and 8). She as-
serts several issues on appeal, which we address in turn.
I. DISCUSSION
A. Prior State Court Conviction
Franklin asserts the district court abused its discretion in al-
lowing the Government to present evidence related to her prior
state court conviction for theft of property. She also contends the
district court abused its discretion in preventing her from present-
ing evidence she pled guilty to, and had already been sentenced in
state court for, theft of property.
Rule 404(b) prohibits evidence of other crimes, wrongs, or
acts from being admitted to prove a defendant’s character in order
to show action in conformity with her character, but such evidence
may be admitted for other purposes. Fed. R. Evid. 404(b).
The district court did not abuse its discretion in allowing the
Government to present evidence related to Franklin’s state court
conviction for theft of property from Goodwyn Middle School
(GMS). See United States v. Dodds,
347 F.3d 893, 897 (11th Cir.
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 3 of 11
21-14358 Opinion of the Court 3
2003) (reviewing a district court’s evidentiary rulings for abuse of
discretion). In the second superseding indictment, the Govern-
ment charged Franklin with wire fraud as part of a larger scheme
to defraud GMS. As such, evidence of her scheme to defraud GMS
was inextricably intertwined with the wire fraud charges in the sec-
ond superseding indictment and not subject to Rule 404(b). See
United States v. Foster,
889 F.2d 1049, 1054 (11th Cir. 1989) (stating
evidence of criminal activity other than the charged offense that is
inextricably intertwined with the offense for which the defendant
was indicted is not subject to Rule 404(b)).
The district court did not abuse its discretion in preventing
Franklin from presenting evidence that she pled guilty to theft of
property charges related to her fraud against GMS. Her guilty plea
in state court was not of consequence in determining her guilt or
innocence on the wire fraud charges in federal court, and therefore,
was not relevant to the trial. See United States v. Glasser,
773 F.2d
1553, 1559 n.4 (11th Cir. 1985) (providing to be relevant (1) the ev-
idence must be probative of the proposition it is offered to prove,
and (2) the proposition to be proved must be one that is of conse-
quence to the determination of the action). Because irrelevant ev-
idence is inadmissible, the district court did not abuse its discretion
in excluding evidence of Franklin’s prior guilty plea. Fed. R. Evid.
402. Evidence of the broader fraudulent scheme was intrinsic to
the wire fraud charges and not subject to Federal Rule of Evidence
404(b).
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 4 of 11
4 Opinion of the Court 21-14358
B. Summary Witness
Franklin also contends the district court abused its discretion
in allowing the Government’s summary witness to testify because
she offered improper expert testimony and because her testimony
was speculative.
Rule 1006 permits a party to use a summary or chart to
prove the content of voluminous writings, recordings, or photo-
graphs that cannot be conveniently examined in court. Fed. R.
Evid. 1006. A witness who presents summary testimony typically
qualifies as a lay witness under Federal Rule of Evidence 701. See
United States v. Hamaker,
455 F.3d 1316, 1331-32 (11th Cir. 2006)
(holding government witness’s testimony was permissible lay tes-
timony under Rule 701 because his review of the evidence was
within the capacity of any reasonable lay person). Rule 701 allows
lay testimony as to opinions or inferences which are: (1) rationally
based on the perception of the witness; (2) helpful to a clear under-
standing of the witness’s testimony or the determination of a fact
in issue; and (3) not based on scientific, technical, or other special-
ized knowledge within the scope of Rule 702.
Id.
The district court did not abuse its discretion in allowing the
Government’s summary witness, Katheryn Scott, to testify. First,
Franklin’s contention Scott offered improper expert testimony is
incorrect because Scott’s summary testimony is permitted as lay-
witness testimony under Federal Rules of Evidence 701 and 1006.
Scott did not offer expert testimony, but instead summarized
Franklin’s voluminous bank records spanning from 2013 through
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 5 of 11
21-14358 Opinion of the Court 5
2018. Scott’s testimony was not based on scientific or technical
knowledge, but was instead based on her personal knowledge of
investigating Franklin’s bank records. See Hamaker,
455 F.3d at
1331-32.
C. Sufficiency of the Evidence
Franklin asserts her convictions are not supported by suffi-
cient evidence such that a reasonable jury could have found her
guilty. After de novo review,1 we conclude her convictions are
supported by sufficient evidence.
1. Count One
Under
18 U.S.C. § 656, a defendant is guilty of embezzle-
ment by a bank employee if, while employed at a federally insured
bank, she embezzles or willfully misapplies any moneys.
18 U.S.C.
§ 656. To support a conviction under § 656, the government must
prove: (1) the defendant was an employee of the bank; (2) the bank
was connected in some way with a national or federally insured
bank; (3) the defendant willfully misapplied the moneys or funds of
the bank; and (4) the defendant acted with the intent to injure and
1 We review a sufficiency of the evidence claim de novo, viewing the evidence
in the light most favorable to the government and resolving all reasonable in-
ferences in favor of the verdict. United States v. Jiminez,
564 F.3d 1280, 1284
(11th Cir. 2009). Under de novo review, the jury’s guilty verdict must be af-
firmed unless there is no reasonable construction of the evidence from which
the jury could have found the defendant guilty beyond a reasonable
doubt. United States v. Foster,
878 F.3d 1297, 1304 (11th Cir. 2018).
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 6 of 11
6 Opinion of the Court 21-14358
defraud the bank. United States v. Salinas,
601 F.2d 1279, 1287 n.15
(5th Cir. 1979).2
There is sufficient evidence in the record for a reasonable
jury to find Franklin guilty of embezzlement by a bank employee
under
18 U.S.C. § 656. Franklin stipulated to the first two ele-
ments—that she was an employee at BB&T, and that BB&T was
federally insured. See Salinas,
601 F.2d at 1287 n.15. The Govern-
ment provided sufficient evidence to prove Franklin willfully mis-
applied the bank’s funds including Franklin’s written confession to
Joe Rowe stating she took between $400 and $1500 per day from
the vault for a total of $202,000, and that she avoided detection by
force balancing her daily records so it appeared the amount of
money in the vault was correct. The Government also provided
sufficient evidence that the jury could infer Franklin intended to
injure and defraud BB&T. Franklin admitted to Rowe she spent at
least some of the money at the casino, and her bank records indi-
cated she began gambling significantly more money in 2017, during
the time of the alleged embezzlement. As further evidence of her
intent to defraud BB&T, Franklin admitted to force balancing her
balance sheets, or lying on balance sheets to create the appearance
the vault contained the correct amount of money, allowing her to
conceal her embezzlement.
2 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 7 of 11
21-14358 Opinion of the Court 7
2. Counts Two and Three
A defendant who knowingly executes, or attempts to exe-
cute, a scheme to defraud a financial institution violates
18 U.S.C.
§ 1344(1). A conviction for bank fraud under § 1344(1) requires
proof that (1) the defendant intentionally participated in a scheme
or artifice to deprive another of money or property; and (2) the in-
tended victim was a federally insured financial institution. United
States v. McCarrick,
294 F.3d 1286, 1290 (11th Cir. 2002). The Su-
preme Court acknowledged that check kiting schemes, where a de-
fendant writes checks against an account with insufficient funds in
a way designed to keep them from bouncing, may be brought un-
der § 1344(1). Loughrin v. United States,
573 U.S. 351, 358 n.4
(2014).
There is sufficient evidence in the record for a reasonable
jury to find Franklin guilty of bank fraud in violation of
18 U.S.C.
§ 1344(1). Franklin stipulated Wells Fargo was a federally insured
bank between January 2012 and December 2014. The Government
presented sufficient evidence for the jury to conclude Franklin par-
ticipated in a scheme designed to defraud Wells Fargo. Specifically,
the Government produced evidence that Jimmy Cutcher con-
cluded at the time of his investigation, using video footage of the
ATM machine, that Franklin deposited the two checks in question.
The Government also showed evidence in the form of a transac-
tion report of B.B.’s account that showed money was withdrawn
from the account immediately after the checks were deposited. Fi-
nally, Cutcher testified that Franklin admitted to him that she knew
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 8 of 11
8 Opinion of the Court 21-14358
the checks she deposited were not supported by sufficient funds for
Wells Fargo to deposit. Based on this evidence, a reasonable jury
could find Franklin intentionally participated in a scheme to de-
fraud a federally insured bank. McCarrick,
294 F.3d at 1290.
3. Counts Five, Six, and Eight
A conviction for wire fraud requires evidence the defendant
(1) intentionally participated in a scheme to defraud another of
property or money and (2) used or caused the use of wires to exe-
cute the scheme to defraud.
18 U.S.C. § 1343, United States v.
Ward,
486 F.3d 1212, 1222 (11th Cir. 2007).
There is sufficient evidence in the record for a reasonable
jury to find Franklin guilty of wire fraud in violation of § 1343.
Franklin stipulated the use of GMS’s Walmart credit card would
transmit by wire some communication in interstate commerce.
The Government presented sufficient evidence for the jury to con-
clude Franklin used the Walmart credit card to defraud GMS of
funds. The Government presented evidence that in her role as the
bookkeeper, Franklin was the custodian of GMS’s Walmart credit
card. The Government presented evidence that a purchase made
with the Walmart credit card without a purchase order signed by
the principal or an identifiable reason the purchase would benefit
the school was unauthorized. The Government also presented ev-
idence GMS’s Walmart credit card was used to purchase individual
gift cards valued at $350, $125, and $175, and there were no signed
purchase orders for those transactions. Further, Franklin signed
the receipts associated with the purchase of those three gift cards.
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 9 of 11
21-14358 Opinion of the Court 9
When Franklin was asked by state auditors why she purchased
those gift cards, she did not provide an answer.
The Government also produced evidence that Franklin’s un-
authorized use of the Walmart credit card was part of a larger
scheme to defraud GMS that resulted in $7,067 of checks written
from her personal bank account that were returned for insufficient
funds; another $3,074 that teachers gave to Franklin but was never
deposited into GMS’s bank account; $675 in ticket sales that were
not deposited into the GMS account; $907.55 in concession sales
that were not deposited into GMS’s account; and $148.26 in
Walmart and Sam’s Club purchases that were made for Franklin’s
personal benefit. Based on this evidence presented by the Govern-
ment, the jury could reasonably conclude that Franklin partici-
pated in a scheme to defraud GMS, and, by using GMS’s Walmart
credit card, she used or caused the use of wires to execute that
scheme. Ward,
486 F.3d at 1222;
18 U.S.C. § 1343.
D. Abuse of Trust Enhancement
Finally, Franklin contends the district court plainly erred in
applying a two-level sentencing enhancement for abuse of a posi-
tion of trust.
To justify an abuse-of-trust enhancement under U.S.S.G.
§ 3B1.3, the government must show the defendant: (1) held a posi-
tion of public or private trust; and (2) abused that position in a way
that significantly facilitated the commission or concealment of the
offense. United States v. Morris,
286 F.3d 1291, 1295 (11th Cir.
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 10 of 11
10 Opinion of the Court 21-14358
2002). The commentary to § 3B1.3 states the enhancement does
not apply in the case of embezzlement or theft by an ordinary bank
teller. U.S.S.G. § 3B1.3, comment. (n.1). In United States v. Milli-
gan, we held the enhancement applied to a postal window clerk’s
embezzlement of funds.
958 F.2d 345, 347 (11th Cir. 1992). We
noted that Milligan was subject to an audit only once every four
months, and he had unsupervised access to programs that allowed
him to move funds in and out of accounts as evidence he was given
more trust than an ordinary bank teller.
Id.
Because Franklin did not object to the imposition of the two-
level enhancement for abuse of trust in the district court, we re-
view her claim for plain error. See United States v. Shelton,
400
F.3d 1325, 1328 (11th Cir. 2005) (stating when sentencing issues are
raised for the first time on appeal, we review for plain error). Alt-
hough the commentary to the Guidelines provides the enhance-
ment does not apply to an ordinary bank teller, see U.S.S.G.
§ 3B1.3, comment. (n.1), there is no published decision by this
Court or the Supreme Court addressing whether a vault teller oc-
cupies a position of trust relative to their employer. See United
States v. Schultz,
565 F.3d 1353, 1357 (11th Cir. 2009) (stating an
error is not plain unless it is contrary to explicit statutory provisions
or controlling precedent from either the Supreme Court or our
Court). Franklin’s position as the vault teller is similar to the de-
fendant’s position in Milligan because the vault was audited infre-
quently and she was entrusted with sole access to the vault. See
USCA11 Case: 21-14358 Date Filed: 10/07/2022 Page: 11 of 11
21-14358 Opinion of the Court 11
Milligan,
958 F.2d at 347. The district court did not plainly err in
imposing the two-level enhancement for abuse of position of trust.
II. CONCLUSION
The district court did not abuse its discretion in allowing the
Government to present evidence relating to Franklin’s prior state
court conviction for theft of property, in preventing Franklin from
discussing her prior guilty plea in state court, or in allowing the
Government’s summary witness to testify. The district court did
not err in denying Franklin’s motion for judgment of acquittal be-
cause sufficient evidence supported each count of conviction. The
district court did not plainly err in applying a two-level enhance-
ment for abuse of trust.
AFFIRMED.
