United States v. Cobb-Leonard ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4521
LORI COBB-LEONARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
James C. Fox, District Judge.
(CR-96-13-2-F)
Submitted: March 17, 1998
Decided: April 3, 1998
Before LUTTIG and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
W. Gregory Duke, BLOUNT & DUKE, Greenville, North Carolina,
for Appellant. Janice McKenzie Cole, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Lori Cobb-Leonard appeals from her convictions for offenses she
committed as a Postal Service employee. For the following reasons,
we affirm.
Cobb-Leonard was a window clerk at the Enfield, North Carolina,
Post Office. Her duties included selling stamps, accepting packages
for mailing, handling accountable mail, and issuing money orders. As
a postal clerk, Cobb-Leonard was assigned a cash drawer. Pursuant
to procedures, she was required to place her cash drawer in a locked
safe or lock the drawer when she left the post office at the end of the
work day or whenever she stepped away from her window at the
counter.
In December 1994, the Enfield Postmaster, Thomas Burnham, did
an accountability check on Cobb-Leonard's drawer to determine
whether the amount of stock and cash in her drawer balanced the
amount the records reflected she should have at that time. Burnham
and two postal employees each counted the money and stock in Cobb-
Leonard's drawer, and they determined that there was a shortage in
the drawer of $1665.44. In January 1995, Cobb-Leonard requested
and was provided the opportunity to count the contents of her drawer.
She and Burnham counted her drawer on that date and reached the
same figure that had been reached in December.
Postal records also revealed that in late 1994 there were discrepan-
cies in records relating to money orders Cobb-Leonard had sold.
Burnham received a money order reconciliation report from the cen-
tral data center. He compared the report to his local records and found
inconsistencies with respect to some money orders between the dollar
amounts reflected in the data center records and the local records.
Burnham retrieved three money order vouchers, dated September 2,
2
6, and 9, 1994, that corresponded to money orders for which the
records were inconsistent. Two of the three vouchers were partially
printed in ink where the images should have been carbonized. Burn-
ham determined that each of the three money orders had been issued
by the post office to Cobb-Leonard for sale to postal customers. The
vouchers and Cobb-Leonard's daily financial reports reflected that
each of the money orders had been sold for $50, but the amounts
imprinted on the original money orders were $500, $500, and $350.
All funds collected by a postal clerk for the purchase of money orders
must be turned in to the post office at the end of the day. Also, each
clerk is required to sign a verification at the end of each day that he
or she has remitted all funds and that the records are correct.
Also, in late 1994, customers complained that food stamp letters
were not arriving at their destinations. In response to those com-
plaints, Douglas Funderburg, a postal inspector, prepared a test letter
that contained food stamps as well as a credit-card sized electronic
signaling device that would transmit an alarm signal when the enve-
lope was opened or its contents were removed. Funderburg placed the
letter in a mail drop at the Enfield Post Office and kept a surveillance
of the office. At approximately 5:30 p.m., when Cobb-Leonard was
alone in the post office, the alarm sounded. Funderburg and another
postal inspector entered the post office, approached Cobb-Leonard,
and asked what she had done with the food stamp envelope she had
just opened. Cobb-Leonard said she had no idea what he was talking
about and denied knowing what a food stamp letter looked like. The
postal inspectors conducted a cursory search of the post office for the
envelope and did not find it. Cobb-Leonard subsequently picked it out
of the "throw back case." The envelope was sealed, but it was not in
its original condition. Funderburg noticed that some glue was exposed
on the back of the envelope, although the glue had not been visible
when he had delivered the envelope. Cobb-Leonard eventually
acknowledged that she had opened the envelope and that her finger-
prints might be inside. She denied, however, having seen the transmit-
ter or the food stamps in the envelope. She stated that she had opened
the envelope to find the certified number on it. She subsequently pro-
vided a written statement that was somewhat different from her initial
statements.
Cobb-Leonard was charged by indictment with one count of
embezzling a letter and food stamps contained therein entrusted to her
3
as a Postal Service employee, in violation of 18 U.S.C. § 1709 (1994)
(count one); one count of converting to her own use money that had
come into her hands in the execution of her employment as a Postal
Service employee, in violation of 18 U.S.C. § 1711 (1994) (count
two); three counts of fraudulently obtaining and receiving money
orders without having received and paid the full amounts for them, in
violation of 18 U.S.C. § 500 (1994) (counts three, four, and five); and
three counts of making false documents regarding the values of the
money orders that were so issued, in violation of 18 U.S.C. § 1001(1994) (counts six, seven, and eight). Prior to trial, Cobb-Leonard
moved to sever the counts based on three separate incidents: (1) the
opening of the certified letter; (2) the alteration of the money orders;
and (3) the cash drawer shortage. The court denied the motion, and
she unsuccessfully renewed her motion for severance during trial.
The jury found Cobb-Leonard guilty as charged. However, upon
Cobb-Leonard's motion, the district court dismissed count one. The
district court imposed concurrent terms of imprisonment of twelve
months and one day as to each of counts two through eight followed
by three years of supervised release. Cobb-Leonard timely appeals.
On appeal, Cobb-Leonard claims that the district court abused its
discretion by not severing the eight counts contained in the indictment
pursuant to Fed. R. Crim. P. 14. She contends that the offenses were
based upon three distinct and separate factual bases and shared no
common evidence. She further alleges that she was prejudiced by the
cumulative effect of the evidence introduced as to all counts on the
jury's consideration of each individual count.
Joinder of offenses is the rule, not the exception, and a district
court's decision to deny a motion to sever should only be overturned
upon a "showing of clear prejudice or abuse of discretion." United
States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). In the present case,
Cobb-Leonard fails to make such a showing. Joinder is proper under
Fed. R. Crim. P. 8(a), in three circumstances: (1) the offenses are of
the same or similar character; (2) the offenses are based on the same
act or transaction; or (3) the offenses are based on two or more acts
or transactions connected together or constituting parts of a common
scheme or plan. See United States v. Goldman, 750 F.2d 1221, 1224
4
(4th Cir. 1984); United States v. Foutz, 540 F.2d 733, 736 (4th Cir.
1976).
The offenses in the present case were properly joined because, as
the district court noted, the offenses charged in the indictment could
be viewed as based on two or more acts or transactions connected
together or constituting parts of a common scheme or plan. Cobb-
Leonard's offenses occurred over a span of only four months, and all
are financial crimes whereby Cobb-Leonard used her position as a
Postal Service employee to obtain money or things of value.
Once the offenses are properly joined under Rule 8(a), the district
court has the discretion to sever the offenses pursuant to Rule 14 if
there is a showing of prejudice. See United States v. Haney, 914 F.2d
602, 606 (4th Cir. 1990); Goldman, 750 F.2d at 1224; Foutz, 540 F.2d
at 736. Cobb-Leonard was not prejudiced by the joinder in this case
because even if the counts had been severed for trial, evidence of any
one of the various offenses would have been admissible at a separate
trial for any other under Fed. R. Evid. 404(b), to establish "proof of
intent, plan, knowledge, or absence of mistake or accident." Also,
there was not much danger that the jury confused or cumulated the
evidence because the Government's evidence regarding the individual
charges was simple and different such that the jury could segregate
the evidence into "`separate intellectual boxes.'" Foutz, 540 F.2d at
738 (citations omitted). We find that Cobb-Leonard failed to carry her
burden of demonstrating "a strong showing of prejudice." See
Goldman, 750 F.2d at 1225.
Accordingly, we affirm Cobb-Leonard's convictions. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5