The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On December 3, 2008, a jury convicted Defendant Monique Ellington ("Ellington") of one count of embezzlement of bank funds in violation of 18 U.S.C. § 656 and one count of bank larceny in violation of 18 U.S.C. § 2113. Ellington now moves for a judgment of acquittal with respect to the embezzlement charge, or, alternatively, for a new trial with respect to both counts. For the reasons stated, Ellington's Motion for Judgment of Acquittal and New Trial is denied.
In Count I, the Superseding Indictment charged Ellington, a bank teller with Diamond Bank, with the embezzlement of bank funds in excess of $1,000 from her employer. Count II alleged that Ellington, her boyfriend Willie Perkins ("Perkins") and an unnamed individual stole approximately $5,000 from Diamond Bank. At trial, the Government introduced evidence that Ellington and Perkins had been living outside of their means until Perkins lost his job. In order to continue funding their lifestyle, Ellington began embezzling money from Diamond Bank by taking advantage of the bank's system of handling "excess cash" held within teller drawers. The Government presented evidence that a surprise audit of her teller drawer on December 13, 2007 revealed a shortage of cash.
In order to cover up the embezzlement, on December 13, 2007, Ellington suggested to Perkins that they stage a robbery of Diamond Bank. On December 14, 2007, as Perkins drove Ellington to work, they stopped to pick up Nicholas Coleman ("Coleman"), the unidentified individual mentioned in Count II of the Superseding Indictment, and planned the staged robbery with him during the trip. Shortly after Ellington arrived at her teller station that morning, Coleman approached her, passed her a note demanding money from her drawer, and ran outside where he met up with Perkins, who was waiting for Coleman nearby in Ellington's car. Perkins and Coleman then drove away. Ellington initially reported that the bank robber had taken approximately $17,000 from Diamond Bank. However, the evidence presented at trial reflected that the bank's actual loss amount was between $5,000 and $6,000.
At the close of the Government's case in chief, Ellington moved for a judgment of acquittal on Counts I and II pursuant to Fed. R. Crim. P. 29(a). Ellington claimed that the Government had not presented sufficient evidence to support the a finding that the loss amount exceeded $1,000 with respect to Count I. The Court found that sufficient circumstantial evidence of a loss in excess of $1,000 existed to enable the jury to decide whether the Government met its burden of proof. The Court also denied Ellington's Rule 29 motion with respect to Count II. Ellington did not testify or put on a case in chief. After deliberating, the jury found Ellington guilty of both counts.
Ellington now moves for judgment of acquittal under Rule 29, claiming that the Court erred in denying her previous Rule 29 motion for judgment of acquittal because that the government submitted insufficient evidence to prove the $1,000 loss amount of the embezzlement charge. Additionally, Ellington moves for a new trial, claiming that the Court erred when it: 1) denied her motion for a mistrial during Perkins' direct examination; 2) ruled against her with respect to various evidentiary rulings; and 3) refused one of Ellington's requested jury instructions.
I. Motion for Judgment of Acquittal
A motion for a judgment of acquittal under Rule 29 challenges the sufficiency of the evidence against the defendant. See Fed. R. Crim. P. 29. Such a motion should be denied if, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004). A conviction should not be overturned unless "the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (citing United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999)).
To establish a violation of 18 U.S.C. § 656, the Government must prove the following elements beyond a reasonable doubt: 1) that the defendant was a bank employee; 2) of a federally insured bank; 3) that the defendant willfully misapplied funds of the bank; 4) with the intent to injure or defraud the bank; and 5) the sum misapplied exceeds $1,000. See United States v. Crabtree, 979 F.2d 1261, 1266 (7th Cir. 1992). Ellington only challenges the loss amount, claiming that the evidence produced at trial could not have proven the $1,000 element of the embezzlement charge against her beyond a reasonable doubt. She did not raise any specific arguments in her motion; rather she incorporated by reference the arguments made during the oral Rule 29 motion following the close of the Government's case in chief. At that time, the entirety of Ellington's argument consisted of the statement, "I don't think the-with respect to the embezzlement count, Judge, I don't think the Government's met its burden with respect to the amount, $1,000, over one thousand dollars . . . The testimony is not clear with respect to that. And based on that I think that the Rule 29 motion should be granted as to Count I."
With respect to Count I of the Superseding Indictment, Perkins testified that Ellington first told him that she had been stealing money from the Diamond Bank on December 13, 2007 after the surprise audit of her teller drawer. During that conversation, Perkins testified that Ellington admitted to him that she had stolen between $8,000 and $10,000 from the bank before she suggested that they stage a robbery to cover up her embezzlement. The Government also produced evidence that Ellington had stolen $775 in cash when Christopher Sebastian, Senior Vice President of Diamond Bank, had given Ellington a $775 check and $775 in cash to deposit into his accounts at Diamond. He made his deposit on December 10, 2007, but noticed that only the check had cleared when he balanced his account on December 12, 2007. When he questioned Ellington about the transaction, she entered the bank's vault, removed $775 in cash from a money bag and deposited that cash into his account.
Additionally, the Government introduced documents relating to the excess cash transactions that Ellington performed as a teller. The records showed that Ellington performed very few excess cash transactions before Perkins lost his job. For example, in April and May 2007, Ellington performed one excess cash debit and one credit per month. In June 2007 she performed two pairs of debits and credits to excess cash. She performed no excess cash transactions in July or August 2007. However, in September 2007, the month that Perkins lost his job, Ellington performed four pairs of excess cash debits and credits. In October 2007, Ellington conducted excess cash transactions on twelve of the fifteen days that she worked. In November 2007, Ellington performed excess cash transactions on nine of the fourteen days that she worked. In December 2007, she performed excess cash transactions on each of the ten days that she worked between December 4 and December 14. After the staged bank robbery on December 14, 2007, Ellington initially reported to bank officials and law enforcement agents that the bank lost $17,000. However, law enforcement agents later determined the actual value of the loss was between $5,000 and $6,000.
Based on that evidence, a reasonable jury could have concluded that Ellington had embezzled in excess of $1,000 from Diamond Bank. The evidence of Sebastian's lost cash deposit alone supports $775 of loss. Additionally, Ellington told Perkins that she had taken between $8,000 and $10,000 from the bank. The increased number of excess cash transactions that Ellington performed after Perkins lost his job in September 2007 provides some corroboration of that statement. Finally, the Government presented evidence that Ellington staged the December 14, 2007 robbery of Diamond Bank in order to cover up her embezzlement. Although she only handed over $5,000 to $6,000 of cash when Coleman approached her teller station, she reported a loss of $17,000. A reasonable jury could infer that the difference between the reported loss amount and the actual loss amount represents the amount of money that Ellington had embezzled from Diamond Bank, because the purpose of the staged robbery would have been to conceal the amount of money that she had taken from the bank. Therefore, based upon the evidence presented at trial, a reasonable jury could have concluded beyond a reasonable doubt that Ellington embezzled in excess of $1,000. Accordingly, Ellington's Motion for Judgment of Acquittal is denied.
A motion for a new trial under Rule 33(a) should be granted only if required by "the interests of justice." Fed. R. Crim. P. 33(a). Such a motion should be granted sparingly and is only appropriate if "substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). A defendant is entitled to a new trial if there is a reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict. See United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). In support of her Motion for a New Trial, Ellington claims that the Court erred when it: 1) denied her motion ...