United States v. Berkman

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14489 JULY 12, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 9:09-cr-80141-KLR-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

KATRINA BERKMAN,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(July 12, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
 A Southern District of Florida jury convicted Katrina Berkman on five

counts of bank fraud,1 Counts 1-5, access device fraud,2 Count 6, fraudulent

activity with an access device,3 Count 7, and aggravated identity theft, Count 8,

and the district court sentenced her to concurrent prison terms of 33 months on

Counts 1-7, and a consecutive 24 months’ term on Count 8, for a total term of

imprisonment of 57 months. Berkman now appeals her convictions and sentences.

Berkman was the head bookkeeper at the accounting firm of Berkman,

Jorgensen, Masters & Stafman (“BJ M&S”) in Pompano Beach, Florida. One of

her clients was Donna Manzella, the owner of a chiropractic and massage business

called Back 2 Back Wellness Centre (“B2B”). Between March 2005 and March

2007, she caused the electronic transfer of approximately $175,000 from B2B’s

account at Sun Trust Bank to various accounts, including accounts she and her

former husband, Andrew Kaniclides, had with American Express. Five of the

transfers are the subjects of Counts 1-5. Another BJM&S client was Phillip

Schuman (an elderly man who, at the time of Berkman’s trial was incapacitated

1
18 U.S.C. § 1344.
2
18 U.S.C. § 1029(a)(2).
3
18 U.S.C. § 1029(a)(2) and (b)(1).

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and could not testify). Berkman obtained Schuman’s Bank of America account

number, and during April 2007 (after being cut off from the B2B account), she

made a series of electronic transfers to her and Kaniclides’s American Express

accounts totaling approximately $164,000. Berkman’s activity with Schuman’s

account is the subject of Counts 7 and 8.

Berkman presents several arguments in challenging her convictions. First,

she challenges the district court’s refusal to sever Counts 7 and 8 from the rest of

the charges. Second, she objects to a number of hearsay statements admitted at

trial. Third, she argues that the exclusion of a particular document from evidence

violated her right to present evidence in her defense and to effectively cross-

examine the witnesses against her. Fourth, she argues that the Government’s

proof was insufficient to support her convictions on Counts 7 and 8. Finally, in

challenging her sentences, she contends that the district court’s use of the

Sentencing Guidelines abuse-of-trust enhancement was unwarranted because she

did not enjoy a position of trust beyond what is inherent in every fraud scenario.

We find no merit in any of Berkman’s challenges and therefore affirm.

I.

Berkman first argues that the district court abused its discretion by refusing

to sever Counts 7 and 8 from the indictment, thereby forcing her to choose

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between testifying as to all eight counts or not testifying at all. She contends that

her disbelieved testimony provided the Government with its strongest evidence on

Counts 7 and 8, and that the Government would not have been able to secure

convictions on those counts if she were allowed to limit her testimony to Counts 1

through 6. Further, she argues that because Schuman was unavailable to testify,

the Government was able to introduce unreliable hearsay statements relating to

Counts 7 through 8 that undermined her defense on Counts 1 through 6.

When a defendant is charged in a multi-count indictment, the district court

can sever the joined counts into separate trials in order to prevent prejudice to the

defendant. Fed. R. Crim. P. 14. A district court’s denial of a motion to sever an

indictment is reviewed for an abuse of discretion. United States v. Hersh, 297

F.3d 1233, 1241 (11th Cir. 2002). The denial of a severance motion will not be

reversed unless the defendant suffered “compelling prejudice” as a result of the

joinder. Id. at 1244.

Severance motions require the district court to balance the defendant’s right

to a fair trial against the public’s interest in the efficient and economic

administration of justice. United States v. Baker, 432 F.3d 1189, 1236 (11th Cir.

2005). Severance is not required simply because a defendant wishes to testify as

to some counts but not as to others. Hersh, 297 F.3d at 1243 n.15. Rather, a

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defendant must demonstrate that she has important testimony to give on one set of

counts, and a strong need to refrain from testifying on the others. United States v.

Montes-Cardenas, 746 F.2d 771, 778 (11th Cir. 1984). One important

consideration in this analysis is whether severing the counts would achieve the

exclusion that the defendant desires. See United States v. Benz, 740 F.2d 903, 912

(11th Cir. 1984) (explaining that severing the trials would not substantially limit

the government’s ability to introduce evidence or elicit testimony from the

defendant). Notably, when a defendant testifies on her own behalf, she waives the

Fifth Amendment privilege to refuse to answer questions properly within the

scope of cross-examination, which includes all matters “reasonably related” to her

testimony on direct examination. United States v. Pilcher, 672 F.2d 875, 878

(11th Cir. 1982).

In this case, the district court did not abuse its discretion in denying

Berkman’s severance motion. In that motion, Berkman presented a cryptic

explanation of her need to refrain from testifying on Counts 7 and 8, and thus

failed to carry her burden of establishing the need for severance. Moreover, she

failed to establish that she suffered “compelling prejudice” as a result of the

denial, for severance would not have substantially limited the Government’s

ability to introduce evidence or elicit testimony from her.

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 II.

Berkman argues that the court improperly permitted Schuman’s bookkeeper

to testify that Schuman had been angry and upset following the discovery of the

electronic transfers, and that he had directed the bookkeeper to call the bank and

dispute the charges. For one, she contends that the statements were “testimonial”

for purposes of the Confrontation Clause because they were made during the

bookkeeper’s effort to gather evidence of criminal activity. She further argues

that even if the statements were “nontestimonial,” they were still inadmissible

under the Federal Rules of Evidence because they did not fall under any of the

hearsay exceptions.

A district court’s evidentiary rulings are ordinarily reviewed for an abuse of

discretion, while rulings on the specific issue of whether hearsay statements are

testimonial for purposes of the Sixth Amendment’s Confrontation Clause are

reviewed de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.

2010).

For purposes of both the Confrontation Clause and the Federal Rules of

Evidence, hearsay statements are defined as out-of-court statements offered to

prove the truth of the matter asserted. See United States v. Gari, 572 F.3d 1352,

1361 n.7 (11th Cir. 2009). Nonverbal conduct may qualify as a hearsay statement

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if the declarant intended the conduct “as an assertion.” Fed. R. Evid. 801(a); see

also United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008) (citing Rule

801(a) in analyzing a Confrontation Clause issue).

The Confrontation Clause bars the admission of “testimonial” hearsay

unless the declarant is unavailable and the defendant had a prior opportunity for

cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354,

1374, 158 L.Ed.2d 177 (2004). Hearsay statements are testimonial when “made

under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Crawford, 541 U.S.

at 52, 124 S.Ct. at 1364. Formal statements given during the course of police

interrogations are “definitively testimonial.” United States v. Baker, 432 F.3d

1189, 1203 (11th Cir. 2005) (quotations omitted, emphasis in original). By

contrast, statements made in private conversation are generally nontestimonial

because there is no reason to believe that the statements will be used at trial. See

United States v. US Infrastructure, Inc., 576 F.3d 1195, 1209 (11th Cir. 2009).

Accordingly, such statements are not subject to the requirements of the

Confrontation Clause.

Even if the Confrontation Clause does not apply, hearsay statements are

inadmissable unless they fall within one of the exceptions enumerated in the

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Federal Rules of Evidence. Gari, 572 F.3d at 1361 n.7. Rule 803(2) creates an

exception for statements “relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.”

Fed. R. Evid. 803(2). The excited utterance exception does not require that the

statement be made contemporaneously with the startling event. United States v.

Belfast, 611 F.3d 783, 817 (11th Cir. 2010). Rather, in ruling on the exception, we

should consider the totality of the circumstances to determine if the declarant was

still under the stress or excitement of the startling event at the time the statement

was made. Id.

Berkman did not specifically object below to the introduction of the hearsay

testimony on Confrontation Clause grounds, and her constitutional challenge may

therefore be reviewable for plain error only. See United States v. Raad, 406 F.3d

1322, 1323 (11th Cir. 2005). The challenge fails under any standard, however,

because statements Schuman uttered were made in a private conversation with the

purpose of correcting an ongoing threat to the security of his checking account,

not with the purpose of creating evidence for trial. Therefore, the statements were

nontestimonial and were not subject to the requirements of the Confrontation

Clause.

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 Further, his statements also fell under the excited utterance exception to the

hearsay rule. The primary statement at issue—Schuman’s directive that the

bookkeeper call the bank to dispute the charges—was made after Schuman had

been informed that there had been a $100,000 electronic transfer out of his

account. Given the evidence that Schuman never made nor allowed his employees

to make electronic transfers, the receipt of that information was sufficiently

“startling” to trigger the exception. Moreover, the evidence supports the court’s

finding that he was still under the stress of the startling event at the time of the

disputed statement. Finally, the bookkeeper’s testimony that Schuman seemed

angry and upset was properly admitted because a person’s general demeanor does

not constitute a “statement” for hearsay purposes.

III.

Berkman argues that the district court violated her Fifth and Sixth

Amendment rights by prohibiting her from cross-examining a Government rebuttal

witness about whether Donna Manzella filed for divorce a 2009, and by excluding

the introduction of the divorce petition. Berkman contends that evidence of the

pending divorce would have substantially bolstered her claim that she was

authorized to make electronic transfers out of the B2B bank account as part of a

scheme to hide money from the Manzella’s husband.

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 The Sixth Amendment’s confrontation right includes the right of cross-

examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d

347 (1974). Thus, a district court must allow sufficient cross-examination for the

jury to adequately assess a government witness’s credibility. United States v.

Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). Moreover, the Sixth Amendment

guarantees defendants the right to a “compulsory process for obtaining witnesses

in his favor.” U.S. Const. amend. VI. Implicit in this right—as well as in the Fifth

Amendment right to due process—is the idea that criminal defendants must be

afforded the opportunity to present evidence in their favor. United States v. Hurn,

368 F.3d 1359, 1362 (11th Cir. 2004). In assessing a defendant’s claims under the

Fifth and Sixth Amendments to call witnesses in defense, we engage in a two-step

analysis. Id. at 1362. We first examine whether the defendant’s rights were

violated, and then, if necessary, determine whether the error was “harmless beyond

a reasonable doubt.” Id. at 1362-63.

The exclusion of a defendant’s evidence violates the Fifth and Sixth

Amendment where the evidence “pertains to collateral matters that, through a

reasonable chain of inferences, could make the existence of one or more of the

elements of the charged offense or an affirmative defense more or less certain.”

Hurn, 368 F.3d at 1363. By contrast, there is no constitutional violation where the

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“proffered evidence does not bear a logical relationship to an element of the

offense or an affirmative defense.” Id. at 1366. “Moreover, a district court may

exclude evidence where the relationship between the evidence and the element of

the offense or affirmative defense at issue is simply too attenuated.” Id.

Here, the district court did not abuse its discretion by excluding the divorce

petition from evidence. First, the issue of whether or not Manzella was seeking a

divorce in 2009 was not relevant to the rebuttal witness’s credibility, since the

witness testified only as to Manzella’s business relationship with her husband

between 2005 and 2007. Accordingly, the exclusion of the petition did not violate

Berkman’s confrontation rights.

As to Berkman’s right to present evidence, the district court could have

reasonably concluded that the petition was not sufficiently related to Berkman’s

authorization defense. The fact that Manzella filed for divorce in 2009 had little

bearing on the question of whether the account discrepancies cited by the

Government were actually made with her consent, and were part of an elaborate

scheme to defraud her husband in 2006 and 2007. Accordingly, the exclusion of

the petition on relevancy grounds was constitutionally permissible.

IV.

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 Berkman argues that the Government’s proof was insufficient to support her

convictions on Counts 7 and 8—the counts relating to Schuman. Specifically, she

argues that the Government failed to negate her contention that Schuman offered

her a loan and then authorized her to withdraw funds from his account.

We review insufficient-evidence claims de novo, viewing the evidence in

the light “most favorable to the verdict . . . [and making] all inferences and

credibility determinations in favor of the verdict.” United States v. Chirino-

Alvarez, 615 F.3d 1344, 1346 (11th Cir. 2010). To prevail on an insufficient-

evidence claim, the defendant must establish that no “rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). A defendant’s testimony, if disbelieved by the jury, may be considered as

substantive evidence of guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995). However, the defendant’s disbelieved testimony may not be the sole basis

supporting a conviction beyond a reasonable doubt. United States v. McCarrick,

294 F.3d 1286, 1293 (11th Cir. 2002).

To convict a defendant for access device fraud, in violation of 18 U.S.C.

§ 1029(a)(2), the Government had to prove that Berkman: (1) knowingly used an

unauthorized access device; (2) with the intent to defraud; (3) to obtain anything

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having an aggregate value of $1,000 or more over the course of a one-year period.

United States v. Klopf, 423 F.3d 1228, 1240 (11th Cir. 2005). Further, the

Government had to show that the use of the access device affected interstate

commerce. Id. The term “access device” includes account numbers, electronic

serial numbers, and personal identification numbers. 18 U.S.C. § 1029(e)(1).

To support a conviction for aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1), the Government had to prove that Berkman: (1) knowingly

transferred, possessed, or used; (2) the means of identification of another person;

(3) without lawful authority; (4) during and in relation to certain qualifying

felonies. 18 U.S.C. § 1028A(a)(1). The term “means of identification” includes

all access devices listed in § 1029(e), including bank-account numbers. See

§ 1028(d)(7)(A)(D). Moreover, the crime of access device fraud is a qualifying

felony for purposes of the identity-theft statute. See § 1028A(c)(4).

Berkman’s convictions are supported by sufficient evidence. As to Count 7,

the only disputed element of the offense was whether Schuman authorized the

electronic transfers from his account. The Government introduced overwhelming

evidence to establish the lack of authorization, including: (1) bank statements

showing that Schuman was reimbursed for the transfers; (2) testimony that he had

never previously made or authorized an employee to make an electronic transfer;

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and (3) testimony that he paid a $300 reward for the discovery of the transfers.

Further, the evidence was also sufficient to support the identity-theft offense

charged in Count 8, because the act of making an unauthorized electronic transfer

required misappropriating Schuman’s bank-account number.

V.

Berkman argues that the two-level enhancement of her base offense level

under U.S.S.G. § 3B1.3 was not warranted because the Government failed to

establish that she enjoyed a position of trust beyond what is inherent in every

fraud scenario. Specifically, she asserts that the mere fact that she was friends

with Manzella was not sufficient to establish a relationship of special trust.

We review de novo the district court's conclusion that the defendant’s

conduct justifies an abuse-of-trust enhancement. United States v. Garrison, 133

F.3d 831, 837 (11th Cir. 1998). The two-level enhancement under § 3B1.3 applies

where the defendant “abused a position of public or private trust . . . in a manner

that significantly facilitated the commission or concealment of the offense.”

U.S.S.G. § 3B1.3. “[T]he primary concern of § 3B1.3 is to penalize defendants

who take advantage of a position that provides them freedom to commit or conceal

a difficult-to-detect wrong,” Garrison, 133 F.3d at 838 (quotations and alterations

omitted).

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 There is a component of misplaced trust inherent in the context of fraud, and

we have cautioned sentencing courts not to be “overly broad” in imposing the

abuse-of-trust enhancement on fraud defendants. United States v. Ghertler, 605

F.3d 1256, 1263 (11th Cir. 2010). Nevertheless, the abuse-of-trust enhancement

applies to fraud defendants at least “where a fiduciary or personal trust

relationship exists with other entities, and the defendant takes advantage of the

relationship to perpetrate or conceal the offense.” See United States v. Hall, 349

F.3d 1320, 1324 (11th Cir. 2003).

The district court properly applied the abuse-of-trust enhancement based on

Berkman’s exploitation of her friendship and professional relationship with

Manzella. While all bookkeepers are entrusted with sensitive banking

information, the evidence in this case suggests that Berkman enjoyed an unusually

low level of supervision in managing the B2B bank account. This low level of

supervision enabled her both to commit the offense and to conceal it for a

substantial period of time.

For the foregoing reasons, Berkman’s convictions and sentences are

AFFIRMED.

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