IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40156
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOAN CATHERINE MALBROUGH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:94 CR 61 3)
_________________________
September 19, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joan Malbrough appeals her conviction of, and sentence for,
embezzling postal funds, converting property of the United States
Postal Service, and failing to account for said funds and property
when required, in violation of 18 U.S.C. §§ 2, 371, 641, and 1711.
Finding no reversible error, we affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
I.
In December 1993, Postal Service Inspector Randall Till
received information regarding a shortage of $1,649.39 in the
assigned accountability of Sharon Taylor, a Postal Service window
clerk in the Downtown Post Office in Beaumont, Texas. In February
1994, Till contacted Taylor's Supervisor, Carol Smith, who informed
Till that the shortage was still outstanding. Till and Smith
agreed to conduct an unscheduled audit of Taylor's accountability.
Till established video surveillance at the Post Office and
positioned himself to be able to view personally the activities of
the window clerks.
Sharon Taylor, Malbrough's codefendant who pleaded guilty
prior to trial, testified regarding her involvement in the offense.
Taylor testified that on March 2, 1994, Smith, her supervisor, told
her at about 9:30 or 10:00 a.m. that she was going to be audited
after lunch. It was an unscheduled audit, and she knew that the
audit would reveal a shortage in her accountability because she had
taken money, approximately $2,500. Taylor gave a coworker,
Duplantier, a note informing her that she was going to be counted
after lunch and telling her how much it was. She then walked down
to Malbrough's window and told her that she was going to be counted
after lunch.
Taylor told Malbrough that she would need about four big coils
of stamps. She told her she needed them because she was being
counted; she did not tell Malbrough that she needed them for a
customer. Malbrough looked in her cash drawer but did not have
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four big coils. Later, after lunch, Malbrough came to Taylor's
window and gave her twenty smaller coils, laying them on her window
without speaking. Till observed Malbrough remove several small
stamp coils from her safe, place them in a book, walk to Taylor's
work station, and place them on the end of Taylor's counter. When
Till confronted Taylor after her audit, Taylor admitted that
Malbrough had given her the coils of stamps.
The total value of the stamp coils that Malbrough gave to
Taylor was $580. When Malbrough was audited, however, her
accountability was over $800 short.
Malbrough testified that she had given the stamps to Taylor
but that she was not aware that Taylor was about to be audited.
She testified that if she had known, she would not have given her
the stamps. Malbrough could not explain the $800 shortage in her
accountability.
II.
A.
Malbrough argues that the district court erred in failing to
grant a mistrial because of the improper introduction of her co-
defendants' guilty pleas. She argues that the prosecutor improp-
erly referred to the guilty pleas of Taylor and Duplantier during
voir dire and to Taylor's plea during direct examination of Taylor.
She contends that the district court's instructions to the jury
regarding the use of this information was inadequate because it did
not limit the jury's consideration of the pleas to the credibility
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of the witnesses.
The government mentioned in voir dire the fact that "two other
ladies" involved in this conspiracy had pleaded guilty.
Malbrough's attorney objected, and the district court sustained the
objection and instructed the jury that that information was not
relevant to whether the government could prove the elements of the
counts of the indictment against Malbrough. Malbrough's attorney
moved for a mistrial, which the district court denied.
After an off-the-record, side-bar discussion requested by the
government, the government proceeded to question the potential
jurors on voir dire about whether any of them would have a problem
with testimony by a coconspirator. Malbrough's attorney again
moved for a mistrial, which the district court carried with the
case.
In the second instance, the government questioned Taylor on
direct examination about the fact of her guilty plea. Malbrough's
attorney objected again and reurged the motion for a mistrial. The
district court ruled that the motion would be taken with the case
and instructed the jury that that fact was irrelevant to the guilt
of Malbrough. The district court instructed that Taylor could
testify as to what she did and what she knew about what others had
done.
The government again requested a side-bar, after which the
district court ruled that it would allow limited questioning on the
subject, "admissible only as it might affect the credibility of
this witness." Malbrough's attorney renewed his objection, which
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was overruled subject to renewal. The government proceeded to
question Taylor about the fact that she had entered a plea
agreement with the government and that, as part of that agreement,
she had agreed to provide truthful testimony at this trial. The
government then proceeded to question Taylor about her personal
knowledge of the facts of the offense.
We will reverse a district court's denial of a motion for
mistrial only for an abuse of discretion. United States v.
Limones, 8 F.3d 1004, 1007 (5th Cir. 1993), cert. denied, 114
S. Ct. 1543 (1994). A defendant is entitled to have the issue of
his guilt determined upon the evidence against him and not on
whether a codefendant has pleaded guilty to the same change.
United States v. Black, 685 F.2d 132, 135 (5th Cir.), cert. denied,
459 U.S. 1021 (1982). A witness-accomplices's guilty plea may be
admitted into evidence, however, if it serves a legitimate purpose
and the district court gives a proper limiting instruction. United
States v. Mitchell, 31 F.3d 271, 276-77 (5th Cir.), cert. denied,
115 S. Ct. 455 (1994). Other factors to be considered are whether
the plea was improperly emphasized or used as substantive evidence
of guilt and whether introduction of the plea was invited by
defense counsel. Black, 685 F.2d at 135.
In voir dire, defense counsel stated that in this case,
"someone is going to lie." By this remark, defense counsel could
be considered to have invited the prosecution to introduce evidence
of Taylor's guilty plea in order to "`blunt the sword of
anticipated impeachment.'" Mitchell, 31 F.3d at 277 (citation
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omitted); see also United States v. Robins, 978 F.2d 881, 888 (5th
Cir. 1992) (holding that defense counsel's opening remarks invited
the jury to regard with suspicion adverse testimony by witness who
plea bargained); United States v. Casto, 889 F.2d 562, 567 (5th
Cir. 1989), cert. denied, 493 U.S. 1092 (1990) (opining that
because defense counsel in opening argument invited jury to regard
with suspicion adverse testimony by codefendant who pleaded guilty,
it was prosecution's privilege to defuse potential attacks on
government witnesses's credibility during direct examination by
adducing fact of guilty plea).
During voir dire, after the government's first reference to a
codefendant's guilty plea, the court instructed the jury
contemporaneously that whether another person was previously a
defendant in this case was irrelevant to Malbrough's guilt and was
admissible only as it might affect the witness's credibility.
Later during the government's case, the court instructed the jurors
that the fact that Taylor pleaded guilty in this case was not
evidence of the guilt of any other person and that it went only to
her general credibility. In its final instructions to the jury,
the court again instructed that "the fact that an accomplice has
entered a plea of guilty to the offense charged is not evidence in
and of itself of the guilt of any other person."
Contrary to Malbrough's argument, the district court's
limiting instructions were more than adequate to counter any
prejudice from the introduction of evidence of Taylor's guilty
plea. See Mitchell, 31 F.3d at 277 (reasoning that a proper
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limiting instruction includes instruction that guilty plea could be
considered only in determining witness's credibility and was not
evidence of defendant's guilt). The district court did not abuse
its discretion in denying Malbrough's motion for mistrial.
B.
Malbrough argues that the district court erred in awarding a
two-point increase in her offense level for more than minimal
planning. She contends that there was no direct evidence that she
was involved in anything more than minimal planning and that there
was no evidence that showed that she ever committed a similar
offense in the past. She further contends that there was no
evidence of an agreement between the defendants or of premeditated
planning or that she took significant steps to conceal the offense.
The probation officer recommended that Malbrough's offense
level be increased by two points for more than minimal planning
because her actions as part of the conspiracy occurred over a
period of at least one year, involving the cooperation of three
postal employees; and that, by transferring postal stock, the
coconspirators were able to prevent embezzled money from being
detected during audits. Malbrough objected, arguing that the
evidence showed only a one-time transaction. The probation officer
responded that according to statements to Till by Taylor and
Duplantier, the practice of exchanging stock to cover shortages
caused by embezzlement had occurred previously on more than one
occasion. Taylor stated that she had loaned postage stock to
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Malbrough prior to an audit at least twice in the past year and had
done the same for Duplantier within the last six months. It was
the probation officer's opinion that the circumstances of this case
suggested that Malbrough's actions were well thought out and that
each instance of stock exchange was not purely opportune. The
district court, after reading aloud the probation officer's
response to Malbrough's objection, found that the probation
officer's opinion was correct, that there was more than minimal
planning, and denied Malbrough's objection.
The sentencing guidelines provide for a two-level increase in
the offense level if the offense involved more than minimal
planning. U.S.S.G. § 2B1.1(b)(5)(A). The guidelines define more
than minimal planning as "more planning than is typical for
commission of the offense in a simple form." § 1B1.1, comment.
(n.1(f)). More than minimal planning exists if significant
affirmative steps were taken to conceal the offense. It is also
deemed present in a case involving repeated acts, unless it is
clear that each instance was purely opportune. As an example, the
guidelines explain that in the case of embezzlement, "a single
taking accomplished by a false book entry would constitute only
minimal planning," but that "creating purchase orders to, and
invoices from, a dummy corporation for merchandise that was never
delivered would constitute more than minimal planning, as would
several instances of taking money, each accompanied by false
entries." Whether a defendant has engaged in more than minimal
planning is a fact question reviewed under the clearly erroneous
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standard. United States v. McCord, 33 F.3d 1434, 1454 (5th Cir.
1994), cert. denied, 115 S. Ct. 2558 (1995).
Malbrough's argument focuses only upon the evidence produced
at trial. She does not address the statements of Taylor and
Duplantier, recounted in the presentence report, regarding the fact
that the embezzlement and stock exchanges to cover up shortages in
audits had been going on for at least a year. She does not argue
that such statements could not be considered by the district court.
Those statements adequately support the court's finding that more
than minimal planning existed; the court did not clearly err in its
finding.
C.
Malbrough argues that there were other errors at trial which,
although each may not by themselves be considered harmful, when
taken together cumulated into reversible error because they
deprived her of her right to due process of law by seriously
affecting the fairness and integrity of her trial. Those errors
were (a) repeated mischaracterization of the evidence by a
government witness; (b) the prosecutor's comment on her failure to
make a pretrial statement, in violation of her Fifth Amendment
right to remain silent; and (c) the prosecutor's introduction of
matters not in evidence before the jury in closing arguments.
Trial errors that are harmless when considered alone may
mandate reversal when considered cumulatively, if the cumulative
effect is to deny the defendant's right to a fair trial. United
9
States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978).
"Cumulative reversible error, although not unknown to [this
court's] jurisprudence, is a rarity." United States v. Iredia, 866
F.2d 114, 118 (5th Cir.), cert. denied, 492 U.S. 921 (1989).
1.
Malbrough states that a government witness, whom she does not
specifically identify, mischaracterized the evidence and persisted
to mischaracterize her actions and intentions despite specific
instructions from the court. She does not state nor does she
explain how she was prejudiced by this testimony. Malbrough cites
no cases in support of her argument. We could refuse to address
this issue for failure to brief it adequately. See United States
v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991)
(internal quotation marks and citation omitted) (stating that any
issues not raised or argued in the appellant's brief are considered
waived and will not be entertained on appeal), cert. denied, 113 S.
Ct. 2369 (1993).
Nonetheless, addressing the merits, the testimony of which
Malbrough complains is Till's description of her actions in placing
the coils of stamps on Taylor's work station. Till testified that
Malbrough "hid" the coils by placing them under a book. Defense
counsel objected, and the district court instructed the witness not
to characterize her intent, but just to say what he saw. The court
instructed the jury to disregard the witness's characterization.
Till then testified that Malbrough had placed the coils under
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the book so that the book completely covered the coils. He then
went on to describe that Malbrough had "surreptitiously" placed the
coils on the end of Taylor's counter. The court again warned Till
about characterizing what he saw.
Till then explained, without characterization, exactly what he
saw Malbrough do as she placed the coils on the counter. Defense
counsel renewed the objection to Till's characterization of what
was on the videotape, and the court stated that the jury could
determine whether the portrayal was accurate, based upon the
videotape, and instructed the jury to that effect.
Any unfair or inaccurate characterization of Malbrough's
actions by Till was cured by the instructions and the fact that the
jury could see Malbrough's actions for itself on the videotape.
Malbrough has not shown any error, much less reversible error
affecting her right to a fair trial.
2.
Malbrough contends that error was committed when the
prosecution commented on her failure to make a pretrial statement,
in violation of her Fifth Amendment right to remain silent. On
direct examination of Till, the prosecutor asked whether Malbrough
had initially agreed to provide a written statement, as Taylor had
done. Till replied that she had agreed.
The prosecutor then asked whether Malbrough eventually had
provided him with a written statement, to which Till responded that
she had not. Defense counsel objected that the question and answer
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violated Malbrough's right to remain silent. He asked that the
question and answer be stricken and that the jury be given a
limiting instruction.
The district court questioned whether Malbrough was in
custody, and the witness stated that she was not, that it was
merely an investigatory interview. The district court overruled
the objection.
Defense counsel asked to take the witness on voir dire. The
district court denied permission at that time. The prosecutor
again asked Till whether Malbrough had provided a written
statement, and Till replied that she had not, upon the advice of
her union representative. Defense counsel again objected, and the
court recessed and excused the jury.
At the recess, it was established that Till had advised
Malbrough of her Miranda rights and that she had exercised her
right to remain silent. The district court sustained the
objection, and defense counsel moved for a mistrial, which the
district court denied. The district court instructed the jury to
"disregard Mr. Till's testimony that Ms. Malbrough refused to make
a written statement after being warned by him that she could
exercise her rights under the Fifth Amendment not to make a
statement."
The prosecutor's actions, in drawing attention to the fact
that Malbrough had chosen to exercise her right to remain silent,
were improper. See United States v. Laury, 985 F.2d 1293, 1302-04
(5th Cir. 1993) (holding prosecutor's comment on defendant's post-
12
arrest silence improper and in violation of Doyle v. Ohio, 426 U.S.
610 (1976)). Any error was rendered harmless, however, by the
curative instruction. See United States v. Carter, 953 F.2d 1449,
1466 (5th Cir.), cert. denied, 504 U.S. 990 (1992) (holding
curative instruction effective to prevent the prosecutor's
misconduct from rendering trial fundamentally unfair).
3.
Malbrough argues that the prosecutor committed error when he
introduced matters not in evidence before the jury in closing
argument. The prosecutor stated in closing argument that "this was
a continuing conspiracy, I mean continuing. Those ladies had been
working there twenty-five, twenty-seven years. This is not the
first time that these ladies have done this." Defense counsel
objected to the prosecutor's introducing matters not in evidence,
arguing that there was no evidence that this was not the first time
they had done this.
The district court sustained the objection to the extent that
government's counsel was arguing facts not in evidence. Defense
counsel moved for a mistrial, which the district court denied. The
prosecution went on to argue its theory of a continuing conspiracy
based upon the evidence in the record which showed that this was
not an isolated occasion, because when the surprise audits were
held, all three ladies were caught short.
Although it may have been error for the prosecution to suggest
that the conspiracy had been going on for the entire twenty-five
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years that they had worked there, there was overwhelming evidence
that Malbrough was involved in a conspiracy to embezzle postal
funds and cover up the shortages with Taylor and Duplantier.
Malbrough has not shown that any of the above alleged errors
deprived her of a fair trial, individually or cumulatively. See
United States v. Tremelling, 43 F.3d 148, 153 (5th Cir.), cert.
denied, 115 S. Ct. 1990 (1995) (stating that because individual
claims of error had no merit, claim of cumulative error also
failed).
AFFIRMED.
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