United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
January 12, 2017, a jury convicted defendant Denise Christy
of 19 counts: (1) one count of bank embezzlement in violation
of 18 U.S.C. § 656; (2) six counts of falsification of
bank records in violation of 18 U.S.C. § 1005; (3) six
counts of filing false income tax returns in violation of 26
U.S.C. § 7206(1); and (4) six counts of conducting or
attempting to conduct a financial transaction involving the
proceeds of specified unlawful activity with the intent to
engage in conduct violating section 7201 or 7206 of the
Internal Revenue Code of 1986- conduct that constitutes a
violation of 18 U.S.C. § 1956.
Christy has filed a Motion for Judgment of Acquittal (Doc.
59) and Motion for New Trial (Doc. 60). The government has
responded to both motions (Doc. 61). After carefully
considering the facts and arguments presented by the parties,
the court denies both motions. In short, the government
presented evidence sufficient for a rational jury to find Ms.
Christy guilty beyond a reasonable doubt of the 19 counts of
conviction. Ms. Christy also has failed to show that the ends
of justice require a new trial.
Factual and Procedural Background
government presented the following evidence, among other
things, at trial. Ms. Christy was employed by Central
National Bank (“CNB”) at its branch located in
Burlington, Kansas. She reported to the branch manager,
Elaine Gifford. In 2013, Steve Snook, a Director of CNB,
expressed concern to Ms. Gifford about the amount of money in
the Burlington branch's vault. The branch's records
showed it was carrying amounts up to $1, 000, 000. Mr. Snook
believed that amount was greater than necessary, posing a
security risk and a lost opportunity for the bank to earn
interest on the money it invested in some other account. Mr.
Snook thus directed Ms. Gifford to reduce the amount of cash
in the vault to $500, 000 in the coming weeks. In turn, Ms.
Gifford asked Ms. Christy to start selling cash to the
Federal Reserve Bank to reduce the amount of money in the
months later, Lisa Nabus, a CNB employee tasked with
reviewing the bank's sales of cash to the Federal Reserve
Bank, began to notice discrepancies in cash out tickets
prepared by Ms. Christy. The cash out tickets represented
that the Burlington branch had made sales of cash to the
Federal Reserve Bank, but the amounts reported by Ms. Christy
either never arrived at the Federal Reserve Bank, or they
arrived in smaller amounts than those reported on the cash
out tickets. Ms. Nabus communicated with Ms. Christy about
these discrepancies on many occasions.
December 17, 2013, Ms. Christy prepared a cash out ticket
representing that the branch had sold $401, 000 to the
Federal Reserve Bank. Nine days later, Ms. Christy contacted
Ms. Nabus to report that she had incorrectly reported the
amount. Instead, Ms. Christy had sold just $104, 000 to the
Federal Reserve Bank. Ms. Nabus instructed Ms. Christy to run
an adjustment at the branch to correct the error.
January 14, 2014, Ms. Christy prepared a cash out ticket
representing that the branch had sold $400, 000 to the
Federal Reserve Bank. After Ms. Nabus realized that the
Federal Reserve Bank never credited CNB for the $400, 000,
she contacted Ms. Christy asking if she was aware of any
issues with the shipment. Ms. Christy apologized and
explained that she never should have run the cash out ticket
because the branch never sold the money. Ms. Christy offered
to run the appropriate correction, but did not do so
immediately. After several inquiries from Ms. Nabus, Ms.
Christy finally made the appropriate correction on February
February 25, 2014, Ms. Christy prepared a cash out ticket
representing that the branch had sold $562, 000 to the
Federal Reserve Bank. Ms. Nabus determined that the Federal
Reserve Bank never credited CNB for the $562, 000. So, she
contacted Ms. Christy about the discrepancy. Ms. Christy
acknowledged that the branch never sent the money to the
Federal Reserve Bank. Ms. Christy eventually corrected the
error on March 18.
March 18, 2014, Ms. Christy prepared three separate cash out
tickets representing that the branch had sold $270, 000,
$225, 000, and $225, 000, to the Federal Reserve Bank. Ms.
Nabus determined that the Federal Reserve Bank never credited
CNB for the amounts reported on each of the three cash out
tickets. So, again, Ms. Nabus contacted Ms. Christy about
these discrepancies. Ms. Christy said she would look into the
matter, and later responded that the amounts reported were an
error. She offered to correct them.
April 22, 2014, Ms. Christy prepared a cash out ticket
representing that the branch had sold $401, 000 to the
Federal Reserve Bank. After Ms. Nabus determined that the
Federal Reserve Bank has credited CNB for just $101, 000, she
contacted Ms. Christy. Ms. Christy conceded that the $401,
000 reported on the cash out ticket was an error, and, again,
she said she was in the process of fixing it.
working with Ms. Christy to resolve these issues, Ms. Nabus
began to grow concerned about the repeated errors she was
finding. She thought something didn't feel right. So, Ms.
Nabus reported her concerns to Vicky Farres, an auditor
employed by CNB. In response to Ms. Nabus' report, Ms.
Farres conducted a surprise audit of the vault at the
Burlington branch on May 21, 2014. According to the
bank's accounting report, the vault should have contained
$883, 320 in cash on the day of the surprise audit. The
report is generated by a software system that the bank uses
to track vault transactions and sales of cash to the Federal
Reserve Bank. The amount reported by the system is based on
information that Ms. Gifford and Raylene Thorne (another CNB
employee at the Burlington branch and Ms. Christy's
sister-in-law) input into the system electronically. Ms.
Gifford and Ms. Thorne both testified at trial that the
information they put into the electronic system was based on
calculator tapes that Ms. Christy gave to them.
21 surprise audit revealed that the vault was $770, 000 short
of the amount reflected in the bank's accounting records.
Ms. Farres testified at trial about that audit. She described
Ms. Christy as nervous, but Ms. Farres also recognizes that
nervousness is a typical response for employees when an
auditor arrives at the bank. Ms. Farres described other
behavior of Ms. Christy that she thought was strange. For
example, Ms. Christy delayed the start of the audit. Ms.
Farres had to ask her more than once to get started on the
count. Then, after Ms. Christy started counting the money,
Ms. Farres saw that she was attempting to return unstrapped
money to the vault after Ms. Farres had counted it. By doing
this, Ms. Farres could not tell whether Ms. Christy was
taking money from the vault that they already had counted and
thus disrupting the count. Ms. Christy also claimed that
$100, 000 (in $100 dollar bills) had fallen down a small
crack between the cash vault and the wall. Ms. Farres
retrieved a flashlight and looked down the crack. She found
Ms. Farres had completed the audit and determined that the
vault was missing $770, 000, she asked Ms. Christy where the
missing money was located. Ms. Christy said that she thought
she had sold it to the Federal Reserve Bank on May 20, 2014.
So, Ms. Farres then asked Ms. Christy to produce the receipt
from Garda (the private security firm that CNB hires to
transport currency to the Federal Reserve Bank) showing that
Garda had picked up the $770, 000 for transport the previous
day. Ms. Christy said Garda never provided her with a
the following day, Ms. Christy emailed three Garda receipts
to Ms. Gifford. The three receipts reflected three separate
deposits that the branch purportedly had entrusted to
Garda-one in the amount of $90, 000, a second in the amount
of $100, 000, and a third in the amount of $670, 000.
Although Ms. Christy had said the day before that Garda never
gave her receipts, she explained in the email to Ms. Gifford
that she hadn't even thought about having the Garda
receipts during the audit. She said that she had found the
receipts when she was going through a drawer.
government asserted at trial that Ms. Christy had fabricated
two of the three receipts. The government contends that the
$90, 000 receipt is a bona fide receipt for cash that the
branch actually entrusted to Garda on May 20, 2014, to
transport to the Federal Reserve Bank. But the
government asserts that Ms. Christy fabricated the $100, 000
and $670, 000 receipts to conceal the $770, 000 that was
missing from the vault. The government supported this
assertion with the following evidence.
the government presented the original bona fide cash out
ticket showing that the branch had sold $90, 000 to the
Federal Reserve on May 20, 2014. This original ticket bears a
“proof strip” showing the date when the money was
sold to the Federal Reserve Bank. A proof machine applies the
proof strip, and no one can change the information on it. The
original bona fide cash out ticket showing the $90, 000 sale
bears a proof strip showing the sale date as May 20, 2014.
The government also presented the cash out ticket for the
purported sale of $770, 000 to the Federal Reserve Bank. Ms.
Christy prepared the ticket-it bears her initials. The ticket
also bears a proof strip showing the date of the sale as May
21, 2014-the day after the $90, 000 sale and the same day as
the surprise audit.
the bank never located the originals of the two Garda
receipts showing the $100, 000 and $670, 000 amounts.
However, the bank did find the original Garda receipt showing
the $90, 000 that Garda picked up on May 20, 2014. Another
bank employee testified that she found the $90, 000 receipt
under the mouse pad on Ms. Christy's desk after the bank
had placed Ms. Christy on leave.
the government produced a transparency of the bona fide $90,
000 Garda receipt. The bottom of the $90, 000 receipt bears
the signatures of Ms. Christy and Adam Lewis, the Garda
employee who picked up the cash on May 20, 2014. The
government placed the transparency over the $100, 000 and
$670, 000 receipts, and the signatures match exactly. The
government asserted that it is impossible, without
falsification, to have two signatures on three documents
the original $90, 000 Garda receipt bears the bag number of
the delivery- 02755778. A CNB employee testified that the
bank uses sequentially ordered bags. The bag numbers on the
$100, 000 and $670, 000 Garda receipts are indecipherable.
The government asserted that Ms. Christy had obliterated the
numbers to conceal her fabrication. When one places the
transparency over the $100, 000 and $670, 000 receipts, the
receipts bear the same obliterations on their respective bag
numbers. Also, the Garda employee, Adam Lewis, testified that
he never would have presented the bank with receipts
containing obliterated bag numbers.
the government presented surveillance photographs of Mr.
Lewis leaving the bank on May 20, 2014. In the photos, Mr.
Lewis is pushing a two-wheeled hand truck with a single bank
bag hanging on the handles. Mr. Lewis confirmed that the
photos showed him picking up the $90, 000 that he transported
on May 20, 2014. Another bank employee testified that she
examined the surveillance videos, and she saw Mr. Lewis come
inside and leave the bank just this one time with this one
load. For demonstrative purposes, the government presented a
photograph of a two-wheeled hand truck containing $860, 000
in the same denominations that Ms. Christy claimed she had
delivered to Garda on May 20, 2014. The government asked the
jury to compare the noticeable differences between the
two-wheeled hand truck containing $90, 000-as shown in the
surveillance photos-and the one containing $860, 000 that the
government presented for demonstrative purposes.
government also presented evidence at trial of unexplained
cash deposits that Ms. Christy made into her own bank
accounts between 2008 and 2013. The government submitted Ms.
Christy's tax returns for 2009 through 2014. The tax
returns identified Ms. Christy and her husband's W-2
earnings as a source of income. Ms. Christy also earned a
modest income from Mary Kay sales. And, Mr. and Ms. Christy
reported some income from their farm, but for the years 2008
through 2013, they reported the farming operation as a loss.
None of these reported income streams could account for the
more than $400, 000 in cash deposits from undisclosed sources
that Ms. Christy made into her personal bank accounts during
trial's conclusion, the jury deliberated and returned
guilty verdicts for 19 of the 23 counts the government had
charged in the Indictment. The jury acquitted Ms. Christy of
four counts charging her with money laundering. But the jury
convicted Ms. Christy of one count of bank embezzlement, six
counts of falsification of bank records, six counts of filing
false income tax returns, and six counts of money laundering.
Ms. Christy now asks the court to enter a judgment of
acquittal, or alternatively, grant a new trial.
Motion for Judgment of Acquittal
motion for judgment of acquittal under Fed. R. Crim. P.
29(c), the court must uphold the jury's verdict of guilty
if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” United States v. Haber, 251 F.3d 881,
887 (10th Cir. 2001) (citation and internal quotation marks
omitted). Put another way, the court will reverse a
jury's verdict only if no reasonable juror could have
found the defendant guilty. United States v.
Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015);
United States v. Magleby, 241 F.3d 1306, 1312 (10th
reviewing a defendant's sufficiency of the evidence
claim, the court “must ask only whether taking the
evidence-both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom-in the light most
favorable to the government, a reasonable jury could find
[defendant] guilty beyond a reasonable doubt.”
Magleby, 241 F.3d at 1311-12 (citation and internal
quotation marks omitted). “[T]he evidence necessary to
support a verdict need not conclusively exclude every other
reasonable hypothesis and need not negate all possibilities
except guilt.” Id. at 1112 (citation and
internal quotation marks omitted). And “where
conflicting evidence exists” the court must “not
question the jury's conclusions regarding the credibility
of witnesses or the relative weight of evidence.”
Id. Instead, the court simply must “determine
whether [the] evidence, if believed, would establish each
element of the crime.” United States v. Vallo,
238 F.3d 1242, 1247 (10th Cir. 2001) (quoting United
States v. Evans, 42 F.3d 586, 589 (10th Cir. 1994)). The
court thus must give “considerable deference to the
jury's verdict.” Dewberry, 790 F.3d at
1028 (citation and internal quotation marks omitted). But,
while the court's review ...