United States v. Wombold

41 F. App'x 816
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 7, 2002
DocketNo. 01-2507
StatusPublished

This text of 41 F. App'x 816 (United States v. Wombold) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wombold, 41 F. App'x 816 (6th Cir. 2002).

Opinion

BATCHELDER, Circuit Judge.

Defendant Sheila Wombold appeals her conviction on a single count of conspiring to transport in interstate commerce $5,000 or more, knowing that it had been obtained by fraud, in violation 18 U.S.C. § 2314. Wombold argues that the district court erred by permitting the Government to cross-examine her in violation of Federal Rule of Evidence 404(b) and by failing to give the jury a limiting instruction concerning that cross-examination. Finding no reversible error, we will affirm the judgment of conviction.

[817]*817I.

Wombold, her brother Hansford Graham, Jr., and David Garcia were part of a conspiracy to defraud Meijer stores, a regional retail department store chain by which Wombold had been employed for some ten years. At the time of the conspiracy, Wombold was a department manager in a Meijer store in Ohio. The scheme — called “refunding” — involved obtaining Meijer merchandise by fraud and returning it for full cash refunds using falsified sales receipts. During a three-week period, the defendants perpetrated this fraud on Meijer stores in Ohio, Indiana and Michigan, obtaining fraudulent cash refunds in excess of $12,000.

Garcia and Graham were arrested in Coldwater, Michigan, driving a rented Cadillac. Following their arrest the police searched their rented car. In it were found rolls of official Meijer receipt tape; numerous receipts and counterfeit receipts for merchandise; a fax/copier machine of the kind necessary to make counterfeit Meijer receipts; and a number of the special markers used by Meijer employees to test the authenticity of the store’s receipts. The police also found in the car envelopes addressed to credit card companies with which Wombold had accounts; the envelopes contained notes with Wombold’s account numbers on them.

After his arrest, Graham called Wombold from jail. In them telephone conversation, which the telephone operator told them at the outset was recorded, they discussed how to prevent Garcia from talking: “[W]e got to get David [Garcia] out too. Dave’s got a big mouth.” Wombold repeatedly bemoaned the fact that she had rented a car for Graham and stated “that’s car is gonna get me in a lot of trouble.” And Wombold repeatedly stated that she was looking for “receipts” from her “vacation fund” and her “money market fund” to prove that she had given Graham and Garcia money. At no time in the conversation did Wombold inquire why Graham was in jail.

A grand jury for the Western District of Michigan returned a one-count indictment against Wombold, Graham, and Garcia, charging them with conspiring to transport more than $5,000 in interstate commerce knowing the money to have been taken by fraud, in violation of 18 U.S.C. § 2314. Garcia and Graham pleaded guilty; Wombold went to trial and was convicted by a jury. The district court sentenced Wombold to thirteen months’ incarceration.

Garcia testified at Wombold’s trial that Wombold had rented a car for them to drive from Ohio to Michigan for the purpose of defrauding Meijer stores. According to Garcia, Wombold had participated in the conspiracy by, among other things, explaining to Graham how the Meijer security procedures worked and giving them official Meijer receipt paper, special markers used by Meijer store personnel to test the authenticity of receipts, and some of her credit cards to use on the trip to Michigan. Garcia testified that the envelopes addressed to credit card companies were to be used to dispose of some of the cash he and Graham had obtained through the return/refund scheme in order to avoid the suspicion they might engender from having large amounts of cash.

Elizabeth Graham, Graham’s estranged wife, testified that Wombold had provided Graham with UPC stickers and Meijer receipt tape for Meijer merchandise. According to Elizabeth, Wombold would place receipt tape in a porcelain duck at Wombold’s mother’s residence where Graham would pick it up. Greta Hill, Wombold’s and Graham’s sister, testified that she was regularly at her mother’s home and that there was a porcelain duck in her mother’s kitchen.

[818]*818Wombold testified in her own defense and denied any involvement in or knowledge of the conspiracy. She admitted that in her conversation with Graham while he was in jail she lied about having given Graham the money he was arrested with because she wanted to help him by giving him an alibi as to how he came to have so much cash on his person when he was arrested, admitted that she was willing to lie for her brother, and denied not only that she had ever placed anything in a porcelain duck at her mother’s home but that there was any such duck.

The sole issue in this appeal revolves around one small segment of the Government’s cross-examination of Wombold:

Q Lastly, Ms. Wombold ... isn’t it true that you helped Junior [Graham] to buy a rug at Meijer’s at a reduced price, maybe five dollars?
A No.
Q In fact, weren’t you called by somebody up at the front, maybe it was customer service, maybe even loss prevention, who called you up and asked, How is it that this rug is only five dollars? A I don’t recall that.
Q And didn’t they ask you or didn’t you tell them at the time, oh, it’s because it was a display item or some reason for the fact that this item was reduced in price?
A No one called me to the front.
Q Well, did they call you on the phone and ask for some sort of explanation why the price was reduced on this rug?
A They may have.
Q So there was that sort of conversation, then, about why a rug was reduced, the price was reduced on a rug?
A There may have been.
Q Did they ask you any questions about the fact that this was your brother?
A Yes.
Q Wasn’t there a policy against you pricing something for your brother?
A I did not mark anything down.
Q Did they discuss the fact that they thought that or they were concerned about who was buying the rug?
A Yes.

Wombold’s counsel made no objection to the subject matter of this cross-examination.

After the jury was instructed, however, Wombold’s counsel objected to the district court’s not having given an “other acts” instruction concerning the rug incident. The district judge discussed the issue with the attorneys, explaining that in his view, the exchange between Wombold and the prosecutor about the rug was not “other acts” evidence; Wombold denied having marked down the rug, and the Government presented no evidence that she had done so, and pm-sued the matter no further. The district judge expressed his belief that an instruction calling this piece of cross-examination to the jury’s attention would result in more prejudice than good to Wombold, but the court agreed to give a limiting instruction if Wombold’s attorney thought it prudent.

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41 F. App'x 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wombold-ca6-2002.