United States v. Cook

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARILYN YVETTE COOK, Defendant-Appellant.

No. 20-5622

United States Court of Appeals, Sixth Circuit

May 6, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: BOGGS, WHITE, and READLER, Circuit Judges.

CHAD A. READLER, CIRCUIT JUDGE.

Marilyn Cook tried to deposit a fake $1 million bill of exchange at Regions Bank. She also claimed a $251, 925 tax refund with a doctored return. For those acts, Cook was charged with presenting a fictitious financial instrument, as well as presenting a false claim to the United States. A jury convicted Cook on both counts, and the district court sentenced her within the Guidelines range.

Cook now contests several of the district court's discretionary rulings and the jury's findings. But as "a court of review, not first view," we neither micromanage the district court's exercise of discretion nor substitute our view of the facts for the jury's. United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015). Because the record provides ample support for the district court's decisions and the jury's verdict, we affirm.

BACKGROUND

In 2017, Cook brought a $1 million bill of exchange to a Regions Bank branch in Alcoa, Tennessee. The teller ran the bill of exchange through the bank's "panini," a check scanner that, to the teller's eye, looks like a bread machine. The panini could not read the bill of exchange because it lacked magnetic ink coding. So the teller tried to deposit the bill, which purported to be "Non-Domestic," as a foreign document. When that effort also failed, Cook left the bill with Regions for further processing.

Upon inspection, bank employees discovered unusual features on the bill of exchange. The bill displayed a bar code and lacked magnetic ink, unlike an ordinary check. And the word "negotiable" appeared on the bill of exchange as "neogetobile." Bank employees asked Cook about the bill's authenticity. In response, Cook gave inconsistent answers about where she got the money that the bill indicated she controlled. All of this triggered the bank's wealth manager to direct the teller to "put the longest hold possible" on the bill of exchange and to contact the bank's private investigator. The investigator determined that the bill of exchange was fraudulent and called the police.

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Cook's legal troubles extended beyond the Regions incident. Around the same time as her attempt to cash the above financial instrument, Cook filed her 2016 tax return, which reported $3 million of income from a Tennessee nonprofit, Sheep Ministries, Inc. (Sheep), for which Cook served as executive director, and $1.5 million in tax paid. Cook claimed a $251 925 refund-the difference between the tax paid and the tax due. But she had not paid $1.5 million in tax. In truth, Cook fabricated her withholdings so the IRS would refund her over $250, 000 that she had never paid.

A grand jury indicted Cook for presenting a fictitious financial instrument, in violation of 18 U.S.C. § 514, and for making a false claim to the United States, in violation of 18 U.S.C. § 287. At trial, Cook stipulated that she had previously used the nonprofit Sheep to collect personal information from individuals seeking financial assistance which she used to file fraudulent claims for tax refunds. A jury convicted Cook on both counts. Following Cook's conviction, the district court imposed a within-Guidelines sentence of 51 months in prison. That sentence, the district court instructed, would run concurrently with any sentence ultimately imposed in an unrelated case pending against Cook in Blount County, Tennessee Circuit Court, and would run consecutively to any sentence ultimately imposed in yet another unrelated case pending against Cook in the United States District Court for the Eastern District of California. Cook now appeals her conviction and sentence. We affirm.

ANALYSIS

Sufficiency of the evidence.

Cook first contends that insufficient evidence supports the jury's findings that she presented the bill of exchange "with the intent to defraud," 18 U.S.C. § 514 and that the bill appeared to be a genuine financial instrument. Sufficient evidence supports Cook's conviction if any reasonable juror could have found her guilty beyond a reasonable doubt. United States v. Howard, 947 F.3d 936, 947 (6th Cir. 2020). The evidence, in other words, "need not remove every reasonable hypothesis except that of guilt." Id. (citation omitted).

Start with the intent argument. Understandably, few advertise their intent to commit fraud. That leaves the government typically to rely on circumstantial evidence to secure a fraud conviction. Richardson v. Comm'r, 509 F.3d 736 743 (6th Cir. 2007); United States v. Anderson, 353 F.3d 490, 501 (6th Cir. 2003) (per curiam); see also Howard, 947 F.3d at 947 (explaining that circumstantial evidence may sustain a conviction). Circumstantial evidence of intent to defraud comes in many kinds, including conduct designed to mislead or to conceal. Richardson, 509 F.3d at 743. Proof that the defendant knew a transaction was illegitimate but acted anyway also supports a finding of fraudulent intent. See United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007).

From beginning to end, Cook's conduct displayed signs of fraud. Consider first her preparation. Months before presenting the bill of exchange, Cook visited a different Regions branch and put down $1 to open the account in which she would later try to deposit the bill. (The bank ultimately closed the account and returned Cook's dollar.) Her decision to open the account suggests premeditation. When she did present the false financial instrument, Cook assembled an 84-page dossier of supporting documents for Regions. Included in the dossier was an indemnity bond that "look[ed] official" and shared a bond number with the bill of exchange. From these indicators, the government's expert, Jonathan Fraller, concluded that Cook used the bond to "backstop[] the fake Bill of Exchange." A reasonable jury could thus find that Cook sought to conceal the bill's true nature from Regions.

Cook's conduct at the bank also suggested she was engaging in fraud. She claimed her money came from an inheritance before "divert[ing]" conversation away from the source of the funds. And Cook changed the bill of exchange's value from $500, 000 to $1 million, claiming she had originally made the bill out for the wrong amount. From this record, a reasonable jury could well discern a conscious effort by Cook to mislead Regions.

Reasonable jurors could also discern an effort by Cook to cover up her wrongdoing. After Regions put a hold on Cook's bill of exchange and contacted the police, she demanded that the bill be returned. When Regions failed to comply, Cook warned a police officer working the case that he faced fines of up to $1 million should he continue to interfere with her "commercial business." Taken as a whole, the government presented sufficient evidence of Cook's intent.

Turning to Cook's next argument, sufficient evidence supports the jury's finding that the bill of exchange appeared to be a genuine financial instrument. By way of background, § 514 prohibits presenting any "false or fictitious instrument, document, or other item appearing, representing, purporting, or contriving through scheme or artifice, to be an actual security or other financial instrument." A "fictitious instrument" appears to be "an actual security or other financial instrument" for purposes of § 514 if it contains "enough of the various hallmarks and indicia of financial obligations so as to appear to be within that class." United States v. Heath, 525 F.3d 451, 458 (6th Cir. 2008) (citation omitted). Any document that can "credibly hold itself out" as a financial instrument and lacks "disqualifying marks" satisfies § 514. Id. (citation omitted). For instance, Anderson held that "sight drafts," although fictitious, appeared to be actual financial instruments under § 514 because they contained magnetic ink codes, small characters of a sort often found on checks, colored backgrounds, and watermarks. 353 F.3d at 501.

Cook's bill of exchange contained many features common to legitimate financial instruments. She printed the bill on colored paper with a warning that "this document has security features in the paper." The bill contained a trust account number, check number, amount, date, and signature, all of which are indicia of a legitimate financial instrument. Demonstrating the bill's apparent authenticity, Regions tried to deposit it, first as a check and later through a "special handling" and collections process used for foreign documents. Those efforts further suggest that the bill of exchange credibly held itself out as genuine. See Heath, 525 F.3d at 459 (endorsing jury instructions stating that "[f]ictitious instruments include even bogus instruments that a prudent person might upon consideration be unlikely to accept").

Cook responds by emphasizing three notable errors on her bill of exchange: she misspelled "negotiable" as "neogetobile," included an "autograph" line rather than a signature line, and placed a barcode in the bill of exchange's lower-left corner. These features she claims, are "disqualifying marks" that remove the bill of exchange from § 514's scope. Id. at 458 (citation omitted). A single misspelling, however, does not show that a document is fraudulent. Nor does a barcode or "autograph" line, both of which could in principle appear on a real instrument. And even if the bill of exchange's irregularities attracted doubt, § 514 requires only a "family resemblance to genuine financial instruments." Id. (citation...