                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2003

USA v. Streeval
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3561




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                                                                              NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT


                                            No. 02-3561


                                 UNITED STATES OF AMERICA

                                                  v.

                                      RUTH M. STREEVAL

                                                       Ruth Streeval,

                                                               Appellant


                             Appeal from the United States District Court
                                for the Eastern District of Pennsylvania
                             (D.C. Criminal Action No. 00-cr-00477-2)
                              District Judge: Honorable Berle M. Schiller


                             Submitted Under Third Circuit LAR 34.1(a)
                                          June 30, 2003

                    Before: SLOVITER, AMBRO and BECKER, Circuit Judges

                                    (Opinion filed: July 21, 2003)


                                              OPINION


AMBRO, Circuit Judge

       Ruth M. Streeval appeals a jury verdict convicting her of conspiracy, mail fraud, and wire

fraud. She contends the District Court erred in admitting various documents and statements into
evidence against her at trial, and that the evidence was insufficient to support the jury’s verdict. We

affirm the conviction.1

                                                      I.

        Because we write solely for the parties, it is unnecessary to recount in full the facts of this case.

Streeval and her sister, Lollie J. Binkley, concocted a plan to borrow money against a fictitious

inheritance. The pair created documents that represented the estate of George Earl Markham was to

be probated in Dekalb County Court in Smithfield, Tennessee. Streeval assumed the identity of “Ruth

Johnson, Attorney at Law,” executor of the Markham Estate. Binkley claimed to be Markham’s

granddaughter, due to inherit a large amount of money from his will.

        In September 1998, Binkley met with a loan broker at Spitzer Financial in Tucson, Arizona,

and applied for a $15,000 loan, stating she would repay the amount from an imminent $25,000

inheritance. Streeval, acting as the attorney Johnson in Tennessee,

facilitated the loan approval process in communications with Spitzer via telephone, fax, and postal mail.

The funds were disbursed in October 1998, and Binkley paid Streeval $1000 for her efforts.

        The sisters repeated the ruse in November 1998. Binkley called J.G. Wentworth SSC Limited

Partnership, a Philadelphia company that purchases inheritances. For $40,000, Binkley offered to sell

Wentworth $50,000 of the $100,000 she was due to inherit from her alleged grandfather. Binkley

again identified Ruth Johnson as Markham’s executor, and instructed Wentworth to communicate with

Johnson’s law office – providing them with Streeval’s home phone number and address – to obtain the




   1
    We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                                      2
relevant information. Following an exchange of phone calls and correspondence, the money was wired

to an account in Tucson. The deception was discovered when an attorney attempted to perfect

Wentworth’s interest in the Markham Estate and was informed by the Dekalb County clerk’s office

that no such estate existed.

        Following an investigation by the FBI, a grand jury in the Eastern District of Pennsylvania

indicted Streeval for conspiracy to commit mail fraud, wire fraud, and money laundering, in violation of

18 U.S.C. § 371 (Count One); two counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts

Two and Three); and five counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts Four through

Eight).2 After a four-day trial, before the case was submitted to the jury, the District Court entered a

judgment of acquittal on Counts Three, Five, Six, Seven, and Eight.3 The jury convicted Streeval on

Counts One, Two, and Four. The District Court sentenced her to ten months imprisonment, with the

last five months to be served in home confinement with electronic monitoring, three years supervised

release, and $55,000 in restitution. She timely appealed.

                                                    II.

        Streeval challenges her conviction on four grounds: 1) unauthenticated third-party documents

   2
   Binkley also was indicted. She pleaded guilty, was sentenced to 27 months
imprisonment and three years supervised release, and ordered to pay $55,000 in restitution.
We reversed her sentence in United States v. Binkley, 2002 WL 1396793 (3d Cir. Jun. 27,
2002), and on remand her term of imprisonment was reduced to time served –
approximately 19 months. The rest of her sentence was unchanged.
   3
    The District Court initially transferred Streeval’s case to the Middle District of
Tennessee. We granted the Government’s petition for a writ of mandamus directing the
District Court to vacate its order and refrain from transferring the case until requisite
procedures were followed. In re United States, 273 F.3d 380 (3d Cir. 2001). Following
an evidentiary hearing, the District Court denied Streeval’s motion to transfer.

                                                     3
should not have been admitted; 2) the coconspirator statements of Binkley should not have been

admitted; 3) the Government failed to move any of its exhibits into evidence, resulting in insufficient

evidence to support a conviction; and 4) her out-of-court admissions to an FBI agent should not have

been admitted. None of these arguments is persuasive; indeed, some are borderline frivolous.

Nevertheless, we address each separately.

                                                      A.

        Streeval objected unsuccessfully at trial to the admission of various third-party documents

related to the fictitious Markham Estate. For example, the Government introduced a copy of the

ostensible “Last Will and Testament of George Earl Markham” that had been faxed by Binkley to

Wentworth. Streeval claims that because this and other exhibits that purport to establish the existence

of the Markham Estate undisputedly are false, their inherent unreliability disqualifies them from

admissibility under the business records exception to the hearsay rule, and they cannot be authenticated.

Neither claim has merit.

        Whether evidence is hearsay is a question of law subject to plenary review. United States v.

Sallins, 993 F.2d 344, 346 (3d Cir. 1993). “Hearsay is a statement, other than one made by the

declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.” Id.

(citing Fed. R. Evid. 801(c)); see also Anderson v. United States, 417 U.S. 211, 219 (1974). As

correctly noted by the District Court in overruling Streeval’s objections, these documents were not

being offered to prove the truth asserted therein – i.e., that Streeval was the executor or Binkley a

devisee of the Markham Estate. Rather, that the documents were false was the very reason for

introducing them: to establish Streeval’s participation in the defendants’ fraudulent scheme. Statements

                                                      4
introduced to prove the false nature of the matter asserted are not hearsay. See United States v.

Adkins, 741 F.2d 744, 746 (5th Cir. 1984) (citing, inter alia, Anderson, 417 U.S. at 220). As a

consequence, Streeval’s claim that the evidence does not qualify under the business records exception

to the hearsay rule is irrelevant.

        Likewise, Streeval’s argument that the fictitious nature of the Markham Estate exhibits

precludes their authentication is easily dismissed. Rule 901(a) provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a).

Multiple witnesses testified to receiving and relying upon documents purportedly created by “Ruth

Johnson, Attorney at Law,” and bearing Streeval’s mailing address and phone number. This testimony

is sufficient to support a finding that the evidence is what the Government claims: false documents

provided to the victims of the fraud.

                                                      B.

        Streeval’s second argument is that the District Court erred in admitting into evidence out-of-

court statements made by Binkley and implicating Streeval’s participation in their fraudulent scheme.

The Court concluded these statements were not hearsay because they were made “by a coconspirator

of a party during the course and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Before

a statement may be admissible under this rule, the trial court must find by a preponderance of the

evidence: 1) a conspiracy existed; 2) the declarant and the party against whom the statement is offered

were members of the conspiracy; 3) the statement was made in the course of the conspiracy; and 4) the

statement was made in furtherance of the conspiracy. United States v. Ellis, 156 F.3d 493, 496 (3d

                                                      5
Cir. 1998). We review the District Court’s findings as to these elements for clear error. Id.

        The District Court found each requirement was satisfied. It stated that in making this

determination it relied not only on Binkley’s statements, but on several pieces of corroborative

evidence, e.g., fraudulent documents sent from a fax machine in a store near Streeval’s home,

fraudulent documents from “Ruth Johnson” that included Streeval’s home phone and post office box

numbers, and incriminating statements Streeval made to the FBI. Streeval argues all this supportive

evidence is inadmissible as well, asserting the documents are unauthenticated and inadmissible hearsay,

the statements constitute an uncorroborated and extrajudicial confession, etc. We reject each of these

claims for reasons explained throughout this opinion. Accordingly, we conclude Streeval has not

demonstrated the District Court’s findings were clearly erroneous.

                                                     C.

        Streeval next contends that, because the Government failed to move its trial exhibits into

evidence, there was insufficient evidence to convict her. The prosecution, at the close of its trial

presentation, stated: “[S]ubject to the moving – the formal moving of the Government’s exhibits into

evidence, the Government rests.” App. at 200-01. It acknowledges it did not subsequently so move,

but argues the omission was inadvertent. The Government further notes that Streeval raises this

objection for the first time on appeal; indeed, Streeval stipulated at trial to the admission of numerous

Government exhibits, agreed certain exhibits be sent to the jury in response to a request made during its

deliberations, and even cited many of the same exhibits in her post-trial motion for acquittal.

        We accept the Government’s assertion that its failure to move its exhibits into evidence was a

mere oversight, and that the District Court would have granted the motion if made. Even assuming

                                                     6
otherwise, Streeval has not demonstrated reversible error. “It is ordinarily the responsibility of counsel

to check the exhibits and failure to object in a timely manner can under some circumstances constitute a

waiver.” Gov’t of Virgin Islands v. Joseph, 685 F.2d 857, 864 (3d Cir. 1982). “[I]f the exhibits

were not intended by the court or the parties to remain in evidence, or were not actually admitted into

evidence, appellants cannot now object to their presence in the jury room unless they can show that the

court committed ‘plain error.’” Id. (internal quotation omitted). This requires demonstrating: 1) error,

2) that was plain, and 3) affected the defendant’s substantial rights. See United States v. Dixon, 308

F.3d 229, 234 (3d Cir. 2002) (citing, inter alia, United States v. Olano, 507 U.S. 725, 732, 734

(1993)). In Joseph, we reversed the defendant’s conviction for assault, robbery, and rape, and

ordered a new trial after documents not offered into evidence at trial – including a signed confession –

were sent to the jury while deliberating. Any error in this case pales in comparison. The exhibits

requested by the jury had been introduced during trial and both parties (and the District Court)

assumed they had been properly admitted. Moreover, the jury’s receipt of this evidence, even

assuming it was error that prejudiced Streeval’s substantial rights, it did not “seriously affect[] the

fairness, integrity, or public reputation of the judicial proceedings.” Dixon, 308 F.3d at 234 (quoting

Olano, 507 U.S. at 734).

        We likewise reject Streeval’s related claim that there was insufficient evidence to convict her.

Because Streeval is appealing an adverse jury verdict, “[w]e must view the evidence in the light most

favorable to the government and must sustain [the] jury’s verdict if ‘a reasonable jury believing the

government’s evidence could find beyond a reasonable doubt that the government proved all the

elements of the offense.’” United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (quoting

                                                      7
United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997)). Streeval’s argument – premised on

her assertion that no documentary evidence was properly admitted – is that the Government failed to

prove various elements necessary to convict her for conspiracy, wire fraud, and mail fraud. The District

Court carefully rebutted each of these claims in its denial of Streeval’s post-verdict motion for acquittal

under Fed. R. Crim. P. 29(c). It explained in detail the substantial evidence introduced by the

Government establishing Streeval’s guilt, and we agree with this analysis and conclusion. Even

assuming the challenged exhibits should not have been submitted to the jury, there was ample testimony

upon which the jury could find beyond a reasonable doubt that the Government proved all the elements

of the charged offenses. In sum, there was sufficient evidence that Streeval conspired with Binkley to

bilk $55,000 from two victims and caused the use of the United States mails and wires in furtherance of

the scheme.

                                                     D.

        Streeval’s final argument is that the District Court erred in admitting out-of-court statements she

made to FBI Agent Douglas Whitten. Whitten testified that during two interviews with Streeval she told

him she agreed to assist Binkley and undertook certain tasks to do so. In her post-trial Rule 29 motion

for acquittal, Streeval argued for the first time that these statements were uncorroborated by other

evidence and thus inadmissible under Opper v. United States, 348 U.S. 84, 91 (1954). We have

interpreted the corroboration rule in Opper to be satisfied if the witness’s recitation of the defendant’s

admissions “dovetails with the evidence adduced by the other witnesses and is circumstantially

corroborated by it.” United States v. Coleman, 862 F.2d 455, 461 (3d Cir. 1988). While the

Government must introduce evidence which would tend to establish the trustworthiness of the

                                                     8
defendant’s statements as a whole, it need not offer substantial independent evidence of each element

of the offenses charged. United States v. Wilson, 436 F.2d 122, 124 (3d Cir. 1971).

        Because Streeval failed to raise this objection at trial, we review the admission of the evidence

for plain error. See Fed. R. Crim. P. 52(b). We conclude the District Court properly admitted Agent

Whitten’s testimony. The details of his statements as to Streeval’s extrajudicial confession were

substantially corroborated by the sizable body of documentary and testimonial evidence. Furthermore,

as noted by the District Court, Streeval had the opportunity to cross-examine Whitten at trial.

                                                *****

        For the reasons stated, we shall affirm the judgment of the District Court.




TO THE CLERK:

        Please file the foregoing Opinion.




                                                 By the Court,




                                                 /s/ Thomas L. Ambro
                                                 Circuit Judge




                                                    9
