                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0278n.06

                                          No. 12-3494

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
                                                                                 FILED
                                                                              Mar 19, 2013
        Plaintiff-Appellee,                                            DEBORAH S. HUNT, Clerk

v.                                                  ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
MICHELE V. DELAINE                                  NORTHERN DISTRICT OF OHIO

        Defendant-Appellant.

                                              /



BEFORE:         MERRITT, MARTIN, and CLAY, Circuit Judges.


        CLAY, Circuit Judge. Defendant Michele Delaine was convicted by jury of two counts of

embezzlement and conversion of government funds in violation of 18 U.S.C. § 641, on November

30, 2011. The district court sentenced Defendant to eighteen months’ imprisonment and three years

of supervised release, in addition to $89,313.00 in restitution and a $200.00 special assessment.

Defendant now appeals her conviction, claiming that there was insufficient evidence of intent to

support her conviction, that her counsel was ineffective, and that the district court improperly

admitted evidence impeaching her credibility. For the following reasons, we AFFIRM the judgment

of the district court.
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                                          BACKGROUND

       A.      Procedural History

       Michele Delaine was indicted on October 13, 2011. The indictment charged her with two

counts of theft of government funds in violation of 18 U.S.C. § 641. The first count alleged that she

had knowingly converted $31,694.00 in Social Security benefits, and the second count alleged that

she had done the same with $57,619.00 in Civil Service Retirement System benefits. (R. 14,

Superceding Indictment, Oct. 13, 2011.) She pleaded not guilty on June 9, 2011. After a trial in the

United States District Court for the Northern District of Ohio, which began on November 28, 2011,

the jury returned a guilty verdict on both counts on November 30, 2011. On April 17, 2012, the

district court sentenced Defendant to eighteen months’ imprisonment and three years of supervised

release, in addition to $89,313.00 in restitution and a $200.00 special assessment, and released

Defendant on an appellate bond. Defendant now appeals her conviction.

       B.      Factual Background

       Defendant met Albert Smith, a former NASA scientist, through their mutual membership in

a congregation of Jehovah’s Witnesses. During the last few years of Mr. Smith’s life, Defendant

assisted him in personal and financial tasks, including taking him to appointments with doctors. In

2002, Mr. Smith added Defendant as a signatory to a joint checking account with the right of

survivorship at National City Bank (“Account 9833”). Payments from the Social Security

Administration and from the Civil Service Retirement System were deposited directly into this

account. Mr. Smith also created a trust for his other assets, and named Bruce Morrison, another

member of his church, as trustee. Defendant assisted Mr. Smith in creating the trust by gathering


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information, but contends that she was not involved in its organization, management, or distribution.

(Def. Br. at 5.) At trial, Defendant did admit that she met with Smith and an attorney about one

month before Smith’s death, and at that meeting, Smith increased Defendant’s distribution from the

trust. (Gov’t Br. at 4–5.)

        During the last two weeks of his life, Defendant lived with Mr. Smith so that she could

provide care for him. After his death, in April 2006, Defendant continued to live in Mr. Smith’s

house, through an agreement with Mr. Morrison, so that the house would be protected from

vandalism and kept up before it was sold during the winding-up of Mr. Smith’s estate. She lived in

the house until April 2007, when it was sold. During this period, she paid the utility and maintenance

bills for the house. (Gov’t Br. at 5.) Because it was a joint account with the right of survivorship,

Account 9833 did not pass through Mr. Smith’s estate. Defendant received her initial distribution

of $100,000 from the estate in October 2007. In February 2009, she received her final distribution

of $17,000. (Gov’t Br. at 6.)

        In early 2011, Laura DeGiglio, an investigator with the Social Security Administration,

received a phone call from Victore Janezic, an agent with NASA’s Office of the Inspector General,

who had performed an audit of the Smith and Delaine accounts. He discovered that after Mr. Smith

died, the Civil Service Retirement System continued to make deposits into Account 9833. The

payments continued until June 2007, and totaled $57,619.71. Janezic also noticed that Social

Security payments totaling $31,594 continued until December 2009. He further noticed that there

had been $99,726,49 in withdrawals from Account 9833 after Mr. Smith’s death, of which

$82,441.39 had been transferred to other accounts belonging to Defendant. There was also a gap


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between transfers from Account 9833 to Defendant’s other accounts, which ended in October 2007,

which was when Defendant received her $100,000 disbursement from Smith’s estate. (Gov’t Br. at

7.)

       At trial, a bank official testified that Defendant had been a holder of Account 9833, and that

after Smith’s death, she was the only person authorized to use the account. The official also stated

that Defendant had opened other accounts, for which she was the sole holder, and to which transfers

were made from Account 9833. Morrison testified as to the arrangements made for the house and

the disbursement from Smith’s estate. Janezic testified to the payments made into account 9833 after

Smith’s death, and to the amount of the withdrawals from that account. Finally, DeGiglio testified

as to her investigation, including the fact that social security payments continued after the house had

been sold. Delaine testified on her own behalf, and claimed that she thought that the pension

payments were part of the trust. On cross-examination, Delaine admitted that she had forged Smith’s

signature on checks deposited into the account. At the conclusion of the defense case, Defendant

renewed her Rule 29 motion, which was denied again. The jury convicted Defendant on both

accounts, and this appeal followed.

                                            ANALYSIS

       A.      The Sufficiency of the Evidence at Trial

       Defendant was convicted of two counts under 18 U.S.C. § 641, which criminally penalizes:

       Who[m]ever embezzles, steals, purloins, or knowingly converts to his use or the use
       of another, or without authority, sells, conveys or disposes of any record, voucher,
       money, or thing of value of the United States or of any department or agency thereof,
       or any property made or being made under contract for the United States or any
       department or agency thereof; or . . . receives, conceals, or retains the same with


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                                             No. 12-3494

        intent to convert it to his use or gain, knowing it to have been embezzled, stolen,
        purloined or converted . . . .

Defendant does not contest that the funds taken belonged to the United States, nor does she argue

that they were not converted and used. See also United States v. McRee, 7 F.3d 976, 980 (11th Cir.

1993) (discussing the three elements of conversion under 18 U.S.C. § 641). Instead, she argues that

the government failed to prove that she knowingly and willfully converted the funds.1 Because

Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on

the basis of insufficient evidence both at the completion of the Government’s case and at the

conclusion of the trial, the issue is preserved for appellate review. See United States v. Chance, 306

F.3d 356, 368–69 (6th Cir. 2001).

        The legal sufficiency of the evidence against a criminal defendant is reviewed de novo,

United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009), but “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. Allen, 619 F.3d

518, 522 (6th Cir. 2010). The reviewing court must draw “all available inferences and resolve all

issues of credibility in favor of the [jury’s] verdict.” United States v. Wade, 318 F.3d 698, 701 (6th

Cir. 2003). “Accordingly, defendants bear a heavy burden when asserting insufficiency of the

evidence arguments.” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (citing United



       1
         While the statute itself does not use any traditional mens rea language, it is well-established
that the statute should be read as including an intent requirement. See Morissette v. United States,
342 U.S. 246, 250 (1952).

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States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). Further, “[c]ircumstantial evidence alone,

if substantial and competent, may sustain a conviction under this deferential standard of review.”

United States v. Beverly, 369 F.3d 516, 531 (6th Cir. 2004).

        To prove intent under this statute, the government must show that a defendant knew that the

funds belonged to the government, and intended to convert their funds to their own gain. The

question of intent is a determination left to the finder of fact, in this case, the jury. See Morissette

v. United States, 342 U.S. 246, 247 (1952). But because intent may be hard to prove with direct

evidence, United States v. Luxenberg, 374 F.2d 241, 249 (6th Cir. 1967), a fact-finder may use

objective evidence, taken in context, as proof of intent. United States v. Al-Zubaidy, 283 F.3d 804,

809 (6th Cir. 2002) (“The general rule in criminal cases is that ‘intent may be inferred from the

totality of circumstances surrounding the commission of the prohibited act.’” (quoting United States

v. Stagman, 446 F.2d 489, 493 (6th Cir. 1971)). Furthermore, the question before this Court is not

whether we would have found that the government had proven its case beyond a reasonable doubt,

but whether there was “sufficient evidence at trial to persuade a rational trier of fact that [Defendant]

possessed the requisite intent.” United States v. Washington, 702 F.3d 886, 892 (6th Cir. 2012).

        There was sufficient evidence for a rational jury to find that Delaine had the requisite intent

to convert government funds to her own use. Defendant had been a joint account holder with Smith

for some time preceding his death, and knew the source of the deposits. Cf. United States v. Bess,

593 F.2d 749, 752–53 (6th Cir. 1979) (sufficient evidence of intent to convert can exist when

defendant becomes aware of the source sometime after the first act of conversion). The source of

the deposits were also on the bank statements. Defendant also knew the amount to be disbursed to


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                                            No. 12-3494

her from Smith’s estate, because she met with Smith’s attorney when Smith changed the terms of

his estate. In addition, Defendant testified on her own behalf, and accordingly, a jury could

reasonably have found that Defendant’s explanation, that she thought the Social Security payments

and Civil Service pension payments would be reimbursed by the estate, was not credible, as she

received a disbursement from the estate in October 2007. See, e.g., United States v. McGahee, 257

F.3d 520, 530 (6th Cir. 2001). Finally, Defendant admitted that she knew the source of the

payments.

       Therefore, we find that there was sufficient evidence for the jury to find that Defendant had

the requisite intent to violate 18 U.S.C. § 641.

       B.      Impeachment Evidence

       Defendant argues that the government was permitted to impeach her testimony using

extrinsic evidence, when it introduced an exhibit consisting of checks made out to Albert Smith, on

which Defendant had forged his endorsement in order to deposit them. Her claim is that this violated

Federal Rule of Evidence 608(b), which states that:

       Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible
       to prove specific instances of a witness’s conduct in order to attack or support the
       witness’s character for truthfulness. But the court may, on cross-examination, allow
       them to be inquired into if they are probative of the character for truthfulness or
       untruthfulness of:

               (1) the witness; or
               (2) another witness whose character the witness being cross-examined has
               testified about.

       By testifying on another matter, a witness does not waive any privilege against
       self-incrimination for testimony that relates only to the witness’s character for
       truthfulness.


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Fed. R. Evid. 608(b). The government contends that the disputed evidence was not admitted. Rather,

they contend, it was used as part of cross-examination, but was not published to the jury, nor did it

become part of the record.

        While ordinarily, evidentiary rulings are subject to review for abuse of discretion, United

States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008). Defendant did not object to the use of extrinsic

evidence in violation of Federal Rule of Evidence 608(b) at trial, therefore this Court reviews the

issue only for plain error. United States v. Olano, 507 U.S. 725 (1993). Review for plain error under

Federal Rule of Criminal Procedure 52(b) is a four-step inquiry. There must be error, which is clear

and obvious, it must “have affected the appellant's substantial rights, which in the ordinary case

means he must demonstrate that it affected the outcome of the district court proceedings,” and it must

have “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Puckett

v. United States, 556 U.S. 129, 135 (2009) (internal citations and quotation marks omitted).

        In this case, there was no error. The truthfulness of a witness is unquestionably proper

grounds for cross-examination. While this Court has never explicitly ruled on the question, the other

circuit courts that have done so have all ruled that forgery is probative of a witness’s truthfulness.

See, e.g., United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005); see also United States v. White,

110 F. Supp. 2d 641, 644 (S.D. Ohio 1999) (collecting cases); 4 Weinstein’s Federal Evidence

§ 608.12(b)(4)(I). And Defendant concedes that forgery would be probative of untruthfulness. Rule

608(b), therefore, is best understood not as a blanket bar to the use of evidence regarding the

forgeries, but to the admission of extrinsic evidence to prove that the past occurrences took place. See,

e.g., White, 110 F. Supp. 2d at 643–44 & 644 n.5 (permitting evidence regarding a past forgery


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                                            No. 12-3494

during cross-examination, but cautioning that the government would be required to accept the answers

given even if it knew that the answers were false).

       The checks that Defendant now claims should have been excluded were never admitted into

evidence. The jury did not see them, nor were they available to the jury during deliberations. See

United States v. Ahmas, 943 F.2d 53, at *5 (6th Cir. 1991) (table) (per curiam). Defendant further

concedes that the government was permitted to cross-examine her about the checks, and would have

been permitted to show them to her during testimony in order to refresh her recollection. (Def. Br.

at 23.) Accordingly, we find that the district court did not err in permitting the government to use the

checks for impeachment purposes during its cross-examination of Defendant.

       C.      Ineffective Assistance of Counsel

       Defendant also raises a claim of ineffective assistance of counsel, arguing that her attorney’s

failure to comply with the government’s discovery requests resulted in the exclusion on material

evidence that would have contradicted testimony against her. Ineffective assistance of counsel claims

present mixed questions of law and fact and are reviewed de novo. United States v. Ferguson, 669

F.3d 756, 761–62 (6th Cir. 2012) (citing United States v. Carter, 355 F.3d 920, 924 (6th Cir.2004)).

       Claims of ineffective assistance of counsel are generally disfavored on direct appeal from a

federal criminal conviction. Ferguson, 669 F.3d at 762. As a general rule, this Court will defer

claims of ineffective assistance of counsel until after the conclusion of direct appeal, when a

defendant in custody may bring a motion under 28 U.S.C. § 2255. Id. (citing Massaro v. United

States, 538 U.S. 500, 504 (2003)). Deferring the claim permits the district court to develop a record

specific to the adequacy of representation. Ferguson, 669 F.3d at 762. Accordingly, the panel may


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choose to hear a claim of ineffective assistance only if it “find[s] that the parties have adequately

developed the record.” Id.; see also, e.g., United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012).

        While this Court may choose to entertain a claim of ineffective assistance on direct appeal,

see, e.g., United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995), it will generally choose not to do

“except in rare cases where the error is apparent from the existing record.” United States v. Lopez-

Medina, 461 F.3d 724, 737 (6th Cir. 2006); accord United States v. Wells, 623 F.3d 332, 348 (6th Cir.

2010). Therefore we will not decide a claim of ineffective assistance unless the claim would be

entirely substantiated based solely on the existing trial transcript and other record materials. See, e.g.,

United States v. Lostia, 20 F. App’x 501, 503 (6th Cir. 2001) (claim of ineffective assistance of

counsel heard on direct appeal where the claim was based entirely on defense counsel’s closing

statement).

        In this case, Defendant’s claim of ineffective assistance is founded on her trial attorney’s

discovery violations, which led to the district court excluding evidence that Defendant claims would

have contradicted Agent DeGiglio’s testimony. (Def. Br. at 17–18.) Specifically, Defendant tried

to introduce documents that would show that she had power of attorney over a variety of Mr. Smith’s

health and asset management. (Id. at 430.) The trial transcript includes the discussion between the

court and the attorneys regarding the admission of these documents. (R. 41 at 430–33.). During this

exchange, the court stated that it was “so weary of gamesmanship” that it would not permit the

Defendant to admit the documents. (Id. at 433.) The court also noted that Defense counsel had failed

to cross-examine a government witness with respect to these documents. (Id. at 432.) There is no

significant discussion of other, prior discovery violations, and no authentication or detailed


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description of the documents that Defendant wished to introduce. The records also do not appear

anywhere else in the record. Therefore, even were we to assume that her attorney’s conduct fell

below the objective standard of reasonableness required by Strickland v. Washington, 466 U.S. 668,

687 (1984), there would still be no way to determine whether or not Defendant suffered prejudice as

a result of that deficient performance based on that conduct. Without reviewing the documents, to

see what propositions they support with respect to Defendant’s authority over Mr. Smith’s assets or

relationship with him, or to even authenticate the documents, it is impossible for this Court to

determine whether or not there was prejudice to Defendant. The record is therefore insufficiently

developed to justify ruling on this issue, which can be more properly developed and analyzed pursuant

to 28 U.S.C. § 2255.

       Accordingly, we decline to rule on Defendant’s appeal with respect to her claim of ineffective

assistance of counsel.

                                         CONCLUSION

       For the foregoing reasons we AFFIRM the verdict of the district court.




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