PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5987

SHIRLEY MACKEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-301-A)

Argued: March 7, 1997

Decided: May 28, 1997

Before MURNAGHAN and LUTTIG, Circuit Judges, and
BLACK, Senior United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Black wrote the opin-
ion, in which Judge Murnaghan and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Joseph N. Bowman, Alexandria, Virginia, for Appellant.
Kathleen Marie Kahoe, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
OPINION

BLACK, Senior District Judge:

Following a jury trial, Shirley Mackey was convicted of sixty-two
counts of wire fraud, in violation of 18 U.S.C.§§ 1343 & 2, and one
count of conspiracy, in violation of 18 U.S.C. § 371. Mackey appeals
these convictions, arguing that she was denied a fair trial when the
district court allowed two jurors to remain after jury deliberations
were suspended for the evening to perform research on the evidence
in order to summarize it for all of the jurors. Mackey also contends
that the district court clearly erred when it found that she occupied a
position of trust as provided for in the Sentencing Guidelines. Finding
no merit in her arguments, we affirm.

I.

On May 30, 1995, the director of security operations for Wood-
ward and Lothrop Department Stores discovered that fraudulent
return of merchandise credits totaling approximately $40,000 had
been issued to credit cards during the period from December 1994
through May 1995. His investigation led him to believe that the per-
petrators of the fraud were Shirley Mackey and Paula Williams, two
employees from the Sales Audit Department of Woodward and
Lothrop's corporate headquarters in Alexandria, Virginia. Mackey's
computer authorization code had been used on all but one of the
fraudulent transactions.

On June 1, 1995, Mackey was interviewed by two Secret Service
agents, at which time she admitted that, during her employment as a
group leader in the Sales Audit Department, she had entered unautho-
rized credits for non-existent returns of merchandise into the Wood-
ward and Lothrop computer on at least five occasions for her
daughter, and for Williams's mother and brother. Mackey also admit-
ted to giving her computer authorization number to Williams so that
Williams could execute fraudulent credits on her own computer.

Williams pled guilty in August 1995, and subsequently testified at
Mackey's trial that Mackey had offered to enter credits for Williams

                    2
and her friends and relatives; that Mackey did enter such credits; and
that Mackey later gave Williams the confidential computer access
code that Williams used to effect other fraudulent credits. Thirteen
other witnesses who had benefitted from the scheme testified at the
trial to the fraudulent returned merchandise credits they had received
from Mackey. In addition, hundreds of pages of documentation,
including records of over 130 credit card charge transactions and of
the subsequent reversals of those charges, were admitted into evi-
dence.

In his final instructions to the jury, the trial judge stated:

           Your verdict must represent the collective judgment of
          each juror. In order to return a verdict, it is necessary that
          each juror agree to it. Your verdict, in other words, must be
          unanimous. ... Each of you must decide the case for himself
          and herself, but do so only after an impartial consideration
          of the evidence in the case with your fellow jurors.... Your
          verdict must be based solely upon the evidence received in
          this case. Nothing you may have seen or heard or read out-
          side the court may be considered.

Just prior to excusing the jury to deliberate, the trial judge informed
the jury that they could take a lunch break, but cautioned: "I just ask
that when you go on your lunch break, if two or three of you go off
together, that you not discuss the case; you wait until all twelve of
you are back in the jury room, so that everyone receives the benefit
of your views." The jury was excused to deliberate at approximately
11:50 a.m. on September 28, 1995.

At about 6:30 p.m., the jury sent a note to the trial judge asking the
following question: "Can some jurors, but not all, stay and perform
research activities on the evidence so as to present summary data to
all jurors tomorrow?" Over defense counsel's objection, the trial
judge decided to allow some jurors to stay. He stated to counsel that
he would "let them do the research, as long as they understand it has
to be a unanimous decision and they will have [to] satisfy themselves
the research is accurate." The trial judge then instructed the jury as
follows: "Several of you want to stay and do some research; is that
right? It's okay, as long as your decision is unanimous and all of you

                      3
are satisfied the research is accurate, the people doing the research
can furnish back-up data."

The jury was then excused for the evening. The next day, the jury
began deliberating at 9:00 a.m. Approximately two hours later, they
returned a verdict of guilty on sixty-three counts, and of not guilty on
the remaining sixty-three counts.

At sentencing, the district court imposed a two-point enhancement
for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3, and sen-
tenced Mackey to a term of imprisonment of 30 months and to three
years of supervised release.

II.

Mackey contends that district court erred in allowing some jurors
to remain to perform research on the evidence after jury deliberations
ended for the evening. We shall assume for purposes of discussion
that this contention is correct. Mackey further asserts that this error
constituted a structural error that requires automatic reversal of her
conviction. We disagree with Mackey's claim of structural error, and
find that the actions of the trial court are subject to harmless error
analysis.

A.

"[T]he Constitution entitles a criminal defendant to a fair trial, not
a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
"[G]iven the myriad safeguards provided to assure a fair trial, and tak-
ing into account the reality of the human fallibility of the participants,
there can be no such thing as an error-free, perfect trial, and . . . the
Constitution does not guarantee such a trial." United States v.
Hasting, 461 U.S. 499, 508-09 (1983).

The Supreme Court has recognized that most errors can be harm-
less, Arizona v. Fulminante, 499 U.S. 279, 306 (1991), and has enu-
merated a wide range of constitutional errors subject to harmless error
analysis, including, inter alia, improper admission of an involuntary
confession, failure to instruct the jury on the presumption of inno-

                     4
cence, and improper denial of counsel at a preliminary hearing. 499
U.S. at 306-07. The Supreme Court has also recognized, however,
that certain errors are so severe as to render a trial inherently unfair.
499 U.S. at 309-10. Examples of such "structural" errors include the
total deprivation of the right to counsel at trial and the presence of a
judge who is not impartial. 499 U.S. at 309-10. Structural errors can-
not be harmless, since they affect "[t]he entire conduct of the trial
from beginning to end," 499 U.S. at 309-10, and involve basic protec-
tions without which "`a criminal trial cannot reliably serve its func-
tion as a vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally fair.'" 499
U.S. at 310 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
The Supreme Court has emphasized, however, that most errors are not
structural. Indeed, "if the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error analysis."
Rose, 478 U.S. at 578-79.

In Sherman v. Smith, 89 F.3d 1134 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 765 (1997), we observed that

          [c]orrectly applied, harmless error and structural error analy-
          ses produce identical results: unfair convictions are reversed
          while fair convictions are affirmed. Expanding the list of
          structural errors, however, is not mere legal abstraction. It
          can also be a dangerous endeavor. There is always the risk
          that a sometimes-harmless error will be classified as struc-
          tural, thus resulting in the reversal of criminal convictions
          obtained pursuant to a fair trial. Given this risk, judges
          should be wary of prescribing new errors requiring auto-
          matic reversal. Indeed, before a court adds a new error to the
          list of structural errors (and thereby requires the reversal of
          every criminal conviction in which the error occurs), the
          court must be certain that the error's presence would render
          every such trial unfair.

89 F.3d at 1138 (emphasis in original). Applying this standard, we
held that a juror's unsupervised visit to the crime scene did not consti-
tute structural error. Id. at 1137-40. We reasoned that an unsupervised
juror site visit cannot be compared to the sorts of errors that require

                     5
automatic reversal of an otherwise valid conviction:"Unlike the com-
plete denial of counsel and other structural errors, which affect the
`entire conduct of the trial from beginning to end,' juror site visits can
be discrete moments in the course of an otherwise fair trial." Id. at
1138 (quoting Fulminante, 499 U.S. at 309-10). In addition, we deter-
mined that because the Supreme Court had applied harmless error
analyses to similar claims of juror misconduct and juror bias, unau-
thorized juror site visits do not "defy" harmless error analysis. 89 F.3d
at 1138-40.

Like the error at issue in Sherman, the error at issue in the present
case -- allowing some jurors to stay to perform research on the evi-
dence in order to summarize it for all of the other jurors who had gone
home for the evening -- obviously can occur in a discrete moment
of an otherwise fair trial. Moreover, this error appears to be less
severe than other instructional errors that the Supreme Court has sub-
jected to harmless error analysis. For example, in Rose v. Clark, 478
U.S. 570, 582 (1986), the Court held that harmless error analysis
applied to an erroneous malice instruction that all homicides are pre-
sumed to be malicious in the absence of evidence that would rebut
this implied presumption. Further, in at least one respect, the error at
issue in this case is significantly less severe than the one we found to
be harmless in Sherman; while the error in Sherman created a possi-
bility that the defendant's conviction was based partially on external
evidence not presented during the trial, no such possibility exists here.
For all of the foregoing reasons, we conclude that the issue here is
"amenable to the traditional tools of harmless error analysis."
Sherman, 89 F.3d at 1140.

B.

In Chapman v. California, 386 U.S. 18, 24 (1967), the Supreme
Court established a standard for determining whether a federal consti-
tutional error is harmless: "[B]efore a federal constitutional error can
be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt." Since Chapman, the Court "has
repeatedly reaffirmed the principle that an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on
the whole record, that the constitutional error was harmless beyond
a reasonable doubt." Van Arsdall, 475 U.S. at 681. In other words, the

                     6
reviewing court must ask whether, in light of the error identified by
the court, it is "clear beyond a reasonable doubt that the jury would
have returned a verdict of guilty." Hasting , 461 U.S. at 510-11.

Applying these principles to the present case, we find that the trial
court's error was harmless. First, we note that the evidence summa-
rized by the jurors who stayed was properly admitted during the trial.
Thus, this case is not one involving consideration of extraneous evi-
dence.

Second, the district court's instructions clearly directed the jury not
to deliberate unless all jurors were present. During its general instruc-
tions, the trial court informed the jury that each juror must decide the
case for himself or herself; it further instructed the jurors not to dis-
cuss the case in groups of two or three during their lunch break, but
rather to wait until all twelve jurors were together so that all jurors
would receive the benefit of each juror's views. In addition, after
receiving the jury note at issue here, the judge advised the jury that
its decision would have to be unanimous and that all jurors would
have to satisfy themselves that the summaries were accurate. Taken
together, these instructions provided adequate guidance for the two
remaining jurors to know that they should not deliberate on the merits
of the case. Indeed, there is no evidence that the remaining jurors
failed to comply with these instructions. We therefore have no valid
basis for concluding that defendant's right to a jury trial was
impaired.

Third, the state offered ample evidence at trial to support the jury's
conclusion that Mackey had committed conspiracy and multiple acts
of wire fraud. Mackey confessed during an interview conducted by
Secret Service agents that she entered unauthorized credits on at least
five occasions, and that she gave her computer authorization number
to Williams, her co-conspirator. Williams's testimony at trial -- that
Mackey entered credits for Williams and her friends and relatives,
and gave Williams the confidential computer access code -- was con-
sistent with these admissions. At trial, Mackey further admitted that
she conducted fraudulent returned merchandise credits for her friend
Bonnie Stokely. These fraudulent credits were confirmed by Stokely,
who also testified at Mackey's trial. In all, the government produced
thirteen witnesses who testified that they received fraudulent returned

                     7
merchandise credits from Mackey. This powerful testimonial evi-
dence was buttressed by the admission of numerous documents that
chronicled the relevant credit card charges and the subsequent rever-
sals of those charges.

In light of the whole record in this case, including the extensive
evidence presented at trial, we find that any error by the trial judge
was harmless beyond a reasonable doubt.

III.

Mackey also argues that she did not occupy a position of trust war-
ranting a two-level enhancement under section 3B1.3 of the Sentenc-
ing Guidelines, "Abuse of Position of Trust or Use of Special Skill,"
which provides, in pertinent part, that "[i]f the defendant abused a
position of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of the
offense, increase by 2 levels." U.S.S.G. § 3B1.3.

While the Guidelines do not define "position of trust," the com-
mentary to section 3B1.3 explains that

          "[p]ublic or private trust" refers to a position of public or
          private trust characterized by professional or managerial dis-
          cretion.... For this enhancement to apply, the position of
          trust must have contributed in some significant way to facil-
          itating the commission or concealment of the offense.... This
          adjustment, for example, would apply in the case of an
          embezzlement of a client's funds by an attorney serving as
          a guardian, a bank executive's fraudulent loan scheme, or
          the criminal sexual abuse of a patient by a physician under
          the guise of an examination. This adjustment would not
          apply in the case of an embezzlement or theft by an ordinary
          bank teller or hotel clerk....

U.S.S.G. § 3B1.3, comment note 1. We have enumerated several fac-
tors that must be considered in determining whether a defendant held
a position of trust:

                     8
          First, courts ask whether the defendant had special duties or
          "special access to information not available to other employ-
          ees." Second, the defendant's level of supervision or "degree
          of managerial discretion" is relevant. Bank tellers who
          embezzle from their employers provide an example of a sit-
          uation where there is little trust to abuse because the
          employees are closely supervised, and it is expected that
          wrongs they commit will be readily detected. Third, the
          analysis also entails an examination of "the acts committed
          to determine whether this defendant is `more culpable' than
          others" who hold similar positions and who may commit
          crimes.

United States v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995) (internal
citations omitted). "Whether a defendant held a position of trust must
be `approached from the perspective of the victim.'" United States v.
Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (quoting Gordon, 61 F.3d
at 269).

The district court found that Mackey occupied a position of trust.
The court focused on Mackey's possession of the computer access
code, determining that this facilitated concealment of the fraudulent
conduct and endowed her with information that was unavailable to
others. Thus, the court concluded that Mackey did not fit within the
"bank teller" exception. The district court's ruling in this regard "is
a factual determination reviewable for clear error." Glymph, 96 F.3d
at 727 (citing United States v. Helton, 953 F.2d 867, 869 (4th Cir.
1992)).

Mackey relies on Helton, 953 F.2d 867, in arguing that her work
was functionally equivalent to that of an ordinary bank teller. This
reliance is misplaced. In Helton, the district court found that the
defendant, an imprest fund cashier, had no special access and that the
embezzled "funds could just as easily have been picked off by another
person." Id. at 870. We upheld this finding as not clearly erroneous.
Id.

Helton is easily distinguishable from the present case. Here,
Mackey had been a group leader in the Sales Audit Department of
Woodward and Lothrop for ten years. She was one of two group lead-

                     9
ers in this department, and was responsible for supervising other audi-
tors. In this capacity, she was authorized to possess and utilize a
computer authorization code, which gave her special access to the
company's data base, and enabled her to commit the fraud and con-
ceal it from detection. The employees she supervised, including Wil-
liams, did not have access to this code. Under these circumstances,
the district court's determination that Mackey occupied a position of
trust was not clearly erroneous.

AFFIRMED

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