                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALSFebruary 6, 2013
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                      No. 12-6218
 BRENDA D. STEVENSON,                           (D.C. No. 5:11-CR-00294-D-1)
                                                        (W. D. Okla.)
          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Brenda D. Stevenson appeals her convictions on four counts of

embezzlement under 18 U.S.C. § 656. Stevenson asserts that the government


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
lacked sufficient evidence for a reasonable jury to find her guilty beyond a

reasonable doubt. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

                                         I

      From 2008 to 2009, Stevenson was a branch manager at Bank of the West

in Oklahoma City. R. Vol. 3, at 4. In late 2009, a Bank of the West customer

noticed that an unauthorized $11,000 withdrawal was made on April 10, 2009,

from his certificate of deposit account. Id. at 4-5. The customer notified the

bank of the improper withdrawal, and an internal bank auditor began investigating

certificate of deposit accounts. Id. During this audit, three additional improper

withdrawals, made in May 2009, were discovered for $5,000, $2,000, and

$10,000. Id. at 5. All four transactions indicated Stevenson’s employee

identification number as the withdrawing bank employee, and the April 10 teller

tape listed Stevenson’s employee identification number on a cash-out withdrawal

for $11,000. R. Vol. 4, at 18-19, 30, 34, 37, 44. On September 6, 2011, a federal

grand jury indicted Stevenson on four counts of embezzlement in violation of 18

U.S.C. § 656. R. Vol. 1, at 6-7. And, on January 11, 2012, a jury found her

guilty on all counts. Id. at 14. On July 23, 2012, the district court sentenced

Stevenson to imprisonment for twelve months and one day for each count, which

it ordered she serve concurrently, followed by two years of supervised release.

Id. at 15-17.


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                                         II

      We review de novo whether the government presented sufficient evidence

to support a conviction. United States v. Dunmire, 403 F.3d 722, 724 (10th Cir.

2005). When reviewing the sufficiency of the evidence, we view the facts in

evidence in the light most favorable to the government, but do not weigh

conflicting evidence or second guess the fact-finding decisions of the jury.

United States v. Bagby, 696 F.3d 1074, 1080 (10th Cir. 2012). Our determination

turns on “whether a reasonable jury could find guilt beyond a reasonable doubt,

based on the direct and circumstantial evidence, together with the reasonable

inferences to be drawn therefrom.” United States v. Summers, 414 F.3d 1287,

1293-94 (10th Cir. 2005) (quotation omitted). “[W]e evaluate the sufficiency of

the evidence by considering the collective inferences to be drawn from the

evidence as a whole.” United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir.

2004) (quotation omitted). While “a conviction cannot be sustained if obtained

by ‘piling inference on inference,’” proof beyond a reasonable doubt may be

established, “in whole or in part, through the use of circumstantial evidence open

to interpretation by the jury.” Summers, 414 F.3d at 1294-95 (quoting Dunmire,

403 F.3d at 724). Sufficient evidence “raise[s more than] a mere suspicion of

guilt.” Dunmire, 403 F.3d at 724 (quotation omitted).

                                         III

      Stevenson asserts that the government failed to present sufficient evidence


                                         3
at trial to support her conviction for four counts of embezzlement in violation of

18 U.S.C. § 656. A conviction under § 656 “requires the government to prove

that (1) the defendant was a bank officer or director (2) of a national or federally

insured bank (3) from which the defendant willfully misapplied[, or embezzled,]

funds and (4) that the defendant acted with intent to injure or defraud the bank.”

United States v. Flanders, 491 F.3d 1197, 1208 (10th Cir. 2007). Stevenson

contests the third element, that she embezzled the funds.

      Stevenson claims that the evidence “[a]t best, . . . raised only a mere

suspicion of guilt” because “[n]o surveillance video from the bank showed who

made the . . . withdrawals,” no electronic record established that she made the

withdrawals, and “[n]o one testified that . . . [she] took the money.” Aplt. Br., at

16, 22. She goes on to cite numerous portions of the record that she argues

demonstrate the lack of sufficient evidence for a conviction. Specifically, she

cites coworkers’ testimony that “a good way” to embezzle money would be to use

a different employee’s identification number, which, she argues, could easily be

obtained. Id. at 17, 20 (discussing the possibility that another employee could

have obtained Stevenson’s identification number from her Rolodex); R. Vol. 4, at

167. She hypothesizes about her coworkers’ possible motives to use her

employee identification number, such as financial troubles and a subordinate’s

desire to obtain her managerial position. Id. at 20. She also cites ambiguity

regarding one transaction on April 10, 2009, where $8,533.03 was sold from


                                          4
Stevenson’s employee identification number to an unknown employee

identification number designated teller number 2. Id. at 7, 20-21; R. Vol. 4, at

79-80. She emphasizes that her role as bank supervisor meant she was often

conducting business outside the bank and, as a salaried employee, did not

maintain a timecard. Accordingly, she asserts, there was no evidence that she was

at the bank on the dates of the improper withdrawals. Aplt. Br., at 6. In fact, she

claims, the evidence establishes that she was not at the bank on the withdrawal

dates. Id. at 17-18 (citing bank records showing that Stevenson went to

Oklahoma City, the bank’s location, Moore, and Frederick, Oklahoma on one of

the withdrawal dates). Moreover, she points to evidence that three of her

coworkers were at the bank on three of the four withdrawal dates. Id. at 19.

These unresolved ambiguities, Stevenson argues, require that her convictions be

vacated.

      Stevenson’s argument is unpersuasive. The record more than adequately

supports the jury’s finding that she embezzled bank funds on four occasions. The

government offered the following evidence: all the withdrawals were processed

under Stevenson’s employee number; Stevenson deposited a total of $24,159.99

into her personal bank account during this period, and, on three of the four

withdrawal dates, she deposited amounts slightly less than the amount embezzled

on the date of withdrawal; a coworker identified her handwriting on the first two

withdrawals, which were approved by “B. Stevenson”; and, finally, Stevenson


                                          5
lived beyond her means during the relevant time period, gambling at least $72,690

at a local casino during April, May, and June of 2009. R. Vol. 4, at 18-19, 30, 34,

37, 44, 110, 204-06, 233-35; R. Vol. 2, at 65, 81.

      Viewing the evidence as a whole, the reasonable inference, “flow[ing] from

logical and probabilistic reasoning,” is that Stevenson embezzled the funds.

Summers, 414 F.3d at 1295. While Stevenson has “offered an elaborate

explanation for everything,” we do not “‘weigh conflicting evidence or second-

guess the fact-finding decisions of the jury’” when reviewing the sufficiency of

the evidence. United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011)

(quoting United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007)). The jury

found Stevenson guilty of four counts of embezzlement and the record is more

than adequate to support those findings.

                                           IV

      Accordingly, we AFFIRM Stevenson’s convictions on four counts of

embezzlement.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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