REVISED, April 6, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-10997

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARTHA WEST GREER,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

March 11, 1998

Before GARWOOD, DUHE’, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Martha West Greer (“Greer”), appeals her criminal conviction

for embezzling funds from the United States Postal Service (“Postal

Service”) in violation of 18 U.S.C . § 1711. Greer contends (1)

that there is insufficient evidence to support her conviction, (2)

that her indictment was wrongfully o btained with perjured

testimony, and (3) that the district court erroneously entered an

order of restitution. We affirm.1 Greer had worked for the Postal Service for more than ten

years. It is unclear what positions she held before becoming head

window teller.

2 I. BACKGROUND

Greer worked for the Postal Service as the head window teller

at the Berry Street station from October 1993 to August 1994. 1 As

head window teller, Greer was responsible for the contents of her

window drawer, as well as the contents of a safe located at the

station. Her window drawer, referred to in postal parlance as a

“flexible credit account,” housed cash, stamps, and m oney orders

used to conduct day-to-day business at her walk-up window. The

safe, referred to as the “unit reserve,” stored stamps and money

orders us ed to replenish the tellers’ drawers. Greer, who

established the combination to t he unit reserve safe soon after

becoming head window teller, was the only person with access to the

safe’s contents.

On a typical day, Greer worked at her walk-up window and

assisted the other te llers, sometimes replenishing their drawers

with stamp stock from the unit reserve. At the end of each day,

Greer collected the other tellers’ drawers and calculated the

station’s overall balance. These duties sometimes kept Greer at

the station until 7:30 p.m. Before departing for the night, Greer

was responsible for locking the unit reserve safe and the station

itself. This entailed activating the Berry Street station’s

security system, which utilized a motion detector for the area2 All of the station’s employees knew the code for

deactivating the alarms.

3 immediately surrounding the unit reserve. 2

According to official pol icy, tellers were to be audited at

l east three times a year, with audits occurring no more than 120

days apart. None of the tellers were given advance warning of the

audits. In the ten months that Greer served as head window teller,

her flexible credit account was audited four times and her unit

reserve was audited three times. None of those audits revealed

shortages in excess of allowable tolerances.

Postal policy fur ther dictated that Greer’s flexible credit

account and unit reserve were to be audited at the same time. This

rarely occurred, however. During Greer’s tenure as head window

teller, her unit reserve and flexible credit account were audited

together only once, in August 1994. That audit, which occurred on

August 18, examined both accounts simultan e ously and revealed

nothing unusual.

On August 30, 1994, Greer informed her supervisor that it

appeared as if another person had gained access to the unit reserve

safe, as the stamps were in d isarray. An inspection of the safe

revealed a shortage of $44,006 in postal stock. The next morning

postal inspectors Carl Aarons (“Aarons”) and Randall Till (“Till”)

audited Greer’s flexible credit account and unit rese rve and

confirmed that Greer was short $44,006. A full investigation

ensued, and in October 1995 Greer was indicted in United States

District Court on one count of embezzlement in violation of 184

U.S.C. § 1711. Greer was convicted by jury trial and subsequently

sentenced to 18 months imprisonment. The court ordered Greer to

pay full restitution in the amount of $44,006.

Greer’s attorney moved for judgment of acquittal at the close

of the govern ment’s case, at the end of trial, and after the

verdict was returned. All three motions were denied. Greer timely

filed the instant appeal. She challenges the lawfulness of her

conviction as well as the propriety of the restitution order.

II. DISCUSSION

A.

Greer argues that the district court erred in denying her

motion for judgment of acquittal be cause there is insufficient

evidence to support her conviction for embezzlement under 18 U.S.C.

§ 1711. We review a district court’s denial of a motion for

judgment of acquittal de novo. United States v. Myers , 104 F.3d

76, 78 (5th C ir.), cert. denied, 117 S. Ct. 1709 (1997). In

evaluating the sufficiency of the evidence, our standard of review

is whether, viewing the evidence in the light most favorable to the

government, a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. United States

v. Bell

, 678 F.2d 547, 549 (5th Cir. 1982) (e n banc), aff'd, 462

U.S. 356 (1983).

In this case, the Government was required to prove beyond a

reasonable doubt (1) that Greer was a postal employee, (2) that

postal funds came into her possession in her capacity as a postal3 An “error correct” is an entry made by the clerk to correct

an erroneous entry for the sale o f item (like stamps) from the

window drawer.

5 employee, and (3) that Greer converted those funds to her own use.

18 U.S.C. § 1711. On appeal, Greer disputes only the third

element. Thus, we confine our inquiry to whether there is

sufficient evidence that Greer wrongfully converted the missing

postal funds.

The government’s theory at trial was that Greer em bezzled

$44,006 by pocketing cash from stamp sales at her windo w. The

government alleged that Greer would account for the resulting

shortages on a daily basis by making false “error correct” entries

on the b ooks of her flexible credit account. 3 The government

theorized that Greer was able to hide her embezzlement from routine

audits by executing, on paper, false transfers of stamp stock from

her flexible credit account to the unit reserve shortly before an

audit was to occur. The government alleged that the transfers

worked to conceal the shortage by lowering the amount of postal

stock that was expected to be in the flexible credit account. The

government claimed that Greer used the same technique, al beit in

reverse, to hide shortages in her unit reserve.

With regard t o the August 18 audit, which examined both

accounts together and rev ealed no existing shortages, the

government explained that Greer was able to avoid detection by

requisitioning an additional $33,582 in stamp stock several days

before the audit. The government asserted that Greer used the new

stamps to increase the amount of ac tual postal stock in her two4 “Redeemed stock” is the term used to refer to unusable or

damaged stamps. Redeemed stock is transferred to the unit reserve

under the designation of “redeemed stock.” It is segregated from

usable stock, but remains part of the unit reserve’s balance for

accounting purposes.

6 accounts to acceptable levels. The government posited that Greer

was able to avoid detection by failing to place the requisition on

the books until the day after the audit.

Obviously, the $33,582 requisition could not fully cover the

$44,006 in stamp stock that was ultimately found missing. The

government, however, explained that Greer made up the difference by

transferring, on paper, roughly $9,500 worth of postal stock to the

category of “redeemed stock.” 4 The government advised that while

redeemed stock is normall y counted during an audit, the redeemed

stock in the unit reserve was not counted dur ing the August 18

audit. Instead, the auditor accepted Greer’s assessment that there

was $12,404 worth of redeemed stock in the unit reserve. Thus, the

gov ernment concluded that the results of August 18 audit were

unreliable.

On appeal, Greer argues tha t the government’s theory is not

supported by the evidence. Specifically, Greer contends that there

is no evidence that she knew when the audits would occur or which

accounts would be audited. That evidence is critical, Greer

maintains, because the government’s theory is based on the

assumption that she was able to avoid detection by initiating false

transfers between the accounts shortly before an audit was to7

occur. Greer reasons that without proof of advance knowledge, we

are left with the implausible conclusion that her scheme succeeded

on luck alone. We do not find Greer’s argument persuasive.

It is true that the record contains no direct evidence that

Greer had advance knowledge of the audits. There is not, for

example, evidence that Greer was in possessio n of a confidential

audit schedule. But Greer forgets that a defendant’s knowledge may

be proven with circumstantial evidence. S ee United States v.

Branch

, 91 F.3d 699, 737 (5th Cir. 1996), cert. denied, 117 S. Ct.

1467 (1997). And in that regard, the record contains ample

evidence that Greer had advance knowledge of the audits.

Shortly before every audit Greer would mysteriously initiate

nume rous transfers of stamp stock between her two accounts.

Similarly, Greer requisitioned new stamps just days before the

August 18 audit, and inexplicably waited four days before placing

the new stamps on the books. As in a securities fraud case, where

unusual trading activity is circumstantial evidence that a

defendant used inside information, Greer’s aberrant conduct before

the audits sugg ests that Greer knew when an audit was about to

occur. Minimally, Greer’s conduct gives rise to a reasonable

inference that Greer, through experience or otherwise, was able to

predict audits with a significant degree of certainty.

Importantly, even if we assume there is no evidence of advance

knowledge, Greer’s argument must fail because it does nothing to

address the large quantity of evidence that was marshaled against

Greer at trial. At trial, the government showed that Greer was the8

only employee with access to the unit reserve safe. Although Greer

reported that the safe had be en robbed, there was no evidence of

forcible entry and the station’s security system was neither

triggered nor turned off the night before. Curiously, the would-be

thief left behind more than $120,000 worth of stamp stock and money

orders.

An examination of postal records showed that Greer entered

error corr ects more frequently than her fellow clerks, often in

amounts nearing $1,000. Andrew Smith, a window clerk who had been

with the postal service for eleven years, testified that an error

correct of more than $100 was considered large and a cause for

concern. Greer’s personal banking records revealed that Greer was

making large cash deposits in her checking account on an almost

daily basis . Those deposits generally correlated with Greer’s

error corrects.

As noted, the evidence also showed that Greer initiated an

unusual number of transfers between her two accounts in the days

preceding an audit. Those transfers frequently involved large

amounts of stamp stock and were often questionable in nature. The

day before the August 18 audit, for instance, Greer executed six

separate transfers between her flexible credit acc ount and unit

reserve that failed to effect a net change in either account.

Finally, the government’s case was bolstered by evidence that

the $33,582 stock requisition was d elivered to the Berry Street

Station on August 15, 1998, but not placed o n the books until

August 19, the day after the audit. There was evidence that Daniel9

Christopherson, a fellow employee, saw Greer place the requisition

in her unit reserve before the August 18 audit. Inspector Aarons

c orroborated this account by explaining that the inventory lists

pro duced during the August 18 audit show that all of the stamp

stock in the requisition can be accounted for in Greer’s two

accounts as of the date of that aud it. Greer admits, without

explanation, that she transferred $9,500 in stamp stock to redeemed

stock the day before the August 18 audit.

These facts are s ufficient for a rationale jury to conclude

that Greer embezzled the missing postal funds. That conclusion

stands regardless of whether we accept Greer’s contention that

there is insufficient evidence that she had advance knowledge of

the audits. Accordingly, we reject Greer’s sufficiency of the

evidence claim.

B.

Greer contends that her indictment should have been dismissed

because postal inspector Aarons committed perjury when he testified

before the grand jury. Greer alleges that Aarons told the grand

jury that Greer’s flexible credit account and unit reserve had

never been subjected to a simultaneous audit when, in fact, such an

audit had occurred on August 18. According to Greer, Aarons’

perjured testimony was unduly prejudicial because it prevented the

jury from learning of the results of the August 18 audit which,

having revealed nothing unusual, were inco nsistent with the

government’s theory. B ank of Nova Scotia v. United States

, 108 S.

Ct. 2369, 2374 (1988). Relying upon U nited States v. Williams

, 5045 In Williams

, the Supreme Court held that courts may not use

their supervisory power over their own procedures "as a means of

prescribing . . . standards of prosecutorial conduct in the first

instance." U

nited States v. Williams

, 504 U.S. 36, 47 (1992).

Instead, that supervisory power can be used to dismiss an

indictment on ly where the purported misconduct "amounts to a

violation of one of those ‘few, clear rules which were carefully

drafted and approved by this Court and by Congress to ensure the

integrity of the grand jury's functions.’" I d. at 46 (quoting

United States v. Mechanik

, 475 U.S. 66, 74 (1986)). The statutory

prohibition against making a false declaration before a grand jury,

set forth in Title 18 U.S.C. § 16 23, was cited by the W illiams

Court as an example of one such rule. Id. at 46 n.6.

10 U.S. 36, 46 (1992), Greer further contends that Aarons’ testimony

was so critic al to the deliberative process that its tainted

character dest royed the integrity of the grand jury’s screening

function. 5

The government contends that Greer is barred from raising this

issue on appeal as it was never raised below. Greer concedes that

she never challenged the indictment in the district court, and that

we must review this issue for plain error only. Accordingly, Greer

must show that (1) an err or occurred, (2) the error was clear or

obvious, and (3) the error affected her substantial rights and

influenced the district court proceedings. U nited States v. Olano

,

113 S. Ct. 1770, 1777-78 (1993); United States v. Calverley

, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.

1196 (1995). When these elements of plain error are present, a

court may exercise its discretion to correct the error if it

"seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings." C alverley

, 37 F.3d at 164. Having6 Our review of this issue was severely hampered by Greer’s

failure to include a c opy of the transcript of the grand jury

proceeding (if there is one) in the appellate record.

11 reviewed the record, the parties briefs, and the applicable law, we

conclude that Greer has not established plain error. 6

First, Greer has not shown that Aarons committed perjury when

testifying before the grand jury. Additionally, Greer has not

demonstrated that Aarons’ testimony plainly constitutes a

“violation of one of those 'few, clear rules which were carefully

drafted and appro ved by this Court and by Congress to ensure the

integrity of the grand jury's functions.'" Williams , 504 U.S. at

46 (quoting United States v. Mechanik

, 475 U.S. 66, 74 (1986)).

Accordingly, we deny Greer’s claim that plain error resulted from

the district court’s failure to dismiss her indictment.

C.

Greer contends that the district court erred in ordering

restitution given her present and future inability to pay that

award. Under Title 18 U.S.C. § 3664(d), a defendant has the burden

of demonstrating that she lacks the financial resources to comply

with a restitution order. 18 U.S.C. § 3664(d); U nited States v.

Reese

, 998 F.2d 1275, 1281 (5th Cir. 1993). In determining whether

restitution should be ordered, a district court is required to

consider “[t]he amount of the loss sustained by an y victim as a

result of the offense, the financial resource s of the defendant,

the financial needs and earning ability of the defendant and the

defendant’s dependents, and such other factors as the court deems12

appropriate.” 18 U.S.C. § 3664(a). Normally, when a restitution

order is appealed the standard of review is whether the district

court abused its discretion in directing restitution. Reese , 998

F.2d at 1282. However, because Greer never raised this issue in

the district court, we review the decision for plain error. U nited

States v. Stedman

, 69 F.3d 737, 741 (5th Cir. 1995), cert. denied,

116 S. Ct. 2512 (1996).

Here, Greer has not shown that the district court committed

plain error in ordering restitution. At sentenc ing the district

court expressly adopted the findings of fact contained in Greer’s

presentence report. Those findings include numerous references to

Greer’s financial status that satisfy the mandatory factors that a

district court must consider under 18 U.S.C. § 3664(a).

Because Greer’s ability to pay was considered, we cannot say

that the restitution decision constitutes the type of clear or

obvious error required under our plain error standard. Greer’s

challenge to the restitution order is rejected.

IV.

For the foregoing reasons, the district court is AFFIRMED.