NO T REC OM M EN DE D F OR P UB LIC AT ION File Na me: 07a0849n.06 Filed: De cembe r 14, 2007 Nos. 06-2353, 06-2365 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v.
GI NA SOL OMON a

nd EL I SE L OVE, De fe nd ants -A

pp e lla nts
. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EAS TER

N DI S TR I CT OF MI CHI GAN

B e fo re : SI L ER, MO OR E, and GI L MA N, Cir c uit

Judg e s. SILE R , Circuit J udg e. Gina Solomon an dElise L ove we re c onvicted of ba nk fra ud and aiding and abe tting in vi olation of 18 U.S.C. §§ 1344 and 2, re spectively , and L ove wa s convicted of three counts of embe zz lement by a bank employ ee in violation of 18 U.S.C. § 656. They appea l their convic tions on two grounds: (1) the district court e rre d in admitting evidence of other c rimes purs ua nt t o F e de ra l Ru le of

Ev ide nc e 40 4( b) and (2 ) the e vid e nc e wa s in su ff ic ie nt t o s up po rt

the ir convictions. Be cause these a rguments lack mer it, we AF F IRM
. I. BACKG ROUND L ove wor ked as br anch ma

nag er at the Dea

rborn, Mich i gan , b ra n ch of SterlingBa nk and Trust (SB& T) in 2002. Solomon did not w ork in ba nking at this ti me bec ause she was c onvicted of bank fr aud in 1999, but she ca me to the bra

nch thre e or f

ou r times per we ek to visit with L ove, sometimes spending half a day or more there. The y

met in 1998 or 1999 when Solomon hired L oveNos. 06-2353, 06-2365

United States v. Solomon/ L ove

- 2 - as a bank teller at another bank. Solomon lived with L ove and L ove’s husba nd in 2002. Solom on believed she would rec eive a larg e inher itance f

rom a sca

m initi ated out of N ige ria, a nd L ove believed she would share in the inheritanc e. J ohn Murra

y , who turned 82 in June 2002, opened a m o n ey m ar k et ac co u n t wi t h the Springf ield branc h of SB& T in 1995. L ove wor ked at t h e S p ri n gfi eld bra nch bef ore be ing transfe rre d to the Dea

rborn br anch. The acc ount w as inac tive throug h April 2002. Murra y ’s ac count was transfer

red to the Dearborn branc h when the Spring field bra nch close d. In 2002, L ove used he r pa ssw or d to e nte r a

c ha ng e of a dd re ss f or Murr ay ’s bank stat e me nt, c ha ng ingthe re c e ipt

a dd re ss from Murr ay ’s residenc e to the Dea rborn branc h. Three withdrawa ls totaling $86,000 we re ma de from the a ccount be tween A pril 22 and J une 1, 2002. The withdra wal slips bore Murr ay ’s forg ed signature. Ea ch withdra

wal wa s conver

ted to a ca shier’s c heck sig ned by Ray nita Bur ke, a te ller at SB& T. Solomon deposited eac h cashie r’s check in her bank acc ount. Solomon t hen wire d money to a Mary land bank a ccount. She believed she was pa ying tax es to “re lease ” her inheritanc e, but the
acc ount was beingused by perpe trators of the fra

udulent scheme
. Murr ay vis ite d th e De arb or

n bra nc h on J un e 13 , 2 00 2, be c a us e he ha d s top pe d r e c e ivi nghis bank state m en t s , an d t he main bank ha d informed him the stateme nts were beingsent to the Dea rborn br anc h
. L ove told Murra y his statements were not being sent to her br anch, a nd when M u rr ay asked to see his balance , L ove produc ed a f alse stateme nt, which showed a balanc e of $93,359.83. Murra

y returne d to the Dea

rborn branc h on August 1 beca use he had still not rec eived a stateme nt. This tim e L ove wa s not at her de sk, and Murra y soug ht assistance from a teller, whoNos. 06-2353, 06-2365

United States v. Solomon/ L ove

- 3 - produce d an acc o un ts t at em en t s h o wi n g a b al an ce o f $ 7 , 2 8 2
. 0 2
. S B&T ’s l o s s p re v en t i o nd ep art m ent the n b e g an inve sti g a tin g the wi thd ra wa ls. At trial, the g overnme nt introduced e vidence pursuant to Rule 404(b) that while workingas ban k ma n a g e r a t G r e a t L ak e s B an k

in D e ar b o r n , So lo mo nf

r a u d u le n tl y o b ta in e d f o ur c a s h ie r ’s chec ks totaling $25,000. The money came from the inac tive acc ount of a 72-y ear -old man and wa s obtained usingfra

udulent withdrawa l slips. S olomon objected to the introduction of the e vidence , but the district court ruled the evidenc e wa s releva nt to the issues of intent, opportunity , and abse nce of mistake or a ccide nt, and that its probative value was not substantially outweighed by

the dang er of unfa ir prejudice . Solomon t estified B urke loa ned her the m oney she deposited. She testified she had no knowledg e of Murray ’s account and she acce pted t he money from Burke in g ood faith. L ove testified she did not embezzle money or part i cipate in a

scheme to embezzl e money . She denied providing Murra

y with a fa lse statement and te stified she would have chang ed the a ddress for Murra y ’s statement only

if there was a

proper rea son. The jury found Solomon an d L o v e gu i l ty of all cha

rg es. Solomon and L ove moved f or jud g me nt o f a c qu itt a l or , in the a lt erna ti ve, fo r a

ne w tri a l, a

nd the dis tr ic t c ourt

de nie d th os e motions. II . D ISC USS ION A. 404(b) Evidence Rule 404(b) states, i n part, “ [e] vidence of other c rimes . . . is not admissibl e to prove the char acte r of a

pers o n i n o rd er to show action in confor mity there with. I t may , howeve r, be admissible for other

purposes, such a s proof of motive, oppor tunity , intent, prepa ra t ion, plan,Nos. 06-2353, 06-2365

United States v. Solomon/ L ove

- 4 - knowledg e, identity

or abse nce of m i s t ak e or acc ident.” F ed. R. Evid. 404(b). I f Rule 404(b) evidenc e is admissible for o n e o r more of the se “othe r purpose s,” the “ evidenc e may still be excluded if its probative value is substantially outweig hed by

the dang er of

unfair pr ejudice.” Fe d. R. Evid. 403. The evidenc e of Solomon’s prior c onviction w as re levant to the issues of intent and absenc e of mistake be cause the g overnme nt bore the bur d en o f p rovi ng intent to defra ud and Solomon t estified she a cquire d the money from Murra y ’s ac count in g ood faith. See U nited States

v . B ro wn , 147 F.3d 477, 483 (6th Cir. 1998)
. The evidenc e was also rele vant to issues of prepa ration and plan because of the similarities betwee n the cr imes. Se e Un ite d S tates v . P e rry , 438 F.3d 642, 648 (6th Cir. 2006). The e vidence was proba

tive and pre

judicial beca

use it demonstrated Solomon was not acting i n go o d fa ith and Solomon had participated in a simil ar c rime. This does not make the evidenc e unfairly prejudicia l, however . After viewi n g the evidenc e in the lig ht most favorable to the g overnme nt and maxim izi ng its probative value and minimi zing its prejudicial value , the dang er of unfair prejudice does not substantially outweig h the evidenc e’s pr obative value
. See U nited States v. Carney , 3 87 F .3 d 4 36 , 4 51 (6 th C ir . 200 4)
. Thus , the dis tr ic t court did no t a bu se its dis c re tio n in admitting evide nce of

Solomon’s prior crime. B. Su ff iciency of the Evid ence We must examine the evidenc e in the lig ht most favorable to the g overnme nt and deter mine whether “ anyrational trier

of fa ct could have found the e s s en t i al elements of the crime be y ond a
rea sonable doubt.” J

ac k so n v . V irg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; Un ite d S tates v . Craft , 495 F.3d 259, 263 (6th Cir. 2007). “‘Circumstantial evidenc e alone , if substantial and compe tent, may supportNos. 06-2353, 06-2365

United States v. Solomon/ L ove

- 5 - a ver dict and nee d not remove e very rea sonable hy

pothesis excep t that of guilt.’” United States v. Humphrey , 2 7 9 F. 3 d

3 7 2 , 3 7 8 (6 thC i r. 2 0 0 2 ) ( qu o t i n g United States v. Talley , 194 F.3d 758, 765 (6th Cir. 1999)). The g overnme nt presente d evidenc e that: L ove mana g ed the De arb o rn bra nch, wher e Murr ay ’s ac count was he ld; L ove wor ked as a teller at the Springf

ield branc h, wher e Murr ay ’s
acc ount was opene d; L ove ent er ed a cha ng e of a ddress for

Murra y ’s statement; L ove pre sented Murra y with a false s tatement; L ove was prese nt eac h day the withdraw als from Murr ay ’s ac count
wer e made ; the proce eds of e ach w ithdrawa l were g iven to L ove’s friend and roommate , Solomon; L ove expected Solomon to in h er i t a larg e sum of money , and L ove expected to sha re in the inheritanc e; Solomon spent a substantial a mount of time at the Dea

rborn br anch a

nd had per

petrated a similar cr ime; and Solomon deposited the three c ashier’ s chec ks in her bank a ccount. Vi e wi ng thi s e vid e nc e in the lig ht mos t fa vo ra ble to the g ov e rnme nt, a ra tio na l juro r c ou ld conclude L ove wa s in a position to observe Murra y ’s acc ount a

nd its inactive nature and appr ove the disbursement of f

unds. The jury

could conc lu d e L ove per petrated the cr ime with instruction or advice from Solomon, that L ove intended to de fra ud the bank , an d t h at L ove did so to ensure Solomon receive d the inheritanc e, which L ove ex pecte d to share in. A rational juror could conclude Solomon i ntended to def

raud, a nd that she knowing ly

executed a sc heme to obtain money controlled by a fina ncial instit ution. Thus, the convictions are supported by substantial e vidence and Solomon and L ove ar e not entitled to judgme nt of ac quittal or new trials. AF F IRMED.