NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0719n.06 No. 12-3592 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff

S

Appellee ,

v. J OHNNY SUGGS, Def endant – Appe llant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

OPI NI ON

Be fore : KEI TH, WHI TE, and STRANCH, Circuit J udg es. JANE B. STRANCH , Circui t J udg e. A jury convicted J ohnny Sugg s of conspirac y to commit mortg ag e fra

ud and bank fra

ud, making a false statement to a bank, bank fra ud, mail fra

ud, and passing U.S. Trea sury chec ks with forg ed en d orsements. He challeng es t hese convictions on fo u r g rounds: (1) the evidenc e was insufficient to prove the endorse ments on the U.S. Treas u ry chec ks wer e forg ed and that he kn ew t h ey we re forg ed; (2) the district court violated his confr ontation rig hts and the hear say rule when it admitted a document and witness testimony rela ting to the forg ed chec k endorse ments; (3) the jury venire was not draw n from a fair cross-se ction of the community , in violation of his Six th Amendment rig hts; and (4) the district court err oneously denied his pretrial motion to re-e valuate his c ompetency to stand trial. We AFF I RM the convictions.

1I. F ACTS AND P ROCEDURAL HISTORY

The trial proof sh o w e d th a t, f r o m Se p te mb er 1998 throug h September 2005, Sugg s and others eng ag ed in a conspirac y to obtain mortg ag e loans on high- price d residential proper ties by prese nting fra udulent applications and income documentation to lending instit ution s . Sugg s and his coconspirator s repr esente d to lender s that they ear ned substantial monthly compensa tion as employ ees of the J ames and Albert Group, L L C or the J ames and Albert Corporation, but these companies wer e sham entities that did not eng ag e in any leg itimate business activities. After obtaining a mortg ag e loan and taking owner ship of a re sidence , Sugg s lived at the location without pa y ing the mortg ag e until the bank took possession of t he property throug h a foreclosure action or he sol d the hom e to

a co-c onspirator at an inflated price —obtaining a second fra udulent mortg ag e loan from a differ ent lender in the proce ss—taking the “equity” in c ash. The scheme defr auded fede rally insured banks and mortg ag e lending companies. Using false documentation supplied by Sugg s, Carlos Crespo p urcha sed a multi-family proper ty

. After taking possession of the proper ty , Crespo and his g randmother , Aida Cardona- Cruz, who is now dece ased, lived in downstairs apar tments, while Sugg s inhabited an upstairs apar tment. C ardona-Cruz rec eived monthly Supplemental Security I ncome (SSI ) chec ks from the fed er al g overnme nt. Whil e she was visiti ng rela tives in Puerto Rico for sever al months in 2004, Crespo retrie ved two of the SSI chec ks from the mai l an d ca s h ed them, purportedly with the consent of Cardona- Cruz. Five more SSI chec ks bear ing forg ed endorse ments wer e deposited into bank

acc ounts Sugg s controlled. The indictment char g ed Sugg s in eig ht counts, including conspirac y under 18 U.S.C. § 371 (count 1); making a false statement to a bank in violation of 18 U.S.C. §§ 1014 & 2 (count 2); bank

2fra

ud in violation of 18 U.S.C. §§ 1344 & 2 (counts 3, 4, and 6); mail fra ud in violation of 18 U.S.C. §§ 1341 & 2 (count 5); passing , uttering , or publishing U.S. Tre asury chec ks bear ing f

alsely made

or forg ed endorse men t s ex ce ed ing an ag g reg ate fac e value of $1,000 in violation of 18 U.S.C. §§ 510(a) (2) (count 7); and making, utt ering o r p ossessing a counterfeit or forg ed S print chec k in the amount of $1,200 in violation of 18 U.S.C. §§ 513(a) and 2. R. 1. Be fore trial, the g overnme nt voluntarily dismiss ed counts 4, 6, and 8 and struck from count 7 one of the six U.S. Trea sury chec ks listed in that count. Prosecutors prese nted the testimony of eig hteen witnesses and introduced into evidenc e numer ous exhi bits. Sugg s testified in his own defe nse, but he did not ca ll any witnesses or pre sent any

new e x hibits. The jury returne d g uilty verdic ts on counts 1, 2, 3, 5, and 7 as char g ed, finding specific ally with rega rd to count 7 that Sugg s, with the intent to defr aud, passed five of Cardona- Cruz’s SSI chec ks bear ing false or forg ed endorsements. The d i s t ri ct court sentenced Sugg s to 60 months of imprisonment on eac h count, to be serve d concur rently , followed by three y ear s o f s u p ervised rele ase. The court also order ed Sugg s to pay joint and sever al restitution to financ ial instit utions in the amount of $869,731.00. We have jurisdiction of this ti mely appea l under 28 U.S.C. § 1291. II. ANALYSIS A. F orged endorsem ents on U.S. Treasury checks Sugg s challeng es the sufficie ncy of the evidenc e to convict him on count 7 of the indictment. Count 7 char g ed that, betwee n Aug ust 10 and Dec ember 31, 2004, Sugg s knowing ly and with intent to defr aud passed, u t t er ed , or publ ished one or more U.S. Trea sury chec ks with an agg reg ate face value exc ee d i n g $1,000.00 and that those chec ks bore falsely made or forg ed endorse ments or signatures.

3The applicable statute provides that “[w]hoever, with intent to defr aud

. . . p asses . . . any

Trea sury chec k

. . . of the United States bear ing a falsely made or forg ed endorse ment or signature[] shall be fined under this title or imprisoned not more than ten y ear s, or both.” 18 U.S.C. § 510(a) (2). “I f the fa ce value of the Tr easur y chec k . . . or the a g g reg ate f ace value, if more than one Tr easur y chec k

. . . , does not exceed $1,000

. . . the pena lty shall be a fine under this title or i mprisonment for not more than one y ear , or both.” 18 U.S.C. § 510(c)

. We ordinarily revie w a challeng e to the sufficie ncy of the evidenc e by considering “whe ther, afte r vi ewing the ev i d en ce i n the l ight most favor able to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979); United States v. Kennedy , 714 F.3d 951, 956–57 (6th Cir. 2013). But we do not employ that standard of revie w if a defe n d an t makes a motion for judgme nt of acquittal under Fe dera l Rule of Criminal Procedur e 29 at the end of the g overnme nt’s case -in-chie f, but fails to rene w the motion at the close of all the evidenc e. See Kennedy , 714 F.3d at 957. S u g g s moved for judgme nt of acquittal under Rule 29 at the close of the g overnme n t ’s evidenc e, but he did not rene w the motion at the close of all the evidenc e. The omission re sults in

a forf eiture of his rig ht to chall en ge the sufficie ncy of the evidenc e to support conviction under count 7 unless the record demonstrates a “manife st miscarr iag e of justice.” Kennedy , 714 F.3d at 957 (quoting United St ates v. S w idan , 888 F.2d 1076, 1080 (6th Cir. 1989)). We will reve rse the conviction only if the rec ord is “devoid of evidenc e pointing to g uilt.” United States v. Kuehne , 547 F.3d 667, 697 (6th Cir. 2008) (quoting United States v. Carnes , 309 F.3d 950, 956 (6th Cir. 2002)). Be fore delving into the trial evidenc e in suppor t of count 7, we must a ddress a discrepa ncy in the parties’ views conce rning the elements the g overnme nt must prove bey ond a rea sonable doubt

4to obtai n a conviction under § 510(a) (2). Wit hout citation to authority , Sugg s contends the

g overnme nt was require d to prove five elements: (1) the defe ndant passed or uttered a forg ed U.S. Trea sury chec k; (2) the Trea sury chec k bore a falsely made or forg ed endorse ment; (3) the defe ndant knew the Trea sury chec k bore a falsely made or forg ed endorse ment; (4) the defe ndant had the intent to defr aud; and (5) the fac e value of the Trea sury chec k or the ag g reg ate fac e value of the Trea sury chec ks totaled more than $1,000.00. A ppellant’s B r. at 15. By contra st, the g overnme nt a sserts it is not require d to prove t h at t h e d efe ndant knew the Trea sury chec ks bore falsely made or forg ed endorse ments; rathe r, it must prove four elements only : the first, second, and fourth elements listed above a nd that the def

endant a cted knowing ly

and willfully

. The g overnme nt’s formulation of the elements on appea l, w hich is bor rowe d from Bobb v. Attorney Gene ral , 458 F.3d 213, 227 (3d Cir. 2006) (citing United States v. Rosario , 118 F.3d 160, (3d Cir. 1997)), fails to include the require ment that the g overnme nt prove the ag g reg ate fac e value of the Trea sury chec ks exceede d $1,000.00. The statute require s such proof to obtain a fe l ony conviction. 18 U.S.C. § 510(a) (2) & (c)

. The Third Circuit noted in Bobb that the monetary element was met in that case beca use the defenda

nt pled guilty to an indi ctment establishi ng a los s g reater t han $10,000.00. Bobb , 458 F.3d at 227. Thoug h not at issue in Bobb , proof of value ex ce ed i n g $1,000.00 is a nec essar

y element of

the fe lony

offe nse. W e h av e n o t had occa sion to decide whether , to obtain conviction under § 510(a) (2), the g overnme nt must prove that the def endant kne w the Trea sury chec k bore a

falsely made or forg ed endorse ment or si g n ature

. The Third Circuit did not require such proof in Rosario and Bobb , nor d i d t h e S econd Circuit require it United States v. Hopkins , 853 F.2d 118, 119 (2d Cir. 1988) (per curiam). I n Hopkins , t h e court rea soned that the lang uag e of § 510(a) (2) does not impose any

5“r equire ment that a person who passes a Trea sury chec k with a forg ed endorse ment specif i ca l l y know that t h e en d o rs em en t is forg ed.” Id. The court found “no rea son to believe that Congr ess intended any

thing oth er t h an t h e express languag e of the statute, and no rea son for us to inquire bey ond those words.” Id. Trac king the ex p re ss lang uag e of § 510(a) (2), count 7 of t he indi ctment aga inst Sugg s did not specific ally char g e that Sugg s knew the T rea sury chec ks bore f

alse or forg ed endorsements or signatures. But the g overnme nt’s proposed jury instruction on count 7 included as the third element “that defe ndant knew that the Trea sury chec k bore a falsely made or forg ed endorse ment.” The district court rea d the g overnme nt’s proposed instruction to the jury with only minor sty listi c c h a n g es and neither party objected. This explains why Sugg s now repe ats on appea l the same five elements the district court rea d to the jury

. The leg al bas i s fo r g iving the instruction is not reve aled in the

rec ord, but beca

use the g overnme nt specific ally reque sted and rec eived an instruction that require d it to meet a highe r burden than the statute may require , we will measure the g overnme nt’s proof in this case ag ainst that highe r burden. The parties have not reque sted a specific ruling delineating the elements of the crime, and we do not rende r a definitive ruling on whether § 510(a) (2) require s the g overnme nt to prove that the defe ndant knew the Trea sury chec k bore a false or forg ed endorse ment or sig nature

. Turning ag ain to the evidenc e, Sugg s co n tends that the g overnme nt failed to prove the endorse ments on the five Trea sury chec ks wer e falsely made or forg ed and that he knew they wer e; that he intended to defr aud the g overnme nt; and that the ag g reg ate fac e value of the chec ks exceede d $1,000.00. He also contends t h at one Treasury chec k introduced into evidenc e was dated outsi de the time fra

me spec ified in count 7 of the indictment. The trial evidenc e contra dicts eac h of these

6arg uments. Be cause the rec ord is not devoid of evidenc e poi n t i ng to Sugg s’s g uilt, we conclude

there has not be en a manifest miscarr iag e of justice war ranting reve rsal of the conviction on count 7 for insuff

icient evidenc e. See Ke nnedy , 714 F.3d at 957; Kuehne , 547 F.3d at 697. The g overnme nt proved that the endorse ments on the five Trea sury chec ks wer e not the signatures of the named pay ee, Aida Cardona- Cruz, and t h at Sugg s knew the endorse ments wer e falsely made or forg ed. Acc ording to the evidenc e, in late 2003 Sugg s helped Cardon a- C ru z ’s g randson, Carlos Crespo, take owner ship of a building at 3460 West 58th Street in Cleveland, Ohio, by submitt ing false documentation to a lending instit ution to obtain a mortg ag e. Sugg s, Crespo, and Cardona- Cruz all lived in separ ate apartments at that addre ss. At that time, C ar d ona-Cruz was in her seventies and suffe ring from mem o ry l o s s . She did not know Sugg s or have any rela tionship with him. A native Puerto Rican, Cardona- Cruz spoke Spanish and littl e Eng lish. S h e re ce i v ed monthly SSI chec ks from the U.S. Trea sury . For sever al months in mid- to late-2004, Cardona- Cruz lived in Puerto Rico, but she failed to notify the So cial Security Administration to stop sending chec ks to her Ohio addr ess. The apar tment mailbox es at Crespo’s proper ty sat near eac h other, and Sugg s put the names of his fictitious entities on three o f t h em . Acc ording to Crespo, Sugg s “wa s alway s pretty much paying attention to the mail.” When Cardona- Cruz’s J une 2004 SSI chec k arr ived in the mail, Sugg s handed the chec k to Crespo, wh o ca s h ed i t at Gas USA. Crespo claimed he did so with his g randmother ’s permission, keeping $150 as rent and sending her the rest. I n J uly 2004 Crespo asked Sugg s to retrie ve Cardona- Cruz’s SSI chec k fro m t h e mail and slide it under Crespo’s apar tment door, and Sugg s complied. Crespo also cashe d that chec k at Gas USA. There afte r, Crespo did not

rec eive his g randmother ’s SSI chec ks. He asked Sugg s if he had seen the chec ks, but Sugg s told him

7that none had arr ived in the mail. Crespo could not think of any rea son why Sugg s would have the

chec ks. When a Secre t Service a g ent appr oache d Crespo to inquire about Car dona-Cruz’s ca shed SSI chec ks, Crespo admitted that he signe d and cashe d the first two, but he thought the g overnme nt stopped sending the chec ks afte r his g randmother moved awa y . Crespo repa id Gas USA for the two chec ks he ca shed there

. After Cardona- Cruz returne d from Puerto Rico in late 2004, she moved to Michig an to live with her g randda

ug hter, Eliz abeth Crespo-Pattah. Cardona- Cruz did not reme mber whether she had closed her social secur ity case when she went to Puerto Rico. On J anuar y 18, 2005, Crespo-Pattah

acc ompanied her g randmother to the local social secur ity office wher e they lear ned that her case was still open, her SSI chec ks wer e being delivere d to her old apar tment in Cleveland, and the chec ks had been c ashed. The ag ency repr esenta tive asked Cardona- Cruz to complete a form rela ting to the September 2 0 04 chec k for the purpose of starting an investigation. This form war ned the claimant that sh e could be prosec uted under fede ral law for making a false statement or claim. Crespo-Pa t t ah translated and explained the form to her g randmother , and then filled in the answe rs to the questions

as Cardona- Cruz g ave them. Cardona- Cruz understood why the form was being completed, and she signe d it. Crespo-Pattah signed the form as a witness to her gr andmother’ s signature. J ust above the signature lines, the form stated that the claim was being made for the proce eds of the chec k and

war ned that lega l action could ensue if the claimant rec eived and cashe d chec ks to which she was not entitled. On the second part of the form, Cardona- Cruz cer tified that she answe red the questions truthfully to the best of her knowledg e, ag ain sig ned the f orm, and pre sented thre e more examples

8o f her signature. The social secur ity repr esenta tive also require d Cardona- Cruz to pro v i d e a handwr iting exemplar that c onsisted of multipl e re petitions of her sig nature

. Crespo-Pattah authentica ted the claim form and t h e handwr iting exemplar during her
t es t i m o ny . Having assisted Cardona- Cruz with her business matters betwee n 2003 and 2005 and having w it

n e s s e d Ca r d o n a - Cr u z w r it e h e r s ig

n a tu r e n u merous times, Crespo-Pattah was very familiar with her g randmother ’s handwr iting and sig nature

. Crespo-Pattah a

nd Cardona- Cruz later retur ned to the socia l security

office to examine six to eig ht SSI chec ks made pay able to Cardona- Cruz that had been endorse d by someone and passed. The endorse ments did not match Cardona- Cruz’s signature. At trial the prosec utor introduced into evidenc e the chec ks for the months of September throug h Dec ember 2004, and J anuar y 2005. The J anuar y chec k was dated Dec ember 30, 2004, and deposited on Dec ember 31, 2004, within the time frame cha rg ed in count 7 of the indictment. Crespo-Pattah testified that the endorse ments on the five chec ks did not match CardonaCruz’s signature beca

use of a differ ence i n handwr iting and beca use Cardona- Cruz customarily signe d both of her last names. Three o f t h e fi v e ch ecks were endorse d “Aida Cardona.” CrespoPattah did not know who actua lly endorse d the chec ks. Cardona- Cr u z d i d n o t k now Sugg s and Crespo-Pattah could think of no rea son why Sugg s would have posse ssion of Cardona- Cruz’s SS I chec ks. Crespo-Pattah explained that Cardona- Cruz endorse d the Fe bruar y 2005 chec k, which was

rec eived a t their Michig an addr ess. The prosec ution a lso pr esente d testimony of Yvette Fe liciano from the Cleveland office of the S ocial S ecur ity Administra t i o n . She conducte d an investi g ation into Cardona- Cruz’s missing chec ks. By revie wing the documents in the ag enc y ’s file, Fe liciano knew that Cardona- Cruz had

9visited a social secur i t y o ffice to inquire about her chec ks. She told the jury that Cardona- Cruz

signe d a claim form under penalty of perjury stating that she did not cash any of the chec ks beca use she was in Puerto Rico and she did not authorize anyone els e to cash the chec ks on her behalf

. Fe liciano authentica ted Gover nment Ex hibits 12 throug h 16 as the five SSI chec ks made pay able to Cardona- Cruz that C ardona -Cruz swore she did not re ceive or ca sh. Fe dera l ag ent J eff

rey Maslar te stified that, during execution of a sear ch war rant a t Sugg s’s home, he showed Sugg s a copy of Cardona- Cruz’s September 2004 SSI chec k. Sugg s admitted that he for g ed the e ndorsement of Cardona- Cruz. Other evidenc e confirms that the five chec ks wer e deposited into ba nk acc ounts c ontrolled by Sugg s and that the fac e value of the chec ks totaled $2,835.00. J ennife r Mattingly , loss preve ntion manag er for PNC Ba

nk’s northern Ohio marke t, told the jury that she examined the bank rec ords and signature car d for a money marke t saving s acc ount known as the Vande ver Revoca ble L iving Trust

o f Delew are [si c] (VL T). The acc ount documents listed Sugg s as the trustee for the acc ount. T o open the acc ount on J une 18, 2004, Sugg s was required to show identification. He deposi t ed one penny that day and in Au gu s t d ep o s i ted $25. On September 17 and October 1, 2004, Sugg s deposited Cardona- Cruz’s September and October SSI chec ks, eac h in the amount of $564, into his VLT ac co unt. When Sugg s closed the acc ount on November 1, 2004, it was overdr awn by $9 7 , resulting in a loss to the bank. Nora Koepf

, an investigator with Charter One Ba nk, testified about bank rec ords rela ting to

a chec king acc ount held in the name of J ames & Albert Group L L C, a fictitious business cre ated by Sugg s. Sugg s deposited three of Cardona- Cruz’s SSI chec ks—two in the amount of $564 and one

10in the amount of $579—into this acc ount for the months of Novemb er an d Dec ember 2004 and

J anuar y 2005. All of this evidenc e supports the jury ’s finding bey ond a rea sonable doubt that the endorse ments on five of Cardona- Cruz’s U.S. Trea sury chec ks issued betwee n September 1, 2004 and Dec ember 30, 2004, wer e forg ed. Be cause Sugg s admitted to a fede ral ag ent that he forg ed one chec k and beca

use all five chec ks wer e deposited into bank acc ounts he controlled, the jury

rea sonably could have i n fe rr ed that Sugg s forg ed the other four chec ks or t hat he knew they wer e forge d

. The g overnme nt produce d witnesses who authentica ted Cardona- Cruz’s signature on the social secur ity claim form and the handwr iting exemplar

. Fe dera l Rule of Evidence 901(b)( 3) permits lay

persons serving on the j ury to compar e si g nature s on documents with other sig nature s that have been authenticated. See U nited States v. Saadey , 393 F.3d 669, 679 ( 6th Cir. 2005). By this method, the jury was ab l e t o co mpare the endorse ments on the five chec ks deposited into Sugg s’s ac counts ag ainst the authentica ted sig nature s of Cardona -Cruz. The jury was a lso able to

c o mp a r e the endorse ments on the five chec ks deposited into Sugg s’s acc ounts with the endorse ments

on the two chec ks Carlos Crespo admitted passing

. The prosec ution was not require d to produce an expert witness to give an opinion about the handw riting on the various docume nts. Id. I n weig hing the cre dibilit y of the witnesses, the jury re solved any discrepa ncies in the testimony conce rning whethe r Ca r d o n a - Cr u z g a v e Ca rlos Crespo permission to cash her chec ks. The jury rationally could have reje cted Sugg s’s testimony that he did not forg e the chec ks, that he did not know the chec ks wer e forg ed, and that he deposited the chec ks into acc ounts he controlled only beca use Carlos Crespo asked him to cash the chec ks. Finally , the jury rea sonably

found, based on

11the evidenc e, that Sugg s had the intent to defr aud the g overnme nt and that the ag g reg ate fac e value

of the U.S. Tre asury

chec ks deposited into Sugg s’s ac counts exceede d $1,000.00. We find no merit in the contention that Sugg s was prejudice d by the introduction into evidenc e of Cardona- Cruz’s Fe bruar y 2005 SSI chec k

. Sugg s did not object to admission of the exhibi t, but in any event Eliz abeth Crespo-Pattah testified that Cardona- Cruz rec eived the chec k in Michig an and endorse d it. The p ro s ec u t i o n did not use this chec k dated outside the time frame specifie d in count 7 to o b t ai n co n viction on that count. The check was offere d to show CardonaCruz’s a uthentic endorse ment on an SSI chec k rec eived afte r she chang ed her addre ss at the social

secur ity office

. Be cause the rec ord contains strong evidenc e of g uilt and is not devoid of evidenc e that Sugg s committed the crime char g ed under § 510(a) (2), we conclude there has not been a manifest miscarr iag e of

justice war

ranting reve rsal of the conviction on count 7 for insufficient evidenc e. See Kennedy , 714 F.3d a t 957; Kuehne , 547 F.3d at 697. B. Conf rontation rights and h earsay e xception Sugg s next argues that the district court err ed in permitting Eliz abeth Crespo to testify about Cardona- Cruz’s missing social secur ity chec ks and in admitting into evidenc e Gover nment Ex hibit 18, the claim form Cardona- Cruz submitt ed to the Social Security Administration about the missin g S ep t em ber 2004 chec k. He contends this evidenc e constituted inadmissible hear say and violated his confr ontation rig hts under the Six th Amendme n t. See Crawf ord v. W ashington , 541 U.S. 36 (2004). The district court denied Sugg s’s pretria l motion in limine seeking to exclude this evidenc e. The c ourt ruled that Elizabeth Crespo- Pattah could “testify if she has pe rsonal knowledg e of w hat

12went on with respe ct to these Social Security ch ecks.” R. 131 Pag e I D 1280. Rely ing in part on

United States v. Cromer , 389 F.3d 662, 675 (6th Cir. 2004), the court char acte rized the claim form

as non-testimonial, reje cting Sugg s’s position that admitting the exhibi t into evidenc e would violate the Confrontation Clause. The court nonetheless cautioned the prosec ution “not to g o too far .” Id. at 1281. We ordinarily

revie w the district court’s evidentiar y ruling s for an abuse of discretion, see United States v. Rodriguez-Lopez , 565 F.3d 312, 314 (6th Cir. 2009), but we “re view de novo claims that the admission of evidenc e violated the Confrontation Clause.” United States v. J ohnson , 581 F.3d 320, 325 ( 6th Cir. 2009). The Confrontation Clause bars the admission of out-of-c ourt testimonial statements made by an unavailable witness that are offe red to prove the truth of the matter asser ted if the defe ndant did not have a previous opportunity to cross-e x amine the witness. Crawf ord , 541 U.S. at 53

– 5 4 ; United Stat es v. B o

yd , 6 4 0 F.3d 657, 665 (6th Cir. 2011). “I t is the testimonial char acte r of the statement that separ ates it from other hear say that , wh i le subject to traditional limit ations upon hear say evidenc e, is not subject to the Confrontation Clause.” Davis v. W ashington , 547 U.S. 813, 821 (2006). I f a statement is no t testimonial, Confrontation Clause principles do not apply

. See W horton v. Bock

ting , 549 U.S. 406, 420 (2007); Johnson , 581 F.3d at 325. Testimonial statements are “directed at establishing the fac ts of a past crime, in order to identify (or p ro v i d e ev i d en ce to convict) the perpe trator.” Davis , 547 U.S. at 826. I n deciding whether a statement is testimonial, we ask “whe ther the decla rant intends to bear testimony ag ainst the acc used. That intent, in turn, may be deter mined by query

ing whether a rea sonable person in the

13decla

rant’s position would anticipate [her] statement being used ag ainst the acc used in investigating and prose cuting the cr ime.” Cromer , 389 F.3d at 675. Cardona- Cruz signe d the claim form and provided a handwr iting exemplar at the reque st of the Social Security repr esenta tive in the ordinary course of business for the purpose of launching an ag ency investigation into a missing chec k. Her signature itself was not hear say , was not testimonial, and its admission did not violate Sugg s’s confr ont at i o n ri g ht. The claim form itself is proper ly char acte rized as a business or public rec ord of the Social Security Administration. See Fe d. R. Evid. 803(6) & (8 ); United States v. Miller , 394 F. App’x 18, 21 (4th Cir. 2010) (noting social secur ity employ ee, althoug h not the rec ords custodian, could authentica te rec ords from a social secur ity file). Assuming arguendo that the asser tions in the claim form were t es t imonial hear say , we conclude never

theless that admission of the form was har mless err or. See United States v. Hende rson , 626 F.3d 326, 334 (6th Cir. 2010) (“[A] n err or m ay be deemed har mless if the rec ord contains substantial evidenc e apar t from the improperly admitted evidenc e so that there is no

rea sonable probability that the admission made a differ ence to the jury ’s verdic t.”). I t was clea r that Cardona- Cruz’s chec ks wer e deposited in Sugg s’s acc ount and Sugg s admitted doing so. The core issue involved a cre dibilit y contest betwee n Sugg s and Carlos Crespo—whe ther Sugg s cashe d and deposited the chec ks at Crespo’s reque st with the understanding that Crespo had the authority to do

so. Crespo admitted that he had no such authority , denied endorsing the chec ks at issue, and claimed that he asked Sugg s, who lived in the same building, whether the chec ks had arr ived in the mail and Sugg s denied that they had. Sugg s testified that he did not live in the building, that Crespo’s fathe r beg an collecting the chec ks so Crespo asked Sugg s to interce pt the checks before his fathe r could g et them, that he did so and slid the chec ks under Crespo’s door until Crespo asked him to cash the

14chec ks, and that he never endorse d the chec ks and did not profit from the proce eds. Sugg s’s

testimony is inconsistent with the evidenc e that the chec ks wer e endorse d by someone and deposited in his acc ount, and there were no missing checks t hat m ight have been t aken by Crespo’s father. The SSI form added nothing to the evidenc e except Cardona- Cruz’s asser tion that the chec ks wer e cashe d without her permission, whi ch was clea r from the other evidenc e without reg ard to the statements on the for

m. See id. Fur ther, Eliz a b e th Cr e s p o - Pa

tt a h d id n o t r epeat in court any out-of-c ourt statements CardonaCruz made. Hea

rsay is a statement “the decla rant does not make while testify ing at the curr ent trial

or hear ing” and “a party offe rs in evidenc e to prove the truth of the matter asser ted in the statement.” Fe d. R. Evid. 801(c) ; United States v. Boyd , 640 F.3d 657, 663 (6th Cir. 2011). Crespo-Pattah communicated to the jury her own persona l know ledg e about events rela ting to he r g randmother ’s missing SSI chec ks, never straying from the scope of testimony imposed by the district court when it denied Sugg s’s motion in limine. At no point during he r testimony did defe nse counsel make a hear say objection. Acc ording ly , we conclude that the district court did not err in admitting CrespoPattah’s testimony

and that the a dmission of the claim form into evidenc e wa s harmless er ror. C. Jury venire Sugg s, an African American, next argues t hat hi s Six th Amendment right t o a jury chosen from a fair cross-se ction of the community was denied. He claim s t hat Afric an Americ ans are sy stematically underr epre sented in the pool of potential jurors c alled for jury duty in the Northern District of Ohio at Cleveland. I n his pa rticular case , the jury

venire included for

ty -six jurors, only two of whom we re A frica n Americ an, and one of those two wa s excused for c ause.

15“Whether a defe ndant has be en denied his rig ht to a jury selec ted from a fair cr oss-section of the community is a mix ed question of law and fac t, which we revie w de novo .” United States v. A l l en , 1 60 F.3d 1096, 1101 (6th Cir. 1998). The Six th Amendment demands that the jury venire repr esent a “fa ir cross-se ction” of the community

. Berghuis v. Smith , 559 U.S. 314 , 3 1 9 (2 0 1 0); Taylor v. Louisiana , 419 U.S. 522, 528 (1975). To show a prima fac ie vi olation of this requireme nt, Sugg s must demonstrate “(1) that the g roup allege d to be ex cluded is a ‘disti nctive’ gr oup in the community ; (2) that the represe ntation of this g roup in venire s from which juries are selec ted is not fair and rea sonable in rela tion to the number of such persons in the community ; and (3) that this underr epre sentation is due to sy stematic exclusion of the g roup in the jury -selec tion proce ss.” Duren v. Missouri , 439 U.S. 357, 364 (1979). Ex clusion is “sy s tematic” if it is “inher ent i n the particular jury -selec tion proce ss utiliz ed.” Id. at 366. Once a defe ndant establishes a prima fac ie case , the g overnme nt ha s the burden to justify the “infring ement by showing attainment of a fair cross s ection to be incompatible with a signific ant state intere st.” Id. at 368. Sugg s’s counsel f

irst raised a

n issue about t he racial compositi on of t he jury venire during voir dire as the parties and the Mag istrate J udg e discussed challeng es for cause . I n response to the objection, the court responde d: “The venire is what the venire is and there ’s [si c] way s to challeng e that. Right now is not the appr opriate w ay to challeng e the ve nire.” R. 130 Page I D 1125. During trial, outside the prese nce of the jury , defe nse counsel made a short rec ord to support the objection he made during voir dire. He prese nted statistics obtained from the 2010 United States Census for t h e Oh i o counties of L orain, Summi t, Cuy ahog a, and L ake showing that the Afric an Americ an population in those four counties combi ned is twenty -one perce nt. By compar ison, the

16Afric an Americ an composition of the jury venire wa s t wo t o t wo and one-ha lf perc ent. The

prosec utor pointed out that the Norther n District of Ohio includes more counties than the four mentioned. Def

ense counsel ag ree d, but he did not have statistics to prese nt for the other counties. He stated his belief that the perc entag e of Afric an Americ ans would be near twenty perc ent even if those counties wer e considere d. Having not conducte d the voir dire, the district court did not make any ruling

. Sugg s’s challeng e to the composition of the jury venire fails beca use Sugg s did not prese nt any evidenc e that the underr epre sentation of Afric an Americ ans was due to sy stematic exclusion of that g roup in the jury -selec tion proce ss, as require d by the third element of his prima fac ie case . See Duren , 439 U.S. at 364, 366; United St ates v. Smith , 463 F. App’x 564, 571 (6th Cir. 20 1 2 ). I t is incumbent upon the defe ndant to show more than that a particula r jury panel was unrepr esenta tive. See United St ates v. Odeneal , 517 F.3d 406, 412 (6t h C i r. 2 0 0 8 ); Allen , 160 F.3d at 1103. Sugg s

m ad e n o ef

fort to show that sy stematic underr epre sentation was “inher ent in the particula r jury

selec tion proce ss utiliz ed.” Duren , 439 U.S. at 366. Acc ording ly , we reje ct this challeng e to the jury venire as a ba sis for setting aside the c onvictions. D. Com petency t o stand trial Finally , Sugg s arg

ues that the district court err ed in finding him competent to stand trial, and that t h e co u rt should have g rante d his motion for a competenc y re- evalua tion. We revie w “the deter mination of whether there is rea sonabl e c a u s e to q uestion a defe ndant’s competenc e and to g rant

a competenc y hear ing under an abuse of discretion standard.” United States v. Ross , 703 F.3d 856, 867 (6th Cir. 2012). We exami n e t h e d i s t rict court’s fac tual finding s conce rning a defe ndant’s competenc e for

clea r er ror. Id.

17Sugg s rec eived a full competenc y evalua tion under 18 U.S.C. § 4241(a) in September 2010

afte r the district court g rante d his reque st for an evalua tion. The competenc y evalua tor, Rodney B. Delane y , Ph.D., revie wed materia ls he rec eived from variou s source s, conducte d a series of interviews with Sugg s over four day s, and administered a battery of tests to Sugg s. Dr

. Delane y offe red his opinion, with a rea sonable deg ree of clini ca l cer tainty , that the psy cholog ical and emoti o n al s y

m p toms Sugg s was experiencing did not rise to a level that would interfe re with his ability to assist proper ly in his defe nse and that he was competent to proce ed to trial. Upon rec eipt of the competenc y repor

t and following a competenc y hear ing, the district court ruled that Sugg s was competent to stand trial. The pretrial services office later refer red Sugg s to E d wa rd Dut ton, M.D., for a psy chiatric evalua tion. He issued a re port on May 16, 2011, finding that Sugg s was compe tent to stand trial. This document is not in the recor d so we c annot re view it. I n the motion to re- evaluate competenc y filed on J anuar y 12, 2012, five day s b ef o re trial, defe nse c o u

n s e l r e p r e sented that Sugg s’s behavior had become incre asing ly alar ming, indicating that

a competenc y re- evaluation was war rante d. The district court held a hear ing on J anuar y 17. Def ense counsel called as a witness Sugg s ’s trea ting psy chiatrist, Dr. Olufunk Fa jobi, but she declined to testify beca

use she had been instructed not to rele ase any information about Sugg s. Upon questioning by the court, Sugg s acknow ledg ed that he had prohibited Dr. Fa jobi from testify ing, but later he g ave the court permission to ask her a few lim i t ed q u estions. Dr. Fa jobi had not trea ted Sugg s in the prior thirty day s or made any chang es to his medication. She estimated she had not seen Sugg s for two months, but he was sc heduled to see her on a regular ba sis every

three months.

18Sugg s next called as a witness Colleen Smit h, a licensed profe ssional clinical counselor.

Sugg s g ave express permission for Smit h to testify

. She announce d she was not qualified to rende r an opinion on mental compete ncy to stand trial, but she stated she had counsele d Sugg s ever y two

wee ks for fiftee n months for a total of thirty -three sessio n s as part of his pretria l service s supervision. Although Sugg s mentioned in the initial evalua tion that he experience d “some h al l u ci n at ions of sorts,” she was not awa

re that Dr. Desa i had diag nosed delusional disorder a n d u nspecifie d psy chosis

on Aug ust 15, 2011. He was very consistent in attending counseling sessions and participa ted during the sessions. He never descr ibed delusions or hallucinations of any kind. Smit h met with Sugg s on De ce mber 5 and 20, 2011, and J anuar y 13 and 16, 2012. The sessions focuse d on manag ing h i s anxiety and frustration about g oing to trial. She felt Sugg s’s mood had improved over time and he

was better able to control fee lings of depre ssion and anxiety

. She believed Sugg s demonstrated odd

or ecc entric persona lity traits. Sugg s continued t o t ak e p rescribed medication and demonstrated

resour cef ulness in solving persona l problems. She did not notice during their sessio n s i n the previous two months that he display ed any bizarre sy mptoms or diminis hed mental capa ci t y . I n addition to Smit h’s testimony , defe nse counsel ref err ed the court to a May 5, 2010 Social Security Administration application indicating that Sugg s suffe red from psy chosis and delusional disorder. The court called as a witness S u ggs ’s p robation office r, Kar a Cabane s, who beg an supervising Sugg s in J anuar y 2010. She met with him persona lly at least once eac h month and had

wee kly telephone contac t with him. She was awa re that Sugg s exhibi ted depre ssive sy mptoms due to an unstable housing situation, the upcoming trial, and phy sical ailments, but she did not observe any unusual or bizarre behavior that g ave her conce rn. During the most rec ent visit on J anuar y 11,

192012, Sugg s talked with her about his attorney and stated that he wanted to g o to trial. She did not

think he was una

ble to understand the case or that he w ould be unable to a ssist hi s lawy er at trial. Ba sed on this testi m o n y , t h e dis trict court denied the request for a re- evalua tion of m ental competenc y . Although Sugg s’s motion sug g ested that his competenc y had dete riorate d, the court found the “unanimous and consis t en t ” t estimony indicated there had been no chang e in Sugg s’s behavior ; if any

thing, he had improved. Having observe d Sugg s during the hear ing, the court found that he was very attentive, pleasa nt, and suitably dresse d. He answe red questions appropr iately and assisted his lawy er w ith information. T he court stated “[h] e seems very much awa re of who he is, wher e he is—he’s nodding y es as I speak—a nd understands acc ording to the testimony the g ravity of the trial and the conseque nces of the trial.” R. 92 Page I D 582. The court believed Sugg s’s anxiety about his upcoming trial was “a perf ectly normal rea ction.” Id. at 582–83. The court considere d medical evidenc e, as well as the trea tin g p h y s i cian’ s “laundr y list of diag noses” and Sugg s’s Social Security application, but the court did not identify any evidenc e justify ing a mental

re- examination. The court found Sugg s was able to understand the proce eding s ag ainst h i m and assist his counsel. Thus, the court f ound him competent to proce ed to trial. “A criminal defe ndant may not be tried unless he is competent.” Godinez v. Moran , 509 U.S. 389, 396 (1993). I ncompetenc y manifests in the lac k of suffic ient ability to consult with a lawy er with a rea sonable deg ree of rational underst an d i n g or the inability to understand the criminal proce eding s. See United States v. Mi l ler , 531 F.3d 340, 348 (6th Cir. 2008). In deter mining a defe ndant’s competenc e, the court must consider s u ch factors as evidenc e of the defe ndant’s irrational behavior , his demea nor in the courtroom, and any pri o r m edical opinion rela ting to

20competenc y to stand trial. Id. The court may also consider the opinion of the defe ndant’s attorney

.

See U nited States v. Tucke r , 204 F. App’ x 518, 520 (6th Cir. 2006). As require d, the di s trict court considere d the testimony prese nted at the hear ing, the prior competenc y evaluations, Sugg s’s Social Security disability application, medical rec ords, the diag nosis of trea ting phy sicians, defe nse counsel’s opinion of Sugg s’s competenc y as expressed in the motion, and Sugg s’s conduct in the courtroom. We are not persua ded that the district court’s fac tual finding s on competenc y made in light of all this evidenc e wer e clea rly err oneous, see Ross , 703 F.3d at 867, or that S ug g s’s due process rights wer e viol ated by the court’s decision t o ref use

a third mental competenc y examination. See United States v. Redditt , 87 F. App’x 440, 447–48 (6th Cir. 2003). The fac t that Sugg s may have experience d some level of mental disorder did not nece ssarily rende r him incompetent to stand trial. See Miller , 531 F.3d at 349. Two previ o u s co m p et ency

ev al u at ors opined that Sugg s was competent to stand trial, and the witnesses at the J anuar y 201 2 hear ing did not confirm that Sugg s’s mental conditi o n h ad deter iorated to the point that the trial should be postponed. There is no indication in the trial transcr ipt that Sugg s strug g led with mental difficulties during trial. He rebuff ed his attorney ’s advice on critica l matters—once i n reje cting a proff ere d plea ag ree ment and once when taking the stand to testify —but reje ctio n o f leg al advice does not establish incompetenc y , espec ially on this rec ord. See United States v. Moussaoui , 591 F.3d 263, 294 (4th Cir. 2010) (noting a defe ndant has an absolute rig ht to reje ct defe nse counsel’s advice and doing so does not make him incompetent)

. Sugg s appa rently had difficulty coping afte r the jury convicted him, requiring the court to chang e the c onditions of his release pendingsentenc ing. B ut the court did not find it nece ssary to

21take Sug g s into custody for his ow n protec tion, a nd in a ny event this post-trial deve lopment sheds littl e light on whether the district c ourt’s fac tual finding s made on the day befor e trial wer e clea rly

err oneous. Having car efully revie wed the evidenc e on the competenc y issue, we decline to overturn the district court’s de cision. III. CONCLUSION For all of the rea sons stated, we find no justification to reve rse t h ese convictions. Acc ording ly , we AF FI RM the judgment.

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