A former employee of the City of Gary who purchased more than $1.3 million in computer equipment and resold it for cash lost an appeal of her conviction and sentence before the 7th Circuit Court of Appeals on Tuesday.
Monique Bowling was responsible for ordering computer equipment for the city’s IT department. She began purchasing new Apple products from CDW, one of the city’s technology vendors, in May 2013, buying one to two items at a time. But by April 2015, Bowling had purchased more than 1,500 Apple devices totaling at more than $1.3 million. She mainly purchased Apple iPads, as well as other computer devices, and resold them for cash.
In order to cover up her scheme, Bowling submitted duplicate CDW invoices from legitimate purchases for payment. When the city’s balance ballooned over time, CDW froze the city’s account and enlisted a senior recovery analyst to assess the account. The analyst informed Gary’s mayor and controller of the immense debt. However, Bowling intercepted requested copies of the outstanding invoices intended for the city controller upon their arrival at city hall, signing for the package using a fake name.
Bowling also accessed the city controller’s email account and sent a fabricated email to the CDW analyst, stating that the city was experiencing a “cash flow issue” and that the outstanding balances would be resolved. Suspicions surrounding the email led to the unraveling of Bowling’s scheme, her employment termination and her subsequent indictment for fraud-related charges.
After a trial and conviction on one count of theft from a local government that received federal funds, the government dismissed Bowling’s remaining charges. But three weeks before trial, Bowling’s counsel was granted a motion for a hearing to determine Bowling’s mental competency to stand trial as well as a request for a court-ordered psychological examination pursuant to 18 U.S.C. § 4241.
The results of two months of studying Bowling at a federal medical center concluded that she was malingering and “faked mental illness,” and ultimately competent to stand trial. After finding the evidence to be “overwhelming and largely uncontroverted,” a jury found Bowling guilty and sentenced her to 63 months in prison, with an order to pay restitution totaling $1,386,430. She also received a two-level sentencing enhancement for obstruction of justice when the district court found that Bowling faked mutism and caused a one-year delay in the proceedings.
The 7th Circuit Court of Appeals affirmed Bowling’s sentence and conviction in USA v. Monique Bowling, 19-2110, first noting at the offset that the district court’s subject-matter jurisdiction is supplied by 18 U.S.C. § 3231, not 18 U.S.C. § 666. It further found that the federal funds element was met when the parties stipulated that the City of Gary as a whole received more than $10,000 in federal benefits in a one-year period.
The 7th Circuit also affirmed the district court’s admission of certain testimony from CDW’s senior analyst concerning the fake email sent by Bowling. When asked what she thought of the email at the time she received it, the analyst said she thought “there was some type of fraud going on.”
“Although Ms. (Vida) Krug used the word ‘fraud,’ a legal term in certain circumstances, the clear import of the testimony was that Ms. Krug used the term in the colloquial sense. A witness’s informal use of a term that may also be legal in character does not inexorably turn that testimony into improper lay testimony,” Circuit Judge Amy St. Eve wrote for the 7th Circuit.
In addition to finding that Krug testified based on her personal perception of the email at the time she received it and that the testimony was appropriate under Rule 701, the 7th Circuit concluded that Krug’s testimony about the email was direct evidence of Bowling’s attempt to stall the city’s ultimate discovery of her theft by fraud. Thus, there was no error in admitting the testimony under Rule 404(b).
Lastly, the 7th Circuit affirmed the sentencing enhancement after concluding that the district court’s factual finding that Bowling was malingering was not clearly erroneous and was more than a plausible finding.