*1
suppressed.
reviewing
tainted and should have been
After
the record with these
Morales-Zamora,
principles mind,
the manifestation of a hunch that
foul is afoot.1 Mangelson's We also believe admissions concerning universality of drivers' "weav- America, UNITED STATES of ing" in their lanes and the commonness of Plairitiff-Appellee, people's avoidingeye police contact with offi- driving significantly cers while undercut the v. rationality using objective these factors as McREE, Joseph Hale, Ann W. H. legitimacy stop. reasons for the of the In- Defendants-Appellants. deed, perfect if failure to follow a vector highway keeping eyes No. 90-9022. down the one's on suspect the road were sufficient reasons to person Appeals, United States Court of driving impaired, while a substan- Eleventh Circuit. portion public subject tial would be day privacy. each to an invasion of their Nov. 1993. Mangelson's any failure to initiate effort to sobriety determine the defendant's state of effecting stop equally telling. after He expanded scope inquiry of his without making any of the normal observations that employed impairment. are to determine question This failure calls into serious stop. coupled
real motive for the When peculiar aspects testimony, other as how he could tell defendant had a "with- of his such eyes, drawn look" when he could not see his
we do not believe a reasonable officer would grounds stop.
have found sufficient to effect a suggests This circumstance the motivation stop something for the was other than Mr. Lyons' ability to drive. Contrary magistrate judge's conclu- sion, indistinguishable this case is from and by stop pre- controlled Guzman. The was
textual and the seizure that followed was upon testimony stop. Moreover,although Additionally, magistratejudge to effectthe noted: "Af- stopped marijua- ter thevehiclewas na intoxicated."The thesmellcamefromthe the smellof aboutwhenhe firstdetectedthe smell supported Lyons confused,Mangelson the officer'sbeliefthat was is detectthe odoruntilafterthe of the truckto findthe vehicle first stated he did not testimony,however, passengergot was that out truck, registration.By notthedefendant. testimony time, The differencemakes the no more the seizureof the truck and its occu- driving ability illuminativeof the defendant's pants had been made. Mangelson than of the other reasons relied
Billy Spruell, L. Spruell Dubuc, PC, & Moran, Thomas Atlanta, R. GA, for McRee. Jake Waldrop, Federal Defender Program, Inc., Atlanta, GA, for Hale. McKenzie, Gale Asst. U.S. Atty., Atlanta, GA, Gannon, Thomas M. Dept, U.S. of Jus- tice, Appellate Div., Section —Crim. Washing- ton, DC, for U.S. TJOFLAT, Before Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, Circuit Judges. HATCHETT, Judge: Circuit In appeal interpreting 18 U.S.C. we affirm the appellants’ convictions and hold does not lose its property in interest erroneously issued cheek even circumstances recip- where the ient has nothing done to induce the issuance of the check. McRee statements false the various BACKGROUND (IRS) about agents Service Revenue Internal Reve- Internal February On the re- possession her assess- jeopardy (IRS) issued
nue Service check.1 fund against million of $1.9 amount *3 Montgomery in the Hale, Because still corporations. who was his Hale Joseph and erroneously issued IRS in prison the a prison at federal when incarcerated Hale was Tampa wife’s prior convictions at his former for arrived Alabama cheek Montgomery, deposit to gave wife residence, Hale his former perjury, and directed fraud on securities McRee, Paul Fort Walton in a and $359,380.25 Ann attorney to entire of the power appeal- in name. of her account attorney, purposes Beach, for bank Florida an Wagner, up- proof of The IRS required additional jeopardy assessment. bank the ing the When 29, check, July after consider- on the of jeopardy assessment endorsement held the Hale’s and on certi- appeal, letter Wagner a notarized 1985, and McRee forwarded ing the Hale Denial Hale a his 1985, mailed then directed 15, the IRS and April signature his fying No- with Beach Jeopardy Assessment the Fort Walton reopen of Appeal of wife to former Court. District to wife’s former Right Appeal name, using to his of tice in his account the appeal to right his Florida, not exercise Hale address. did Tampa, dis- a United States to assessment jeopardy began in the scheme involvement McRee’s court. trict an opened 30,1985, McRee July when around $340,000 approximately IRS collected an initial The bank Montgomery aat account be- sales of and seizures through next few During the deposit $100. moth- McRee, Hale, McRee’s and longing to included banking activities months, McRee’s jeopardy the 1985, er, partial 9, satisfaction (1) a McRee August as following: On however, failed, to (four $25,- The IRS assessment. checks cashier’s fifteen purchased assessment jeopardy $1,000 million checks, post $9,900 and one $1.9 checks, ten Conse- IRS account. computerized Hale’s bank Beach cheek) Walton from the Fort misinterpreted computer $200,- IRS quently, her for check personal using Hale’s overpay- $340,000 an as 1985, also approximately 9, (2) McRee August 000; on satisfaction partial than a for ment rather Hale cheek personal a cashed 1985, 5, July (3) On bills; assessment. jeopardy ninety-nine receiving $9,900, $100 check a refund generated computer three 1985, the IRS cashed 12, McRee August on amount wife in former and his to Hale Fort Wal- at the checks $25,000 cashier’s 1985, not discover IRS did $359,380.25. 13, (4) August bank; on ton Beach until check refund erroneous had issued at $9,900 check cashier’s a cashed McRee September, early bank, deposited and Beach Fort Walton $130,- $9,900 and for checks personal Hale’s months, and Hale During the next several (5) account; on bank Montgomery her 000 in trans- of financial a engaged in maze McRee account 1985, opened an 14, McRee August $359,380.25 in transform order actions bank, a depositing Marietta, Georgia, at a These cash. spendable into check refund 15, (6) check; August on $9,900 cashier’s less for thirty checks involved transactions Atlan- at an an account 1985, opened McRee three different $10,000, four banks than $25,000 cash- bank, a depositing ta, Georgia, state, casino a in a fourth states, a racetrack (7) 15 and check; August on ier’s same state, multiple trips in a fifth on check $9,900 cashier’s a deposited McRee expen- and day, extensive same bank on (8) bank; August on Marietta day in the each con- charged during the travel interstate sive personal Hale cashed a McRee explanations disingenuous process, version Beach Walton $9,500 the Fort at for check their need regarding employees bank $9,900 cashier’s another bank, deposited and currency about cash, at inquiries banks (9) August 20 bank; on Atlanta check (CTR) requirements, report transaction CTR, including and address name $10,- to file involving less than checks numerous 1. The every beneficiary, cash trans- on because, govern- transactor significant 000 is $10,000. involving than more action casinos institutions required financial 21, 1985, $9,900 McRee cashed a cash- interstate transportation of fraudulently con- ier’s day check each at the Fort Walton verted property in violation of 18 U.S.C. (10) bank; Beach August 26,1985, on McRee 2314. On July jury found Hale a personal cashed $9,900 check for at the and McRee guilty all on counts. Hale and bank, Marietta $9,900 and also withdrew McRee moved for judgment of acquittal, bank; (11) from the Atlanta August on 27 and alternatively, trial, a new alleging legally 28,1985, McRee personal cashed a check insufficient evidence to establish that the re- $9,500 $9,900 and also cashed a cashier’s fund check belonged to the United States or (12) cheek at the bank; Marietta Septem- on to establish that Hale and McRee acted with 2, 1985, ber purchased McRee sixteen cash- requisite specific intent. Hale and (ten $9,500 ier’s checks, checks $8,500 *4 two McRee also moved a for new trial claiming checks, $8,000 checks, $6,000 two check, one that the district improperly court limited voir check) $5,000 one and from the Montgomery dire to exclude questioning of prospective bank using personal a $139,048. check for jurors about whether fear of retribution from McRee continued visit prison Hale in reg- the IRS would affect their ability to be fair ularly throughout the time of these bank impartial. and On 16, 1990, October transactions. district court issued an denying order both motions. McRee’s activities also included financial transactions at the Canterbury Downs Race- ISSUE AND CONTENTIONS track in Shakopee, Minnesota, and the MGM Grand (1) Casino in Vegas, Nevada; Las on appeal, On Hale and McRee challenge 4, September negotiated McRee two their convictions claiming that the district $9,500 cashier’s checks at Canterbury Downs court erred in refusing to acquit based on: Racetrack; (2) September 5, on (1) McRee insufficiency of the evidence to support negotiated eight $9,500 cashier’s checks and their (2) counts; convictions on all improper $8,000 two cashier’s checks at Canterbury limitation of voir dire to exclude questioning Racetrack; (3) Downs September 9, on prospective of jurors about their fear of retri- negotiated McRee $8,500 two (3) cashier’s IRS; bution from the improper rejection $5,000 checks and also a cashier’s check at of their claim of racial jury discrimination in Casino; (4) MGM Grand on September Batson; (4) selection under improper exclu- 11,1985, purchased $25,107.10 McRee cash- sion of the testimony of Hale’s and McRee’s ier’s check from bank, the Atlanta then de- expert tax unduly confusing, consisting of posited this $6,000 cashier’s check and a legal opinions, and prejudicial under Fed. cashier’s check into her account at the Mar- 702, 704(a), R.Evid. 403; (5) improp- bank, ietta and also personal cashed a check er give refusal to ignorance an of the law $9,000. for Again, McRee visited Hale in instruction jury. In opinion, we prison during the period of these transac- discuss Hale’s and arguments McRee’s fact, tions. In telephoned Hale Canterbury the evidence was insufficient support their Downs Racetrack arrange for cheek-cash- conviction of unlawful conversion of govern- ing privileges for McRee. ment property under § 18 U.S.C. 641.2 We find of all Hale’s and McRee’s other claims of September, In 1985, the IRS sent Hale a error to be without merit and warranting no demand repayment of proceeds from further discussion. the erroneous cheek, refund which Hale re- fused. On August grand jury DISCUSSION
indicted Hale and McRee on seven counts
charging conspiracy to convert United States
We are asked to decide whether
pro-
property in violation
of
§
18 U.S.C.
con-
ceeds of an erroneously issued IRS refund
of
version United States property in violation
represent
check
government property for
of
18 U.S.C.
and engaging in
purposes
prosecution
criminal
under 18
panel
2. A
of this
opinion
court issued an
revers-
and ordered that the case be reheard en banc.
ing
convictions,
Hale’s and McRee's
McRee,
but
See United States v.
pertinent “supervision responds steals, or embezzles, purloins, Whoever to this applicable is not control” test use use or the to his knowingly converts properly instead case, argues sells, con- authority, another, or without section and McRee Hale prosecuted voucher, record, disposes of veys or retains States United 641 because thing of value money, or an IRS property interest agency any department States issued. mistakenly is check that refund thereof; or agree with conceals, the We receives, or retains Whoever determin test for control” “supervision and use or his it to convert intent to same inapplicable property, embezzled, ing government been to have knowing it gain, applied has Previously, this court this ease. ... stolen, or converted purloined test cases and control” “supervision $10,000 or than more fined not Shall mis dealing with section years, ten than more not imprisoned intermediate appropriation both. monies received entity that has *5 1976). reviewing (West In § 641 18 U.S.C.A. recipi eligible to disbursement for further 641, section under prosecution a conversion Hope, F.2d 901 v. States United See ents. following three the referenced court has this Cir.1990) (affirming a (11th 1013, 1019-20 (1) money property or the that elements: finding 641 after section under conviction (2) the that government; belonged to the su sufficient retained government that the the fraudulently appropriated defendant funds, over federal and control pervision the use use or his to own money property or gov the after diverted the defendant which so (3) did defendant others; the and that of to Dade funds the transferred ernment either the intent willfully with knowingly and development community County for use the deprive permanently temporarily 1041, 111 denied, 498 U.S. cert. projects), property. money or the use of owner (1991); United 702 713, 112 L.Ed.2d S.Ct. 887, Lanier, F.2d 920 v. States See United (5th 662, Cir. Smith, 664 F.2d 596 v. States Cir.) ele (noting the three (11th n. 62 896 section 1979) under (affirming a conviction that deal in cases referenced ments government main finding that the 641 after under section embezzlement over control supervision sufficient tained — -, denied, 112 S.Ct. U.S. 641), cert. fraudulently the defendant the funds (1991); also United see 166 208, 116 L.Ed.2d be in transit were the funds while obtained (11th 1666, Burton, 1570 F.2d 871 v. States work-study college federally funded a tween prose Cir.1989) an embezzlement (reviewing recipi intended the ultimate program 641, that requiring section under cution Rowen, 594 F.2d ent); v. States United element, second as the prove government the Cir.1979) un (affirming (5th a conviction 100 the lawfully into came property the “that govern finding the that after 641 der section defendant, and the the care of possession supervision sufficient maintained the fraudulently appropriated defendant federally funded of a funds over the control the use use or his own money property program, which assistance financial student others”). of denied, stole), 444 U.S. cert. the defendant (1979). 44 L.Ed.2d 62 S.Ct. 100 Property Government a check drawn involves case this Because the contend and McRee Hale funds, Treasury States directly United on ev legally insufficient presented government property obviously government is be which that must element on the first idence and control” drafted, “supervision the when prosecution proper 641 in section proved — determin- guidance provides limited They test States. belonging to the United ty prop- retains government ing re whether IRS erroneously issued argue erroneous- proceeds of an erty interest government not was cheek fund Treasury cheek. States ly issued did law, government because of a matter
981
Hence,
reject
we
Hale’s and
argu-
McRee’s
Treasury check. Accord United States v.
ment that the evidence was insufficient
Miller,
mere-
1210
Cir.1975)
ly
because the
did not prove that
(affirming a conviction under section 641 af-
supervision
exercised
and control over the
ter concluding that the
represented
by
proceeds of the erroneously issued IRS
an erroneously issued check did
pass
not
check.
federal
to the recipient,
and that
at all times retained
Hale and McRee
argue
a property interest
in the money).3
evidence was insufficient
law,
aas
matter
because the refund check
gov
ceased to be
Additionally, Hale and
argue
McRee
ernment property and became Hale’s proper
that the evidence was insufficient based on
ty upon
receipt. They
his
rely on dicta in
the absence
showing
evidence
decision,
Smith
where this court ob
Hale somehow induced the IRS to issue the
served
may
that “we
accept the argument
refund check.
reject
We
argument
that when an outright grant
paid
over to
based on the principles that
the Supreme
recipient,
end
utilized, commingled or
Court articulated in Morissette v. United
otherwise loses its identity,
money
States, 342
U.S.
72 S.Ct.
96 L.Ed.
grant
ceases
be federal.”
664;
596 F.2d at
(1952).
In construing Congress’s intent
see also Hope,
Morissette,
271-72,
of its
342 U.s. at
72 S.Ct. at
Lanier,
See United States v.
must construe the
of the conversion
Specific Intent
offense under section 641 in order to fill the
"gaps
larceny-type
Hale and McRee contend that evi
or crevices on the law on
legally
holding
dence in this case is
insufficient to
offenses." The
quires
in Morissette re
prove
third, specific
interpret
intent element under
that courts
section 641 in
government's
argue
order to balance the
interest in section 641. Hale and McRee
protection
they presented undisputed
showing
of its
and a defendant's
evidence
*7
being punished
"unwitting that Hale cashed the refund check with the
interest in not
urge
good
belief,
conversions." Hale and McRee
faith
based on advice from his
guilty attorney,
belonged
court to construe section 641 so that
that the check
to him.
persons may escape
Hale and McRee further assert that the evi
based on a fine distinc
tion in circumstances between those who in
dence shows that Hale believed the IRS had
government
already
enough
duce the
to issue a check which
seized more than
assets to
they
unlawfully,
convert to their own uses
satisfy
jeopardy assessment,
and thus
government
and those who use
funds for
they engaged
complicated
financial
unlawfully
having
their own uses
ly
after
initial
prevent
transactions in order to
what Hale
any wrongful
received the check without
wrongful
believed to be
seizures.
taking
impropriety. "Conversion,
howev
reviewing sufficiency
er, may
any
In
of the evidence
be consummated without
intent
claims,
light
keep
any wrongful taking,
we evaluate the evidence in the
and without
government
possession by
most favorable to the
and deter
where the initial
the converter
jury
entirely
Morissette,
mine whether
reasonable
could find
was
lawfuL"
342 U.S. at
requisite
271-72,
that the evidence established the
intent to either temporarily or permanently We reject each deprive government Hale’s and of its McRee’s property. Be- sufficiency of sides evidence arguments, circumstantial evidence of intent hold the regarding the evidence was legally transactions, maze financial sufficient to prove earlier, proceeds discussed government from the erroneously presented issued evidence IRS refund tending represented check govern- rebut Hale’s good McRee’s faith claims. For exam- 18 641. We ple, government presented also hold that government documents in presented suf- which Hale indicated his ficient awareness prove evidence that his that Hale and corporations suffering were MeRee such severe knowingly acted and willfully with the problems financial that non-IRS intent to deprive creditors government prop- its might paid not be in light of the jeopardy erty interest in the from the erro- assessment. As the argued, neously issued refund check. We find all Hale’s awareness of the insufficiency of his other claims of error to be meritless. Ac- assets made unlikely really that he be- cordingly, we affirm the Hale and MeRee lieved he satisfy could the jeopardy assess- convictions for convert, conspiracy to conver- ment, overpay let alone $360,- it with nearly sion, and the interstate transportation of addition, 000. In presented fraudulently converted property of the Unit- showing evidence that the IRS and various ed government. States financial institutions sent Hale and his attor- AFFIRMED. ney numerous notices of continuing seizures during the time of the July-September finan- EDMONDSON, transactions,
cial
Circuit Judge,
making it
dissents.
even more obvi-
ous that
the jeopardy assessment had not
BIRCH, Circuit Judge, dissenting:
been satisfied.
I respectfully
Moreover,
dissent. All law
to rebut
students
good
Hale’s defense of
are cautioned
faith
about this
reliance
kind of
on the
case in
counsel,
their
advice of
first
semester of
presented
law school—one in
evidence that
the at-
torney,
hard
facts make
law.
majority
friend of
bad
thirty
Hale’s for
years,
our
today
offered a
court
*8
opinion
verbal
precedent
establishes a
on the legality
that
of
cashing
places
the
in jeopardy
check after
of
only
prosecution
a moment’s
criminal
re-
flection,
research,
with
recipients
no
inquiries
no
who
or deposit
at
cash
mistakenly
the
IRS, no
government
consultation
issued
with Hale’s other attor-
checks—-even where the
neys, and no written
payee
notes.
did nothing
Based on the
to cause or
the
induce
tremendous circumstantial
specif-
evidence of
mistake. This Orwellian result
is reached
ic intent and the
rebutting
evidence
through judicial
the
interpretation of 18 U.S.C.
good faith,
claims of
we
§
hold that
govern-
(1988),
the
641
important
is an
issue of
present
ment did
sufficient
prove
evidence
impression.1
to
first
there
While
are
of
(11th
number
cases
Cir.1990)
in which
check majority’s re- The mail, thousands. by is in the typically to be payee, that to delivered observe is to of affairs It is that state property.” sponse to “government to deemed under section however, only Big if scope of “the property, that government between balance negligent appropriate bureau- or a an computer 641 strikes Brother’s otherwise, property the named government a of protection makes crat mistake — prosecu- fear of conversions.” may, innocent punishing without of payee/recipient avoidance govern- Thus, of recipients Thus, majority apparently tion, all it. the cash Id. at 982. un- hold checks, those who particularly innocent of the the sacrifice countenances Congress, of prop- as members such popular posts government of on the altar converter2 lawyers, defense criminal appointed or judges, machine some protection because erty —all be admonished employees, should majority and IRS con- But the erred. servant civil treasury check carefully very each per- scrutinize the that the observation us3 with soles any part of If all or they receive. that have will cashing the check receiving and son a “mistake” by check is that made payment “the government and that right a trial subject to recipient “error,” then that or doubt a reasonable beyond prove must still con- 641 prosecution 18 ‘knowingly and acted [recipients] This threat property. government version temporarily to either willfully the intent with includ- recipients, typical more also faces government deprive the permanently veterans, claimants, security ing social (quoting United Id. 982 property.’” at its majority opin- The retirees. service federal Lanier, 895 n. 62 F.2d v. 920 States involves clearly “this case states that ion Cir.1991)). refer- (11th “knowingly” The erro- an recipient receives where situation nothing to do majority has by the enced funds that representing neously issued check having occurred the error knowledge of recip- intended never presented As thereof. the amount Further, Op. at 981. Majority ient.” knowledge to be majority’s opinion, the gov- majority unequivocally “hold[s] of the the use proved relates retained at all times ernment is, erroneous portion of an property; erroneously of the interest properly the amount and above payment over Id. Treasury check.” States United issued treasury check. recipient due original). (emphasis at 981 Lanier, v. majority States cites United The Cir.1991) (11th proposi- for this F.2d 887 920 po- unconcerned majority appears plainly by our court decision tion. That re- check tentially thousands circuit, requi- to establish states: “In prosecution danger of to be in cipients will "[a]n unauthorized is defined Cir.1984) (involved (1st 2. "Conversion” social stolen 729 38 F.2d right owner- Carr, assumption and exercise checks); v. States security benefits belonging to personal chattels goods or ship over 1983) (the (11th "government 1108 Cir. another, of their condition the alteration bonds); savings stolen property” at issue was Any rights. unau- of the owner's the exclusion Cir.) O’Kelley, F.2d 758 v. United States of his deprives an owner act which thorized security (focused benefits upon stolen social time. or for indefinite property permanently denied, checks), S.Ct. U.S. *9 cert. 464 wrongful dominion exercise of and Unauthorized (1983); v. McIn 124 United States 78 L.Ed.2d property, to personal over another’s and control Cir.1981) (5th tosh, (grant trans F.2d 80 655 rights of own- with or inconsistent exclusion attorney by Home closing Farmer's ferred to Ed.1991). (6th Dictionary 332 Law er.” Black's debts), cert. satisfy grantee's to Administration 1450, 948, denied, L.Ed.2d 71 102 S.Ct. I, U.S. my 455 col- judicial like say "us” because 3. I Forcellati, checks, (1982); F.2d 610 treasury v. United States periodic 662 leagues, receive Cir.1979) (involved treasury (1st lodging reim- stolen salary 25 check), travel and and both check, 944, denied, rare, pay S.Ct. 100 445 U.S. even cert. It is bursement. (1980); to 1342, month United States constant from and L.Ed.2d 778 total remains 63 (med- Cir.) sorts Rowen, (government of all Changes in deductions 98 month. v. union, FICA, plan, ical, savings by credit pension, college but to embezzled transferred funds change presents an etc.) regularly. Each denied, 100 occur 444 U.S. employee), cert. error. opportunity for (1979). L.Ed.2d 44 62 S.Ct.
985
intent,
site
government
criminal
the
need
of the erroneously issued check.
only prove that
knowingly used The majority interprets
defendants
section 641 principal-
government property for their own purposes
ly upon a declaration of policy that seeks to
in a manner
deprived
that
the
close statutory gaps. In actuality, major-
the use of the property.” Id.
(empha-
at 895
ity uses section 641 duplicitously to serve the
added).
sis
recipient
When the
govern-
of a
already performed
functions
by sections 2232
deposits
ment check
cheek,
or cashes the
he
and
However,
where construction of a
has intentionally
knowingly
used the
criminal
involved,
statute is
Supreme
property for his own purposes. Little com- Court has cautioned:
fort springs from the
proof
burden of
to
Even were the statutory language ...
majority
which the
alludes.
ambiguous, longstanding principles of leni-
Accordingly,
ty,
the majority’s
con-
demand resolution
ambiguities
statute,
struction of this
in
a typical govern-
criminal statutes in favor of the defen-
ment worker
dant,
recipient
benefits
subject
Simpson
is
States,
v. United
435 U.S.
to
prosecution
successful
14-15,
govern-
when the
98
913-914,
S.Ct.
55 L.Ed.2d
ment check
(1978)
she receives is in error
70
(applying
she
rule
lenity to federal
receives even a little bit too much —not
statute that
so
would
penalty),
enhance
pre-
much as
flag
to red
overpayment,
clude our
but
resolution of the ambiguity
certainly an amount
against
different
petitioner
re-
that
on the
general
basis of
previous
in
ceived
checks—where
recipi-
policy
declarations of
in the statute and
ent knowingly uses
legislative
that overpayment
history.
“for
See Crandon v. United
[her] own purposes
States,
in a
[152],
manner
494
[160],
that de-
U.S.
110 S.Ct.
thq
prived
of the use
(1990) (“Because
guably criminally prosecutable under 18 2232 for attempting to conceal the