United States v. Donald E. Meadows

TUTTLE, and RU- Before GODBOLD BIN, Judges. Circuit TUTTLE, Judge: Circuit who, employee Meadows was a CETA1 error, through an received administrative until duplicate paychecks and cashed them was con- mistake was discovered. He dupli- “obtain[ing] fraud” the victed in violation of 18 U.S.C. paychecks cate improper- district court 665. Because the § in its of fraud charged definition ly case, we facts of the applied and remand for a new trial. Other reverse may arise appeal raised which issues are considered. on retrial also I. FACTS. was indicted on one count

Meadows 665.2 relevant violating 18 U.S.C. § director, Whoever, officer, (a) being Comprehensive Training Employment of, program, agent, emplоyee or Act of 1973. connected Under CETA with, any agency receiving grants capacity Department financial United States of Labor Comprehensive Employ- money pro- projects to individual cities to fund assistance under embezzles, Training viding job experience. Act of ment and education and steals, willfully misapplies, obtains assets, funds, moneys, provides: 2. 18 U.S.C. World, facts are Black begun these. Meadows had Meadows received another call work- ing employee January, CETA pick up from his counselor to an Environ- when he was hired train as an Industrial paycheck City ment Streets’ Hall. Waste Inspector for the Atlanta Depart- picked He deposited also this сheck and Streets, ment of Environment and Bureau personal Thereafter, it in his bank account. dispute of Pollution A Control. arose as to October to December wage upon scale which Meadows was to personally Meadows and on his own initia- paid, long and after a series of discus- City tive went to Hall each week after department sions with various heads and receiving paycheck his normal from Black mayor himself —in which Meadows al- World and claimed the additional check leged that he being was discriminated from the Department of Environment and against was transferred to another —he Streets. The net amount of each additional position CETA with the Institute of the exactly check was the same as he had been Black Department World in the of Commu- earning each week at the Bureau of Pollu- nity and Human Development. As a result tion Control. previous salary grievances, it was agreed that pay Meadows’ scale would be December, 1976, picked up Meadows raised at position his new with the Institute yearly bonus check from Black World. of the Black Although World. Meadows roughly Since check was one-half of a World, was transferred to Black he was told bonus, year’s full complained Meadows that he would paid continue to be at the the Atlanta supervisor personnel of CETA lower scale pick and was to up his сhecks at picked records. He up also a full bonus the Bureau of City Pollution Control in Hall City check at Department Hall from the until he could be switched payroll from one Environment and Streets. later, to the other. A few weeks Meadows analyst When a financial looked into began to paychecks receive his at the in- complaint regarding Meadows’ his Black salary creased directly scale from Black bonus, World it was discovered that Mead- quit World and going City Hall pick receiving ows had been paychecks two checks from the Bureau of Pollution Control. result of an administrative error at Inspection Monitoring division of the September just On one week 1976— Bureau of Pollution Control. The time- after Meadows had regular received his keeper had been instructed to continue re- paycheck from Black World —he received a porting though Meadows’ time even he was counselor, call from his CETA informing longer working no there to insure that he him that there paycheck was a for him at remained payroll on a CETA until he was City Hall from Department of Environ- ment and transferred to another picked position. Streets. Meadows CETA up the check and later, cashed it. When picked up One month Meadows was on pay- again while receiving his World, normal check from roll at Black no one informed the property subject grant lаrceny which are the may of a or issue of fraud. While have pursuant contract of appropriate theory assistance upon to this Act been a more which to $10,000 see, shall be present fined not more than jury, g., Thaggard im- or the case to the e. prisoned years, for not (5th 1965); more than two v. United 354 F.2d 735 Cir. both; embezzled, misap- if but the amount Rogers, (4th so United States v. 289 F.2d 433 Cir. stolen, plied, 1961); Perkins, (2d or obtained fraud does not R. Criminal Law at 254 ed. $100, 1969); exceed he shall be holding appealed by fined not more than the court’s was not $1,000, imprisoned powerless more than one and thus we are year, or both. generally review it. See v. States Pos ner, alleged appellant (D.Md.1976), The indictment F.Supp. pеr 408 aff'd embezzle, misapply, curiam, “did 1977), steal and obtain 551 F.2d 310 cert. de money nied,

fraud” the he received from CETA. 434 U.S. L.Ed.2d 99 However, (1977); Sapp State, the district court concluded ‍​‌‌​‌​‌‌​‌‌‌​‌​‌‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​​‌​​​​​‌‍as a mat- 157 Fla. 26 So.2d appellant’s Lee, ter of (1946); Territory law that the actions could not 29 Hawaii 30 embezzlement, stealing, misapply- (1926); constitute People, (N.Y. Wolfstein v. 6 Hun 121 ing; jury only and therefore instructed the or the concealment merits of half-truths timekeeper of Environ- Department facts. material him from their ment and Streets remove payroll. added). (emphasis made several trial counsel appellant’s that Meadows did is clear .The The record charge, one of which we objections to this initial nothing cause this administrative Although gave the court feel has merit. up the only began picking He checks error. dictionary definition of fraud adequate his counselor. called CETA after above, quoted poi- paragraph first had readily that he Meadows admitted when, healthy charge the otherwise soned cashed or picked up the extra checks and applied the law paragraph, the second account, into but stated deposited them merely that By stating these facts. thought the first extra check that he had result from statements of half- may “fraud pay and then was some sort severance truths or concealment material figured may have been a other more, facts,” the without сourt understated way compensate him for the dis- subtle by failing of law to remind the principle the complained he had of while crimination required to convict. jury of the intent at working the Bureau of Pollution Control. 338, States, 332, v. 316 62 Pence United U.S. testimony re- prosecution The introduced 1080, (1942). 1510 an 86 L.Ed. Such S.Ct. but this defense. CETA officials Several specific para- a understatement discrepan- the who met with Meadows after issue, stage critical of the mount this cy that he admitted was discovered testified jury when the was instructed on to them that he was aware after the first principles how these elusive and ethereal paychecks check the from additional applied partic- to thе of should be facts the position his former had been issued errone- case, error ular created reversible that could he the he ously only and that knew by unexceptional not be cured the abstract receiving should have been were those Further, charge. the error exacerbat- Black World. repetition of by ed the court’s same the language supplemental charges. in two Af- deliberating approximately ter for three II. THE FRAUD INSTRUCTION. hours, jury the the sent a note to trial court general the the During course of indicating they wanted further instruc- charge, gave following trial court legal of tion on the definition fraud. jury: instruction to the repeated quoted the above instructiоn court charge you that fraud is an intention- twice, ob- the defense counsel renewed his perversion purpose al of for the of truth jections, and after additional deliberation of upon inducing another in reliance it to minutes, jury returned only fifteen its thing belonging part with some valuable guilty. It is clear that the crux verdict of legal a a right; to him or to surrender was how unfa- jury’s of the confusion representation false of matter of fact definition fraud was be legal miliar conduct, by by words or false by whether unique facts of this case. applied to misleading by conceal- allegations, possibility The understatement created have ment that which should been Mead- jury might have convicted deceives and is intended disclosed which innocent, unintentional omission ows act to deceive another so that can may Although fact. there be of material legal injury. upon to his that Mead- sufficient evidence indicate determining not the de- pick up whether or continuing ows’ conduct Meadows, fendant, mistakenly case Mr. knew were paychecks which he fraud, by ques- fraud as obtained CETA funds him constituted issued to indictment, may may spelt out charged jury guilt in the whether tion record, guilt has been found consider acts omissions as well whether but statements, according procedure to the by jury because under affirmative for criminal trials in appropriate law result from state- mаy standards 988 realize, ingenuity.” Blachly versable as human Although

the federal courts. we course, States, 665, (5th that all instructions must be con- United 671 Cir. whole, word-by-word 1967), States, sidered as a and not quoting Weiss v. United 122 phrase-by-phrase, such a (5th Cir.), denied, fundamental F.2d cert. paramount understatement as to the (1941); issue 86 L.Ed. 550 U.S. stage at a critical requires instruction see also Abbott F.2d reversal. prohibition We feel that under the broad III. TO GRANT FAILURE JUDGMENT by fraud intended 665 and the defini- ACQUITTAL. OF courts, tion of fraud as embraced Meadows contends that trial possible jury that a could have inferred court in failing committed reversible error knowing from the evidence in this case a grant judgment his motions for of ac representation false or material omission quittal at the government’s close of the case ability Meadows which facilitated and at the close of all evidence. The basis picking job continue checks from his old argument of his engaged is that since he receiving compensation while his normal no “active fraud” in obtaining the extra job. from his new could have paychecks, there was no reason for the found from the evidence that Meadows im- court to have go allowed the case to pliedly affirmatively misrepresented but charges obtaining on the CETA that he still worked at the Bureau of Pollu-

funds disagree. fraud. We tion Control ‍​‌‌​‌​‌‌​‌‌‌​‌​‌‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​​‌​​​​​‌‍when he continued to claim the appellant’s paychecks City Thе extra at Hall for contentions several misconstrue months, the City nature of Meadows’ conduct and that the relied and the on this misrepresentation law of fraud. Although may by continuing to have taken issue duplicate no action to the initiate the issuance of checks. It would not be un- the paychecks, in picking up his conduct reasonable for the to assume checks if for unclaimed, several months which he Meadows had left the admittedly the city knew were erroneously issued would have the was suffi- realized error and cient stopped issuing evidence of fraud to Alternatively, warrant submis- the checks. that, sion of the the jury. by failing case to the could have found inform propеr city the officials that he was Although generally we consider fraud as longer working no at the Bureau of Pollu- representation false or concealment of a tion receiving paychecks Control and was material fact that should have been dis World, from Black Meadows concealed a closed, when knowledge made with of its fact, insuring material thus the city falsity and with intent to deceive another so would continue paychecks to issue the and that he can upon legal act it to his detri that he would continue to benefit from the ment, g., States, e. Pence v. United 316 U.S. city’s Although initial mistake. it is clear 1080, 62 (1942); S.Ct. 86 L.Ed. 1510 that Meadows made no false inducements Nill, 793, (5th States v. 518 F.2d 800 paychecks obtain the extra initially, his 1975), amorphous Cir. this concept “is meas in continuing pick conduct them by ured a nontechnical standard. ‘It is a knowledge of the obvious error came suffi- reflection of uprightness, moral of funda ciently sweep within the broad of 18 U.S.C. honesty, mental play right fair dealing 655 go jury. general in the and business life of members States, of society’, Gregory Cir., v. United 5 IV. RULE 408—OFFER TO 1958, 104, 253 F.2d 109.” United States v. COMPROMISE. Bruce, (5th 1973), Cir. denied,

cert. 419 U.S. Meadows contends that the trial (1974). L.Ed.2d 48 It has been said that court by committed reversible error admit fraud, “the law does not define it needs no ting certain statements he made to a definition; it is as old as falsehood and as official when he was confront- 1101(b), see Eck- criminal trial. F.R.Evid. overpayments, on with the fact of the ed 159 F.2d 81 statements were lund United grounds however, not, any viola- do find compromise negotiations should have We do feel that Mead- excluded on basis of Rule tion of the rule. We not been disagree. We Rules of Evidence.3 he knew the Federal ows’ remark Goldsmith that was in checks were issued mistake in an inter- These statements occurred compromise sense an offer to a claim. program between ana- view Meadows during occurred an informal conversation Department named lyst for Labor situation; thus, investigation of the there had received mem- Goldsmith Goldsmith. compromise the time the was no claim supervisor orandum Meadows’ CETA prosecution merely two first met. World, which indicated that with Black respect admission with made use of a direct complained had because he had Meadows course, intent, is, which to Meadows’ received full bonus check. Gold- of his of mind. probative evidence state reviewed smith the records and found that Although testimony concerning the re- World check while Meadows’ Black bonus might otherwise have payment schedule deficient, had a full was Meadows received been barred rule as a settlement check Bureau of bonus from the Pollution offer, testimony was solicited Control, moreover, been carried had We defense counsel on cross-examination. simultanеously departments’ pay- two on that he reject appellant’s contention was Based on these rolls for several months. testimony “forced” to introduce this discoveries, decided hold Goldsmith schedule; appears to us to be repayment when came Meadows’ checks and Meadows calculated, tactical defense decision. office, he was confronted to Goldsmith’s testifying problem. with the When CHARGE. V. SUPPLEMENTAL examination, government on direct Gold- smith stated that Meadows’ immediate re- earlier, jury requested As we stated was an that he after sponse admission knew instructions the definition additional check the first that there some sort of during the course its deliberations. causing duplicate administrative error response, merely repeated court issued, to be declared that “if but original charge portion small of its describ- stupid enough or you somebody were else application and its to ing the law of fraud mistake, makes the I felt that could bene- supplemental these instructions facts. cross-examination, fit from it.” On the de- reference the burden contained no to or brought counsel out that Meadows fense inno- quantum proof, presumption of of agreed repayment to a subsequently sched- cence, necessarily fa- other matter any or ule. The defense vorable to the defendant. requested and some аddi- objected counsel Although the that government contends instruction, balancing but the trial tional 11(b), Rules of Pro- Rule Federal Criminal ver- jury court returned its cedure, refused. rather Rule Federal Rules than Evidence, guilty dict of within fifteen minutes. Since governs of the issue since this is a retried, case, may be the the will have to be applicability criminal assume case we helpful procedure on the fol- govern Rule 408 to the admission of to comment of negotiations civil in a lowed. related settlement provides: likewise not admissible. This rule does Rule 408 require any other- of evidence the exclusion (1) furnishing offering Evidence of or or merely is wise discoverable because furnish, (2) promising acсepting to or or of- nego- presented compromise course of in the fering promising accept, or to a valuable con- require ex- This rule also does not tiations. attempting compromising in or to sideration for an- the evidence is offered clusion when compromise disputed a which was as claim proving preju- purpose, or bias other such amount, validity is not to either or admissible witness, negativing of a contention dice aof invalidity prove liability to or of the claim for delay, proving to obstruct an effort undue or or its amount. Evidence of conduct or state- investigation prosecution. or negotiations criminal compromise ments madе in is forbids, law but instead assumed that the

It is addi- giving well-established compensation for jury; particularly tional to a extra check was back instructions response pay thought a court which he was owed to him inquiries jury, Atlanta, give City pursuant and especially must be careful not to an of Although Comprehensive Employment unbalanced and charge. the failure to give Training Act any jpresumption of innocence instruc- of 1973. tion does not all mandate reversal in crimi- 18 of 665 of Title the United Section Whorton,-U.S. appeals, Kentucky nal provides pertinent part States Code -, (1979), L.Ed.2d 640 ‍​‌‌​‌​‌‌​‌‌‌​‌​‌‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​​‌​​​​​‌‍officer, being . that whoever an the particular significance supplemen- of a director, agent еmployee or receiving fi- tal charge when has unable to been the Comprehen- nancial assistance under reach a decision on the basis it has of all Employment Training of sive and Act heard time up until that demands an exact- 1973, embezzles, willfully misapplies, ing sensitivity on of the trial court or steals obtains fraud give and accurate balanced instruc- monies, funds, or property assets which is tion. BoUenbach United U.S. subject grant or of of a contract (1946); 66 S.Ct. 90 L.Ed. 350 Act, pursuant this assistance shall be Carter, United States v. against guilty of an offense the laws of case, While in we this the United States. would hesitate reverse the judgment particular For a violation of stat- recharge respеct failure to with ute, 665A codified as of Title 18 Section presumption of innocence and of the burden Code to States have oc- retrial, proof; on if the court chooses to curred, required give any additional rea- quite prove three beyond essential elements sonably repeat origi- elects not the entire doubt: reasonable nal charge, the court simply could remind First, was an em- defendant of the burden quantum ployee capacity connected in some proof innocence, presumption agency receiving grant some of finan- state that all instructions must con- the Comprehensive cial assistance under whole, sidered aрpropri- or take some Employment Training Act of 1973. steps ate possibility preju- to avoid the Second, that the defendant obtained dice to the procedure defendant. This will funds, money, some prop- other provide a minimum balance without subject erty which was grant undue burden. charged. at or about the time REVERSED AND REMANDED. Third, the defendant committed knowingly such act or acts and willfully. GODBOLD, Judge, concurring Circuit upon govern- The burden always dissenting part: and in prove beyond ment to reasonable doubt agree Judge I with Tuttle the that case and of those every each one essential must be but for reversed a different reason. just elements which I have outlined for

The portion the you. imposes uрon of instruction that The law never a de- quotes immediately preceded by was the in case fendant a criminal the burden or following instructions: duty calling any produc- of witnesses or any ing evidence. response

The in defendant contends to charge grand connection, this the jury, of ladies and gentle- In this ladies and gentlemen, men, report charge that when he failed to I act that an is done know- that he had issued a voluntarily intentionally been check error if done and ingly in regular addition his paycheck to and not because of mistake or accident or instead deposited the extra in purpose check other innocent reason. The of account, own bank adding “knowingly” he did not have the the word is to insure specific to intent do that something the no one will that be convicted for an act breaths sentences and few only a few of mistake or accident done because knowing required the statute reason. earlier —that other innocent knowing will- and willful conduct you act is done charge that an I further Throughout intent. the instruc- ful meant voluntarily and inten- willfully if done intent were delineated and tion fraud and specific the intent to do tionally and with When the forbids, separate elements. the that is to described something that law required disobey or fraud he was not say, purpose judge with bad either to described law, another ele- disregard the оr stated and redescribe the intent go to back the intending violate way, purposely ment. law. however, supplemental my opinion, the statute, Code 665A of Title Section error. This was' was reversible instruction ago just you read a moment 18 which I not, original was discus- what the embezzles, talks in of terms sion, isolation, stage At this of fraud. willfully misapplies, steals or obtains jury, experienced not the proceedings funds, monies, assets or any fraud judges, does need a balanced the law like subject grant are of a property which required only a It would have explanation. pursuant contract assistance along with point out that few sentences case, in this evidence Act. Under of thе were two other elements fraud there gentlemen, charge you as ladies and I note the defendant offense and to has law that matter of innocence presumption protected occurred in proved not there beyond rea- guilt must be found and that funds, nor case embezzlement of Judge agree with sonable doubt. cannot a willful mis- government proved has the judge give need not a “bal- Rubin that funds, the funds or that application responds when he to a anced instruction” you which only stolen. The issue were against question. The risk single-shot I will in- and about which will consider in- requirement of a balanced which these you later is whether or not struct protects possibility is struction by the defеndant funds were obtained answer, isolation, may be question and fraud. through misleading. simply begs question It orderly These instructions followed that, isolat- question because the is conclude pattern: and reasonable ed, is needed. balancing no instruction in- (1.) is “no What is defense? It theory agree Judge with Rubin’s I do not tent.” did, of law what Meadows that as a matter of- (2.) What are the elements not fraud. probably “stealing,” was though

fense? concluding that one no trouble I have

—Employment and a half goes weekly nearly two who agency for —Obtaining by pay office of an months works, thereby longer he no which knowing —A and willful act himself of delivery obtains seeks and (3.) It knowing What and willful? entitled, which paychecks to he is voluntarily, intentionally, spe- means “man of guilty Judge of fraud. Rubin’s cific intent. have to intelligence” does not common embezzlement, (4.) willful problem No point this is guess to know fraud. * is the or theft. Fraud misappropriation arguable if check had been might be only issue. the check was mailed to Meadows. Here (5.) What is fraud? possession only to his because turned over in place no business clear, he went to the he had adequate orderly was a and This hand, somebody his and going, held out judge followed it explanation. When the perhaps he thrust the check in it. Or by Judge placed Tut- paragraphs quoted with and extracted pigeonhole into a he reiterate his hand necessity tle there was no that event, like not fall once it did clearly had more than the check. what he said admonitory If surprised precatory, manna from heaven into and den.” innocent hand. only can lead to confusion and serve aas appeals. fulcrum for other If this is a RUBIN, Judge, ALVIN B. Circuit dis- mandate, inappropriate I think it and incor- senting part: rect. I I opinion, concur Parts and IV of the Returning sufficiency to the issue of phrase and all of Part II save the on type- evidence, I do not think evidence page states, written 987that “Although there guilty warranted a verdict on the charge may be sufficient evidence to indicate that that remained when the case went to the continuing pick up Meadows’ conduct in I, therefore, jury, and would hold that paychecks that he were mistaken- _the knew refusing trial court erred in to direct a ly to him issued constituted fraud . . .” acquittal. verdict of The best resume of Respectfully I dissent from this observa- against the evidence Meadows is in the tion, from Part III opinion all of of the and phrase quoted: all he did was continue to from some of the observations in Part V. pick up the checks and then to cash them. end, begin To at the I do not think that a spoke There is no that evidence he ever judge, trial when asked a question by direct affirmatively misrepre word or did an act jury completely that he answers in a senting single fact. constitutes Silence fashion, neutral needs to embellish his an- only whеn there “duty speak is a swer unnecessary admonitions. Of inquiry or where an left unanswered would course, give the court should never an un- intentionally misleading.” United balanced initially either inor re- Prudden, 1970, States 5 Cir. 424 F.2d sponding jury inquiries. If a asks a denied, 831, cert. ‍​‌‌​‌​‌‌​‌‌‌​‌​‌‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​​‌​​​​​‌‍U.S. question that can be succinctly, answered 62, 27 L.Ed.2d 62. also Atilus See directly dispassionately, I would not 5 Cir. 406 F.2d require the district judge to renew other 698; American National Insurance Co. v. parts charge. of his Murray, 5 Cir. 86-87. here supplemental asked for a Nothing in the evidence indicates that fraud; instruction on judge the trial reread had a duty Meadows to volunteer the infor just charge, additions, without dele- mation, “I longer employed am no in the explanations. tions or further When the Control,” Bureau of Pollution or was ever judge requests, may receives such he use his position. asked about his sound in responding. may discretion He many holding There are cases choose that con- merely asked, to answer what is engaged duct like that may consider it Meadows is desirable to add further not, therefore, stealing. instructions. the cases cited in would See footnote 2 add the suggestion by my majority opinion. included generally brethren See simply” Fletcher, the court “could Rethinking Law, do something Criminal 2.4.2 other than he did Indeed, “without undue (1978).1 bur- at 107 taking Professor Fletcher out points this seminal other measures police to locate the work: owner. III. The D suspect withdrawаl requests following dishonest acquisi- four cases of funds from his account; X, a bank teller, ingenuity courts have taxed tion excess mistakenly D, delivers funds who world: Western across scholars knows of the mistake leaves the bank X with from D hires a horse I. The suspect with the intent to keep money. later does appropri- to steal it and the intent IV. A customer bank, enters a hands a note The same type use. ate the horse to his own depositing to the teller D with the intent of it. with a who, is raised by anyone of case putting D the note without it in the pockets the chattel receives fraudulent purpose, cash drawer. customary possessor. prior All four of these cases are instances of dis- ring II. The D finds a on the street honest, immoral behavior and for that rea- suspect son, lost. He there is considerable in virtual- apparently picks pressure finding legal bring reporting ly every it without them within keeps system ” poena lege long “nulla sine embezzle, in the maxim misapply, that he “did charged it; money embraced by fraud” before Constitution steal and obtain Only void-for-vagueness because the from CETA. is the familiar received second court, erroneously, dismissed perhaps punish me that to appears trial It standard. provisions on other charges all of the based that his conduct ground Meadows on struggle with jury left to 665 was the money by fraud vio- obtaining constituted The of “fraud.” the definition lates both. appealed have the dismissal should ' Queen century ago in The A little over a criminal alleged parts 38, 56, Middleton, L.R. 2 Cr.Cas.Res. so. I It failed to do acts than fraud. other in dissent Justice Bramwell said apparent allow it to retrieve would not in a conviction justices who had concurred error. prisoner “the was as bad as a believed that charged with was Meadows was What bad, being ought as thief . . . and What he did obtaining money by fraud. ” my one. . . . Like be treated as not, indeed, immoral, but he should brethren, I believe that Meadows was as guarantee the constitutional due under defrauder; simply bad as a do not find not, merely be- process can be convicted statutory that he offensе. committed money not got kept cause he that was Congress doubtless could have so defined rightfully his this conduct has been unless criminal, Meadows’s conduct as to make it person Before a can condemned statute. special only larceny, not as but as a crime or crime, process due de- be convicted of a imposing a statuto- species of fraud proscrib- be a statute mands both that there duty persons who receive federal ry is considered criminal ing the conduct that them, entitled to say they checks to are not with suffi- and that the crime be defined not, by constituting even they if are intelli- clarity “that men of common cient receiving deliv- fraudulent the mere act meaning.” “guess need not at its gence” Co., 1926, knowing it is not due with ery of a check Connally v. General Construction 126, 127, money to own intent to convert the one’s 70 L.Ed. 269 U.S. 46 S.Ct. proc- Due concept simply was embodied use. It has not done so. 328. The first depositor who maintain that the dishonest Yet the ambit of one of the theft offenses. advantage they among of the teller’s mistake takes because all lie at the boundaries offenses, liability. leading exempt The crime each of the West- from all criminal the three legal systems problems larceny apply these does not because the volun- ern classifies punish taking differently. systems tary delivery requisite precludes all And all acquisition. (soustraction). precluded, The re- four forms of dishonest Embezzlement Anglo-American appears law is markable feature of for it that the teller intended possession that the first three that the courts concluded with title as well as of the excess problematic apply, were to be re- of these cases fraud would not funds. The crime of larceny. by distending solved the law of no fraudulent maneuver. The for there is (Emphasis supplied.) strong French stand on this case reflects a The text continues: restrictive in- commitment to the literal and delivery receipt problem of mistaken terpretation of criminal statutes. points at which the com- is the third of the Relying reasoning, on the same German pressure in the course of mon law felt punish deposi- judges would decline to case, century. typical nineteenth larceny acquisition as either or embez- tor’s quietly suspect passively a mis- receives option, for Ger- zlement. Fraud remains Though a bank teller. taken remittance from broadly recognizes defined crime man law a fraudulent intent to he leaves the bank with misrepresenta- implicit of fraud that covers him, keep he does the funds transferred to explicitly fraudu- conduct as well as tions nothing except advantage someone take precise facts of this lent maneuvers. else’s mistake. problematic the German case came before nineteenth-century English Though court convicted courts in 1968 and the trial of larce- American courts extended the crime depositor appellate court of fraud. The ny type acquisition, to cover this of dishonest pp. judgment. 20-21.] reversed the [Id. systems still balk at the French and German classify this conduct Soviet law also would not subjecting crimi- this conduct form of p. as fraud. Id. at steadfastly liability. nal French writers civilly go beyond tion rather than remedy ess us to the lacuna we the stat- forbids draftsmanship perceive give penalty may in its of a criminal ute to him the deserve Perrin, statute. United v. 5 Cir. Congress imposed. See States but one that has not 730, J., (Rubin, 580 F.2d 738-39 dis- senting). exactly

It is difficult to determine what obtaining by

Meadows did that constituted

fraud. failure to speak Was it his when he

picked up cashed the first check? The pattern

second? Was of conduct from America, UNITED STATES My October to December? brethren charac- Plaintiff-Appellee, terize picking up as fraud “his conduct in checks for several months which he admit- ” tedly erroneously knew were issued . . CLARK, Defendant-Appellant. Hollis (emphasis supplied), apparently so the mere No. 79-5102 presenting act of himself more than once to Summary Calendar.* delivery receive they of a check is what consider fraudulent. I cannot so character- Appeals, Court of States act, simple ize that appear nor does it to fit Fifth Circuit. into accepted definition of fraud. The opinion July help regard; does not us in that fraud, defining quotes instead of some

aphorisms help about rectitude as a in de-

scribing “amorphous what is labelled an

concept.”

It is difficult for me person to find a

guilty оf violating a criminal law that relies “amorphous concept,”

on an forbids

acts simply “morally are not upright,” honest,” “fundamentally that is based on play right

“fair dealing” proscribes definition;

conduct that “needs no . . ..

is as old as falsehood and as versatile as

human ingenuity.” These are all nice turns ‍​‌‌​‌​‌‌​‌‌‌​‌​‌‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​​‌​​​​​‌‍I, phrase like other judges, have used

similar language to make explain point. not,

They however, do define fraud or tell

us what is fraudulent or what Meadows had duty say to do or to and when. my

To brethren “it is clear that Meadows

made no false inducements to obtain the extra pay initially.” There is no Bianco, Atlanta, Ga., Thomas C. for de- evidence that he made false induce- fendant-appellant. And, ment finally, thereafter. repetitious- Gillen, Craig A. Asst. Atty., U. S. Atlan- ly, I fail to statutory find that he had a ta, Ga., plaintiff-appellee. Therefore, duty speak. common law would free corrupt this immoral and man

and allow to seek restitu-

* Enterprises, Casualty al., see Isbell Inc. Citizens Co. of New York et 18, Cir.; Rule 5 Cir., Part I.

Case Details

Case Name: United States v. Donald E. Meadows

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 13, 1979

Citation: 598 F.2d 984

Docket Number: 78-5572

Court Abbreviation: 5th Cir.