UNITED STATES of America, Plaintiff-Appellee, v. Earl LARGO, Defendant-Appellant.
No. 84-1696
United States Court of Appeals, Tenth Circuit.
Oct. 1, 1985.
While these appeals were pending, the defendants filed in this Court on March 13, 1985, a motion to supplement the record by including therein copies of orders entered by the trial court on February 15, 1985, which amended, and to some degree modified, the injunctive order entered by the trial court on August 2, 1983, and from which no appeal was taken. This Court, by order dated April 15, 1985, granted the motion to supplеment and partially remanded the case to the trial court with directions to that court to promptly hold a hearing, after notice, and determine the effect, if any, of its February 15, 1985, orders, amending its August 2, 1983, order, upon the trial court‘s order awarding attorneys’ fees, entered September 18, 1983, which is the subject matter of this appeal. In accord with such partial remand, the district court held a hearing on July 25, 1985, and by order of September 5, 1985, determined that its amending order of February 15, 1985, did not warrant any reduction of attorneys’ fees previously granted. Our study of the record made on partiаl remand leads us to conclude that the district court committed no error in declining to adjust downward the fees previously awarded simply because the earlier injunctive order had been amended in certain particulars. Even after such amending orders, the plaintiffs in the underlying proceeding enjoyed a substantial victory and are still prevailing parties for the purposes of
In No. 83-2621, the judgment and order is affirmed in all respects.
In No. 84-1361, the appeal is dismissed as moot.
Presiliano A. Torrez, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M., on brief), for рlaintiff-appellee.
Before BARRETT and McKAY, Circuit Judges, and CARRIGAN, District Judge.*
PER CURIAM.
Defendant was convicted of one misdemeanor and one felony charge of violating
Defendant makes three arguments on appeal. First he argues that the indictment should have been dismissed because he was prosecuted under
Defendant‘s second argument is that the conviction is improper because the funds that he embezzled wеre not government funds at the time of the embezzlement. More background is necessary in order to understand the defendant‘s labyrinthine argument. The federal grant monies for the start-up of SECDP were a few weeks late in arriving; therefore, SECDP borrowed money from a local bank in order to begin operations on schedule. Collateral for the loan was the federal grant monies that had already been approved. The loan monies were deposited in Account No. 183, from which the defendant later drew his unauthorized checks. When the grant funds were received by SECDP, they were deposited into Account No. 194 and then transferred, the same day, to Account No. 183, thus repaying the loan to the bank. Defendant did not receive the unauthorized payments for which he was convicted until after this transfer of funds. Thus, at the time the defendant received the unauthorized payments from Account No. 183, all of the money in that account was directly traceable to the United States grant.
Defendant also argued that federal funds deposited into a bank account become the bank‘s property and therefore embezzlement of such funds cannot constitute a violation of the statutory prohibition against embezzlement of government funds. On appeal, he argues that the trial court erred in failing to instruct the jury on this theory of defense. The trial court did not err in refusing to instruct the jury on this theory, however, because a defendant is not entitled to instruction on а theory of defense that is not properly raised by the evidence or supported by the law. United States v. Redmond, 546 F.2d 1386 (10th Cir.1977), cert. denied, 435 U.S. 995 (1978); Pacheco v. United States, 367 F.2d 878 (10th Cir. 1966). It simply cannot be argued that federal grant money becomes nonfederal the minute it is deposited in the bank. The technical relationship between the bank and its depositors does not alter the fact that the money in the account that the defendant embezzled was money disbursed pursuant to a federal grant.
Defendant‘s reliance on United States v. Collins, 464 F.2d 1163 (9th Cir. 1972), is misplaced. In Collins, the defendant attempted to embezzle funds by forging a check. The Ninth Circuit held that, because under banking law when a bank pays on a forged endorsement it pays out of its own money rather than that of the depositor whose endorsement was forged, the defendant had not obtained the government‘s property. In the present case, the checks were not forged. Thus, when the bank paid the checks, it paid out of the federal funds deposited in thе account on which the checks were drawn. The money obtained was federal grant money and the property of the United States.3 Defendant‘s argument in this regard must fail.
Defendant‘s final argument is that the government had no loss because the checks that he wrote were disapproved by the government. The disapproval after the checks had already been paid meant simply
MCKAY, Circuit Judge, concurring in part and dissenting in part.
On the issue of whether defendant is guilty of embezzling government funds, I concur in the majority opinion. However, for the reasons I stated in my dissent in United States v. Afflerbach, 754 F.2d 866 (10th Cir.1985), I must dissent from that part of the majority‘s opinion that refuses to remand this case for resentencing under the proper statute. Defendant was tried under a general statute when a specific statute carrying a shorter maximum sentence covered the acts allegеd in the indictment. In particular, defendant was charged with misapplying federal funds under
The maximum penalty under
In Afflerbach I dissented from the majority‘s decision, which ignored the issue raised by proceeding under a gеneral statute when a specific statute is available. In Afflerbach the majority held that the only time proceeding under the wrong statute can possibly create a problem is if the defendant receives a greater sentence than that allowed by the statute under which he claims he should have been tried. Since the penalties imposed in Afflerbach were within the statutory maximum of either statute, the majority felt that no triable issue had been raised.
As the majority in this case points out, similar reasoning would allow us to ignore the fact that defendant Largo was sentenced under the wrong statute. Whilе this approach may have some appeal in terms of judicial economy in particular cases, it encourages sloppiness and promotes arbitrary sentencing quite in conflict with the recently felt need to regulate judicial discretion in the sentencing decision. Sеe
The sentencing in the present case violates the time-honored rule of statutory construction that “a more specific statute will be given preсedence over a more general one, regardless of their temporal sequence.” Busic v. United States, 446 U.S. 398, 406 (1980). This rule has long been followed to prevent a defendant from being convicted under a general statute when a specific statute more particularly describing his criminal conduct hаs been enacted. See, e.g., United States v. Bates, 429 F.2d 557 (9th Cir.), cert. denied sub. nom United States v. Green, 400 U.S. 1002 (1971); Enzor v. Unit- ed States, 262 F.2d 172 (5th Cir.1958), cert. denied, 359 U.S. 953 (1959); Robinson v. United States, 142 F.2d 431 (8th Cir.1944).
The continued reliability of this doctrine of statutory construction has been called into question by some federal courts that misinterpreted a recent United States Supreme Court opinion. In United States v. Batchelder, 442 U.S. 114 (1979), the Court held that the U.S. Attorney had the discretion to choose which of two statutes prohibiting receipt of firearms by a convicted felon he would proceed under, even though the statute he chose carried a longer maximum term of imprisonment for its violation. More recently, in Ball v. United States, 470 U.S. 856 (1985), the Supreme Court held that a defendant could be indicted and рrosecuted for unlawfully receiving a firearm and unlawfully possessing the same firearm arising out of the same incident, but that he could not suffer two convictions or sentences based on the single act. The Court ruled that if the jury returned guilty verdicts on both charges the district court was free to decide which statute the defendant would be sentenced under irrespective of the differing penalty provisions. Based on these cases, some courts have been tempted to throw out the window the federal rule limiting the government‘s discretion to proceed under a general statute in оpposition to the provisions of a specific statute. See United States v. Carpenter, 611 F.2d 113, 115 n. 3 (5th Cir.), cert. denied, 447 U.S. 922 (1980); United States v. Simon, 510 F.Supp. 232, 237 (E.D.Pa.1981).
I find this reliance on Batchelder and Ball improper and decline to follow the reasoning of these other federal courts. Neither Batchelder nor Ball involved a general and a specific statute. Rather, in each case, the court was faced with two statutеs that proscribed, in almost identical terms, the conduct for which the defendant was convicted. Thus, the holding of these cases does not undermine the long-standing rule that a specific statute governs over a general statute. Indeed, since the Court subsequently relied upon the general vеrsus specific doctrine in holding the general enhancement statute,
The federal courts should await a more clear signal from the Supreme Court before deciding that this long-standing rule of statutory construction should be disregarded. As the Court explained in Simpson v. United States, 435 U.S. 6, 15-16 (1978), the rule that a specific statute should prevail over a general statute “has special cogency where a court is called upon to determine the extent of the punishment to which the criminal defendant is subject for his transgressions. In this context, the principle is a corollary of the rule of lenity, an outgrowth of our reluctance to increase or multiply punishments absent a сlear and definite legislative directive.” Despite Batchelder and Ball, the rule remains unchanged that where a defendant is convicted of a specific crime for which Congress has intentionally prescribed a more lenient punishment, neither the prosecution nor the courts are at liberty to defy that specific congressional mandate.
This rule could not be more applicable to any case than it is to the present case. Congress has enacted a specific statute prescribing a much more lenient sentence for embezzlement of the particular type of funds which the defendant embezzled. The district court should have considered this fact in making his sentencing determination and his consideration of this circumstance may well have decreased the punishment he imposed. Therefore, the only proper remedy in this case would be to remand the case to the district court for resentencing under the proper statute. See Enzor, 262 F.2d at 175. I concur in the court‘s opinion as it relates to the issues on the merits in this case. I would
* Honorable Jim R. Carrigan, United States District Judge for the District of Colorado, sitting by designation.