United States v. Kathryn Frances Hand

COLEMAN, AINSWORTH GEE, Judges. Circuit Judge: purses located in or on file were cabi- GEE, Circuit nets and in the office. At desks Union’s appeals Kathryn Hand Frances suspicion a time the focus when ten verdict of on a her conviction begun strongly on Mrs. to center from her em- of embezzlement counts that she she told the federal examiner ployer, union. insured credit sending pick up these someone others, presents, appeal Her purses, perhaps personal prop- other search and sei- of unreasonable tentions erty. receiving word, opened On zure, in the indictment of deficiencies or not ascertain whether —to proof, in and of a consti- and variances hers, he testified1 —and tutionally provided inadequate defense incriminating discovered the vouchers. by her retained trial counsel. bookkeeper of- Mrs. Hand was Assuming Hale was the sort manager fice ILA 1351 Cred- person to whose and seizures searches (the Union), operating in it Union applies, Fourth his Amendment According Texas. testi- handbags search of the in these circum- shortage mony, she discovered a serious questions. stances raises close about cash the Union accounts us, justify 2% the United States seeks to years before events which led to “plain exception under the view” to war- shortage steadily in- which contending requirements, rant that Hale many ensuing creased over time to upon blundered the evidence thousands of dollars. She was effec- attempt course of an find innocent accounting tive control of the Union’s was, indeed, identification. This operations. Hand admitted testimony, and the trial court considered increasing shortage concealed the rejected suppress a motion to after the federal credit union examiners over hearing it. thus seem the audits, the course of several annual explanation, court credited Hale’s an in asserted that had no idea where the she fact-finding limine which we would going. technique funds were The which reluctant to overturn on cold record.2 employed in she this scheme was that hand, On the other the basis of the accountancy “lapping,” known in ruling court’s is not the record clear: using receipts which involves cash later government urged indicates relying to match on earlier merely private citizen, that Hale was posting delay bridge gap between to whose searches Fourth Amendment what should the coffers safeguards apply, the de- and what was. case subject fense memorandum on the presents troubling questions on two sought negative consent as a warrant points, we affirm. exception. merely The court overruled suppress, the defense motion to I. In elaboration. where we are unable to determine with Search Seizure Contention assurance whether the court made the Appellant placed Hand had within fact-finding stumbling upon purses many cash-received vouchers —innocent upon plain evidenced her scheme conceal- which the view evidence— ing shortage. the credit union’s exception These rest, proceed must must we 1. An assertion “Accordingly, somewhat dubious first traditional under the view blush, handbags, since generally accepted principle women’s the trial only and the judge other female in the finality prelimi- who worked decides with those appears present office to have nary questions depends been when upon of fact opened them. admissibility of an item of evidence objected exclusionary to under an ” McCormick, (2d 2. See Evidence 53 at 121 rule. 1972) Ed. : shortage requires considera- fessed that a of funds had been do so To further.3 going leading up to the on at the Union for two-and-a-half of the facts tion during years, period she had search. concealing shortage, and that examiner, ar- Hale, the federal When though she did not know where the early April, make his rived gone willing funds had she to make was Union, was the he annual examination some amount of restitution. previous examinations from three aware Against background, this Mrs. Hand continuing had had that the Union exchange Hale, also told' either in the in handling He problem of cash. the cooking which she confessed the books the one who Hand to be considered Mrs. telephone or in her third to him that call immediately, Almost “ran” Union. the sending day, that she was for some of thirty-dollar cash short- he discovered purses in which were the Union of- age particular voucher. cash related fice, as well as some books and scarves. audit, omi- other of the In the course process gathering up prop- In the signs appeared. income Interest nous erty, testified, opened purs- Hale the appeared for the volume too small es, looking for credit cards for other unreported $22,000 in de- loans. About identification of as Mrs. Hand’s. them Upon inquiry linquent surfaced. loans identifying He found He matter. also Hand, produced she Mrs. —after minuting found over 150 vouchers cash agreements delay day’s cov- —extension transactions in tens of thousands of dol- ering delinquent loans, four the but lars, great very majority the of which signatures felt, which Hale these bore were initialed Mrs. Hand as the re- suspi- Hand, appeared and advised Mrs. ceiving Assuming person. worst, the supposed A cheek with one cious. deliberate, that a search of warrantless showing signatories receipt produced a purses point the was out at carried all, extended loan had not been by Hale, pass does it Fourth Amendment point, paid. advised At Hale muster ? situation, sug- the board of the Union’s gesting suspension of Mrs. Hand and a By conclude that it does. We thorough investigation and verification the time Hale learned of Mrs. Hand’s April 8, On she all accounts. purpose immediate her hand to remove suspended. bags office, had she admitted accounts; juggling nu and Union’s day, April 9, in- Hale was The next ap financial records had merous female the other formed suspi peared highly home, under at her Westergreen, that Mrs. cious a condition circumstances telephoned about some miss- Hand had indicating destroy an aborted effort ledger ing called Mrs. cards. Hale to believe them. Probable cause existed Hand, him the names she told previously that she had concealed ledger cards various members whose might again or re removed and conceal appeared said, mysteriously had, she records, purses move and the were porch. morning Hale front on her likely Hale action. vehicle either president went the credit union duty in his had remiss would have been day and received that same her home permitted ab such containers be ledger corresponding to cards from her proximity ac stracted from given the tele- over she had names determining counting files without phone, across of which were torn most they were not so used. taping to- recalled and which Hale back gether. Upon to the Un- Hale’s return It these yet office, another call notice that she he received Mrs. Hand’s ion even absent sending purses, Hale would one which she from Mrs. testifying disingenuously, that, other likely, court felt Hale was had the it seems consequences have ensued. purses for Union docu- to check the con- was authorized Union’s found, and, to re- if none were ments of such the contents sent to examine ado. Chambers them more lease he found and about containers 51-52, Maroney, 90 S.Ct. 399 U.S. The record indicates files. 1975, 1981-1982, L.Ed.2d in or on the file cabinets either Soriano, (1970); office, not indi- desks does banc, 1974) Cir., [No. en of these use cate that op. 72-1520, 15, 1974, slip furnishings July 5783]. other em- exclusion of ployees, contrary.4 And rather Chambers facts of true that handbags privacy, imply though personal from these and Soriano differ left fact that numbers them were other, each true moreover that Mrs. office while she was elsewhere about the arrest5 and her Hand was not under places per- in a little more handbags contain, all, sonal, than that if at thought contain, or to contraband dan- by a closed folder found have been held gerous But instrumentalities. marked, say, “K. F. files the easily movable, had announced a and she any rate, At he re- Hand —Personal.” positive intent to remove and immediate stating pur- Hand’s call her ceived Mrs. probable to them. cause There was be- pose present while to remove the evidence, lieve contained place to be he was authorized where opportunity preserve the it fleet- to was unques- of he had an and to most which ing. totality In the of these circum- right tioned of access. reasoning stances, the we conclude that factual set- of Chambers transcends its these is the exi- But when to added ting sufficiently justify the search. to gency purpose Hand’s stated of Mrs. 6 And we have held Carlton Estelle purses, send for the the scale is decisive- parked search car warrantless ly record, tipped. choices On the Hale’s justified by for “mere was the evidence” juncture at were to the this release presence persons presumably sympa- purses unexamined, to refuse to release might thetic Carlton have made who regular them he contacted en- law away suspect with it. Here the herself forcement authorities and a is- warrant intent to had avowed an immediate have sued, inspect their or to contents and be suspect articles re- the movable guided by what found. Probable the In sei- moved. existing, cause the first course would permissible. zure and search were duty. dereliction of As to two, the if latter Hale’s official “investi- II. gative” position subject was such toas strictures, Fourth it him to Amendment The Indictment: Was Jurisdiction perforce was authorize Alleged and Proved? immobilizing purses. seizure and the Appellant in various also raises modes Having seize, power in the situa- points may what seen either as a presented, duty tion deficiency to do so. in the a variance having proof, seized, And between the accusation and the the lesser intrusion purse anything circumstance, highly specific 4. This for her with the ... else that probable present government belong nature cause [her here to the em- ployer] believe Mrs. Hand and had no connection with the concealed work employer’s property Here, purposes, office.” 188 F.2d at 1021. own though purse distinguish searched, Mrs. Hand’s was it tends the case at bar precisely which, prob- Blok, U.S.App.D.C. was 88 such matter with employ- cause, sought. (1951), able F.2d an was er’s consent was held ineffective to validate Though probable an crime cause to arrest doubt- search for evidence of extraneous employee’s less of a reserved for an exclu- existed at the time of the search. desk There the Court noted: “Her su- sive use. reasonably periors desk 6. 480 F.2d search the could not question proof. The indictment failure of asserted offense. The Each, except the existence ten counts. vel non tained insurance was amounts, jury identical to the submitted to dates and an element charged,8 appellant therefore serve to others. Count I will offense consequently illustrate all of contends them: jurisdictional failed to find a crucial and I COUNT element of the crimes. As to the accusation of embezzled day on or the 25th That about federally institution, appellant insured July, 1968, in Division of the Houston entirely was neither correct: Texas, Southern District nor found. Court, jurisdiction of within HAND, one FRANCES KATHRYN remains to consider whether of the ILA pleading admitted variance between Houston, Texas, proof fatal. also We consider sufficiently of which Credit Union whether indictment charges were then insured and there as well the commission embezzling Administra- National Credit Union crime from a tion, knowingly and, did intent to chartered credit union wheth- injure properly and defraud said ILA er the conviction be af- ground.9 Credit Union firmed on this Texas, embezzle certain monies susceptible clearly indictment is Union, said Credit which had there- being charging of read as that Mrs. fore been to the care and entrusted against Hand’s offense was committed custody of said KATHRYN entity (1) an which was a federal credit by FRANCES HAND reason (2) deposits union and as an of said Credit insured. It is also sus- the amount One Thou- ceptible being referring read as to an Ninety sand One Hundred Four and entity merely incorporated ($1,194.94) Dollars, more or 94/100 phrase “Federal Credit Union” ti- less. Competent pleading juris- tle. of this (Violation: ground Title United States dictional at the least have Code, 657) as, Section phrase added some such “a federal arguably credit union” after what was undisputed is the United merely done, a title. Had this proof deposits offered States no that the allegation ground jurisdiction of this of the Union insured in the man- clearly would have been sufficient. charged or, indeed, ner indictment United States v. McAdams.10 This care- any Moreover, manner.7 18 U.S.C. § omission, together less with the utter embezzling 657 did not include proof ground failure of to the other as insured institution an offense as before jurisdiction alleged, remits us to a it was amended to do effective Octo- principles brief consideration of first The first six counts place which should have had no what- charge the indictment offenses commit- may ever in simply this ease. These date, ted before thus —insofar stated, difficulty applica- in their is charge they merely embezzlement tion. charge from an insured institution — by what was not crime made a 18 U.S.C. Common-law ruffles and flour by any part 657 or other law the time ishes form no of the current law pertinent 7. For all the At all record shows well times § 657 denounced this McCarthy, been. as a crime. United States 1952) ; statute, only elided to refer McAdams, F.Supp. (N.D.W.Va. institutions, insured read as an earlier part charge. of the court’s 10. Id. pleading. pleading, jurisdiction sufficiently criminal An indictment plainly against alleged, objection the es- sufficient which made asserts pur- appeal, by sential simple facts the offense.11 The first time on as- pose of the is said to be to sertion indictment that defendant embezzled from against charge inform the accused “the X National Bank” or Y“the Feder- sufficiently prepare him for him al Credit Union.” Not without difficul- protect ty, defense, to after him conviction we conclude that it was. against acquittal prosecution further There can be doubt little that the ma- cause, for the same inform the jor purposes of an indictment were charged that, court of the facts if served this one. Mrs. Hand was necessary, legal may pass on their charged embezzling specified with sums sufficiency support a conviction.12 employer, from her named for whom the Surplusage, though subject record shows she had worked about five motion, stricken on defendant’s does not years being suspended. before Here is vitiate an indictment.13 question no presented had she worked for two or above, As noted each count of names, picked three with similar sev- alleges that, Mrs. Hand’s indictment pockets day; “ eral in one she well knew employed by ILA what she was of. accused This was fair Union, Houston, Texas, notice to her under the Sixth Amend- of which Credit Union plain that, equally ment. And it is were then and insured there acquittal, the event of conviction or National Credit Administration. Union necessary pleading supplemented — away .” she made with funds proceedings against the record of all entrusted to her. The United States en- protect her15—-would suffice tirely prove failed to insur- jeopardy. from further It is Fed. ance, the Union was a feder- 7(c)16 R.Crim.P. and its demand for one, al chartered under the laws of the “ plain, . . .a concise definite States, beyond peradventure. United If written statement of the essential facts the indictment’s reference to insurance constituting charged. offense regarded surplusage, be as ” . . . . that we come to the rub. 1351, reference to ILA allegation Union, is juris a sufficient skimpier of fed- A assertion of government incorporation, eral imagined then the scarcely diction can be than we alleged jurisdictional bases, has ei- is, two moreover, find here. The element ther do, proved of which would one one which can no be sense waived or of them. by verdict, “Federal Credit Union” is a type cured analogous term of art14 to “National whose absence is available for considera Bank” and similar titles'. And stated tion even on motion in arrest of favorably most judgment.17 to Mrs. the deci- Yet the modern rule for sion appeal under this head of comes treatment of indictments is down to this: as a matter of criminal interpret- are to be read aas whole and (c). 1 1. States, Fed.R.Crim.P. 7 v. United 376 F.2d 619 Wright, 12. 1 Federal Practice and Proce- : dure Criminal 125. § 16. And with the third function of the indict 7(d) ; ment, specific Wright, offense,” 13. Fed.R.Crim.P. to “set out see 1 Fed- Rus States, 768, eral Practice v. § and Procedure: Criminal sell United 369 at 82 U.S. S. 1049, 253, 127. Ct. at 8 L.Ed.2d at so as “to in alleged, form the court of the facts so that coopera- 12 Defined at as a § U.S.C. 1752 it decide whether are sufficient organized chap- tive association under support law to a conviction .” ter, is, turn, entitled the “Federal Cruikshank, 542, United v. States 92 U.S. Credit 12 Union Act.” U.S.C. 558, 588, (1875). 23 L.Ed. 593 States, 749, 15. Russell v. United 369 82 U.S. Woodring 1038, (1962) ; 8 L.Ed.2d Fed.R.Crim.P. 34. S.Ct. 240

935 manner, choice, relinquishment free of an untena- ed in a common-sense the trammels or, worst, the common law mis- devised ble an honest every felony punish take. We take occasion to reiterate both that we do not trial counsel with favor and that time when at a roundings death,18 oth the rule is not on view such able erwise pleading. there to essential elements of as reading ability expanse a indicates is wide of tolerance for Such a styled entity Un “Federal Credit of counsel between success in the case very likely inadequacy a feder and an clear as extreme and so least ion” is at be realleged union, or not to offend the whether Constitution. al credit need in lower case. Nor 'carefully appel- considered We have case, in this such as was there be fear remaining points, lant’s which we well those States, expressed in Stirone v. United requires discussed. None 270, 4 L.Ed.2d 252 80 the 361 U.S. S.Ct. reversal. grand jury re (1960), Affirmed. did not mean turned this indictment charge REHEARING FOR ON PETITION the offense of which PETITION FOR REHEAR- AND prejudice No sub was convicted. EN BANC ING rights appears Hand stantial from the sketchiness of the Mrs. pleading, BROWN, Judge, Chief fatally GEWIN, BELL, WISDOM, BERRY, AINSWORTH, GODBOLD, not defective. and hence it was Berger THORN- States, COLEMAN, GOLDBERG, 295 U.S. United (1935). DYER, In en L.Ed. 1314 S.Ct. deed, SIMPSON, MORGAN, CLARK, far from certain that an RONEY allege Judges. the federal charac GEE, tire failure ter of Circuit the association would have BY THE COURT: jurisdic fatal, proper head of where active ser- A member of Court and another was tion was ap- having requested poll on vice objection the evidence as var without rehearing plication for en banc judgment iant, without motion judges majority service active judg acquittal, motion in arrest of granting a in favor of voted ment, outcry below. Cf. Jack or other rehearing en banc. States, U.S.App.D.C. v. United son 276, cause shall be ordered that the It is (1966).19 In these on the Court en banc briefs reheard though circumstances good example argument. shall oral Clerk practice, did bad filing briefing schedule set a prejudice Hand and was mislead or supplemental briefs. sufficient. III.

Inadequacy Trial Counsel and Matters Other Appellate counsel for America, hindsight STATES UNITED counsel retained trial faults Plaintiff-Appellee, failing steps for course of the alogue to take various proceedings A cat below. v. things MENICHINO, Carmen Andrew presented. done and were not is Defendant-Appellant. legal rating we are not the business No. 73-2511. pe rformance,20 have considered we Appeals, States Court United severally deficiencies, supposed counsel’s and in total record and are Fifth Circuit. effect, in relation to July say entirely unable charge grounded. is well Noth that the ing not be is advanced legitimate tactical viewed either aas ILA Moore, Hand was the Practice 7.04. ¶ Federal Union. Credit needed, requested 19. If more be defendant’s Horsley Simpson, 400 F.2d 708 inquired merely instructions whether

Case Details

Case Name: United States v. Kathryn Frances Hand

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 16, 1974

Citation: 497 F.2d 929

Docket Number: 73-1949

Court Abbreviation: 5th Cir.