UNITED STATES of America, Plaintiff-Appellee, v. Kenny HOGUE and Jesse Meeks, Defendants-Appellants.
No. 96-11378.
United States Court of Appeals, Fifth Circuit.
Jan. 12, 1998.
1087
Franklyn Ray Mickelsen, Jr., Asst. Federal Public Defender, Dallas, TX, for Hogue.
Robert John Clary, Owens, Clary & Aiken, Dallas, TX, for Meeks.
Before DeMOSS and DENNIS, Circuit Judges, and LEE*, District Judge.
DENNIS, Circuit Judge:
This is the second appeal involving the prosecution of Jesse B. Meeks (“Meeks“) and
FACTS
Meeks and Hogue were employees of Underwood Safe, an independent contractor that contracted with the Bank to provide locksmith services for the Bank‘s safe deposit vault, which included drilling safe deposit boxes that had been abandoned by depositors and changing the locks and keys on safe deposit boxes. The Bank required that all such locksmith work be monitored by bank employees. Sometime in 1985, while Meeks was inside the vault performing his locksmith duties, Ms. Maria del Carmen Garcia-Rendueles de Roberdo (“Rendueles“), the lessee of several safe deposit boxes, asked Meeks to help her remove a box. While Meeks was assisting Rendueles, he discovered that the box contained Krugerrand coins that were being transferred into two other boxes leased by Rendueles or her company.
Meeks reported the existence of the Krugerrands to his employer, Erwin Underwood (“Underwood“), the owner of Underwood Safe.1 At Underwood‘s urging, Meeks agreed to force open Rendueles’ safe deposit boxes, take the Krugerrands, and split the coins between them. Hogue, who was also employed by Underwood Vault, agreed, in exchange for receiving a share of the stolen property, to assist in the theft and act as a lookout during the crime. Sometime between 1985 and 1987, Meeks and Hogue removed all of the Krugerrands from two of the three boxes by forcibly prying open the door hinges of the boxes with a metal tool.
In 1994, seven years after the theft of the coins was discovered, Meeks and Hogue were indicted under
In the indictment, the appellants were charged with violations of
Ordinarily, a motion to dismiss an indictment for failure to state an offense challenges the sufficiency of the indictment itself, requiring the court to take the allegations of the indictment as true and to determine whether an offense has been stated. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). If the district court dismisses an indictment because it does not allege an offense, on review the indictment is to be tested not by whether its allegations are in fact true but by the indictment‘s “sufficiency to charge an offense.” United States v. Mann, 517 F.2d 259, 266 (5th Cir.1975) (quoting United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962)), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976).
In Meeks I, however, neither the district court nor this court of appeals based its decision strictly upon the facts recited in the indictment. Because the Government and the defendants entered into a joint stipulation of facts for purposes of the motion to dismiss the indictment, each court considered the allegations of the indictment as expanded by the stipulated facts. The district court dismissed the indictment, concluding that the stipulated facts showed that Meeks and Hogue were not “sufficiently ‘connected in any capacity with’ a bank pursuant to § 656 [because Meeks and Hogue did not] exercise some position of control over the bank‘s affairs, enjoy a relationship of trust with the bank, or [were] entrusted with bank funds or property.” (Mem. Op. and Order at 7).
Upon the Government‘s appeal in Meeks I, this court reversed, holding that (1)
On remand, after a bench trial, the district court convicted Meeks and Hogue of violations of
DISCUSSION
1.
When a person is charged with a crime, he is entitled to a presumption of innocence and may insist that his guilt be established beyond a reasonable doubt. Herrera v. Collins, 506 U.S. 390, 398, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). As a result, the prosecution bears the burden of proving all elements of the offense charged and must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993); see also Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 481, 116 L.Ed.2d 385 (1991) (“[T]he prosecution must prove all the elements of a criminal offense beyond a reasonable doubt.“); United States v. Gaudin, 515 U.S. 506, 523, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995) (Rehnquist, C.J., concurring). Therefore, a judge may not direct a verdict of guilty no matter how conclusive the evidence. United States v. Johnson, 718 F.2d 1317, 1321 (5th Cir.1983) (en banc) (citing Connecticut v. Johnson, 460 U.S. 73, 84, 103 S.Ct. 969, 976, 74 L.Ed.2d 823 (1983) (plurality opinion) (quoting United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947))). Accord Sullivan, 508 U.S. at 277.
The fact finder in a criminal case traditionally has been permitted to enter an unassailable but unreasonable verdict of “not guilty.” This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence is overwhelming. Jackson, 443 U.S. at 318 n. 10. The power of the fact finder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty. Id. (citing Carpenters & Joiners, 330 U.S. at 408); cf. Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585-86, 43 L.Ed. 873 (1899).
2.
At the time of the alleged offenses,
Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank ... embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank ... shall be fined not more than $5,000 or imprisoned not more than five years, or both....
The essential elements of the crime Meeks and Hogue were accused of are that they (1) were connected in a capacity with a federally insured bank (2) when they embezzled, purloined or willfully misapplied (3) moneys, funds, or assets (4) entrusted to the custody or care of such bank. Accordingly, in the present case, the district court, in the bench trial, was required to find beyond a reasonable doubt, inter alia, that Meeks and Hogue were connected in some capacity with the bank at the time the Krugerrands were misappropriated, in order to convict them of violating
3.
Applying these standards, we conclude that the district court‘s oral findings
We therefore remand this case to the district court to conduct proceedings as to this question and to make written findings of fact supportive of its ultimate conclusion. Should the district court find beyond a reasonable doubt that Meeks and Hogue were persons connected in any capacity with the Bank at the time of the charged offenses, the convictions and sentences should be sustained. On the other hand, if the district court finds that proof of this essential element of the crime is not sufficient, the charges should be dismissed.
4.
The Government argues that the convictions and sentences should be affirmed because this court in Meeks I held as a matter of law that employees of an independent contractor that contracted to repair and maintain a bank‘s safe deposit boxes are persons “connected in any capacity” with the bank within the meaning of
[T]he statute‘s plain language provides no basis for a narrow reading of its scope. The words “connected in any capacity“, as normally used, comprise a broad modifying phrase. Absent binding contrary precedent, we cannot distort the usual meaning of the phrase to require a more specialized type of connection with the bank than that held by Meeks and Hogue.
The capacity in which Meeks and Hogue were connected with the bank was as employees of an independent contractor that provided the bank with a necessary service, which required (and permitted) its employees to be in a restricted area of the bank. Irrespective of the outer limits of the statute‘s reach, we cannot say that these defendants fell beyond that reach when they serviced the safe deposit boxes from within the vault of the bank.
Meeks I, 69 F.3d at 744 (citation omitted).
The Government reads too much into these portions of the opinion. Meeks I made these statements in explaining why it rejected the interpretation of the statute that had been adopted by the district court, viz., that “to be sufficiently ‘connected in any capacity with’ a bank pursuant to § 656, the defendant must exercise some position of control over the bank‘s affairs, enjoy a relationship of trust with the bank, or be entrusted with bank funds or property.” Within this context, Meeks I rejected the district court‘s narrow interpretation of
Meeks I does not hold, however, that as a matter of law the employee of an independent contractor providing locksmith services for the bank‘s safety deposit boxes, regardless of the particular circumstances of each case, is a person “connected in any capacity with” the bank within the meaning of
Additionally, we decline to adopt the Government‘s reading of Meeks I because it would be tantamount to having this court do what we and the Supreme Court have held that due process prohibits a trial court from doing, i.e., directing a verdict for the Government on, or otherwise withdrawing from the trier of the facts the function of finding beyond a reasonable doubt, an essential element of the crime charged. See Winship, 397 U.S. at 361, 363; Gaudin, 515 U.S. at 522-23; Sullivan, 508 U.S. at 277-78; Johnson, 718 F.2d at 1321. That the trier of facts in this case was a judge and not a jury “is of no constitutional significance.” See Jackson, 443 U.S. at 317 n. 8.
CONCLUSION
Accordingly, the judgment of the district court is VACATED, and the case is REMANDED WITH INSTRUCTIONS.
DeMOSS, Circuit Judge, specially concurring:
I concur fully in the reasoning and disposition of the foregoing opinion. I write separately to identify another problem which the district court should address on remand.
At the time of the criminal conduct made the subject of this prosecution, the criminal statute in question expressly provided that what was embezzled or willfully misapplied must be “the monies, funds or credits of such bank or any money, funds or credits intrusted to the custody or care of such bank.”
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