United States v. Nelson Bell
649 F.2d 281
5th Cir.
1981
Check Treatment

*1 America, UNITED STATES

Plaintiff-Appellee,

v BELL, Defendant-Appellant.

Nelson Roy Allman, Schaefer, W. J. Matthew No. 79-5741. Lauderdale, Fla., Fort for defendant-appel- Appeals, States Court lant. Fifth Circuit. Stephen Gillman, B. Atty., Asst. U. S. BUnit Miami, Fla., plaintiff-appellee. for 23, 1981. March Sept.

Rehearing En Banc Granted GODBOLD,

Before Judge, Chief TJO- VANCE, and Judges. FLAT Circuit TJOFLAT, Judge: Circuit Bell, The appellant, Nelson convicted under U.S.C. the federal Robbery” “Bank He appeals statute. conviction, that, claiming as a matter of law, the inadequate evidence was jury’s finding took bank money carried it away purloin. We reverse conviction for insufficient evidence.

I Bell, At the trial of prosecu- Nelson presented following tion evidence. On 13,1978, Rogovin, October Lawrence in Cin- cinnati, Ohio, wrote a check his wife’s Cincinnati bank account. He made the check payable himself and “Deposit his wife and endorsed it account of Lawrence Elaine Ro-G. govin Loan, Savings Dade Federal & Account No. 02-1-1-159976-0.” On Octo- Rogovin ber 13 or Elaine mailed the Florida, agent County, an in Dade Rogovins’ who was to in the Savings account at the Dade Federal & (Dade Federal). agent Loan The never re- ceived the check. opened

On October Nelson an account at the Alapattah branch of Dade name, Federal. He used his own but a nonexistent home address an incorrect security of birth date and social number. *2 (b) away, Whoever takes and carries day, he went to another Later the same purloin, any prop- with intent to steal or deposited Federal and a branch of Dade erty money any thing or other of value or account, $10,000 giv- into his new check for to, exceeding belonging or in the $100 address. The check ing a second false home care, control, management, or custody, Rogovins was the check the had same bank, union, possession any credit or except the account number not- mailed that association, any savings and loan shall be ed in the endorsement had been scratched $5,000 imprisoned fined not more than or out and the defendant’s new account num- years, not more than ten or both .... place. written in its ber had been Thaggard v. United accepted the Dade Federal (1965), put a hold on the check. Exact- 1222, 16 (1966), court, this S.Ct. later, ly twenty-one days on November Turley, on relying U.S. Alapattah branch and Bell returned to the (1957), account, withdrew the total amount in the “stolen,” the term as used in interpreted interest, third false home giving 2113(b), section to include “all felonious tak pay address. He insisted that the bank him ings deprive .. . with intent the owner in cash. rights ownership, and benefits of regardless of whether or not the theft con $10,000 check was After discovered larceny.” Thaggard, stitutes common-law missing, agents visited Bell FBI Nelson at (quoting Turley, 354 F.2d at 737 352 U.S. at place signed of work. Bell a written type 77 S.Ct. at This is not the admitting deposited statement that he had normally under this case arises statute. later withdrawn the money. the check and Guiffre, But see United He further stated that he received the (7th Cir.), U.S. in the mail from someone in check Cincin- (1978). 58 L.Ed.2d 128 While the Cleveland, Ohio, nati or but that he did may facts indicate that the defendant en have the letter and could not recall what it gaged sort, in wrongdoing of some subsequent said or who sent it. In a inter- question they we face is whether indicate view, $10,000 Bell stated that in cash 2113(b). violation burgla- had stolen from his home in a been question There is little that most of the investigated ry. police A officer who had necessary elements of the offense were met. home, however, burglary report at his testi- parties stipulated The that Dade Federal report failed fied that had the theft federally savings was a insured and loan. any money, and another officer testified Further, appears it clear that the amount in specifically that Bell told him that no mon- question belonged exceeds and either $100 ey had been taken and showed him several to, care, control, or custody, was in the bag. dollars in a clutch thousand management, possession or of Dade Federal at time defendant took and carried it Bell, jury subsequently grand A indicted contends, however, away. The defendant charging violating him with 18 U.S.C. that the failed to show that he 2113(b) (1976), the federal “Bank Rob- § tookjhe money from Dade Federal with the bery” The found Bell statute. purloin. intent to steal alleging that charged. appeals, as He begin, To Bell contends that the evidence as a matter of law evidence was insufficient is insufficient to show that he took the Specifically, his conviction. he to sustain owner, feloniously rightful check from its failed to contends that supra. meaning within prove that the was withdrawn from possessed While it clear that he is purloin. with the intent to steal or the bank circumstances, very suspicious government produced no II indicating got how he the check. If it statute, check, Robbery proved The Bank U.S.C. cannot be that Bell stole the proved it he initially, follows: cannot subse- provides as it. He bank, withdraw and later with a quently took the funds from the bank with with the it not withdraw does seriously intent to steal. We already he has because from the bank steal question whether the evidence was suffi- party; third money from stolen point, assuming cient on this even but withdrawing the was, is complete. theft inadequate we find the evidence own, least as views it prove that Bell had a *3 bank. at the the away time he took and carried vis-a-vis the $10,000 from the bank. If the defendant a check from steals the States, 230 F.2d Prince v. United In third party, deposits rather than the 1956), on other 568, (5th reversed 571 Cir. check, and later the withdraws amount of 403, 322, 1 77 S.Ct. grounds, 352 U.S. written, cash for which the was check the specified 18 (1957), we that L.Ed.2d 370 complex. considerations are more For in showing (1976) requires a U.S.C. § stance, one could view this case as similar to specific acts with specific of intent. One that in the preceding paragraph theft —the “knowingly does an act intent when he complete is when the defendant takes the knowingly fails to or which the law forbids check, so that in subsequent defendant’s done, requires to be the law do an act which dealings with money the bank he views the either to diso purpose intending with bad hand, as his own. On the might other one Caples . .” law .. bey disregard or to the speculate defendant, that the in invoking 1018, (5th States, 1022 F.2d v. 391 United the processes bank to convert the check to intent, the 1968). “To establish Cir. cash, has an new ongoing or beyond a reasona prove must Government the cash the check represents. the latter know defendant ... that ble doubt [the] case, when does view the defendant crime pur the law forbids an act which ingly did complete as and thus cease to have the the law.” Unit intending to violate posely requisite specific When intent? defendant’s 626, 477 F.2d 631 Thaggard, ed v. States bank accepts his deposit the check? denied, 1064, 94 Cir.), 414 U.S. (5th cert. payor When the bank honors the check and (1973).1 570, 469 38 L.Ed.2d S.Ct. payment forwards to defendant’s bank? When holding period the definition, intend to steal ex By one cannot pires, indicating Accordingly, that the defendant now has property.2 purloin or his own deposited? short, free use of the believing amount with a bank deposits money if one jury the him, such a case must he has no intent to determine belongs to it whether the intended to subsequent he defendant commit when it from the bank steal an illegal withdrawing by money act the example, a defendant For ly takes it back. from the bank.3 party, deposit it third may steal cash from a Bailey, 394, share-cropping 1. See United case States v. 444 U.S. the defendant was a farm- 403-07, 624, 631-2, pledged crop soybeans 100 er who had S.Ct. 62 L.Ed.2d 575 his to the (1980) (one (FHA) acts with intent if Farmers’ Home he con Administration as secur- result, sciously ity illegal likely desires an for an however FHA loan. The FHA had notified crop actually purchasers it is that his will area conduct lien cause an of its on the defend- illegal result). man, crops requested any See United ant’s also States v. had Halde checks 31, given purchase (D.C.Cir.1976), 559 F.2d n. to 114 226 defendant of his States, crops payable jointly cert. denied sub Mitchell v. made to nom. United defendant and 933, 2641, proceeded crops 431 U.S. FHA. 97 53 Defendant to S.Ct. sell under (1977); Thornton, purchasers his United father’s name. 498 Because the F.2d had 749, (D.C.Cir.1974); 751 crops, United not been States v. told of a lien Smal father’s done, 311, (10th 1973), payable only, 321 Cir. issued checks to the father rather 915, 1411, jointly. 94 S.Ct. than to the 39 father and the FHA L.Ed.2d When (1974); Porter, 469 payments, United 431 F.2d defaulted on his loan (9th Cir.), 9 brought charges 400 U.S. under 18 U.S.C. (1970); (1976), imposes penalty 27 upon United 658 States v. which Krosky, (6th 1969); anyone who, knowingly 67 Cir. to “with intent defraud Williams, F.Supp. (D.Md. conceals, removes, of, disposes States v. 332 3-4 or converts to another, any property his own use or to that of mortgaged pledged Secretary at 737. See also F.2d ... 2. See 1979) (5th Dictionary, Agriculture acting through ed. the Farmers’ Law Home Black’s ’’ taking property “of an- (stealing involves Administration. other"). defense, In his defendant submitted that he (5th Grissom, F.2d had intended to defraud the FHA. His reasoning. charged In that percentage 1981), parallel landlord as rent follows to the hand, government, prove Glasser v. United In the case 2113(b), violating U.S. 457, 469, L.Ed. prove that he intended had to cannot be said the rea sonable minds through would to steal from the bank find it inconsistent hypothesis closing the act of out his account with Dade the defendant lacked Federal.4 The evidence the re pur steal or loin intent, from concerning ceived Bell’s bank in withdrawing $10,- however, from his was that he obtained checking the check account. The jury might circumstances; perceived have suspicious gave he that Bell viewed the theft as complete proper security name but a false social when he acquired the number, birth, gave date of and address in his false information to Federal; bank only dealings with Dade he transacted cover his tracks. It also could have his business at two different branches of inferred that Bell viewed the Federal; theft complete as subject Dade to a when he deposited the *4 check and had holding period, and he with it credited to his account. In either $10,000, event day drew the in after that one would have lacked the period expired. This evidence is all circum to steal or purloin from the stantial. criminal cases based on cir bank when he “[I]n removed the money from his cumstantial evidence our task is to deter checking account.5 Accordingly, mine whether conviction reasonable minds could con must be clude that the evidence is inconsistent with hypothesis of the accused’s innocence.” REVERSED. Warner, United v. 821, 441 F.2d 825 (5th See United States v. An Cir. VANCE, Judge, dissenting: Circuit drews, 539, (5th 1970); 427 F.2d 540 Cir. States, Surrett v. United 403, 405 Through of a check with an use stolen (5th 1970). Here, Cir. endorsement, even when the evi Bell succeeded in in- altered dence is light viewed in the most favorable savings ducing federally and loan a insured forged sold, crops money. checks and defendant had sold later withdrew and Judge crops attempt acknowledges, however, As in an Vance his father’s name deprive question Seventh specific to his Circuit did not the landlord of full rent. Defend- consider the intent, fully repay ant testified and intended to his there is no indication that question Accordingly, FHA loan. The trial court found an intent to raised. we find inapposite. that case defraud landlord sufficient for conviction 658; under section a more intent to 5. In this case the needed a framework in defraud the not be need shown. which to evaluate Bell’s acts and the alterna- appeal, On the Fifth Circuit reversed the trial may tive views he have held about their ramifi- required court and that an intent to defraud the might cations. pro- This framework have been FHA be shown before defendant could be con- through expert testimony vided or other evi- victed: concerning dence and instructions illogical techni- subject It would be unfair and to banking process, calities of the punishment years debtor-creditor up to to five [defendant] rights, negotiable and the law of jail felony instruments. committing in a federal of- foreign typical juror Such fense, matters are if, fact, to the only in he intended to commit criminal, yet they may very and but be punishable by useful a state a maxi- misdemeanor — exploring evaluating question in jail merely of sub- mum of six in months because — jective Garber, intent. See United States v. crops 607 used to commit the state misde- (5th 1979) (en banc). F.2d 92 Cir. happened mortgaged meanor be to the course, FHA.... sense to violates common al- [I]t that a defendant’s with Of punish instance, low the in injured [defendant] evi the bank —for drawal case, finding this absent both [he] a law the bank was liable dence that under state defrauded and intended to defraud the payor for the amount that to the of the check government. not, itself, in defendant withdrew —would Grissom, at 467-68. evidence of be sufficient “general bank. Unlike the law of from the intent,” simply dissent, “intends” Judge holds that one upon which Vance relies Unit acts,” consequences Wind Guiffre, (7th Cir.), the “natural ed States v. 576 126 F.2d 531, States, (5th F.2d 532 denied, 113, 295 isch v. United cert. 439 U.S. 99 S.Ct. subjective 1961), specific a intent involves Cir. in which the Seventh Cir actually intend must The defendant element. cuit affirmed the conviction under section Caples, illegal F.2d at 1022. 2113(b) stolen, result. See deposited of a defendant who choices as credibility inferences possession of ten sonable part association jury’s verdict belong to him. did not will dollars that thousand When meas- at 1401. made.” Id. Thaggard v. be in United must This court standard, the evidence this 1965), against (5th Cir. ured 354 F.2d 735 conviction that Bell’s requires 16 L.Ed.2d us before 383 U.S. under 18 (1966), upheld a conviction U.S.C. affirmed. who withdrew of a defendant AND REHEARING REHEARING ON mistaken he knew his bank had money that EN BANC of the his account. I am ly credited to controlling. Thaggard is opinion GODBOLD, Judge, RO- Before Chief rejected the view expressly FAY, VANCE, we NEY, HILL, TJOFLAT, JOHNSON, Jr., circuit KRAVITCH, of the fourth M. FRANK (4th 1961), Cir. Rogers, HENDERSON, HATCHETT, ANDERSON 2113(b) is not to be so CLARK, Judges. held that section Circuit and THOMAS A. applicability is narrowly its construed crime was larceny as that limited THE BY COURT: law. The second to the common known A member of this Administrative Unit view. adopted this circuits also have seventh having requested in active service the Court Fistel, F.2d United States rehearing application for en poll on the Guiffre, 1972); (2d judges in this majority and a banc (7th Cir.), F.2d 126 hav- Unit in active service Administrative (1978). rehearing granting in favor of ing voted Supreme Court’s rely These decisions banc, en *5 word “stolen” in Unit of the interpretation that the cause shall be IT IS ORDERED 407, 77 S.Ct. Turley, 352 U.S. ed States of the by this Administrative Unit reheard (1957) as a basis argument with oral on a date en banc Court 2113(b) ap interpreting section broadly speci- to be fixed. The Clerk will hereafter to de takings with intent to felonious ply filing sup- for the briefing schedule fy benefits of rights prive the owner briefs. plemental circuit the seventh ownership. In Guiffre under section upheld the conviction checks deposited stolen a defendant who sepa into three forged endorsements with mon later withdrew the rate accounts not discuss the Although court did ey. for a conviction required intent GREEN, Jr., Reverend Clovis Carl No. deposits a stolen a defendant when 00049-045, Unit, Segregation Federal later withdraws alteration and with an Institution, Correctional Box An- a de conviction of affirmed the money, thony, Mexico, 88021, Petitioner, New indictment charged by the fendant away with the “taking carrying require testi The court did to steal.” CARLSON, Director, Norman A. Federal in negotiable concerning the law of mony Prisons, Washington, D.C., Bureau of struments. Commission, and U. S. Parole Wash- ba- sufficient provided here The evidence D.C., ington, Floyd Arnold, Warden, Bell violat- conclusion that jury’s sis for Institution, Federal Correctional Box Bell’s ac- 2113(b). my To mind ed 1000, Anthony, Mexico, 88021, New Re- with a non- establishing an account tions spondents. incorrect date address and home existent provide security number and social birth No. 81-1265. Appel- intent. ample Appeals, Court of of the evi- sufficiency late review re- Fifth Circuit. conviction appellant’s dence to in the be viewed the evidence quires that Unit A government. light most favorable June v. United Glasser (1942); United L.Ed. (5th Black, F.2d 1039 rea- ruled that has “[a]ll This court