649 F.2d 281 | 5th Cir. | 1981
Lead Opinion
The appellant, Nelson Bell, was convicted under 18 U.S.C. § 2113(b) (1976), the federal “Bank Robbery” statute. He appeals his conviction, claiming that, as a matter of law, the evidence was inadequate to support the jury’s finding that he took bank money and carried it away with the intent to steal or purloin. We reverse the conviction for insufficient evidence.
I
At the trial of Nelson Bell, the prosecution presented the following evidence. On October 13,1978, Lawrence Rogovin, in Cincinnati, Ohio, wrote a check for $10,000 on his and his wife’s Cincinnati bank account. He made the check payable to himself and his wife and endorsed it “Deposit only to the account of Lawrence and Elaine G. Rogovin at Dade Federal Savings & Loan, Account No. 02-1-1-159976-0.” On October 13 or 14, Elaine Rogovin mailed the check to an agent in Dade County, Florida, who was to deposit it in the Rogovins’ account at the Dade Federal Savings & Loan (Dade Federal). The agent never received the check.
On October 17, Nelson Bell opened an account at the Alapattah branch of Dade Federal. He used his own name, but a nonexistent home address and an incorrect date of birth and social security number.
Dade Federal accepted the deposit and put a twenty-day hold on the check. Exactly twenty-one days later, on November 7, Bell returned to the Alapattah branch and withdrew the total amount in the account, with interest, giving a third false home address. He insisted that the bank pay him in cash.
After the $10,000 check was discovered missing, FBI agents visited Nelson Bell at his place of work. Bell signed a written statement admitting that he had deposited the check and later withdrawn the money. He further stated that he received the check in the mail from someone in Cincinnati or Cleveland, Ohio, but that he did not have the letter and could not recall what it said or who sent it. In a subsequent interview, Bell stated that the $10,000 in cash had been stolen from his home in a burglary. A police officer who had investigated a burglary report at his home, however, testified that Bell had failed to report the theft of any money, and another officer testified that Bell specifically told him that no money had been taken and showed him several thousand dollars in a clutch bag.
A grand jury subsequently indicted Bell, charging him with violating 18 U.S.C. § 2113(b) (1976), the federal “Bank Robbery” statute. The jury found Bell guilty as charged. He appeals, alleging that the evidence was insufficient as a matter of law to sustain his conviction. Specifically, he contends that the government failed to prove that the $10,000 was withdrawn from the bank with the intent to steal or purloin.
II
The Bank Robbery statute, 18 U.S.C. § 2113(b) (1976), provides as follows:
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both ....
In Thaggard v. United States, 354 F.2d 735 (1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966), this court, relying on United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), interpreted the term “stolen,” as used in section 2113(b), to include “all felonious takings .. . with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” Thaggard, 354 F.2d at 737 (quoting Turley, 352 U.S. at 417, 77 S.Ct. at 402). This is not the type of case that normally arises under this statute. But see United States v. Guiffre, 576 F.2d 126 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978). While the facts may indicate that the defendant engaged in wrongdoing of some sort, the question we face is whether they indicate violation of section 2113(b).
There is little question that most of the necessary elements of the offense were met. The parties stipulated that Dade Federal was a federally insured savings and loan. Further, it appears clear that the amount in question exceeds $100 and either belonged to, or was in the care, custody, control, management, or possession of Dade Federal at the time defendant took and carried it away. The defendant contends, however, that the government failed to show that he tookjhe money from Dade Federal with the specific intent to steal or purloin.
To begin, Bell contends that the evidence is insufficient to show that he took the check feloniously from its rightful owner, within the meaning of Thaggard, supra. While it is clear that he possessed the check under very suspicious circumstances, the government produced no specific evidence indicating how he got the check. If it cannot be proved that Bell stole the check, initially, it cannot be proved that he subse
In Prince v. United States, 230 F.2d 568, 571 (5th Cir. 1956), reversed on other grounds, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), we specified that 18 U.S.C. § 2113(b) (1976) requires a showing of specific intent. One acts with specific intent when he “knowingly does an act which the law forbids or knowingly fails to do an act which the law requires to be done, intending with bad purpose either to disobey or to disregard the law . .. .” Caples v. United States, 391 F.2d 1018, 1022 (5th Cir. 1968). “To establish specific intent, the Government must prove beyond a reasonable doubt ... that [the] defendant knowingly did an act which the law forbids purposely intending to violate the law.” United States v. Thaggard, 477 F.2d 626, 631 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973).
By definition, one cannot intend to steal or purloin his own property.
If the defendant steals a check from the third party, rather than cash, deposits the check, and later withdraws the amount of cash for which the check was written, the considerations are more complex. For instance, one could view this case as similar to that in the preceding paragraph — the theft is complete when the defendant takes the check, so that in defendant’s subsequent dealings with the bank he views the money as his own. On the other hand, one might speculate that the defendant, in invoking the bank processes to convert the check to cash, has an ongoing or new intent to steal the cash the check represents. In the latter case, when does defendant view the crime as complete and thus cease to have the requisite specific intent? When defendant’s bank accepts his deposit of the check? When the payor bank honors the check and forwards payment to defendant’s bank? When the twenty-day holding period expires, indicating that the defendant now has free use of the amount deposited? In short, the jury in such a case must determine whether the defendant intended to commit an illegal act by withdrawing the money from the bank.
REVERSED.
. See United States v. Bailey, 444 U.S. 394, 403-07, 100 S.Ct. 624, 631-2, 62 L.Ed.2d 575 (1980) (one acts with specific intent if he consciously desires an illegal result, however likely it is that his conduct will actually cause an illegal result). See also United States v. Haldeman, 559 F.2d 31, 114 n. 226 (D.C.Cir.1976), cert. denied sub nom. Mitchell v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Thornton, 498 F.2d 749, 751 (D.C.Cir.1974); United States v. Smaldone, 484 F.2d 311, 321 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974); United States v. Porter, 431 F.2d 7, 9 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970); United States v. Krosky, 418 F.2d 65, 67 (6th Cir. 1969); United States v. Williams, 332 F.Supp. 1, 3-4 (D.Md. 1971).
. See Thaggard, 354 F.2d at 737. See also Black’s Law Dictionary, 1267 (5th ed. 1979) (stealing involves taking the property “of another").
. United States v. Grissom, 645 F.2d 461 (5th Cir. 1981), follows parallel reasoning. In that case the defendant was a share-cropping farmer who had pledged his crop of soybeans to the Farmers’ Home Administration (FHA) as security for an FHA loan. The FHA had notified area crop purchasers of its lien on the defendant’s crops and had requested that any checks given to defendant for the purchase of his crops be made payable jointly to defendant and FHA. Defendant proceeded to sell crops under his father’s name. Because the purchasers had not been told of a lien on the father’s crops, the issued checks payable to the father only, rather than to the father and the FHA jointly. When defendant defaulted on his loan payments, the government brought charges under 18 U.S.C. § 658 (1976), which imposes a penalty upon anyone who, “with intent to defraud knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to ... the Secretary of Agriculture acting through the Farmers’ Home Administration. ’ ’
In his defense, defendant submitted that he had not intended to defraud the FHA. His landlord charged as rent a percentage of the
On appeal, the Fifth Circuit reversed the trial court and required that an intent to defraud the FHA be shown before defendant could be convicted:
It would be unfair and illogical to subject [defendant] to punishment of up to five years in jail for committing a federal felony offense, if, in fact, he intended to commit only a state misdemeanor — punishable by a maximum of six months in jail — merely because the crops used to commit the state misdemeanor happened to be mortgaged to the FHA.... [I]t violates common sense to allow the government to punish [defendant] in this case, absent a finding that [he] both defrauded and intended to defraud the government.
Grissom, at 467-68.
. In his dissent, Judge Vance relies upon United States v. Guiffre, 576 F.2d 126 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978), in which the Seventh Circuit affirmed the conviction under section 2113(b) of a defendant who deposited stolen, forged checks and later withdrew the money. As Judge Vance acknowledges, however, the Seventh Circuit did not consider the question of specific intent, and there is no indication that the question was raised. Accordingly, we find that case inapposite.
. In this case the jury needed a framework in which to evaluate Bell’s acts and the alternative views he may have held about their ramifications. This framework might have been provided through expert testimony or other evidence and instructions concerning the technicalities of the banking process, debtor-creditor rights, and the law of negotiable instruments. Such matters are foreign to the typical juror and criminal, but yet they may be very useful in exploring and evaluating the question of subjective intent. See United States v. Garber, 607 F.2d 92 (5th Cir. 1979) (en banc).
Of course, evidence that a defendant’s withdrawal injured the bank — for instance, evidence that under state law the bank was liable to the payor of the check for the amount that the defendant withdrew — would not, in itself, be sufficient evidence of specific intent to steal from the bank. Unlike the law of “general intent,” which holds simply that one “intends” the “natural consequences of his acts,” Windisch v. United States, 295 F.2d 531, 532 (5th Cir. 1961), specific intent involves a subjective element. The defendant must actually intend the illegal result. See Caples, 391 F.2d at 1022.
Dissenting Opinion
dissenting:
Through use of a stolen check with an altered endorsement, Bell succeeded in inducing a federally insured savings and loan
The evidence here provided sufficient basis for the jury’s conclusion that Bell violated section 2113(b). To my mind Bell’s actions in establishing an account with a nonexistent home address and incorrect date of birth and social security number provide ample evidence of specific intent. Appellate review of the sufficiency of the evidence to support appellant’s conviction requires that the evidence be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Black, 497 F.2d 1039 (5th Cir. 1974). This court has ruled that “[a]ll reasonable inferences and credibility choices as will support the jury’s verdict of guilty must be made.” Id. at 1401. When measured against this standard, the evidence before us requires that Bell’s conviction be affirmed.
Rehearing
ON REHEARING AND REHEARING EN BANC
A member of this Administrative Unit of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in this Administrative Unit in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the cause shall be reheard by this Administrative Unit of the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.