United States v. Victoria Yamamoto Walker
677 F.2d 1014
4th Cir.
1982
Check Treatment

*1 sober, franchise charges been informed exercise of the satisfied. If the nature of the ineffective, reply are such as to make a in this election. was not obtained then of reply no amount time to can cure DENIED. ENFORCEMENT problem. Schneider, See 390 F.2d at only 380. In the practical instant

way reply charge being a shyster

tois answer a shyster. that is not Such response inflammatory accusation

repeated time probably after time is as

damning original as the accusation.

Having determined that the three re- quirements of the Santee River test have America, Appellee, STATES of UNITED met, we conclude that on attacks attorneys manage- thus Hanes’ ment are the sort of “. . . inflammatory WALKER, Appellant. Victoria Yamamoto statements which create conditions which 80-5111. No. impossible sober, make informed exercise ” of the franchise. .. . Schneider Mills at Appeals, United States Court 380. The attorneys characterization of the Circuit. Fourth as shysters and admittedly worse is false. Argued Jan. 1982. If attorneys speeches fact wrote the and written Compa- communications of the 5,May Decided ny during election, that makes matters worse better, for the Union rather than for any

not a word of Company communication

during to, objected election is any nor is

relied upon calling as a reply. for The idea that composed, were campaign

conducted, wholly by lawyers shyster as the

Union repeated has time again is sim- ply not conduct which may approve we as permissible in a representation election. quoted We have only parts small

more relevant communications. The num-

ber of untrue any statements exceeds which seen, we have and in virulence have few equals. This court noted and condemned example, Mills, practice Schneider

of comparing the owner of company comparison

Hitler. The Union’s in this case

of the Company to the regimes communist Russia, China, and elsewhere is no less

offensive. We also think the fact part least a may untruths have been

deliberate should be mentioned and “ consequence. some ‘An innocent mistake might occur number of reasons. One must regard deliberateness as an admission ” important.’ matter was Santee River at 1211. The may same be said of the repetition of such statements. impermissible extent of the cam-

paigning by the Union convinces us that a *2 McDaniel, Jr., Wash-

William Alden Sullivan, Jr., Wil- (Brendan V. ington, D. C. C., Washington, D. Darrel Connolly, liams & Rockville, Longest, Longest, L. Bernstein & brief), appellant. Md. on Melillo, Atty. Sp. Asst. U.S. Joseph T. Williams, Atty., Leonie M. (Justin W. U.S. Alexandria, Brinkema, Atty., Asst. U.S. Va., brief), appellee. WINTER, Judge, WIDEN Chief

Before WILKINS,* District ER, Judge, Circuit Judge.

WIDENER, Judge: Circuit appeals her Walker Victoria Yamamoto embezzle- of bank conviction on two counts ment, § in violation of U.S.C. bank making entries in two counts of false records, of 18 U.S.C. § violation Youth under the Federal She was sentenced 5010(b), (YCA), 18 Corrections Act U.S.C. count, on each to an indeterminate sentence concurrently. Various errors to run We find no alleged as to both crimes. entry false error in the convictions for We vacate affirm as to those. therefore and re- for' embezzlement convictions mand for a new trial. appli argues that government

The rule is sentence cation of the concurrent here, making consideration proper thus unnecessary. the embezzlement counts rule, applicable when concurrent sentence sen received concurrent has indictment, multiple counts of an tences on reviewing need not provides court that a con validity defendant’s pass upon the it has counts once viction for additional count, his conviction on affirmed possibility only if “there is no substantial will ad conviction the unreviewed right pa versely the defendant’s affect risk of a substantial expose role or him to consequences.” United adverse collateral Hung, Truong v. Dinh States (4th Cir. is no sub say that We cannot the embezzlement possibility that stantial Carolina, by designation. sitting United States District Court for the District of South unexplained shortage, plus will not access expose convictions Walker (4th Powell, F.2d 1037 consequences. substantial risk adverse 1969), jury to decide if is for it government Even the cannot assure us that pro- appellant exist. The access in fact did Walker’s release date on her sentence YCA tended trial which duced evidence would be affected. fact exist. not in show that sole access did *3 testimony the from particular, was In II depositors who could iden- two involved We must therefore consider the em accepted tify who their Walker as the teller assignment bezzlement convictions. One gave receipts.1 deposits them their and who error requires raised a new trial on those the Also, one of that on testified Walker contends, appellant counts. The we and key duplicate days she found a question in agree, that the incorrectly district court re the at teller window. in lock her moved from jury’s the consideration the right the defendant has A criminal involved, issue of sole access to the funds questions all jury to have the resolve conversion, from which an the element of fact, judge to for district and it is error the embezzlement, crime of may be inferred. jury. the disputes from withdraw factual The instruction at issue reads: (5th States, 375 F.2d 135 Mims v. United Now, case, applied as to this the Court Ornstein, 355 1967); v. United Cir. States you tells that both the criminal intent v. (6th 1966); F.2d 222 United States Cir. and taking the actual money by of the 1962); McKenzie, (6th Cir. 301 F.2d 880 the may proved by defendant be circum- (7th Raub, 177 F.2d 312 v. United States stantial evidence in an embezzlement and 1949); Wright, 2 Fed’l Prac. & Proc. Cir. where the defendant alone has to access court committed such 371. The district property case, the jury and is this by stating that in this the that error here to in money the cash a fact is drawer was a case of sole access. Such and dollar shortage jury the to determine. is explanation disclosed and no shortage the is by tendered ac- the Accordingly, the convic we affirm you may, cused you but do not have to entry of false tion on the two counts reasonably infer from the circumstances (counts IV) the and and vacate convic II that the custodian of property the embez- (counts I tions on the counts embezzlement missing zled the (Emphasis funds. add- III) on and for a new trial and remand ed) those counts.2 While the correctly district PART; court stated IN AFFIRMED VACATED that may conversion be inferred from sole IN AND REMANDED PART3. depositor, Evelyn Vines, 1. One the best identified read a whole are at the instructions as gave deposit jury teller misleading, place that she her is that to as a white one the told for in woman, they Japanese. while Walker is and in another The other must find sole access depositor, Perez, finding left to them. Eileen are told that such is testified that the teller jury way instructing in she one and dealt with First in then was a man. here, another, requires as reversal was done 2. We further find that the convictions for new in numerous cases false trial as has held entry substantially and different embezzlement were not so factual situations not inter- E.g. highly twined probable that it v. was from hand. United States that at Walker 1977); Pope, (6th prejudiced was entry by 663 Cir. on the 561 F.2d false counts 1970); Garza, (5th 426 949 Cir. erroneous v. F.2d instruction on the embezzlement States, (9th Gagliardo Caudle, 366 F.2d 720 counts. Cf. v. United United States v. 606 F.2d States, 1966); Polansky (4th Cir. 332 F.2d 1979). v. United Cir. The record contains States, (1st 1964); Cir. Smith United abundant evidence of the false For entries. 1956); (6th example, Frank v. United Cir. signa- the evidence shows Walker’s States, (10th 220 F.2d ture on the two settlement sheets which reflect question reading in- payouts that transactions While we do not doubt as rather deposits they required than the as as hornbook structions law, a whole is were. application we think here is over- its argues 3. The simplification dissent that the instructions read that the correct rule is stated and Frank, as a disagree. supra, p. quoting whole are clear. We We think McFarland WINTER, majority concludes instruction which the Judge, HARRISON L. Chief dissenting: error: was reversible ease, Now, this the Court applied as whole, I do not think When read as a intent the criminal you both tells court instructions of district money by taking of the and the actual from jury question removed proved by circum- may be the defendant whether this had access moneys respect evidence in an embezzlement allegedly embezzled. stantial fully contrary has access majority’s dissent from the the defendant alone where conclusion. in this property a dollar money in drawer and the cash I. explanation no shortage is disclosed theory prosecution of the in this case the ac- is tendered shortage defendant, employed was that admittedly you do not you may, cused days question, as a bank teller on the reasonably from circumstances infer *4 $5,000 deposit received a of a cashier’s embez- property the that the custodian of Vines, Evelyn check from a certain Now, does not it missing zled the funds. $6,000 days deposit three a check later a might infer you require you do so but to a from certain Eileen Perez. In each in- circumstances, the you but are from the facts, stance there was evidence that defendant (emphasis add- judges sole of the falsified bank to the records show that ed) checks were deposited cashed rather than view, in this “that is my phrase In the proceeds and that she converted the to her there only to mean that case” was meant own depositor use. given Each was a re- defendant evidence that was circumstantial ceipt showing deposit- that the cheeks were property not the but alone had access to account, ed to her and the the bank honored finding who had jury’s the as to foreclose receipts depositors’ when the were accounts in- district court possession. Had the allegedly depositor overdrawn. Neither issue, “in” the word tended to foreclose the identify could teller who the handled her rein- interpretation is superfluous. My was thought transaction —one the teller practically in forced the fact female, was thought the other tell- that the breath, jury, “the told the the court next However, records, er was male. the bank’s question a in case raises evidence this i.e., the slips fraudulent cash and the fraud- the defendant you whether to determine sheets, ulent signature settlement bore the actor,” was, fact, and then in the criminal of defendant. was the fact that called attention to adding: testimony, positive no identification II. is on However, the burden in mind bear In instructing jury, the district court only to show not the Government repeatedly stressed that burden was only this elements of essential government prove beyond a reasona- checks falsification of there was a show ble doubt all elements of the crime and that deposit and as cash instead marked duty never had the or burden days in in the shortage in drawer calling any producing any witnesses or of the equal evidence. the amount explained question district court theory prosecution you beyond check, satisfy gave and then must 780, Cir., 1934, v. United 72 F.2d States, States, 85 174 v. United 3 19, F.2d U.S.App.D.C. (1949),

538, 1924, as follows: States, Cir., 787; Drossos v. charge jury, “If a in its considered 539.” entirety, states correctly law, the incor- paragraph rectness of one to be or one rule phrase this is the It is book law that horn standing alone ordinarily does not constitute 421 U.S. Park, See United applied. reversible error; if it otherwise two 1912, 44 L.Ed.2d 658, 674, S.Ct. instructions (4 are direct and one is conflict (1975); 628, 629 Read, 596 F.2d Reeves v. prejudicial, jury might clearly for the followed the Nicola erroneous instructions. reasonable doubt that this defendant is

the one was solely possession who day, yes,

that drawer all she was deposits

the one who received the and she

is the one made signed who out and these

things. words, In other since there has identification,

not been an the burden is

on the say you Government as I before

can draw an from inference the circum- anything, (emphasis added)

stances or

Manifestly, jury explicitly told that its

function was to find whether a defendant solely

was possession in order to convict

could not reasonably understand that that

factual issue was foreclosed.

I think that the factual issue of whether

or not there possession was sole from which permissible inference could be drawn fairly put

was to the jury. Since I find no

merit in contentions, defendant’s other

would affirm judgment entered on her

conviction. America, Appellee,

UNITED STATES of McGeehan, Alexandria, Va., for John P. appellant. Henry TRESVANT, III, Appellant. Thornton, Atty., Dept, of McCarty Sp. D. No. 79-5339. (Justin Justice, Wil- Washington, D. W. C. liams, Aronica, Atty., Joseph Asst. U. S. J. Appeals, States Court of Alexandria, Va., brief), Atty., U. S. Fourth Circuit. appellee. Argued Jan. 1982. INGRAHAM,* Senior Circuit Before Decided May PHILLIPS, Judge, and WIDENER and Judges. Circuit INGRAHAM, Judge: Circuit Tresvant, III, appeal Henry In this R. challenges sufficiency of the evidence involuntary underlying his conviction manslaughter. (1976).1 U.S.C. Ingraham, killing (a) Honorable Joe M. Manslaughter Senior United the unlawful Judge being Circuit of two Circuit, the Fifth a human without malice. It is sit- ting designation. kinds: or heat a sudden quarrel Voluntary Upon— of passion. 1. Section 1112 provides as follows: an un- the commission Involuntary —In Manslaughter § 1112. amounting or in lawful act not felony, manner, or the commission an unlawful