542 F.2d 942 (5th Cir. 1976), 75-3871, United States v. Sayklay

Docket Nº:75-3871.
Citation:542 F.2d 942
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Yvonne SAYKLAY, Defendant-Appellant.
Case Date:November 19, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 942

542 F.2d 942 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Yvonne SAYKLAY, Defendant-Appellant.

No. 75-3871.

United States Court of Appeals, Fifth Circuit

November 19, 1976

Page 943

Lee A. Chagra (Court appointed), Joseph Chagra, El Paso, Tex., for defendant-appellant.

John Clark, U. S. Atty., San Antonio, Tex., Wm. B. Hardie, Jr., Mike T. Milligan, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

Yvonne Sayklay appeals her jury conviction of embezzlement under 18 U.S.C. § 656 (1970), 1 claiming that the trial court erred in failing to grant her motion for acquittal based on either a failure of proof or a variance between the accusation and the proof. Reluctantly we conclude that the trial court should have granted the motion for acquittal, and we reverse and grant defendant's motion.

We do so reluctantly because the facts clearly show a violation of18 U.S.C. § 656 (1970) in that the defendant willfully misapplied the moneys, funds and credit of the bank. She did not, however, embezzle the bank's funds, and this is the offense of which she has been convicted. The defendant was a bookkeeper at the Bank of El Paso in El Paso, Texas. As such, she had access to other bank employees' account numbers, to a check-encoding machine, and to blank counter checks. This she employed to acquire blank counter checks and encode other employees' account numbers on them. She then cashed the encoded checks through a teller. Knowing that the teller would verify only the accounts' status, not the owner of the accounts, she signed her own name to the checks. 2 When they arrived at the bookkeeping department, the defendant destroyed them. Inevitably, one of the employee-victims of the siphoning noticed the discrepancy. Her report provoked an investigation that led to the defendant. The government filed an information (the defendant having waived indictment) charging the defendant with five counts of embezzlement in violation of 18 U.S.C. § 656 (1970). After the government's evidentiary presentation, the defense moved for a judgment of acquittal that the trial judge denied. The jury later convicted the defendant on all five counts.

Page 944

Long ago the Supreme Court defined "embezzlement" as "the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come." Moore v. United States,160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895). See United States v. Trevino, 491 F.2d 74, 75 (5th Cir. 1974); United States v. Kehoe, 365 F.Supp. 920, 923 (S.D.Tex.1973). To support its charges, then, the government had to show that the defendant converted funds in her lawful possession. The government argues that it did so by showing that as a bank employee she was entrusted with all the tools needed to acquire the...

To continue reading