560 F.2d 812 (7th Cir. 1977), 76-1689, United States v. Barclay

Docket Nº:76-1689.
Citation:560 F.2d 812
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald BARCLAY, Defendant-Appellant.
Case Date:August 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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560 F.2d 812 (7th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald BARCLAY, Defendant-Appellant.

No. 76-1689.

United States Court of Appeals, Seventh Circuit

August 18, 1977

Argued Feb. 10, 1977.

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George J. Cotsirilos, William J. Martin, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U. S. Atty., Richard C. Leng, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and WOOD, Circuit Judges, and SHARP, District Judge. [*]

PELL, Circuit Judge.

The defendant-appellant Donald Barclay was charged in a nine-count indictment with conspiracy and aiding or abetting the misapplication of bank funds and false entries on bank records, in violation of 18 U.S.C. §§ 2, 371, 656, and 1005, and of knowingly making false statements and reports for the purpose of influencing the actions of a national bank upon a loan, in violation of 18 U.S.C. § 1014. The Government voluntarily dismissed the § 1014 count (Count Nine) prior to trial. At the close of all the evidence, the court directed a verdict of acquittal on five of the eight remaining counts. The case was submitted to the jury on the conspiracy count (Count One), one count of aiding and abetting a misapplication of bank funds (Count Two), and one count of aiding and abetting a false entry (Count Eight). The jury convicted Barclay only on the false entry violation charged in Count Eight of the indictment. 1 Subsequently,

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Barclay was placed on probation for a period of five years, the first 120 days to be spent in the custody of the Attorney General on a work release program, and ordered to make restitution to the Steel City National Bank for the balance owing on the loan involved in Count Eight.

Because of the manner in which we resolve this appeal, a full statement of the transactional facts regarding Barclay's dealings with the Steel City National Bank is unnecessary. It is sufficient to state that Barclay, President of Rittenhouse Investment Inc., (Rittenhouse) needed loans in order to satisfy the liquidity requirements of the Chicago Mercantile Exchange applicable to the corporation. Neither Barclay nor Rittenhouse could borrow a sufficient amount from the bank without going over the bank's lending limit. On May 14, 1970, the bank ostensibly lent $35,000 to Charles Wasserman, a Rittenhouse commodity salesman. Wasserman signed a note for the amount of the loan, and Barclay signed guarantees for the loan personally and on behalf of Rittenhouse. Barclay and his wife also executed an assignment of the beneficial interest in their residence as collateral for the Wasserman loan. Stanley Johnson, vice-president of the bank, requested Wasserman to cash the check at another bank. Wasserman took the check to the National Boulevard Bank where he had an account, deposited it, and wrote a certified check to Barclay for $35,000 so that Rittenhouse could meet the Exchange's latest financial requirements. The Wasserman loan resulted in a bank Interview and Memorandum Sheet for Charles Wasserman which read:

5/14/70 SJ Loaned him $35,000 for 30 days unsecured at 91/2%. He may need an additional 30 or 60 days extension but he expects to have in (sic: it) paid in full not later that (sic: than) August, 1970.

The entry of information on this Interview Sheet was the subject of the § 1005 charge set forth in Count Eight.

On appeal, Barclay argues that he was deprived of a fair trial by virtue of the district court's refusal to define specific intent for the jury, the court's improper instruction regarding the elements of the offense of making a false entry, and the court's failure to properly instruct the jury with regard to the essential elements of the offense of aiding and abetting. Additionally, Barclay argues that the Government failed to prove that the principal, Stanley Johnson, actually made the entry on the bank records, thus precluding an aiding and abetting conviction, that the entry recorded on the bank memorandum sheet was literally true, and that no logical distinction can be drawn between the court's grant of judgments of acquittal on three counts of the indictment and its denial of the judgment of acquittal on Count Eight.

I

The record establishes that both the Government and the defendant tendered the La Buy § 4.04 "specific intent" instruction, but that the district court refused to give that instruction. 2 On appeal, the

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Government concedes that it was required to prove that Barclay shared the intent of the principal, Stanley Johnson, and that the intent to injure or defraud is the specific intent required by 18 U.S.C. § 1005. 3 See United States v. Pollack, 503 F.2d 87 (9th Cir. 1974). The Government contends, however, that, when the instructions given in the instant case are examined, it is apparent that the trial judge accurately instructed the jury concerning the essential elements of the crime of aiding and abetting false statements by a bank official. In its brief to this court the Government omits to mention that it tendered, and the district court refused an instruction substantially incorporating La Buy § 4.07. 4 Instead it argues that its Instruction No. 32, which was given by the district court, 5 adequately stated the essential elements necessary to convict Barclay of aiding and abetting Johnson in violating 18 U.S.C. § 1005.

The trial judge refused four of the defense-tendered instructions and three of the Government-tendered instructions which focused attention on the degree of specific intent necessary to find Barclay guilty. We have found no instruction from our examination of the record which, standing alone, adequately explained the specific mental state which the Government had to prove beyond a reasonable doubt. Although Government Instruction No. 32 does

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state as an essential element that Barclay must have knowingly aided and abetted Johnson, there is no explanation that...

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