U.S. v. Southers, 77-5688

• Decision Date: 14 November 1978
• Docket Number: No. 77-5688,77-5688
• Citation: 583 F.2d 1302
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dewey E. SOUTHERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1302

583 F.2d 1302

UNITED STATES of America, Plaintiff-Appellee, v. Dewey E. SOUTHERS, Defendant-Appellant.

No. 77-5688.

United States Court of Appeals, Fifth Circuit.

Nov. 14, 1978.

Robert G. Fierer, Bruce H. Morris, Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., James E. Fagan, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM ^*, District Judge.

JAMES C. HILL, Circuit Judge.

Appellant Southers was convicted under a twelve-count indictment of six violations of 18 U.S.C. § 656, ¹ pertaining to willful misapplication of bank funds, and six violations of 18 U.S.C. § 1005, ² pertaining to issuance of bills of exchange with intent to defraud. On appeal, he raises points concerning the sufficiency of evidence, the trial court's choice of jury instructions, the trial court's limitation of cross-examination of witnesses, and the trial court's comments during the course of the trial. The appellant's contentions are without merit and we affirm.

Southers was the Executive Vice President of the Citizens Bank of Douglasville, Georgia, in March of 1976, the month during which the offenses for which he was convicted occurred. The evidence showed that Southers issued and signed, as authorized officer, six of the bank's cashier's checks for some $15,900. Two of the checks were payable in his own favor; three were payable to his creditors; and one was payable to a third party whose credit at the bank had been previously exhausted. Contrary to banking custom, neither payment nor security was given for the checks at the time they were issued. Furthermore, there was no bank record of the transactions because Southers had retained the credit copies of the checks on his desk rather than process them through normal channels of the bank. Only through painstaking investigations did other bank officials discover his operations, for Southers also failed to go to another officer to have his use of the money approved, as required whenever a bank officer sought a loan from the bank. Southers' actions in so issuing the six cashier's checks were in contravention of established bank policies of which he was aware. The effect of Southers' manipulations was to leave the bank in the position of having paid out almost $16,000 without having received anything in return. This temporary, but admittedly unauthorized, use of the bank's money formed the basis of the charges against Southers, for he repaid the bank several months later subsequent to the discovery of the transactions.

I. Sufficiency of the Evidence.

The appellant's first argument is that the district court erred in denying his motion for a judgment of acquittal. The thrust of this argument is found in the appellant's allegation that the evidence was insufficient to establish the element of intent to injure and defraud the bank ³ beyond a reasonable doubt. The appellant argues that the government failed to meet its burden of proof regarding intent because the evidence showed: (1) that Southers had expressed an intent to repay the bank and did, in fact, make repayment, (2) that no witness testified or suggested that Southers intended to injure and defraud the bank, and (3) that concrete evidence of such intent was lacking.

Taking the view of the evidence most favorable to the government, ⁴ it is clear that the element of intent to injure and defraud the bank was established beyond a reasonable doubt. This Circuit has adopted the rule that the requisite intent is proven by showing a knowing, voluntary act by the defendant, the natural tendency of which may have been to injure the bank even though such may not have been his motive. United States v. Tidwell, 559 F.2d 262, 266 (5th Cir. 1977), Cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978); United States v. Killian, 541 F.2d 1156, 1159-60 (5th Cir. 1976). The conduct of Southers as related above clearly entitled the jury to infer that he acted with the intent to injure or defraud the bank. See United States v. Reynolds, 573 F.2d 242, 244-45 (5th Cir. 1978); United States v. Tidwell, 559 F.2d at 266.

Contrary to the appellant's contentions, evidence of the eventual repayment of the misapplied funds does not negate the requisite intent. United States v. Tidwell, 559 F.2d at 266. The Tidwell court cited with approval the following language from United States v. Acree, 466 F.2d 1114, 1118 (10th Cir. 1972), Cert. denied, 410 U.S. 913, 93 S.Ct. 962, 35 L.Ed.2d 278 (1973):

The ultimate or future possibility or probability of benefit to the bank is not a defense to a misapplication of funds at the time of purchase of the loans. The offense occurred and was complete when the misapplication took place. What might have later happened as to repayment is not material and could not be a defense.

The repayment ruling sought by the appellant would put victim banks at the mercy of those bank officers who would use their official status to substitute, in the place of cold, hard cash taken without authorization from the bank, the undertaking, expressed or implied, of a financially distressed person to repay the bank. The making of such "loans" would leave banks in a harmed position; hence, the rule as it stands in this Circuit is reaffirmed.

The appellant's assertion that the evidence was insufficient to establish intent because no witness testified or suggested that Southers intended to injure and defraud the bank is also without merit. The appellant sought to elicit testimony from government witnesses on cross-examination regarding their opinions of the appellant's intent. As the foregoing discussion of case law indicates, "intent to injure and defraud" is a phrase of particular legal construction where a defendant is charged with violations of18 U.S.C. §§ 656 and 1005; therefore, the bank officials were properly not permitted to give their opinions on the question of intent to injure and defraud. See United

States v. Phillips, 478 F.2d 743, 746 n.6 (5th Cir. 1973).

II. Requests for Instructions Concerning Conduct

Not Prohibited by § 656.

The appellant submitted numerous requests for jury instructions to the trial court, two of which were concerned with giving examples of conduct not prohibited by § 656. ⁵ The trial court chose not to use the requested charges which specified that "maladministration" and "bad judgment" were not crimes under § 656; instead, a comprehensive instruction on intent was given in language of the court's own choosing. ⁶ The trial court is under no obligation to use the language suggested by counsel provided that its charge, taken as a whole, correctly states the law. United States v. Stokes, 506 F.2d 771, 773 (5th Cir. 1975). The instructions given by the court regarding intent reflect a correct statement of the law. The jury could not have found, on the basis of those instructions, the appellant guilty merely because he committed acts that unintentionally deprived the bank of funds. See United States v. Scheper, 520 F.2d 1355, 1358 (4th Cir. 1975). In some other situation it might be advisable for the trial court to instruct on what acts the charged crime does not include, but this is not such a case.

III. Refusal to Charge that Restitution Was Relevant to the

Issue of Intent.

The trial court was also correct in refusing the appellant's request to charge the jury that restitution is a matter for the jury to consider in determining whether the requisite intent existed. ⁷ We reiterate that the rule in this circuit is that repayment is neither a defense nor material to the crime. United States v. Tidwell, 559 F.2d at 266. The appellant argues that the following language in Tidwell requires that the jury be instructed that repayment does have bearing on intent:

Evidence of the later foreclosure on the mortgage might have lent credibility to Tidwell's version of his state of mind at the time of misappropriation by tending to prove that Tidwell could not have known that his acts would have a natural tendency to harm the bank. To this extent the evidence was logically relevant.

559 F.2d at 266. The appellant fails to note, however, that the court in Tidwell substantially qualified the above statement as follows:

But it might also have induced the jury to decide the case on whether the bank suffered a pecuniary loss as a result of Tidwell's acts rather than on grounds material to the offense alleged. Under the Federal Rules of Evidence, the trial judge has broad discretion to exclude evidence where its probative value is substantially outweighed by such dangers as confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Fed.R.Evid. 403.

559 F.2d at 266-67 (footnote omitted). Although the trial court admitted limited testimony regarding the appellant's intent to repay and repayment, he excluded elaboration on the subjects in an apparent effort to prevent the jury's becoming confused or misled. The court's refusal to charge the jury as the appellant requested regarding repayment was an appropriate exercise of a similar privilege and concern, for such an instruction might well have misled the jury by focusing their attention on the immaterial ground of repayment. See United States v. Zepeda-Santana, 569 F.2d 1386, 1390 (5th Cir. 1978). As previously noted in Part II of this opinion, the charge given by the court on intent was a correct statement of the law. ⁸

IV. The "Natural Tendency" Charge on Intent.

The appellant's argument that the trial court erred in charging the jury that "intent may be shown by an act willfully done, the tendency of which may have been to injure the bank" is groundless. In United States v. Killian,541 F.2d 1156, 1160 (5th Cir. 1974), this court forthrightly approved language identical in substance as a standard for proving intent. United States v. Tidwell...