U.S. v. Davis, 78-5172

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation592 F.2d 1325
Docket NumberNo. 78-5172,78-5172
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Coy DAVIS, Defendant-Appellant.
Decision Date12 April 1979

Theodore J. Sakowitz, Federal Public Defender, Robyn Hermann, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Kevin M. Moore, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, GEE and RUBIN, Circuit Judges.

GEWIN, Circuit Judge:

William Coy Davis challenges his conviction under an indictment for embezzlement of funds from a federally insured bank in violation of 18 U.S.C. § 656. Appellant raises three issues for review. He contends that there was a fatal variance between the offense charged in the indictment and the evidence adduced at trial, that the evidence was insufficient to support the verdict, and the evidence was insufficient to establish that he was legally sane at the time in question. We reject these contentions and affirm the conviction.

Appellant was employed as head teller of the First National Bank of Margate, Margate, Florida, for ten months and had sole custody of the coin and currency in the vault. Davis turned in his resignation on October 4, 1976, citing financial and legal problems with his ex-wife as the reasons for his actions. The Vice President of the bank immediately ordered an audit of the bank which revealed a shortage of $150.00 in currency. A further audit of the coins established an additional shortage in coins of $5,600.00.

On the following Saturday Davis met with his friend, Pastor Gary Record, and several bank officials. He admitted taking the money, and stated that he had begun taking it in March and concluded in September.

During the trial two psychiatrists gave conflicting testimony concerning Davis' mental condition at the time of the offense. Dr. Stillman, who was appellant's personal psychiatrist for a number of years, concluded that during the period in question, Davis was suffering from a mental disease of such degree that he lacked the capacity to conform his conduct to the requirements of the law. Dr. Jaslow, the government's medical expert, testified that although Davis suffered from a mental disease or defect, he was nevertheless legally sane at the time in question.

Davis was found guilty and subsequently received a one-year suspended sentence and was placed on probation for five years. The court further ordered appellant to make restitution in the sum of $5,750.00.

Appellant's first contention is that there was a fatal variance between the offense charged in the indictment and the evidence adduced at trial. The indictment charged in essence that on or about October 4, 1976, in the Southern District of Florida, Davis, while an employee of the bank, embezzled certain funds from the bank. 1 Appellant contends that a variance exists because the evidence established he was not at the bank on October 4, having previously resigned, but was in fact in Georgia that day. Also, Davis maintains that while the indictment alleged a single taking on a single date, the proof established multiple takings on several days.

It is well settled that the general rule that allegations and proof must correspond is based on the requirements "(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 70 L.Ed. 1315, 1318 (1935); Bennett v. United States, 227 U.S. 333, 33 S.Ct. 288, 57 L.Ed. 531 (1913).

This circuit has held that an indictment is generally sufficient if it sets forth the offense in the words of the statute including all the elements. United States v. Slepicoff, 524 F.2d 1244 (5th Cir.), Reh. denied, 526 F.2d 1407, Cert. denied, 425 U.S. 998 (1975), Citing Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

The indictment in the instant case, following the language in the statute, did fully inform appellant of the elements of the charge against him. Furthermore, since the indictment did not allege any specific acts constituting embezzlement, any alleged variance on that basis is without merit.

We, thus, conclude that no variance existed in the case at bar. Moreover, if a variance is assumed, arguendo, there has been no showing that the alleged variance affected any of the "substantial rights" of the accused. United States v. Juarez, 573 F.2d 267, 278-79 (5th Cir. 1978).

Appellant also challenges the court's denial of his motion for judgment of acquittal based on insufficiency of the evidence. The heart of his argument is that the government failed to prove a single taking in excess of $100.00. 2

The appropriate test for reviewing the sufficiency of the evidence is whether, taking the view most favorable to the government, a reasonably minded jury could determine that the relevant evidence was adequate and sufficient to support the conclusion of defendant's guilt beyond a reasonable doubt. United States v. Shaw, 555 F.2d 1295, 1300 (5th Cir. 1977); United States v. Reynolds, 511 F.2d 603, 606 (5th Cir. 1975); United States v. James, 510 F.2d 546 (5th Cir.), Cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975). See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941).

We reject appellant's argument that the evidence presented was insufficient to support a conclusion that appellant did embezzle funds in excess of $100 from the bank 3 Thus, viewing the evidence in its entirety, we are convinced that the evidence was sufficient to enable a reasonably minded jury to conclude that Davis did embezzle funds in excess of $100 from the bank 4 on one or more occasions.

on any one occasion. When appellant was confronted by bank officials with the existence of a shortage, he admitted that he had taken the money and had $400 left in his possession. Davis also told bank officials that he would attempt to make restitution of the $5,750, but was unable to do so. Under appellant's apparent Modus operandi, coin bags were falsely tagged as having amounts and types of coins of larger denominations than that which the bags actually contained. Each of these sealed bags had a coin shortage in excess of $100.

The final issue raised by Davis is whether there was sufficient proof to establish that he was legally sane at the time he embezzled the funds from the bank. He argues that the testimony of the government psychiatrist, who saw Davis for only a 90 minute interview, was insufficient to rebut the testimony of his psychiatrist, who had treated him for six years and who was treating him throughout the time in question.

Once the issue of insanity has been raised, the government has the burden of proving beyond a reasonable doubt that appellant was sane at the time of the alleged crime. United States v. Fratus, 530 F.2d 644, 648 (5th Cir.), Cert. denied, 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976); Brock v. United States, 387 F.2d 254, 257 (5th Cir. 1967).

This court has previously recognized that in determining if the evidence was sufficient to warrant submission of the issue of sanity to the jury, each case must be decided on its own facts, weighing the evidence presented...

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