U.S. v. Billingslea, 78-5651

• Citation: 603 F.2d 515
• Decision Date: 28 September 1979
• Docket Number: No. 78-5651,78-5651
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Burrell BILLINGSLEA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 515

603 F.2d 515

UNITED STATES of America, Plaintiff-Appellee, v. Burrell BILLINGSLEA, Defendant-Appellant.

No. 78-5651.

United States Court of Appeals, Fifth Circuit.

Sept. 28, 1979.

P. Bruce Kirwan, Federal Public Defender, Atlanta, Ga., for defendant-appellant.

Karen A. Rebrovich, William G. Otis, Washington, D. C., for plaintiff-appellee.

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

Before COLEMAN, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellant, a college graduate and recipient of a master's degree from Yale University, was hired by the Atlanta Board of Education in 1977 to work in its Youth Employment Program. The objective of the program was to employ economically disadvantaged youths residing in the City of Atlanta. Funds for the program were provided by the United States Department of Labor under the Comprehensive Employment and Training Act of 1973 (CETA). Appellant was hired by the Board of Education to implement its summer arts program which was to employ local artists who would in turn instruct disadvantaged students who were paid with CETA funds for attending the classes. Appellant's duties included collecting student time sheets and distributing payroll checks to the students. Appellant's hours of employment under the program were from 8:00 a. m. until 4:30 p. m., Monday through Friday. Each day he was required to sign in and sign out on attendance sheets.

During much of the period that he was being paid with CETA funds, appellant also was employed as an instructor at Atlanta Junior College. In the summer of 1977, appellant taught class two days per week between the hours of 10:00 a. m. and 12:30 p. m. During the fall and winter of 1977, he taught several classes each week during the morning and early afternoon hours. After appellant's supervisor learned, in February 1978, that appellant was working at the Junior College, appellant resigned his CETA position. An eleven count indictment was returned against appellant charging: ¹ (1) nine counts of making false statements to a government agency, 18 U.S.C.A. § 1001, in the form of eight attendance sheets which incorrectly stated that appellant had worked a full day at the CETA program when in fact he was teaching class at least part of the day at the Junior College; (2) one count of depositing to his own account student payroll checks totalling $677.38 in violation of 18 U.S.C.A. § 665; and (3) one count of violating 18 U.S.C.A. § 665 by improperly receiving $838.62 in CETA funds for hours not actually worked. Following a jury trial in the United States District Court for the Northern District of Georgia, appellant was convicted on all eleven counts and sentenced to two years imprisonment on each count, the terms to run concurrently.

We have carefully considered appellant's challenge to counts one through nine and find it without merit. With respect to counts ten and eleven, one issue has been raised which requires further discussion.

Under 18 U.S.C.A. § 665, one who "embezzles, willfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or property which are the subject of a" CETA grant "shall be fined $10,000 or imprisoned for not more than two years, or both; but if the amount so embezzled, misapplied stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000, or imprisoned not more than one year, or both." The critical language for purposes of this appeal is that which makes the grade of the offense dependent on the value of the property taken. In count ten of the indictment the government alleged value in excess of $100 by adding together the value of several days' pay improperly received by appellant between June 27, 1977 and February 15, 1978. Apparently, appellant's pay per day was well below $100. ² Count eleven charges appellant with having unlawfully obtained $667.38 by depositing seven different student paychecks to his personal bank account. None of the checks exceeded $100 in value. Appellant argues that each hour for which he should not have been paid and each student check deposited to his account constitutes a separate misdemeanor offense, and, therefore, that it was improper to allow the government to aggregate the offenses in order to reach the amount needed to support a felony.

The law of this Circuit is that separate takings punishable individually as misdemeanors cannot be aggregated to make up one felonious taking. Cartwright v. United States, 146 F.2d 133 (5th Cir. 1944); Accord, United States v. DiGilio, 538 F.2d 972, 981 (3d Cir. 1976), Cert. denied,429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). In Cartwright, the defendant was convicted of stealing government property in violation of 18 U.S.C.A. § 82. The statute treated the taking of property worth more than $50 as a felony. In reversing the defendant's conviction the Court stated:

While the evidence does, we think sufficiently show that the value of all the articles enumerated in the indictment as taken was in excess of $50, it conclusively establishes not that all of these articles were taken at one time, but that they were taken as the result of Single or separate larcenies and it is settled law that The value of things taken in separate larcenies cannot be aggregated to make up one felonious larceny.

146 F.2d at 135 (emphasis added).

While this passage would seem to end our inquiry, we note that the precise holding in Cartwright was that separate larcenies may not be aggregated. Thus, the issue with respect to both counts ten and eleven becomes whether the several acts alleged in each count constituted separate offenses, in which case they should have been charged in separate misdemeanor counts, or whether appellant committed only one offense in depositing the seven checks and one offense in accepting pay for time not actually worked, in which case a single count for each should have been charged.

We note at the outset that there is little in the way of legislative history or rules of statutory construction to aid us in resolving this issue. ³ Similarly, we have been unable to find opinions of this or any other circuit which squarely face this issue in the context of section 665 or other similar statutes. There are, however, several cases in which the propriety of including Multiple counts in an indictment was challenged. We will briefly review these cases to determine whether they shed any light on the present problem. In United States v. Windom, 510 F.2d 989 (5th Cir.), Cert. denied, 423 U.S. 863, 96 S.Ct. 121, 46 L.Ed.2d 91 (1975), the defendant was convicted on eight counts of publishing and uttering government checks bearing forged endorsements in violation of 18 U.S.C.A. § 495. On appeal to this Court, defendant argued "that since all eight checks were uttered at the same time to the same recipient he should not have been prosecuted, convicted, and sentenced on eight counts, charging each check as the basis for an individual count." 510 F.2d at 994-95. The Court rejected this argument, finding that "(e)ach check was a separate document, requiring a separate endorsement, and thus was uttered individually." Id. at 995. ⁴ In United States v. Alaimo, 297 F.2d 604 (3d Cir. 1961), Cert. denied. 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962), the defendant was charged with 34 counts of accepting money from an employer in violation of the Taft-Hartley Act, 29 U.S.C.A. § 186(b), (d). Again, the contention of the defendant was that but one offense had been committed. Finding the circumstances analogous to cases involving several instances of bribery by the same defendant, the Third Circuit held: "each time the defendant received a check from the company he was doing that which the statute forbade." 297 F.2d at 605-06 (citing Biddle v. Wilmot, 14 F.2d 505 (8th Cir. 1926)). This approach has been expressly followed by at least two other circuits in similar cases. See United States v. Anderson, 165 U.S.App.D.C. 390, 509 F.2d 312 (D.C.Cir. 1974); United States v. Donovan, 339 F.2d 404 (7th Cir. 1964), Cert. denied, 380 U.S. 975, 85 S.Ct. 1338, 14 L.Ed.2d 271 (1965); United States v. Keegan, 331 F.2d 257 (7th Cir.), Cert. denied, 379 U.S. 828, 85 S.Ct. 57, 13 L.Ed.2d 37 (1964). In a similar manner, the Third and Sixth Circuits have upheld multiple-count indictments where it was concluded that several acts of embezzlement by the defendants could not be viewed as "but one course of conduct." See United States v. Stubin, 446 F.2d 457 (3d Cir. 1971); Decker v. United States, 378 F.2d 245 (6th Cir. 1967).

The common point of the foregoing cases is that, in each, the court concluded that for each instance the defendant did the complete act condemned by the statute he could be charged with a separate crime. Whether these decisions were based on rules of statutory construction, interpretation of legislative intent, or other considerations, is not at all clear. For this reason, they provide little guidance in our search for the proper method of analyzing the problem now before us.

After carefully considering the authorities urged upon us as well as those discovered through our own efforts, we now elaborate on the approach we feel is most appropriate in cases of this type. Generally, the question whether a series of takings ⁵ constitutes one or more than one offense under 18 U.S.C.A. § 665 must turn on the factual circumstances of each case. While factors such as the temporal and geographical proximity of the several takings may be germane, the focus of the inquiry should be at or near the starting point of the illegal activity. Of critical importance is the state of mind or intent of the actor prior to and simultaneously with the first taking. ⁶ Closely related, and of equal importance, is evidence of acts done by the accused, either in preparation for the several takings or as integral part of the first taking, which facilitate...