U.S. v. Kucik

• Citation: 844 F.2d 493
• Decision Date: 21 April 1988
• Docket Number: No. 87-2305,87-2305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin R. KUCIK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 493

844 F.2d 493

UNITED STATES of America, Plaintiff-Appellee, v. Martin R. KUCIK, Defendant-Appellant.

No. 87-2305.

United States Court of Appeals Seventh Circuit.

Argued Feb. 16, 1988.

Decided April 21, 1988.

James F. Young, Chicago, Ill., for defendant-appellant.

Joel D. Bertocchi, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before POSNER, EASTERBROOK and MANION, Circuit Judges.

POSNER, Circuit Judge.

Martin Kucik appeals from his conviction on four counts of having stolen, on four separate days in April 1982, a series of cashier's checks from a bank, in violation of 18 U.S.C. Sec. 2113(b). This statute makes it a felony punishable by up to ten years in prison and a $5,000 fine to "tak[e] and carr[y] away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management or possession" of a federally chartered or insured financial institution. Count I, which is typical of all four counts, charges that on or about April 14 Kucik "did knowingly take and carry away, with intent to steal and purloin, from the State Bank of Countryside [which is federally insured] ... cashiers checks totalling approximately $115,000 belonging to ... the bank." The four series of checks amounted in total to $581,000.

Kucik was a check kiter. He had two accounts, one in the State Bank of Countryside and one in the credit union of a local trade union. At both institutions he ingratiated himself with the staff by small presents and big talk, convincing the staff that he was a successful businessman who needed large quantities of cash for a golf club business that he owned. He bought cashier's checks from the bank and paid for them with checks drawn on his account--which had insufficient funds--at the credit union. Before the bank demanded payment by the credit union, Kucik would deposit the cashier's checks in his credit-union account, thereby covering the checks he had drawn on that account to buy the cashier's checks. Then he would go back to the bank and buy additional cashier's checks and deposit them in the credit union to cover the latest purchase.

If this were all there had been to the scheme, money would have circulated at a dizzying rate between the two accounts but the only gain to Kucik would have been interest on his account in the credit union, and the only loss to the bank and the credit union would have been the time value of the money when it was circulating or when it was deposited in Kucik's account drawing interest. But as is usual in a check-kiting scheme, there was more. Some of the checks that Kucik drew on his credit-union account when temporarily swollen with the cashier's checks did not go to buy more cashier's checks but apparently were cashed by Kucik. The record is murky on how much the credit union lost, but it may have been in excess of $250,000. The bank, however, lost nothing, at least so far as the record reveals. The credit union honored the checks that Kucik used to purchase the cashier's checks involved in the first two counts of the indictment, when the bank presented the credit union's checks for payment, but apparently the credit union was able to recoup the money paid on these checks from Kucik; so, as to these checks, neither institution was hurt. The bank stopped payment on the cashier's checks involved in the last two counts; and since no one who, notwithstanding the stop-payment order, might have demanded payment (i.e., a holder in due course) did so, the bank lost nothing on those checks either.

The United States Attorney could not have charged Kucik with theft from the credit union, because the credit union was not federally chartered or insured. Since the credit union was the only victim of Kucik's check-kiting scheme, one might have supposed that the state rather than the federal authorities would have prosecuted him. However, for reasons not revealed to us, the U.S. Attorney was determined to act in the matter, and he therefore cast the indictment in terms of a theft not of the bank's money--for the bank lost no money through its dealings with Kucik--but of its cashier's checks. Section 2113(b) has been interpreted to punish, among other forms of theft, theft by false pretenses. Bell v. United States, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The false pretenses in this case are said to be Kucik's misrepresentations that he had enough money in his credit-union account to pay for the cashier's checks. The jury agreed, and convicted Kucik, and the judge sentenced him to three years in prison on Count I to be followed by concurrent terms of probation on the other three counts.

If Kucik had been charged with stealing the bank's money, he would have to be acquitted on all four counts, because he did not succeed in taking any of the bank's money. Begin with the transactions that are the subject of Counts I and II. Kucik bought and paid for the cashier's checks involved in those counts. It is true both that the bank would not have done business with him if it had known he was going to pay for the checks by kiting, and that he made misrepresentations to bank personnel intended to prevent the bank from catching on to his check-kiting scheme. Nevertheless, the checks were paid for in full, just as if the entire transaction had been on the up and up. This was an attempt--if it was anything. At common law, it could well have been nothing. So far as we can tell from the record, Kucik had no intention of cashing any of the cashier's checks (i.e., of taking the bank's money), or indeed of using them for any purpose other than to obtain checks from the credit union, some of which he cashed--but not any of the checks involved in Counts I and II. True, the bank's funds were placed at risk, because the credit union might dishonor Kucik's checks drawn on the credit union for the purchase of cashier's checks. How great the risk was, and whether placing a bank's funds at risk in this way and to this degree could make Kucik guilty of an attempt to steal those funds even if he intended to pay the bank from his account in the credit union (but that account was funded by his cashier's checks!), are difficult questions but not ones we have to answer. Nor need we decide whether the attempt offense in 18 U.S.C. Sec. 2113(a), which punishes entering a bank with intent to commit a felony, including the felony of bank theft by false pretenses, see United States v. Goudy, 792 F.2d 664, 671 (7th Cir.1986); United States v. Clark, 776 F.2d 623, 626 (7th Cir.1984), differs from common law attempt and if so might encompass Kucik's conduct even if the common law concept of attempt does not. Kucik was not charged with attempt.

With regard to the third and fourth counts, Kucik did succeed in obtaining cashier's checks with worthless checks drawn on his by-then thoroughly insolvent account with the credit union. But the bank stopped payment on these cashier's checks, was never called on to pay them, and lost nothing (not even float, so far as appears) as a result of the transaction.

We could stop here if the indictment had charged Kucik with taking and carrying away the bank's money, but it did not; it charged him with taking and carrying away cashier's checks. Cf. Carrillo v. State, 566 S.W.2d 902, 906-07 (Tex.Crim.App.1978). So we must decide whether a cashier's check is a "thing of value" within the meaning of section 2113(b) even if the bank either is paid in full for the check (Counts I and II) or never has to make good on the check (Counts III and IV) because it is never presented for payment. The government has cited no case on the question to us, though we have found statements in two cases, Bennett v. United States, 399 F.2d 740, 744 (9th Cir.1968), and Lubin v. United States, 313 F.2d 419, 421 (9th Cir.1963), that cashier's checks are things of value within the meaning of section 2113(b), and holdings to this effect in two other cases, arising under state theft statutes, Hucal v. People, 176 Colo. 529, 534, 493 P.2d 23, 26 (1971), and People v. Britz, 17 Cal.App.3d 743, 752-54, 95 Cal.Rptr. 303, 308-09 (1971).

The government asks us to equate cashier's checks to cash, and thus to treat the case as if Kucik had stolen cash and been stopped before he could spend it. As soon as he had the cash in his possession the "asportation" required for theft would have occurred ("taking and carrying" in the language of section 2113(b)), and it would be immaterial that the bank had not been hurt by the momentary deprivation of control over the cash. Cf. Hucal v. People, supra, 176 Colo. at 534, 493 P.2d at 26. An even easier case would be one where the cash was not recovered but the bank was fully insured. The theft would be complete when the cash was taken; the fact that the bank had a contract with an insurance company enabling it to shift the loss to that company would be immaterial.

Here, however, the bank lost nothing, not even for a second. A cashier's check is not legal tender, nor a good with intrinsic value such as an ash tray, a sofa, or a bird bath, but merely a promise to pay--and what could it mean to steal a promise? In the case of the checks involved in Counts III and IV, the promise was (properly) dishonored: the bank stopped payment, and was never out of pocket. In the case of the checks involved in the first two counts the bank paid the credit union--to which Kucik had endorsed the checks for deposit- --but, so far as appears, the bank paid only after it had been credited by the credit union in the amount of the checks. In any event, the bank was repaid in full.

The government does not argue that an ordinary check--not certified, not a cashier's check, and not a bank check (which is a check drawn by one bank on another)--is a thing of value to the bank. How could it be, when a bank is not contractually obligated to honor a check until it...