Bennett v. United States, 21063.

• Decision Date: 26 August 1968
• Docket Number: No. 21063.,21063.
• Citation: 399 F.2d 740
• Parties: William S. BENNETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

399 F.2d 740 (1968)

William S. BENNETT, Appellant, v. UNITED STATES of America, Appellee.

No. 21063.

United States Court of Appeals Ninth Circuit.

August 26, 1968.

James Martin MacInnis (argued), San Francisco, Cal., John Mark Chargin, San Jose, Cal., for appellant.

Cecil Poole (argued), U. S. Atty., San Francisco, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

BARNES, Circuit Judge:

Appellant Bennett was charged in a thirty-nine count indictment with the offenses of theft of bank property over $100, 18 U.S.C. § 2113(b), conspiracy to misapply bank funds, 18 U.S.C. §§ 656, 371, and aiding and abetting the misapplication of bank funds, 18 U.S.C. §§ 656, 2. A jury verdict resulted in Bennett's conviction under 18 U.S.C. § 2113(b); he was acquitted of all counts in which he was alleged to have acted with his codefendant, Don C. Silverthorne. Five errors are asserted by Bennett in this appeal, four of which we do not discuss. We shall devote our attention to the proposition that § 2113(b) makes unlawful only a trespassory taking of the bank's property, not a taking by some other means, and whether the evidence shows a taking within the scope of the statute.

Jurisdiction in the district court rested on 18 U.S.C. § 3231, and rests here on 28 U.S.C. §§ 1291 and 1294.

That portion of § 2113(b) with which we deal is:

"Whoever takes and carries 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 any bank * * * shall be fined not more than $5,000 or imprisoned not more than ten years, or both."¹

In LeMasters v. United States, 378 F.2d 262 (9 Cir. 1967) (decided by this court after the instant case was tried in the district court), we entertained the issue now before us. There, the appellant had impersonated a bank depositor by producing stolen identification papers. He persuaded bank officials that his deposit book had been lost and a new book, in the name of the impersonated depositor, was issued LeMasters. He withdrew funds from the account for which he had been issued the deposit book and was thereafter indicted for the theft of those funds under § 2113(b). This court held that the language of the statute, "takes and carries away, with the intent to steal or purloin," was descriptive of common law larceny and was not descriptive of obtaining money by false pretenses. We therein discussed English law and congressional history, including the fact that in 1934 Congress passed a law making bank robberies a federal crime (18 U.S.C. § 2113(a)), but refused to pass a law against the obtaining of money by false pretenses. In 1937, Congress passed § 2113(b) containing the ambiguous words "steal or purloin," for the purpose of including larceny. We held that § 2113 (b) encompassed only the offense of larceny. The question before us in the instant case then, is whether the evidence shows common law larceny, within the statute, or an offense without the statute.

Bennett's codefendant, Silverthorne, organized and opened the San Francisco National Bank in June, 1962. As president of the bank, Silverthorne embarked on a course of extensive money lending, for which service he personally assessed substantial fees, or "points." Bennett first met Silverthorne when he came to the bank as a borrower. After considerable business dealings with Silverthorne, Bennett undertook to solicit borrowers for Silverthorne's bank. On many occasions the bank loaned money to individuals procured by Bennett. As remuneration for bringing business to the bank, Bennett received a portion of the "points" Silverthorne and/or Bennett charged for the loans.

The incident with which we are concerned took place after Silverthorne and Bennett had begun to work together. Atkinson, a rancher and land developer, went to Bennett in January, 1964, seeking a loan of $50,000. After meeting with Bennett on several occasions, Atkinson and his wife filled out application papers which Bennett submitted to Silverthorne for the purpose of obtaining a loan from the San Francisco National Bank. The Atkinsons discussed with Bennett the payment of "points" for the loan in the amount of 10 per cent of the principal thereof, but no firm figure was agreed upon prior to the confirmation of the loan. On January 22, 1964, Bennett informed Atkinson that he had obtained a loan from the San Francisco National Bank in the amount of $58,000, the $8,000 figure representing the "points" which were being charged. At this time Bennett told Atkinson that the "point" charge was higher than the 10 per cent figure they had previously discussed because "the bank was new and Mr. Silverthorne wanted the bank to show a profit, to look good in the eyes of the shareholders." Bennett told Atkinson further that he, Silverthorne, and one other individual controlled the bank. He instructed Atkinson to write a check for the points in the amount of $8,000 payable to the San Francisco National Bank.

The following day, Bennett took the check to the San Francisco National Bank and instructed a teller to issue a cashier's check payable to him in the amount of $8,000 in exchange for the Atkinson check. As it was not the bank's usual practice to issue a cashier's check in exchange for a third party check to other than the named payee, the teller, a Mrs. Wu, took the check to the head cashier, a Mrs. Richards, for her authorization of the transaction. Mrs. Richards gave her assent and a cashier's check in the amount of $8,000 was typed, payable to "W. S. Bennett," and delivered to Bennett. (Ex. 2(b).) The register copy of the cashier's check, kept by the bank, reflected that the original thereof was purchased by Bennett with a check drawn on the San Francisco National Bank. The purchasing check was not identified further. On January 28, 1964, Bennett deposited the cashier's check into one of his accounts.

Because of the peculiar facts of this transaction, the indictment was careful to avoid allegations that the money was in the "care", "custody", "control", "management", or "possession" of the bank. It alleged rather, in the language of the statute, that the money "belonged to" the bank. This allegation is, however, but descriptive of the bank's relation to the money. It is the statutory language, "steal and purloin," which describes larceny as the offense allegedly committed. LeMasters v. United States, supra. To consummate the offense of larceny there must occur a taking of property which is trespassory in nature, "without the consent of the owner." People v. Johnson, 136 Cal.App.2d 665, 673, 289 P.2d 90, 94 (1955); People v. Earle, 222 Cal.App.2d 476, 35 Cal.Rptr. 265 (1963); Callan v. Superior Court, 204 Cal.App.2d 652, 22 Cal.Rptr. 508 (1962); People v. Torres, 201 Cal.App.2d 290, 20 Cal.Rptr. 315 (1962); LeMasters v. United States, supra. Regardless of the criminal intent indulged in by Bennett, if any, there was not a taking of the $8,000 without the bank's consent. Assuming that the title to the $8,000 passed from Atkinson to the bank when the check was written and delivered to Bennett as an "intermediary" the money at that time "belonged to the bank." Bennett was given possession of the check, and the bank held title thereto. At this time it was not possible for Bennett to commit larceny against the bank for he had possession of the check which he had lawfully come by, that is, as agent of the bank for delivering possession of the check to the bank. An...