Doherty v. United States, No. 10998.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSTONE, GARDNER, and THOMAS, Circuit
PartiesDOHERTY v. UNITED STATES.
Docket NumberNo. 10998.
Decision Date29 January 1938

94 F.2d 495 (1938)

DOHERTY
v.
UNITED STATES.
*

No. 10998.

Circuit Court of Appeals, Eighth Circuit.

January 29, 1938.


94 F.2d 496

C. L. Baskins, of North Platte, Neb. (M. E. Crosby and Robert B. Crosby, both of North Platte, Neb., on the brief), for appellant.

Joseph T. Votava, U. S. Atty., of Omaha, Neb. (Fred G. Hawxby, Emmet L. Murphy, and Ambrose C. Epperson, Asst. U. S. Attys., all of Omaha, Neb., on the brief), for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant was convicted on an indictment containing fifteen counts, charging offenses under section 592, title 12 U.S.C.A. The first seven counts charged embezzlement of funds from a state bank insured under the Federal Deposit Insurance Corporation Act, 12 U.S.C.A. § 264, but not a member of the Federal Reserve System. The next four counts charged mis-application of the funds of the same bank, while the last four counts charged the making of false entries. The parties will be referred to as they were designated below.

To each of the counts of the indictment defendant filed a demurrer, in which he challenged the constitutionality of the act as it related to state banks that were nonmember banks of the Federal Reserve System. The demurrers having been overruled, defendant entered a plea of not guilty to each of the counts. Upon trial, he was found guilty as to the third, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth counts, and not guilty as to the other counts of the indictment. He was sentenced to two years in the federal prison upon each of the several counts upon which he was convicted, the sentences, however, to run concurrently.

Section 592, title 12 U.S.C.A., Rev.St. § 5209, as amended by Act of August 23, 1935, provides that any officer, director, agent, or employee of any Federal Reserve Bank, or of any member bank, or of any

94 F.2d 497
insured bank, as defined in the act, who embezzles or misapplies any of the moneys, funds, or credits of such bank, or who makes any false entries in any book, report, or statement of such bank, with intent to injure or defraud, shall be deemed guilty of a misdemeanor and punishable as in the act provided

Section 264, Title 12 U.S.C.A., creates "a Federal Deposit Insurance Corporation * * * which shall insure, as hereinafter provided, the deposits of all banks which are entitled to the benefits of insurance under this section, and which shall have the powers hereinafter granted."

The act defines a state member bank as "any State bank which is a member of the Federal Reserve System, and the term `State nonmember bank' means any State bank which is not a member of the Federal Reserve System." 12 U.S.C.A. § 264 (c) (2). It provides that nonmember banks may make application for and if approved become insured banks. It provides for insuring deposits of the member banks as well as of such nonmember banks as upon application have been approved. The act appropriates $150,000,000 out of the Treasury of the United States for the payment of capital stock in the corporation, the balance of the capital stock to be subscribed and paid for by Federal Reserve banks.

The act creating the corporation describes and enumerates its powers in great detail. Among the powers and duties enumerated and described is the power, when designated for that purpose by the Secretary of the Treasury, to "be a depositary of public moneys, except receipts from customs, under such regulations as may be prescribed by the said Secretary, and may also be employed as a financial agent of the Government. It shall perform all such reasonable duties as depositary of public moneys and financial agent of the Government as may be required of it." 12 U.S. C.A. § 264 (n).

The sole question presented on this appeal is that of the constitutionality of the acts under which the indictment was drawn. The grounds upon which the acts are assailed may be summarized as follows: (1) As the federal government has no general police power, the acts cannot be upheld as constitutionally valid; (2) the power to enact section 264, title 12 U.S. C.A., is not to be found among the enumerated powers of Congress; (3) state banks not members of the Federal Reserve System, though taking out insurance in the Federal Deposit Insurance Corporation, are not instrumentalities of the federal government, and hence, Congress is without power to enact the statute creating the offenses charged so far as nonmember state banks are concerned; (4) power granted to the Federal Deposit Insurance Corporation to receive...

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27 practice notes
  • Gunter v. Hutcheson, No. 81-7129
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 30, 1982
    ...444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); FDIC v. Godshall, 558 F.2d 220, 221 (4th Cir. 1977); Doherty v. United States, 94 F.2d 495, 497 (8th Cir.), cert. denied, 303 U.S. 658, 58 S.Ct. 763, 82 L.Ed. 1117 (1938). As discussed in Part I of this opinion, supra, a purchase and assu......
  • Fidelity-Philadelphia Trust Co. v. Hines
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 2, 1940
    ...supra; Hiatt v. United States, 7 Cir, 4 F.2d 374; Weir v. United States, 92 F.2d 634, 114 A.L.R. 481; Doherty v. United States, 8 Cir, 94 F.2d 495), but such corporations are usually private enterprises in which the profit motive is dominant, and to which incidentally are assigned functions......
  • Wells Fargo Bank, N.A. v. Boutris, No. CIV.S-03-0157 GEB JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 9, 2003
    ...Bank v. Bearing, 91 U.S. 29, 1 Otto 29, 23 L.Ed. 196 (1875); M'Culloch, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579; Doherty v. United States, 94 F.2d 495, 497 (8th Cir.1938); Weir v. United States, 92 F.2d 634, 636 (7th Cir.1937))). Therefore, the OCC's regulation prescribing that it has exclus......
  • United States v. Nowak, No. 18338.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 5, 1971
    ...States, 92 F.2d 634, 636 (7th Cir.), cert. denied, 302 U.S. 761, 58 S.Ct. 368, 82 L.Ed. 590 (1937). See also Doherty v. United States, 94 F.2d 495, 498 (8th Cir.), cert. denied, 303 U.S. 658, 58 S.Ct. 763, 82 L. Ed. 1117 (1938). Nothing in the Constitution suggests that Congress must make c......
  • Request a trial to view additional results
27 cases
  • Gunter v. Hutcheson, No. 81-7129
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 30, 1982
    ...444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); FDIC v. Godshall, 558 F.2d 220, 221 (4th Cir. 1977); Doherty v. United States, 94 F.2d 495, 497 (8th Cir.), cert. denied, 303 U.S. 658, 58 S.Ct. 763, 82 L.Ed. 1117 (1938). As discussed in Part I of this opinion, supra, a purchase and assu......
  • Fidelity-Philadelphia Trust Co. v. Hines
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 2, 1940
    ...supra; Hiatt v. United States, 7 Cir, 4 F.2d 374; Weir v. United States, 92 F.2d 634, 114 A.L.R. 481; Doherty v. United States, 8 Cir, 94 F.2d 495), but such corporations are usually private enterprises in which the profit motive is dominant, and to which incidentally are assigned functions......
  • Wells Fargo Bank, N.A. v. Boutris, No. CIV.S-03-0157 GEB JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 9, 2003
    ...Bank v. Bearing, 91 U.S. 29, 1 Otto 29, 23 L.Ed. 196 (1875); M'Culloch, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579; Doherty v. United States, 94 F.2d 495, 497 (8th Cir.1938); Weir v. United States, 92 F.2d 634, 636 (7th Cir.1937))). Therefore, the OCC's regulation prescribing that it has exclus......
  • United States v. Nowak, No. 18338.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 5, 1971
    ...States, 92 F.2d 634, 636 (7th Cir.), cert. denied, 302 U.S. 761, 58 S.Ct. 368, 82 L.Ed. 590 (1937). See also Doherty v. United States, 94 F.2d 495, 498 (8th Cir.), cert. denied, 303 U.S. 658, 58 S.Ct. 763, 82 L. Ed. 1117 (1938). Nothing in the Constitution suggests that Congress must make c......
  • Request a trial to view additional results

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