Hernandez v. U.S.

• Decision Date: 07 November 1979
• Docket Number: No. 78-1682,78-1682
• Citation: 608 F.2d 1361
• Parties: 5 Fed. R. Evid. Serv. 93 Paul Ramon HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1361

608 F.2d 1361

5 Fed. R. Evid. Serv. 93

Paul Ramon HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 78-1682.

United States Court of Appeals Tenth Circuit.

Submitted Sept. 12, 1979.

Decided Nov. 7, 1979.

Benito Sanchez and Donald C. Schutte, Albuquerque, N. M., for appellant.

R. E. Thompson, U. S. Atty. and Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M., for appellee.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant Hernandez was charged in a 5-count indictment with various banking offenses. The jury found him guilty under Counts III and V, willful misapplication of bank funds in violation of 18 U.S.C. § 656, and under Count IV, unauthorized issuance of a bank obligation in violation of 18 U.S.C. § 1005. He was sentenced to 18-month concurrent terms under Counts III and IV and on Count V was placed on three years probation. On this appeal he attacks the indictment, the admission of certain evidence, the instructions, and the sufficiency of the evidence. We affirm.

Hernandez was president of Plaza del Sol National Bank in Albuquerque, New Mexico. Bank deposits were insured by the Federal Deposit Insurance Corporation. Robert L. Goodwin owned a supermarket which was in financial difficulties. Because of substantial overdrafts, Goodwin was in trouble with Rio Grande Valley National Bank which had the supermarket accounts. Goodwin transferred his banking business to Plaza del Sol where his accounts were handled and supervised by Hernandez.

Hernandez and Goodwin were both indicted. Count I charged Goodwin alone with a false statement to Plaza del Sol to obtain a loan. This count was dismissed pursuant to a plea bargain made by Goodwin. Count II charged Goodwin as a principal and Hernandez as an aider and abettor in the making of another false statement to Plaza del Sol to obtain another loan. Goodwin pleaded nolo contendere to this count, agreed to testify for the government in the trial of Hernandez, and after that trial received a sentence of 18 months imprisonment. On the trial of Hernandez the jury was unable to agree on his guilt under Count II, and it was later dismissed.

Counts III, IV, and V charged Hernandez and Goodwin jointly and were dismissed as to Goodwin under the plea bargain. Hernandez was found guilty on each of these counts. Count III charged Hernandez with the willful misapplication of bank funds in the making of a $264,000 loan to Goodwin. Count IV charged Hernandez with the issuance of an unauthorized obligation of the bank in the form of a $200,000 letter of credit to Goodwin. Count V charged the willful misapplication of bank funds by allowing continued overdrafts in the accounts of Goodwin's supermarket to the extent that on December 31, 1976, the overdrafts amounted to a total of $671,075.95. The indictment specified the amounts of the overdrafts at monthly intervals, May 3 to December 1, 1976.

In his attack on the indictment Hernandez says that it is deficient because it does not set forth the manner in which he violated the two statutes. Counts III and V are concerned with violations of 18 U.S.C. § 656 proscribing the willful misapplication of funds with intent to injure the bank. In considering an indictment under § 656, United States v. Tokoph, 10 Cir., 514 F.2d 597, 605, says that the test is whether the indictment "contains the elements of the offense charged and apprises the accused of the nature of the charge, so as to enable him to prepare a defense and to plead the judgment in bar."

Hernandez' reliance on United States v. Archambault, 10 Cir., 441 F.2d 281, cert. denied 404 U.S. 843, 92 S.Ct. 140, 30 L.Ed.2d 78, is misplaced. That decision says, Id. at 283, quoting from another decision:

"In a prosecution under 18 U.S.C. § 656, where the offense is set out in the language of the statute, the omission of the means by which the offense was committed does not render the indictment insufficient."

In Counts III and V the charge is set out in the language of the statute, indicates the particular transactions and says that they were unlawful misapplications. Defendant was told that Count III related to a bank loan of $264,000, Count IV to a $200,000 letter of credit, and Count V to specified overdrafts. The indictment, as to all counts, contains the elements of the offenses charged and informs the defendant of the nature of the charges so that he can prepare a defense and plead the judgment in bar. His attack on the indictment has no merit.

Hernandez argues that certain testimony of government witness Cordova was inadmissible hearsay. The issue must be considered in the context of the record at the time. The evidence showed that Goodwin conducted a "float" operation using supermarket accounts in Plaza del Sol and Adobe Acres Branch of the First National Bank of Albuquerque. The purpose of the "float" was to take advantage of the time between the presentation and acceptance of a check by one bank and the clearance of the check by the bank on which it was drawn. The "float" involved substantial amounts and occurred several times a week. Government witness McWilliams, an employee of Goodwin's supermarket, testified to the operation of the "float." Another government witness, Pendergraft, an employee of the First National, testified that Hernandez had requested that the supermarket be permitted to purchase cashier's checks on his, Hernandez', assurance that the checks used in the purchase were good. Flynn, the manager of the Adobe Acres Branch said that Pendergraft had told him of the arrangement to honor the supermarket checks. Goodwin testified that Hernandez told him that he, Hernandez, had guaranteed the supermarket checks used to purchase the cashier's checks which were part of the "float."

After McWilliams, Pendergraft, Flynn, and Goodwin had testified, Cordova was called as a government witness. He was vice-president of Plaza del Sol. He denied knowledge of the overdraft and "float" operations. He was asked about conversations which he had with Flynn and Mears, a First National officer, with reference to the supermarket checks. He testified, over objection, that after the departure of Hernandez, Flynn called him about a $15,000 check, that he, Cordova, told him Plaza del Sol would not honor the check, and then...