LeMasters v. United States

• Decision Date: 21 April 1967
• Docket Number: No. 20376.,20376.
• Parties: Edward S. LeMASTERS, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 262 (1967)

Edward S. LeMASTERS, Sr., Appellant, v. UNITED STATES of America, Appellee.

No. 20376.

United States Court of Appeals Ninth Circuit.

April 21, 1967.

James F. Hewitt, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and MERRILL and DUNIWAY, Circuit Judges.

MADDEN, Judge:

The appellant was convicted and sentenced, in the United States District Court for the Northern District of California, for three violations of section 2113(b) of Title 18, United States Code. The section contains two paragraphs. The first paragraph is the one here involved. It reads as follows:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100.00 belonging to, or in the care, custody, control, management or possession of any bank,¹ or any savings and loan association, shall be fined not more than $5000.00 or imprisoned not more than ten years, or both.

The indictment contained three counts, each of which charged that the appellant "did take and carry away, with intent to steal and purloin," money of value in excess of $100 from the Watsonville, California, branch of the Bank of America, the money being taken from the account of one Tournour, by the appellant's falsely and fraudulently representing himself, by the presentation of stolen identification papers, to be Tournour. The amounts so obtained, on three separate occasions, were alleged in the indictment to have been $400, $3500 and $2800 respectively. The indictment alleged that the involved bank was a member of the Federal Reserve System, and that its deposits were insured by the Federal Deposit Insurance Corporation.

On December 28, 1964, the appellant succeeded in persuading a teller, acting as such, at the bank that he was Tournour, that he had lost his savings account pass book, that the bank should issue him a new pass book, of course in the name of Tournour. Having acquired the new pass book, he immediately withdrew $400 from the account by signing Tournour's name to a withdrawal slip; on the next day he withdrew $3500, and six days later he withdrew $2800. Tournour had not given the appellant any authority to withdraw any money from Tournour's account.

The appellant was indicted, as we have seen, and tried upon the indictment. At the close of the Government's proof, the appellant moved for a directed verdict of acquittal on the ground that, whereas the indictment charged the crime of larceny, the evidence proved the crime of obtaining money by false pretense. The appellant's motion was denied. The appellant introduced no evidence. He requested an instruction which would have had the same effect as if his motion for a directed verdict had been granted. The instruction was refused. The appellant noted an exception to the refusal. The jury found him guilty. He moved for a judgment of acquittal notwithstanding the verdict. That motion was denied. A judgment of conviction was entered. He received a five year sentence on each count of the indictment, the sentences to run consecutively. He moved for arrest of judgment on the ground that the indictment taken as a whole did not charge an offense against the laws of the United States. The motion was denied.

The appellant has, then, at every appropriate stage of the proceeding against him, made the point that the statute, for the alleged violation of which he was indicted, has no application to the conduct in which, as was proved by uncontroverted evidence, he engaged. In effect he contends that obtaining money from a bank by false pretense is not a federal crime. That does not mean that it can be done with impunity. No doubt such conduct is punishable in every state or other comparable governmental unit in the United States or its possessions. But federal criminal law is all statutory law, and the Government does not claim that any federal statute other than section 2113(b) of Title 18, United States Code, the statute named in the appellant's indictment, applies to the appellant's conduct. Our question, then, is whether section 2113(b), properly construed, covers and makes punishable the obtaining of money from a bank by false pretenses. The question has no constitutional overtones. There would seem to be no room for doubt of the power of Congress to define as federally criminal the obtaining of money by false pretense from a bank in which the federal government has an interest to protect, just as Congress has so defined robbery of such a bank, or burglary of such a bank. The "Necessary and Proper" clause of the Constitution² would easily validate such a statute.

The appellant, as we have seen, contends that the language of § 2113(b), "takes and carries away, with intent to steal or purloin," is the language descriptive, at least primarily, of common law larceny, and not of obtaining money by false pretense, which is what the appellant did. Professor Perkins, in his text on Criminal Law, page 190, defines larceny as "the trespassory taking and carrying away of the personal property of another, with intent to steal the same." From the author's introduction to his chapter 4, "Offenses Against Property," we learn, page 187, that larceny as defined by him was a crime from a very early period of English law, but that the more refined conduct of obtaining the money or property of another by false pretense was not made criminal until, in 1757, the statute, 30 Geo. II, c. 24, § 1, was enacted. (Page 250)

If § 2113(b) had used the word larceny and had simply said that larceny from a bank, as bank is defined in that statute, was made a federal crime, it would be difficult to construe the statute as including obtaining money by false pretense. But § 2113(b) does not say that larceny from a bank shall be a federal crime. Nevertheless, it comes very close to saying that. Its key words are "takes and carries away, with intent to steal or purloin." Except for the failure to use "trespassory," and for the added word "purloin," this is almost verbatim Professor Perkins' definition of common law larceny. It is also very close to Blackstone's definition: "the felonious taking and carrying away of the personal goods of another." IV Commentaries 229.

The appellant urges that the legislative history of the section shows that Congress intended that it should have the restricted meaning for which he contends. We think there is important evidence as to what Congress intended to say when it enacted section 2113(b). In 1934 a bill having the purpose of punishing gangster activities in the United States in relation to banks was introduced in the Senate and was numbered S. 2841, 73rd Cong., 2d Sess. It contained six sections. The first section defined the word "bank" as used in the bill. Section 2 made it a crime to take and carry away property or money from a bank either (1) without the consent of the bank, or (2) "with the consent of such bank obtained by the offender by any trick, artifice, fraud or false or fraudulent representation * * *." If § 2 of S. 2841 had become law, there would be no doubt that the appellant's getting the bank's money by false representations was a federal crime. But, as we shall see, § 2 of S. 2841 did not become law. The bill contained a § 3 which made burglary of a bank a crime, and a § 4 which made a taking of money or property of a bank by force and violence, or by putting in fear, a crime. Thus S. 2841 covered, in plain language, larceny, § 2(1); false pretense, § 2(2); burglary, § 3; and robbery, § 4. The bill passed the Senate on March 29, 1934. 78 Cong.Rec. 5738.

S. 2841 went to the House of Representatives and was referred to the Committee on the Judiciary. It was amended by striking out §§ 2 and 3, i.e., its provisions about taking without consent, taking with consent obtained by false representations, and burglary, leaving only the bank robbery provisions. This action on the part of the Committee and the House was not unnatural, since the Attorney General, in recommending the legislation, emphasized the gangster interstate bank robbery activity as the evil to be cured.³ The conflicting versions of the bill went to a Conference Committee, which accepted the House version, which was then passed by both houses and became law. As enacted, the statute contained four sections (see 48 Stat. 783). Section 1 defined "bank." Section 2 had two subsections. Subsection (a) makes one who "by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take" property of a bank guilty of an offense. Subsection (b) imposes a heavier penalty if the offender "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device." Section 3 imposes a still heavier penalty if the offender, in the course of committing the offense or avoiding apprehension or escaping, kills or kidnaps any person.

In 1937 there was introduced in the House of Representatives a bill containing the language of what is now § 2113(b), the statute which we have for construction. 81 Cong.R. 2731. The bill also contained a provision which is now in the second paragraph of § 2113(a), making burglary of a bank a federal crime. Thus in 1937 some of the provisions which had been in the 1934 Senate Bill S. 2841, which was passed by the Senate but was drastically curtailed by the House and was passed by Congress in the curtailed form, were again placed before Congress. With practically no discussion, this bill passed both houses and became law. In all respects relevant to this case, today's § 2113 of Title 18, United States Code, is what was enacted in 1937.

As enacted, the 1937 statute amends only subsection (a) of section 2 of the 1934 Act. (See 50 Stat. 749.) It is entitled "AN ACT To amend the bankrobbery statute to include burglary and larceny." It...