Mulloney v. United States

• Decision Date: 07 November 1935
• Docket Number: No. 2974.,2974.
• Citation: 79 F.2d 566
• Parties: MULLONEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

79 F.2d 566 (1935)

MULLONEY et al. v. UNITED STATES.^*

No. 2974.

Circuit Court of Appeals, First Circuit.

July 13, 1935.

Rehearing Denied November 7, 1935.

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Marvin C. Taylor and Franklin R. Chesley, both of Boston, Mass., for appellant Mulloney.

John P. Manning, of Boston, Mass. (Timothy F. Callahan, of Boston, Mass., on the brief), for appellant Deery.

John A. Canavan, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.

BINGHAM, Circuit Judge.

This is an appeal from judgments of October 29, 1934, sentencing each of the defendants to imprisonment in the House of Correction at Plymouth, Mass., for a year and a day, the defendant Mulloney being found guilty as principal, and the defendant Deery as aider and abettor, upon the first count of an indictment under section 5209 of the Revised Statutes, as amended (USCA title 12, § 592), charging the misapplication of moneys, funds, and credits of the Federal National Bank of Boston. The indictment contained a second count charging the making of false entries in connection with the same transaction. On this count the defendants were found not guilty. We are concerned, therefore, on this appeal with matters relating to the first count.

The material portion of the statute here involved reads as follows:

"§ 592. Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank as defined in sections 221 to 225 of this title, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of such Federal reserve bank or member bank * * * with intent * * * to injure or defraud such Federal reserve bank or member bank * * * and every person who, with like intent, aids or abets any officer, director, agent, employee * * * in any violation of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof in any district court of the United States shall be fined not more than $5,000 or shall be imprisoned for not more than five years, or both, in the discretion of the court."

This indictment was found by a grand jury of the District Court for Massachusetts at its September term, 1933. In the first count of the indictment it was charged:

"That Daniel C. Mulloney, late of said District, throughout the period of time from January 1, 1930, to December 14, 1931, was president and a director of the Federal National Bank of Boston, in Boston, Massachusetts, which bank throughout said period of time was a national banking association theretofore organized and then and there existing and in operation and doing business under and by virtue of the laws of the United States concerning national banks, and which throughout said period of time was a member bank of the Federal Reserve Bank of Boston, Massachusetts, as designated by The Reserve Bank Organization Committee, to wit, in Federal Reserve District Number 1; and that as such officer and director of said member bank, said Daniel C. Mulloney throughout said period of time, had such a power of control, direction and management over the business and affairs of said member bank and over its moneys, funds and credits, and books and records, as enabled him to commit the offense in this indictment herein charged; and that said Daniel C. Mulloney during said period of time, to wit, on September 29, 1931, at said City of Boston, in said District of Massachusetts, as such officer and director, and with intent then and there to injure and defraud said member bank, unlawfully and feloniously did wilfully misapply the moneys, funds and credits of said member bank in the amount and of the value of one hundred thirty-one thousand dollars ($131,000.00), by then and there unlawfully and feloniously wilfully converting said one hundred thirty-one thousand dollars ($131,000.00) of the moneys, funds and credits of said member bank to the use and benefit of said John A. Deery and others to your grand jurors unknown, and not to the use or benefit of said member bank, by placing and taking into the assets of the member bank without the knowledge or consent of said member bank or its board of directors on said September 29, 1931, the demand promissory note of one Helen L. Ganley, dated on said date in the principal amount of one hundred thirty-one thousand dollars ($131,000.00), payable to said member bank, and which said sum of one hundred thirty-one thousand dollars ($131,000.00) was soon thereafter withdrawn from the assets of said member bank, and that on said September 29, 1931, as said Daniel C. Mulloney then and there well knew, said Helen L. Ganley was a woman of straw and a dummy note maker for said John A. Deery and unable to pay said note and that said note was then and there secured by wholly inadequate collateral and that said John A. Deery was then and there in a failing financial condition and unable to pay his just debts and obligations and not entitled to any credit in said member bank or in any well conducted bank, whereby and by reason of such misapplication of the moneys, funds and credits of said member bank as aforesaid, the said sum of one hundred thirty-one thousand dollars ($131,000.00) was almost wholly lost to said member bank.

"And the Grand Jurors aforesaid, on their oath aforesaid, do further present that on said September 29, 1931, at the City of Boston in said District of Massachusetts with intent then and there to injure and defraud said member bank, one, John A. Deery, late of said district, unlawfully and feloniously did aid and abet the said Daniel C. Mulloney so to wilfully misapply the moneys, funds, and credits of said member bank in the amount and of the value of one hundred and thirty-one thousand dollars ($131,000.00) as heretofore in this count of this indictment set forth."

The defendant Mulloney filed a motion for particulars which was granted in part and denied in part. The action of the court in so far as it denied the motion gives rise to the first assignment of error.

The purpose of a bill of particulars is the better to apprise the defendant of the crime charged to enable him properly to prepare his defense. It is not to furnish him in advance with the government's evidence and, if the indictment properly sets forth a crime, a motion of this character which would unduly limit the evidence of the government should not be granted. Rubio v. United States (C. C. A.) 22 F.(2d) 766; Robinson v. United States (C. C. A.) 33 F.(2d) 238; United States v. Brown (D. C.) 56 F.(2d) 659. In this case all the essential elements of the misapplication charged, including the time, place, and means of bringing it about, were set forth in the indictment. The information which it contained, together with the copy of the Ganley note, which the government was required to furnish under the defendant's motion, sufficiently advised him of the nature of the transaction constituting the crime and furnished adequate protection against a further prosecution for the same offense. The particulars requested, in so far as they were denied, called for evidence which the government might use in support of the allegations of the indictment, and their denial rested in the sound discretion of the court, which clearly was not abused in this instance. Wong Tai v. United States, 273 U. S. 77, 92, 47 S. Ct. 300, 71 L. Ed. 545; Hartzell v. United States (C. C. A.) 72 F.(2d) 569, 575; Rubio v. United States (C. C. A.) 22 F.(2d) 766, 767, 768; Horowitz v. United States (C. C. A.) 262 F. 48, 49. This disposes of the first assignment of error.

Both defendants demurred to the indictment. Mulloney filed a motion to quash. The motion adds nothing to the questions raised by the demurrers. Both demurrers are substantially the same. The main complaints are (1) that the first count does not state an offense against the laws of the United States, and (2) that it is so indefinite and uncertain as not to inform the defendants of the nature of the accusation against them, and because of its indefiniteness does not conform to the requirements of the Sixth Amendment of the Constitution; and (3) that it is contradictory and duplicitous — that it is the latter because it charges three offenses in one count (misapplication of moneys, funds, and credits) — and is contradictory in that it charges Mulloney himself with an offense and also charges that it was committed by him through the exercise of an alleged control, direction, and management over the affairs of the bank.

We have carefully examined the indictment and the grounds of the demurrers and motion to quash, and are of the opinion that the District Court committed no error in overruling each of them. This disposes of Mulloney's second and third assignments of error and the first assignment of defendant Deery.

The demurrers to the indictment having been overruled, the defendants pleaded not guilty. In such a situation it has been held that "the demurrer was, in legal effect, withdrawn from the record, and nothing remained upon which the exception could be founded." Hillegass v. United States, 183 F. 199, 201, 202 (C. C. A. 3d Circuit).

Mulloney filed a plea in abatement to the indictment. The government filed a demurrer to and a motion to strike the plea. A hearing was had on the demurrer and motion and thereafter, and before decision, the government moved for leave to withdraw its demurrer and motion. In various ways, too numerous to mention, this defendant by exceptions and assignments of error has saved his rights, if any, to the action of the District Court in allowing the government to withdraw its demurrer and motion to strike. He asserts that he was entitled as of right to a decision of the issues raised by the demurrer to the plea; that, at that stage of the proceeding, he could not be deprived of...