Snyder v. United States

• Citation: 448 F.2d 716
• Decision Date: 04 October 1971
• Docket Number: No. 20545.,20545.
• Parties: Leslie A. SNYDER and Laurel A. Snyder, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

448 F.2d 716 (1971)

Leslie A. SNYDER and Laurel A. Snyder, Appellants, v. UNITED STATES of America, Appellee.

No. 20545.

United States Court of Appeals, Eighth Circuit.

October 4, 1971.

William R. Mills, Bismarck, N. D., Moody M. Farhart, Farhart, Rasmuson & Olson, Minot, N. D., for appellants.

Harold O. Bullis, U. S. Atty., Fargo, N. D., for appellee.

Before GIBSON and ROSS, Circuit Judges, and EISELE, District Judge.^*

GIBSON, Circuit Judge.

Defendants, Leslie A. Snyder and his brother Laurel A. Snyder, appeal a judgment of conviction entered in a jury trial in the District Court of the District of North Dakota, on a four count indictment charging the Snyders with having aided, abetted, counseled and induced (a violation of 18 U.S.C. § 2) Gary F. McDaniel, president of the First Western State Bank of Minot, North Dakota (First Western) in embezzling and misapplying the funds of that bank in violation of 18 U.S.C. § 656 and in making a false book entry in violation of 18 U.S.C. § 1005. The Snyders were tried jointly with McDaniel, who was also convicted but appeals his conviction separately.

In the early part of 1969, the defendants, along with four other persons, had prepared articles of incorporation for Dandy Dan Enterprises and authorized a bank account to be opened at First Western State Bank without depositing any funds in the bank. They never completed the incorporation and the further business of the group was carried on as a partnership, Dandy Dan Enterprises (Dandy Dan). Gary McDaniel acted as their advisor in these matters but neither had an interest in the business nor received any financial benefits from its operations. The six persons were all wage earners, of modest resources, and with little or no prior experience in business.

During the month of March 1969, the partnership investigated several nightclubs in the Minot area for possible purchase. They agreed to purchase the Ranger Bar in Minot for a price of $55,000 less a 10 per cent discount for cash, plus the value of the inventory when they took possession. At the outset it was agreed that each partner was to provide $3,000 from personal resources or by personal borrowing and the rest of the purchase price was to be financed by a partnership note secured by the business. A $5,000 cashier's check for an earnest money deposit was made and it was this check that was the subject of the first count of the indictment. The bank was not paid for this check but there was testimony that the partners had signed a note in this amount as consideration for the check, and a note in this amount signed by each of the partners but having no due date or specified rate of interest was found in the desk of McDaniel's secretary. The members of the partnership testified that the note had been prepared on April 4, at the time the check had been issued, but that because some of the partners were not present when the note was prepared, it was signed on that date only by Laurel Snyder, and another partner, Lyle Snyder, also a brother of the defendants. The rest of the partners signed it individually between the 4th and the 15th of April. Leslie Snyder did not sign the note until the 15th.

In anticipation of an audit by the state bank examiners this item along with other undesirable assets, was covered with fictitious notes allegedly signed by two long-time customers of the bank, one for $75,000 in the name of Alfred Pietsch and another for $72,800 in the name of Leonard Pietsch and his wife, Thelma. All three makers deny having signed these notes but each admitted to having signed one or more blank notes for the bank. In the past transactions subject to criticism were covered in a similar fashion and the notes were sold to another bank just prior to the audit. After the audit the notes were repurchased. There was testimony by the bank officials in which they referred to this process as "tidying up" for the audit.

On May 5 a second cashier's check was issued in the Ranger Bar transaction. It was payable to James Morey in the amount of $3,683.15 and was for the liquor inventory. The third check was issued on May 7 in the amount of $47,954.05, payable to Signal Realty Co., as the final payment on the purchase price of the bar. The bank received no payment for the checks at the time they were drawn, but there was a note, allegedly signed by Leonard Pietsch, which was drawn to cover this amount. Pietsch denied signing this note. These checks were the basis for the second and third counts of the indictment.

The fourth count of the indictment involved an entry on the bank records, dated May 9, 1968, reflecting that $51,637.20 was on deposit in the First National Bank of Minneapolis to the credit of First Western. This entry was admittedly erroneous and was allegedly made under the direction of McDaniel.

Defendants present five questions for review on this appeal, but we need only consider one, whether the evidence is sufficient to support the verdict.

The Supreme Court, in Nye & Niessen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949), pointed out:

"In order to aid and abet another to commit a crime it is necessary that a defendant `in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his actions to make it succeed.\' L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402 (2 Cir.)."

We said in Johnson v. United States, 195 F.2d 673, 675 (8th Cir. 1952):

"Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a

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