State v. Boueri
| Decision Date | 10 November 1983 |
| Docket Number | No. 14282,14282 |
| Parties | The STATE of Nevada, Appellant, v. Pierre BOUERI, Respondent. |
| Court | Nevada Supreme Court |
D. Brian McKay, Atty. Gen., Carson City, Robert Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Clark County, for appellant.
Carelli & Miller, Las Vegas, for respondent.
This is an appeal by the state from an order granting a defense motion to dismiss a grand jury indictment alleging twelve counts of embezzlement. We conclude that the district court erred in granting the motion to dismiss and therefore reverse.
The facts adduced at the grand jury hearing revealed that respondent was vice-president of Caesar's Palace in charge of hosting affluent guests at Caesar's. As part of his duties, Boueri would arrange complimentary air fare and other services designed to induce such persons to visit Caesar's. Boueri would arrange the air fare through a local travel agent, Ghanem Travel, in the name of the customers. Unused tickets were returned to Ghanem by Boueri for refunds. When such refunds were sought, the agency would issue checks to the order of cash and usually deliver them to Boueri. At times Boueri would purchase tickets for customers and deliver them to associates of the customers, who could redeem the tickets as "commissions" for encouraging the guests to return to Caesar's. Boueri also obtained refunds for tickets issued in his own name.
Caesar's policy regarding refunds for unused tickets required the travel agent to either credit the refund against future invoices or pay the refund by check made out to Caesar's. Boueri was not authorized to receive a cash refund for his or customers' unused tickets.
At the grand jury hearing, evidence was presented that Boueri had authorized tickets for several persons who received neither tickets nor money from Caesar's. Refunds for these tickets were given to Boueri by the travel agency in the form of checks made out to the order of cash. Boueri also received refunds for tickets issued in his own name.
The grand jury returned an indictment against Boueri listing twelve counts of embezzlement totalling $41,328.80. Boueri made a motion to dismiss the indictment which the district court granted. This appeal followed.
The district court's first ground for dismissing the indictment was that the airline tickets for which the defendant obtained refunds were not the property of Caesar's Palace, thus making embezzlement 1 impossible. We disagree.
Although Caesar's did not furnish Boueri with a cash box from which he could embezzle funds, Caesar's did entrust Boueri with power and authority through which he could generate and possess his employer's funds. We therefore find persuasive the state's initial argument that Boueri qualified as a "bailee," "agent," and "person with whom any money, property or effects shall have been deposited or entrusted," as those words are used in NRS 205.300. This, coupled with the fact that Boueri admitted he knowingly gave tickets to "associates" of Caesar's customers in violation of Caesar's policy, is sufficient evidence of embezzlement to show probable cause and thus validate the charges against Boueri.
Boueri also contends that the guests of Caesar's, and not the hotel, were the owners of the tickets as recipients of a gift from Caesar's. This contention is meritless for lack of unconditional delivery of the gift to the donee or his agent. See Simpson v. Harris, 21 Nev. 353, 362, 31 P. 1009, 1011 (1893). Here, the donees were unaware of the tickets issued in their names, and the record reveals no evidence of payment to the alleged donees. An employee who embezzles property which comes into his hands by virtue of his employment cannot escape liability for embezzlement by a plea that the legal title to the property is not in the employer. State v. DeBois, 98 Utah 234, 98 P.2d 354 (1940). See also Herrera v. State, 158 Tex.Cr.R. 505, 256 S.W.2d 851 (1953); State v. Bengston, 230 Or. 19, 367 P.2d 362 (1961). In any event, Boueri's theory has no application to the three counts for tickets made out in his own name. Boueri's assertion that he was being reimbursed for tickets he paid for himself is not supported by any direct evidence.
The district court's second ground for dismissing the indictment was that only eleven grand jury members attended both sessions where evidence was presented against Boueri. The court decided that the state's copy of attendance records kept by the grand jury secretary was inadmissible. We again disagree.
The grand jury indictment must be based upon the concurrence of twelve or more grand jurors who have considered all the evidence. See NRS 172.255; Constancio v. Sheriff, 94 Nev. 71, 574 P.2d 1012 (1978). The attendance records kept by the grand jury secretary indicate that the indictment was issued after the same twelve grand jurors considered all the evidence. Boueri counters by citing NRS 172.075, which states, in pertinent part: "The secretary shall keep a record of the number of jurors concurring in the finding of every presentment or indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court...." Boueri contends that the minutes of the grand jury attendance were neither filed nor authenticated as required by the statute, and are thus inadmissible under the statute.
NRS 172.075, however, does not preclude consideration of the state's exhibit. The statute only requires the court filing of minutes recording the individual votes of grand jurors, not minutes of attendance. Even if the revelation of attendance could, under certain conditions, necessarily reveal the voting input of the individual grand jurors, such a result would not preclude use of the attendance records. Although the statute seeks to preserve the confidential nature of the voting process to avoid public criticism of individual grand jurors, this statutory purpose was not designed to be used as a basis for frustrating valid indictments. In the instant case, the district court was empowered by the statute to enlighten itself on the issue of the validity of the indictment by merely admitting the minutes of attendance as evidence on the subject. The failure to do so was error, as was the dismissal of the indictment based on the asserted lack of concurrence of twelve or more grand jurors.
Boueri next contends that the evidence presented to the grand jury failed to establish the commission of a crime. This contention is also without merit.
At a grand jury proceeding, the state is required to produce evidence establishing "probable cause" to hold an accused for trial. NRS 172.155(1). It is firmly established, nevertheless, that the finding of probable cause may be based on slight, even marginal, evidence. Sheriff v. Badillo, 95 Nev. 593, 600 P.2d 221 (1979); Perkins v. Sheriff, 92 Nev. 180, 547 P.2d 312 (1976). The state need only present enough evidence to create a reasonable inference that the accused committed the offense with which he or she is...
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