U.S. v. Alcantar

• Decision Date: 20 November 1987
• Docket Number: No. 86-5198,86-5198
• Citation: 832 F.2d 1175
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe ALCANTAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1175

832 F.2d 1175

UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe ALCANTAR, Defendant-Appellant.

No. 86-5198.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 7, 1987.

Submission Deferred July 23, 1987.

Resubmitted Nov. 20, 1987.

Decided Nov. 20, 1987.

R.J. Coughlan, Jr., San Diego, Cal., for defendant-appellant.

William Braniff, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Stephen W. Peterson, Asst. U.S. Atty., on brief, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NELSON, HALL and THOMPSON, Circuit Judges.

NELSON, Circuit Judge:

This appeal is hereby resubmitted.

Guadalupe Alcantar appeals her conviction for embezzling and converting bank funds in violation of 18 U.S.C. Sec. 656. She objects to the conviction on three grounds: her actions did not constitute embezzlement, the jury instructions were improper, and the prosecution was permitted to exclude potential jurors based on their race without having its attempt to provide a neutral explanation for the exclusions subjected to rebuttal by the defense. We find this third ground convincing, and accordingly, we remand for further proceedings.

SUMMARY OF FACTS

While Alcantar managed the San Ysidro Branch of the Bank of Coronado, she and her ex-husband Tomas engaged in a series of transactions to profit on the difference in the peso/dollar exchange rate between San Diego and the border town of Nogales, Arizona. The transactions involved two Nogales corporations that needed to exchange large amounts of dollars into pesos. They supplied Tomas with checks in dollar amounts. Tomas purchased wire transfers at a Nogales bank in the exact amount of the dollars provided to him, and transferred the dollars to the Bank of Coronado. In San Diego, Alcantar issued a Bank of Coronado cashier's check, which was then exchanged for pesos and wired to Tomas's account in Nogales, Mexico. Tomas then provided pesos to the Nogales companies at an exchange rate greater than the Nogales rate, but less than the San Diego rate, thus making a profit. Alcantar herself sometimes profited by obtaining the equivalent of a commission. Alcantar and Tomas engaged in fifteen money exchange transactions from January to March 1985, in amounts ranging from $3,960 to $250,000.

These transactions would not have violated any criminal law except that Alcantar issued the cashier's checks before the Bank of Coronado had received Federal Reserve confirmation of the Nogales bank's wire transfers. On some occasions, Alcantar issued a cashier's check after Tomas was on his way to wire the funds. On other occasions During the course of jury selection, the prosecution utilized its peremptory challenges to exclude from the jury all three Hispanics on the venire panel. Alcantar moved for a mistrial, contending that the prosecution's systematic exclusion of Hispanics from the jury violated her constitutional rights. After oral argument, the trial judge concluded that Alcantar had made a prima facie showing of racially motivated juror exclusion and required the prosecution to come forward with a neutral explanation of its challenges. Over Alcantar's objections, the trial judge permitted the prosecution to give its reasons for challenging the Hispanic jurors in an ex parte, in camera proceeding.

                Alcantar issued a cashier's check after the Nogales bank had confirmed on the telephone that covering funds had been wired.  Although Alcantar knew she was violating bank procedures when she issued cashier's checks before receiving covering funds, she was, according to the trial judge, "meticulous to make sure that the money was covered at the bank" and "almost paranoid about making sure there was no loss to the bank."    The wired funds always arrived, and the Bank of Coronado never suffered a loss.  Nonetheless, the government charged Alcantar with embezzlement and conversion of bank funds in violation of 18 U.S.C. Sec. 656.  The case was tried before a jury
                

Two months later, during jury deliberations, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In light of that decision, Alcantar renewed her motion for a mistrial. Alcantar's counsel set forth on the record his reasons for believing that any neutral explanation offered by the prosecution must have been pretextual. He also argued that Batson v. Kentucky required that Alcantar be apprised of the prosecution's reasons for challenging the Hispanics and be allowed to rebut the explanation as pretextual. The trial court concluded that such a right of rebuttal would create a mini-trial, would eradicate the institution of the peremptory challenge, and was not required by Batson v. Kentucky.

Alcantar requested a series of jury instructions regarding the substantive requirements of embezzlement and defenses available for that offense. The district judge rejected those proposed instructions. The jury found Alcantar guilty of embezzlement and conversion of bank funds in violation of 18 U.S.C. Sec. 656.

DISCUSSION

Alcantar urges three objections on appeal: (1) that 18 U.S.C. Sec. 656 does not apply to the facts of this case, and that even if it does, the prosecution presented insufficient evidence to sustain her conviction; (2) that the district court committed reversible error by refusing her requested jury instructions; and (3) that Batson v. Kentucky requires not only that a prosecutor offer neutral explanations for excluding jurors of a defendant's race by peremptory challenge, but also that defendants be allowed to rebut the prosecution's explanation as pretextual. Although we find the first two contentions without merit, we agree that Alcantar had a constitutional right to rebut the prosecution's explanation as pretextual in this instance.

1. Is 18 U.S.C. Sec. 656 applicable to the facts of this case, and if so, was the evidence presented to the jury sufficient to sustain the jury's conviction of Alcantar?

This court reviews de novo the question whether the trial court applied the correct legal standard to the case. United States v. Nance, 666 F.2d 353, 356 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). In evaluating a claim that the evidence was insufficient to support a jury verdict, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis added); see United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984).

In relevant part, 18 U.S.C. Sec. 656 imposes criminal liability on an officer of a federally-insured bank who "embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank." To establish a violation of the statute, the government must show "an intent to injure or defraud the [b]ank." United States v. Stozek, 783 F.2d 891, 893 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 284, 93 L.Ed. 259 (1986). Alcantar argues that 18 U.S.C. Sec. 656 should not be applied in this case because (1) her conduct resulted in no loss or real risk of loss to the bank; (2) she did not intend to harm the bank; and (3) she made an affirmative effort to insure that no harm would come to the bank.

Alcantar's contention that her transactions resulted in no loss or real risk of loss to the bank is irrelevant, for actual loss or risk of loss are not elements of the offense of embezzlement. See United States v. Duncan, 598 F.2d 839, 858 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Landers, 576 F.2d 94, 96 (5th Cir.1978); United States v. Scheper, 520 F.2d 1355, 1358 (4th Cir.1975); United States v. Fortunato, 402 F.2d 79, 81 (2d Cir.1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969). That Alcantar did not intend to harm the bank or that she took affirmative steps to protect the bank does not refute her guilt for violating 18 U.S.C. Sec. 656. The requisite "intent to injure or defraud" is expressed in the disjunctive. See United States v. Angelos, 763 F.2d 859, 861-62 (7th Cir.1985) (stating that "[i]ntent to defraud--which means, to take financial advantage of a confidential relationship, ...--is all that is required to make out a violation of section 656; intent to injure the bank need not be shown" ); United States v. Beran, 546 F.2d 1316, 1322 (8th Cir.1976) (stating that "restitution of bank funds [is not] a defense as the crime of misapplication is complete when the misapplication occurs"), cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977); Benchwick v. United States, 297 F.2d 330, 334 (9th Cir.1961) (holding that defendants' intention that "the uncompensated use should be temporary and that the funds should ultimately be restored does not alter the case" ).

There is ample evidence in the record to support a jury finding that Alcantar took advantage of her position of trust at the bank willfully to draw uncovered cashier's checks on the Bank of Coronado for her own benefit. She committed the crime of embezzlement in violation of 18 U.S.C. Sec. 656.

2. Did the district court commit reversible error in its instructions to the jury?

When reviewing a claim of error relating to jury instructions, this court views the instructions in the context of the overall charge. United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982). A criminal defendant cannot insist upon particular language if the court's instructions fairly and adequately cover the issues presented. United States v. James, 576 F.2d 223, 226 (9th Cir.1978). "Challenges to the trial judge's language or his formulation of...