U.S. v. Baker

• Decision Date: 29 December 1980
• Docket Number: No. 80-1047,80-1047
• Citation: U.S. v. Baker, 633 F.2d 696 (5th Cir. 1980)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlie J. BAKER and W. H. Butler, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 696

633 F.2d 696

UNITED STATES of America, Plaintiff-Appellee, v. Orlie J. BAKER and W. H. Butler, Defendants-Appellants.

No. 80-1047.

United States Court of Appeals, Fifth Circuit.

Unit A

Dec. 29, 1980.

Randy Martin, Houston, Tex., for Baker.

Jack Neal, Graham, Tex., for Butler.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court, for the Southern District of Texas.

Before AINSWORTH, Circuit Judge, KUNZIG, Judge ^*, and RANDALL, Circuit Judge.

AINSWORTH, Circuit Judge:

Orlie J. Baker and W. H. Butler were found guilty, after a jury trial, of both counts of an indictment charging conspiracy to misapply funds of a bank insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 371, and with misapplication of the bank's funds, in violation of 18 U.S.C. §§ 2 and 656. They appeal their conviction, asserting errors in their trial in that the Government failed to meet its burden of proving that Gulf Coast National Bank (GCNB) was federally insured, that the Allen charge given by the trial court was unduly coercive, and that the court improperly admitted in evidence their prior state grand jury testimony. We find no reversible error and affirm.

The purported fraud in this case revolves around the sale of a used diesel truck. Baker, president of GCNB, allegedly participated in a scheme with Butler to sell the truck, repossessed by his bank, to Harris County, Texas, for.$17,250, while crediting the loan account of the former owner with only $14,000. The defendants, Baker and Butler, were charged with converting to their own use the difference of $3,250 rather than crediting said amount to the outstanding loan held by the bank.

Our standard of review on appeal is whether, viewing the evidence most favorably to the Government, a reasonable-minded jury could find the admissible evidence sufficient to support the jury's verdict of guilty. Thus all reasonable inferences and credibility choices must be made in favor of the jury verdict. United States v. Maner, 611 F.2d 107, 108 (5th Cir. 1980). See also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

In order to find appellants guilty of the charges herein alleged, as well as to establish federal jurisdiction, it was necessary that the Government show that GCNB was either a "member bank, national bank, or insured bank." ¹ 18 U.S.C. § 656. Accordingly, the Government sought to prove the bank was insured by the Federal Deposit Insurance Corporation (FDIC) through the testimony of a former loan officer of the bank. The loan officer testified that GCNB was a national bank insured by the Federal Deposit Insurance Corporation during the time the alleged violations occurred. Counsel for appellants objected to the testimony as hearsay. However, the trial judge overruled the objection after being assured by the witness that he spoke from personal knowledge. ² On this basis, the trial court submitted the issue to the jury to determine the fact of insurance. In our view, the evidence was sufficient under the circumstances. ³

Appellants also objected to an Allen ⁴ charge by the district judge which they assert was coercive and improper. They contend that the charge was stated in a manner which coerced the jury into returning a verdict of guilty under pressure by the court of a specific deadline. The Allen charge is permissible in this circuit only within the limitations of our prior decisions. See United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) (en banc). Upon review of the instant charge, we conclude it was neither coercive nor prejudicial and that no deadline was set. ⁵ The language in charge ⁶ is similar to that already approved by this court. See also United States v. Dixon, 593 F.2d 626 (5th Cir.), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1979); United States v. Bright, 588 F.2d 504 (5th Cir. 1978), cert. denied, 440, U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Cook, 586 F.2d 572 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274 (1979); United States v. Scruggs, 583 F.2d 238 (5th Cir. 1978); United States v. George, 567 F.2d 643 (5th Cir. 1978); United States v. Skinner, 535 F.2d 325 (5th Cir.), cert. denied, 429 U.S. 1048, 97 S.Ct. 756, 50 L.Ed.2d 762 (1977). ⁷ We find no error, therefore, in the instruction to the jury.

Finally, appellants challenge the admission of their prior state grand jury testimony, without a limiting instruction by the trial judge. ⁸ The testimony resulted from appellants being called as witnesses in a state grand jury investigation of the actions of a Harris County, Texas, official in the sale of the diesel truck. Although appellants concede the testimony of each appellant was admissible against himself, they assert the testimony was also used against each other. They contend that admission of these statements of alleged coconspirators against each other violates the principles established in United States v. James, 590 F.2d 575 (5th Cir. 1978) (en banc).

However, the Government offered the state grand jury testimony of Baker and Butler only as exculpatory statements of each defendant later shown to be false. The Government contends that the testimony of the two appellants did not harm or affect the other. ⁹

We agree with the trial court's ruling that our holding in James is inapposite. The grand jury testimony should not be construed as statements of one conspirator against another conspirator. The testimony was exculpatory. Nothing in the testimony of either appellant inculpated the other. Thus, a limiting instruction to the jury concerning the testimony was not necessary or warranted. ¹⁰

Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

* Judge of the United States Court of Claims, sitting by designation.

1 18 U.S.C. § 656 reads in pertinent part as follows:

As used in this section, the term "national bank" is synonymous with "national banking association"; "member bank" means and includes any national bank, state bank, or bank and trust company, which has become a member of one of the Federal Reserve Banks; and "insured bank" includes any bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation.

2 Appellants did not challenge the witness as to the basis of his professed firsthand knowledge.

3 In United States v. Maner, supra, we recently considered the cases pertaining to the sufficiency of evidence to prove FDIC coverage and said that we had found no case in this court or any other circuit court reversing a conviction for insufficient proof of insurance, though admitting the possibility for such a case arising in the future. 611 F.2d at 111-112.

4 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

5 The trial judge did not set a time limit simply because he announced that the court would suspend operations for the day at 5:00 p. m.

6 The following is the pertinent text of the judge's charge:

Mr. Foreman and ladies and gentlemen of the jury, I have your note which indicates that you are divided eleven to one on all three counts and you don't think that anything is ever going to change it.

Now I'm going to ask the clerk to file your note. And I'm going to instruct you as follows.

I'm going to ask you that you continue your deliberations in an effort to agree upon a verdict and dispose of this case....