U.S. v. Bell

• Decision Date: 01 June 1982
• Docket Number: No. 79-5741,79-5741
• Citation: 678 F.2d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nelson BELL, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 547

678 F.2d 547

UNITED STATES of America, Plaintiff-Appellee, v. Nelson BELL, Defendant-Appellant.

No. 79-5741.

United States Court of Appeals Fifth Circuit.

Unit B ^*

June 1, 1982.

Roy W. Allman, Matthew J. Schaefer, Marvin Schulman, Fort Lauderdale, Fla., for defendant-appellant.

Linda Collins Hertz, Stephen B. Gillman, Asst. U. S. Attys., Miami, Fla., Ann T. Wallace, Atty., Appellate Section, U. S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., HENDERSON, HATCHETT, ANDERSON and THOMAS A. CLARK, Circuit Judges.

VANCE, Circuit Judge:

Nelson Bell was convicted under 18 U.S.C. § 2113(b) and sentenced to imprisonment for one year. He appealed, contending that the evidence was insufficient to support the jury finding that he took or carried away money from a savings and loan association with the intent to steal or purloin. A divided panel of this court reversed. United States v. Bell, 649 F.2d 281 (5th Cir. 1981). Sitting en banc we now affirm Bell's conviction.

On October 13, 1978 Lawrence and Elaine Rogovin mailed a $10,000 check from Cincinnati, Ohio to their investment agent in Miami, Florida. The check was made payable to the Rogovins, and had the following limited endorsement on the back: "Deposit only to the account of Lawrence and Elaine G. Rogovin at Dade Federal Savings & Loan, Account No. 02-1-159976-0." The agent never received the check.

On October 17 Nelson Bell opened an account at a branch of Dade Federal and was assigned account number 03-1-081526-6. He used his own name, but gave a false address, birth date and social security number. Later that day he deposited the Rogovins' check to account number 03-1-081526-6 at another branch of Dade Federal. The evidence does not show how Bell, who was unknown to the Rogovins, obtained the check. It does show, however, that he was not authorized to deposit or cash the Rogovins' check. At the time of deposit the original account number in the endorsement had been scratched out and Bell's new account number had been added. Dade Federal inexplicably accepted the obviously altered check, guaranteed the endorsement and processed it for payment. After a twenty day holding period the check had cleared. The amount of the deposited check, which had been credited to Bell's account, then became available for withdrawal. On the twenty-first day, before the Rogovins discovered the loss of the check, Bell withdrew the $10,000 in cash and closed the account.

Bell was convicted under the federal bank robbery statute, 18 U.S.C. § 2113(b), which provides:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both ....

Bell contends that the taking of the $10,000 was not within the statute because it did not constitute common law larceny, a specific intent crime requiring a trespassory taking. The question whether a nontrespassory taking is within the federal statute was treated at some length in Thaggard v. United States, 354 F.2d 735 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). We reaffirm this court's conclusion in Thaggard that the term "steal," as used in 18 U.S.C. § 2113(b), embraces "all felonious takings ... with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny." Id. at 737 (quoting United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 430 (1957)). ¹ Bell's conduct, which involved taking by means of deceit or false pretenses, can therefore be reached by the federal bank robbery statute.

Bell also argues that the evidence is insufficient to support his conviction unless it excludes every reasonable hypothesis of innocence, on the theory that if there is such a reasonable hypothesis the jury must necessarily have had a reasonable doubt of his guilt. Specifically, he alleges that since the jury could reasonably have found that he believed that his crime was completed before he withdrew the $10,000, the jury must have had a reasonable doubt of his specific intent to steal from Dade Federal. He additionally contends that the proof was insufficient to establish that he altered the endorsement on the Rogovins' check. ²

We hold that the appellant has incorrectly stated the standard of review for sufficiency of the evidence. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. ³ A jury is free to choose among reasonable constructions of the evidence. Viewing the evidence presented in this case and the inferences that may be drawn from it in the light most favorable to the government, see, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we conclude that it was sufficient to allow a reasonable jury to find that Bell altered the endorsement on the check, deposited it to his account, and thereby was enabled to take and did take $10,000 with intent to steal from the care, custody, control, management or possession of Dade Federal.

AFFIRMED.

R. LANIER ANDERSON, III, Circuit Judge, joined by RONEY, Circuit Judge, specially concurring:

I concur in the opinion, and I write separately only to state my understanding that Judge Vance's opinion does not change the substantive law of this circuit with respect to the standard of review for sufficiency of the evidence. To say that the evidence is sufficient if "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt," supra at 549, is not substantively different from saying that the evidence is sufficient if a reasonable trier of fact could find that the "evidence was inconsistent with every reasonable hypothesis of innocence." United States v. Marx, 635 F.2d 436, 438 (5th Cir. 1981). It is true that "(i)t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt," supra at 549, but it is equally true that if a hypothesis of innocence is sufficiently reasonable and sufficiently strong, then a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.

TJOFLAT, Circuit Judge, joined by GODBOLD, Chief Judge, HATCHETT and THOMAS A. CLARK, Circuit Judges, dissenting:

There is little question that Nelson Bell engaged in some form of criminal activity: Bell wrongfully obtained $10,000 that belonged to another. The issue, however, is not whether Bell committed a crime, but whether his conduct was proscribed by the federal bank robbery statute, 18 U.S.C. § 2113(b) (1976). Because I believe that it was not, I respectfully dissent.

The majority asserts that Bell's presentation of the altered check to Dade Federal for credit to his account and his subsequent withdrawal of the funds represented by that check amounted to the crime of fraud by false pretenses and that this activity violated section 2113(b). Assuming, arguendo, that Bell committed fraud by false pretenses, ¹ I take issue with the majority over whether the federal bank robbery statute should be interpreted to proscribe that crime.

That statute provides:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both ....

18 U.S.C. § 2113(b) (1976).

There can be no doubt that this provision is ambiguous. "(T)hroughout our jurisprudence, the courts have considered that 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' " United States v. McClain, 545 F.2d 988, 995 (5th Cir. 1977), quoting Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). "The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals." United States v. Boston and Maine R.R., 380 U.S. 157, 160, 85 S.Ct. 868, 870, 13 L.Ed.2d 728 (1965), quoting United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 5 L.Ed. 37 (1820). "Of course, the doctrine of strict construction is not absolute. '(T)he intention of the law-maker must govern in the construction of penal ... statutes.' " McClain, 545 F.2d at 996 (citations omitted).

Applying these principles, the Court of Appeals for the Ninth Circuit analyzed the legislative history of section 2113(b), and not only concluded that a narrow construction of that provision was appropriate, but also specifically held the crime of false pretenses beyond the statute's reach. LeMasters v. United States, 378 F.2d 262, 267-68 (9th Cir. 1967). I can do no better than recite the Ninth Circuit's painstaking parsing of congressional intent:

The 1937 enactment of 18 U.S.Code § 2113(b) had a background and legislative history wholly different from those of the 1919 stolen motor vehicle act. We are aware of no background of evil at which Congress was pointing the statute except the evil of interstate operation of gangster bank robbers. As we have seen, the Senate in 1934 passed a bill clearly and expressly creating several federal crimes against banks, including the crime of...