U.S. v. Bell, 79-5741

• Decision Date: 23 March 1981
• Docket Number: No. 79-5741,79-5741
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nelson BELL, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 281

649 F.2d 281

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

No. 79-5741.

United States Court of Appeals, Fifth Circuit.

Unit B

March 23, 1981.

Rehearing En Banc Granted Sept. 4, 1981.

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

Stephen B. Gillman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, TJOFLAT and VANCE, Circuit Judges.

TJOFLAT, Circuit Judge:

The appellant, Nelson Bell, was convicted under 18 U.S.C. § 2113(b) (1976), the federal "Bank Robbery" statute. He appeals his conviction, claiming that, as a matter of law, the evidence was inadequate to support the jury's finding that he took bank money and carried it away with the intent to steal or purloin. We reverse the conviction for insufficient evidence.

I

At the trial of Nelson Bell, the prosecution presented the following evidence. On October 13, 1978, Lawrence Rogovin, in Cincinnati, Ohio, wrote a check for $10,000 on his and his wife's Cincinnati bank account. He made the check payable to himself and his wife and endorsed it "Deposit only to the account of Lawrence and Elaine G. Rogovin at Dade Federal Savings & Loan, Account No. 02-1-1-159976-0." On October 13 or 14, Elaine Rogovin mailed the check to an agent in Dade County, Florida, who was to deposit it in the Rogovins' account at the Dade Federal Savings & Loan (Dade Federal). The agent never received the check.

On October 17, Nelson Bell opened an account at the Alapattah branch of Dade Federal. He used his own name, but a nonexistent home address and an incorrect date of birth and social security number. Later the same day, he went to another branch of Dade Federal and deposited a check for $10,000 into his new account, giving a second false home address. The check was the same check the Rogovins had mailed except that the account number noted in the endorsement had been scratched out and the defendant's new account number had been written in its place.

Dade Federal accepted the deposit and put a twenty-day hold on the check. Exactly twenty-one days later, on November 7, Bell returned to the Alapattah branch and withdrew the total amount in the account, with interest, giving a third false home address. He insisted that the bank pay him in cash.

After the $10,000 check was discovered missing, FBI agents visited Nelson Bell at his place of work. Bell signed a written statement admitting that he had deposited the check and later withdrawn the money. He further stated that he received the check in the mail from someone in Cincinnati or Cleveland, Ohio, but that he did not have the letter and could not recall what it said or who sent it. In a subsequent interview, Bell stated that the $10,000 in cash had been stolen from his home in a burglary. A police officer who had investigated a burglary report at his home, however, testified that Bell had failed to report the theft of any money, and another officer testified that Bell specifically told him that no money had been taken and showed him several thousand dollars in a clutch bag.

A grand jury subsequently indicted Bell, charging him with violating 18 U.S.C. § 2113(b) (1976), the federal "Bank Robbery" statute. The jury found Bell guilty as charged. He appeals, alleging that the evidence was insufficient as a matter of law to sustain his conviction. Specifically, he contends that the government failed to prove that the $10,000 was withdrawn from the bank with the intent to steal or purloin.

II

The Bank Robbery statute, 18 U.S.C. § 2113(b) (1976), provides as follows:

(b) 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

In Thaggard v. United States, 354 F.2d 735 (1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966), this court, relying on United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), interpreted the term "stolen," as used in section 2113(b), to include "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." Thaggard, 354 F.2d at 737 (quoting Turley, 352 U.S. at 417, 77 S.Ct. at 402). This is not the type of case that normally arises under this statute. But see United States v. Guiffre, 576 F.2d 126 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978). While the facts may indicate that the defendant engaged in wrongdoing of some sort, the question we face is whether they indicate violation of section 2113(b).

There is little question that most of the necessary elements of the offense were met. The parties stipulated that Dade Federal was a federally insured savings and loan. Further, it appears clear that the amount in question exceeds $100 and either belonged to, or was in the care, custody, control, management, or possession of Dade Federal at the time defendant took and carried it away. The defendant contends, however, that the government failed to show that he took the money from Dade Federal with the specific intent to steal or purloin.

To begin, Bell contends that the evidence is insufficient to show that he took the check feloniously from its rightful owner, within the meaning of Thaggard, supra. While it is clear that he possessed the check under very suspicious circumstances, the government produced no specific evidence indicating how he got the check. If it cannot be proved that Bell stole the check, initially, it cannot be proved that he subsequently took the funds from the bank with the requisite intent to steal. We seriously question whether the evidence was sufficient on this point, but even assuming that it was, we find the evidence inadequate to prove that Bell had a specific intent to steal at the time he took and carried away the $10,000 from the bank.

In Prince v. United States, 230 F.2d 568, 571 (5th Cir. 1956), reversed on other grounds, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), we specified that 18 U.S.C. § 2113(b) (1976) requires a showing of specific intent. One acts with specific intent when he "knowingly does an act which the law forbids or knowingly fails to do an act which the law requires to be done, intending with bad purpose either to disobey or to disregard the law " Caples v. United States, 391 F.2d 1018, 1022 (5th Cir. 1968). "To establish specific intent, the Government must prove beyond a reasonable doubt that (the) defendant knowingly did an act which the law forbids purposely intending to violate the law." United States v. Thaggard, 477 F.2d 626, 631 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973). ¹

By definition, one cannot intend to steal or purloin his own property. ² Accordingly, if one deposits money with a bank believing that it belongs to him, he has no intent to steal it from the bank when he subsequently takes it back. For example, a defendant may steal cash from a third party, deposit it with a bank, and later withdraw it. He does not withdraw it with the intent to steal from the bank because he has already stolen the money from the third party; the theft is complete. In withdrawing the cash, the defendant views it as his own, at least vis-a-vis the bank.

If the defendant steals a check from the third party, rather than cash, deposits the check, and later withdraws the amount of cash for which the check was written, the considerations are more complex. For instance, one could view this case as similar to that in the preceding paragraph the theft is complete when the defendant takes the check, so that in defendant's subsequent dealings with the bank he views the money as his own. On the other hand, one might speculate that the defendant, in invoking the bank processes to convert the check to cash, has an ongoing or new intent to steal the cash the check represents. In the latter case, when does defendant view the crime as complete and thus cease to have the requisite specific intent? When defendant's bank accepts his deposit of the check? When the payor bank honors the check and forwards payment to defendant's bank? When the twenty-day holding period expires, indicating that the defendant now has free use of the amount deposited? In short, the jury in such a case must determine whether the defendant intended to commit an illegal act by withdrawing the money from the bank. ³

In the case at hand, to prove Bell guilty of violating section 2113(b), the government had to prove that he intended to steal from the bank the $10,000 through the act of closing out his account with Dade Federal. ⁴ The only evidence the jury received concerning Bell's specific intent, however, was that he obtained the check under suspicious circumstances; he gave his proper name but a false social security number, date of birth, and address in his dealings with Dade Federal; he transacted his business at two different branches of Dade Federal; his deposit was subject to a twenty-day holding period, and he withdrew the $10,000, in cash, one day after that period expired. This evidence is all circumstantial. "(I)n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused's innocence." United States v. Warner, 441 F.2d 821, 825 (5th Cir. 1971). See United States v. Andrews, 427 F.2d 539, 540 (5th Cir. 1970); Surrett v. United States, 421 F.2d 403, 405 (5th Cir. 1970). Here, even when the evidence is viewed in the light most favorable to the government, Glasser v. United...