U.S. v. Chandler, 87-6253

• Decision Date: 11 October 1988
• Docket Number: No. 87-6253,87-6253
• Citation: 858 F.2d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pamela Jo CHANDLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 254

858 F.2d 254

UNITED STATES of America, Plaintiff-Appellee, v. Pamela Jo CHANDLER, Defendant-Appellant.

No. 87-6253.

United States Court of Appeals, Fifth Circuit.

Oct. 11, 1988.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Houston, Tex., for defendant-appellant.

John Grasty Crews, Asst. U.S. Atty., Brownsville, Tex., Tim Johnson, Paula C. Offenhauser, Asst. U.S. Attys., John Kyles, Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, BROWN and JOLLY, Circuit Judges.

CLARK, Chief Judge:

Pamela Jo Chandler was convicted, pursuant to 18 U.S.C. Sec. 1005, of making a false entry in a bank record. She appeals from that conviction, alleging that there was no evidence that she committed the crime charged and that her conviction rested on, if anything, evidence of a different offense. Because we find that Chandler may have been convicted for a crime not charged, we reverse.

I.

Pamela Jo Chandler was a bank teller at Interfirst Bank-Baytown in Baytown, Texas. As a part of her duties, Chandler was required to file a daily recapitulation sheet showing the amount of cash and other items in her teller drawer. On August 15, 1985, Chandler had entered on her "re-cap" sheet that her drawer contained $25,565.80 and placed the drawer in the bank's vault. Later in the month, bank officers uncovered cash losses from the bank's vault totalling $380,000. On September 5, while investigating this loss, the officers audited the teller drawer assigned to Chandler and found that it was $20,858.61 short. The audit revealed that the drawer contained only $4,707.19. There was no record of any proper withdrawals from the drawer during the period from August 15 to September 5. The audit also revealed a cash shortage in another teller's drawer of approximately $25,000. The bulk of the $380,000 loss, however, appeared to have been taken directly from the bank vault. Two other bank employees who worked in the vault had daily access to all teller drawers stored there.

After the shortages were uncovered, the bank's chairman of the board, Paul Edwards, asked Chandler if she would be willing to discuss the shortages in her drawer. Chandler agreed to do so voluntarily and also permitted her car to be searched. During her meeting with Edwards, Chandler denied any knowledge of or involvement in the scheme to embezzle the $380,000 or the sum missing from her teller drawer. Chandler did admit she had taken small sums of money from her drawer at various other times during her two years as a bank teller and that she concealed the sums by raising the amount recorded as the total of loose coins in her re-cap sheet. The total of all of these amounts was approximately $500. Edwards wrote a statement containing Chandler's admissions, which she signed. Later, however, Chandler claimed that her statement as written was misleading. According to Chandler, she had not stolen $500. Rather, she had merely held a series of checks which totalled that amount for herself and other tellers for short periods of time before payday. She further contended that all of the $500 was repaid and correcting adjustments were made to her various daily re-cap sheets as the funds were repaid. It was conceded at trial that there was at that time a common, although unauthorized, practice among the bank tellers of holding small checks for each other in their cash drawers until payday, then covering the resulting temporary cash shortages by falsifying some part of the re-cap sheet.

Chandler was indicted for embezzling $20,858.61 and for making a false $25,565.80 entry in a bank record, her re-cap sheet, to cover the $20,858.61 theft, pursuant to 18 U.S.C. Secs. 656 and 1005, respectively. Two bank employees who had access to the vault and the other teller who had a shortage were also charged in the same indictment for the embezzlement of the $380,000.

Chandler pled not guilty and went to trial solely on the two counts related to the $20,858.61 shortfall. At the start of the trial, during voir dire and opening statement, the government focused on its claim that Chandler had embezzled $20,858.61 from her teller drawer and covered this theft by falsifying her re-cap sheet. During trial the government's strategy evolved to place increasing weight on Chandler's admission of "taking" $500.

During closing argument, the government argued, "If you have reason to believe that [Chandler's written statement] is sufficient to prove beyond a reasonable doubt in your collective mind that the defendant did knowingly and intentionally steal $500 from the bank, by whatever means, it will be sufficient basis for [a] finding of guilt [on the $20,858.61 embezzlement charge]...." Chandler's defense counsel objected to this part of the government's argument. In response to Chandler's objection, the district court admonished the jury "to consider the instructions presented to you. What either of the attorneys state is merely their interpretation of the instructions. You are to read the instructions and the indictment and the questions and proceed thereon based upon the written instructions you receive." The court had previously instructed the jury that the defendant was not on trial for any act or conduct or offense not alleged in the indictment. After this exchange, counsel for the government repeated its asserted theory that theft of $500 would support a conviction for embezzlement under the indictment. ¹ On defense counsel's third objection to such comment, the judge simply overruled the objection.

The jury returned a verdict of not guilty on the embezzlement charge, but found the defendant guilty of making a false entry in a bank record. The district court sentenced Chandler to three years imprisonment, suspending all but six months and placing Chandler on four years probation.

Chandler appeals her conviction, asserting that there was no evidence that she committed the crime charged and that her conviction rested on, if on anything, evidence of a different offense. The record of the trial convinces us that the court's instructions were plain error because they permitted the jury to convict Chandler based on her admission regarding other false record entries instead of on proof of the $25,565.80 entry charged in the indictment to be false. This constitutes an unconstitutional constructive amendment of the indictment which requires reversal.

II.

The Constitution of the United States guarantees that a criminal defendant will be tried only on charges presented in a grand jury indictment. U.S. Const. amend. V. Incident to this constitutional guarantee is the longstanding principle of our criminal justice system that the charges contained in an indictment may not be broadened or altered through amendment, except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 215-17, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984). Such amendments need not be explicit. An implied or constructive amendment also constitutes reversible error. Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74, Young, 730 F.2d at 223.

Constructive amendments are reversible per se, as contrasted with variances between the indictment and proof that are evaluated under the harmless error doctrine. See Stirone, 361 U.S. at 217-18, 80 S.Ct. at 273-74; Young, 730 F.2d at 223. "The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that...