U.S. v. Haddock, No. 91-3075

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before McKAY, Chief Judge, HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges, and CHRISTENSEN; TACHA
• Citation: 961 F.2d 933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. HADDOCK, Defendant-Appellant.
• Docket Number: No. 91-3075
• Decision Date: 15 May 1992

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961 F.2d 933 UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth E. HADDOCK, Defendant-Appellant. No. 91-3075. United States Court of Appeals,
Tenth Circuit. May 15, 1992.
Rehearing Denied May 15, 1992.

Page 934

Samuel Rosenthal, of Curtis Mallet-Prevost, Colt & Mosle, Washington, D.C., for defendant-appellant.

Kurt J. Shernuk (Lee Thompson, U.S. Atty., was with him on the brief), Asst. U.S. Atty., for plaintiff-appellee.

Before McKAY, Chief Judge, HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges, and CHRISTENSEN, District Judge. ^*

ORDER ON REHEARING

TACHA, Circuit Judge.

In his petition for rehearing, appellant Kenneth E. Haddock points out that our decision not to address his insufficiency of the evidence claim on Count 1 is inconsistent with cases in our circuit. The panel grants rehearing limited to this issue.

In this circuit, we have consistently held that when we reverse on appeal because of a procedural error at trial and remand for a new trial, we nevertheless must address the defendant's claim that evidence presented at trial on the reversed count was insufficient. We have reasoned that if evidence indeed was insufficient, retrial is barred by double jeopardy principles. United States v. Perez, 959 F.2d 164, 168 (10th Cir.1992); United States v. Daily, 921 F.2d 994, 1011 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991); United States v. Sullivan, 919 F.2d 1403, 1428 (10th Cir.1990); United States v. Doran, 882 F.2d 1511, 1526 (10th Cir.1989); United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982); United States v. Morris, 612 F.2d 483, 491-92 (10th Cir.1979). Constrained by precedent on this matter, we grant appellant's motion for rehearing and address the sufficiency of the evidence on Count 1. ¹ Accordingly, we now vacate the following sentence of our earlier opinion: "Because we reverse Haddock's conviction on Count 1 and remand for new trial on that count, we do not consider whether evidence was sufficient to convict on that count." United States v. Haddock, 956 F.2d 1534, 1548-49 (10th Cir.1992).

Count 1 charged Haddock with violating 18 U.S.C. § 656 by presenting a $960,892 check to the Bank of Herington as part of an agreement with the FDIC to acquire control of another bank, the First National Bank of Herington. The check was written on a Herington Bancshares account held at the Bank of Herington. The government presented evidence suggesting that Haddock knew that only $611,000 had been deposited in the account to cover payment of the check. The government contends that this allowed Herington Bancshares to have interest-free use of approximately $350,000 of the Bank of Herington's funds from April 3, 1987, when the check was written, until April 15, 1987, when Haddock deposited enough additional funds in the checking account to cover payment of the check. For reasons that were not made clear at trial, the check was not returned for insufficient funds during that twelve-day period.

To prove a violation of § 656, the government must show beyond a reasonable

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doubt that (1) the defendant was an executive officer of the bank, (2) the bank was connected in some way to the Federal Reserve System, (3) the defendant willfully misapplied the funds of the bank, and (4) the defendant acted with the intent to injure or defraud that bank. 18 U.S.C. § 656; United States v. Unruh, 855 F.2d 1363, 1367 (9th Cir.1987), cert. denied, 488 U.S. 974, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988).

Haddock cites several cases, including Williams v. United States, 458 U.S. 279, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982), and United States v. Cronic, 900 F.2d 1511 (10th Cir.1990), for the proposition that presentation of a single check...