U.S. v. Hogue
Decision Date | 12 January 1998 |
Docket Number | No. 96-11378,96-11378 |
Citation | 132 F.3d 1087 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenny HOGUE and Jesse Meeks, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Delonia Anita Watson, Michael Reuss Snipes, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee.
Franklyn Ray Mickelsen, Jr., Asst. Federal Public Defender, Dallas, TX, for Hogue.
Robert John Clary, Owens, Clary & Aiken, Dallas, TX, for Meeks.
Appeals from the United States District Court for the Northern District of Texas.
Before DeMOSS and DENNIS, Circuit Judges, and LEE *, District Judge.
This is the second appeal involving the prosecution of Jesse B. Meeks ("Meeks") and
Kenny Ray Hogue ("Hogue")on an indictment under 18 U.S.C. § 656 for the misappropriation of Krugerrands from safe deposit boxes in the vault of First Republic Bank Dallas, N.A. (the "Bank"). At the time of their alleged offenses, Meeks and Hogue were engaged in their employment as locksmiths by Underwood Safe and Vault Service ("Underwood Safe"), which had contracted with the Bank to provide locksmith services to the Bank for the repair and maintenance of its safe deposit boxes. In the first case, the district court dismissed the indictment on grounds that, under the facts stipulated to by the parties, the defendants were not amenable to conviction because they were not "connected in any capacity" with the Bank as required by the statute. Upon the government's appeal, this court reversed, holding that the district court incorrectly construed the statute by reading into it the requirement that the offender must have occupied a position of trust with the bank at the time of the offense. United States v. Meeks, 69 F.3d 742, 743 (5th Cir.1995), cert. denied, 517 U.S. 1112, 116 S.Ct. 1337, 134 L.Ed.2d 487 (1996) ("Meeks I"). On remand, after a bench trial, the district court convicted Meeks and Hogue, stating that it was compelled by this court's decision in Meeks I to find that they were connected in a capacity with the Bank at the time of the offenses. Meeks and Hogue appealed. Because we cannot determine from the present record whether the district court found beyond a reasonable doubt that Meeks and Hogue were connected in any capacity with the Bank at the time of the alleged offenses, we now vacate the district court judgment and remand the case for further proceedings.
Meeks and Hogue were employees of Underwood Safe, an independent contractor that contracted with the Bank to provide locksmith services for the Bank's safe deposit vault, which included drilling safe deposit boxes that had been abandoned by depositors and changing the locks and keys on safe deposit boxes. The Bank required that all such locksmith work be monitored by bank employees. Sometime in 1985, while Meeks was inside the vault performing his locksmith duties, Ms. Maria del Carmen Garcia-Rendueles de Roberdo ("Rendueles"), the lessee of several safe deposit boxes, asked Meeks to help her remove a box. While Meeks was assisting Rendueles, he discovered that the box contained Krugerrand coins that were being transferred into two other boxes leased by Rendueles or her company.
Meeks reported the existence of the Krugerrands to his employer, Erwin Underwood ("Underwood"), the owner of Underwood Safe. At Underwood's urging, Meeks agreed to force open Rendueles' safe deposit boxes, take the Krugerrands, and split the coins between them. Hogue, who was also employed by Underwood Vault, agreed, in exchange for receiving a share of the stolen property, to assist in the theft and act as a lookout during the crime. Sometime between 1985 and 1987, Meeks and Hogue removed all of the Krugerrands from two of the three boxes by forcibly prying open the door hinges of the boxes with a metal tool.
In 1994, seven years after the theft of the coins was discovered, Meeks and Hogue were indicted under 18 U.S.C. § 656. 1 At the time of the offenses, Section 656 provided that "[w]hoever, being an officer, director, agent or employee of, or connected in any capacity with" certain banks or institutions, who embezzles, abstracts, purloins, or willfully misapplies certain assets belonging or entrusted to the banks or institutions, shall be fined or imprisoned, or both. 18 U.S.C. § 656 (1976). 2
In the indictment, the appellants were charged with violations of 18 U.S.C. § 656 while acting as "employees of Underwood Safe and Vault Company, a contractor connected with First Republic Bank." The appellants moved to dismiss the indictment on the ground that it failed to state an offense because it did not allege facts sufficient to establish that appellants were "connected in Ordinarily, a motion to dismiss an indictment for failure to state an offense challenges the sufficiency of the indictment itself, requiring the court to take the allegations of the indictment as true and to determine whether an offense has been stated. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). If the district court dismisses an indictment because it does not allege an offense, on review the indictment is to be tested not by whether its allegations are in fact true but by the indictment's "sufficiency to charge an offense." United States v. Mann, 517 F.2d 259, 266 (5th Cir.1975) (quoting United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962)), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976).
any capacity with" the Bank, as required by 18 U.S.C. § 656.
In Meeks I, however, neither the district court nor this court of appeals based its decision strictly upon the facts recited in the indictment. Because the Government and the defendants entered into a joint stipulation of facts for purposes of the motion to dismiss the indictment, each court considered the allegations of the indictment as expanded by the stipulated facts. The district court dismissed the indictment, concluding that the stipulated facts showed that Meeks and Hogue were not "sufficiently 'connected in any capacity with' a bank pursuant to § 656 [ ] exercise some position of control over the bank's affairs, enjoy a relationship of trust with the bank, or [were] entrusted with bank funds or property." (Mem. Op. and Order at 7).
Upon the Government's appeal in Meeks I, this court reversed, holding that (1) § 656 does not require that the offender exercise control over the bank's affairs, occupy a position of trust with the bank, or be entrusted with bank funds or property, in order to be "connected in any capacity" with a bank under the statute; (2) the words of the statute should be given their common, ordinary meaning; and (3) under the facts alleged in the indictment and the joint stipulation, it could not be said that no reasonable trier of the facts could have found that Meeks and Hogue were "connected in any capacity with" the Bank at the time of the charged offenses. Meeks I, 69 F.3d 744-45.
On remand, after a bench trial, the district court convicted Meeks and Hogue of violations of 18 U.S.C. § 656. Meeks and Hogue filed the present appeal (Meeks II). In Meeks II, the major controversies concern the meaning and effect of (1) this court's decision in Meeks I and (2) the district court's findings of fact and conclusions of law upon remand following Meeks I.
When a person is charged with a crime, he is entitled to a presumption of innocence and may insist that his guilt be established beyond a reasonable doubt. Herrera v. Collins, 506 U.S. 390, 398, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). As a result, the prosecution bears the burden of proving all elements of the offense charged and must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993); see also Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 481, 116 L.Ed.2d 385 (1991)("[T]he prosecution must prove all the elements of a criminal offense beyond a reasonable doubt."); United States v. Gaudin, 515 U.S. 506, 523, 115 S.Ct. 2310, 2320, 132 L.Ed.2d 444 (1995)(Rehnquist, C.J., concurring). Therefore, a judge may not direct a verdict of guilty no matter how conclusive the evidence. United States v. Johnson, 718 F.2d 1317, 1321 (5th Cir.1983) (en banc) (citing Connecticut v. Johnson, 460 U.S. 73, 84, 103 S.Ct. 969, 976, 74 L.Ed.2d 823 (1983) (plurality opinion) (quoting United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947))). Accord Sullivan, 508 U.S. at 277, 113 S.Ct. at 2080.
The Winship doctrine requires that the fact finder will rationally apply the fundamental substantive constitutional beyond-a-reasonable-doubt standard to the facts in evidence. Jackson v. Virginia, 443 U.S. 307, 316-17, 99 S.Ct. 2781, 2787-88, 61 L.Ed.2d 560 (1979). Under Winship, the trier of facts is bound by this duty whether it is a court or a jury. Id. at 317 n. 8, 99 S.Ct. at 2788 n. 8; see Winship, 397 U.S. at 360, 90 S.Ct. at 1070 ( ).
The fact finder in a criminal case traditionally has been permitted to enter an unassailable but unreasonable verdict of "not guilty." This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence is overwhelming. Jackson, 443 U.S. at 318 n. 10, 99 S.Ct. at 2788 n. 10. The power of the fact finder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty. Id. (citing ...
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