U.S. v. Killian, 75-4011

• Decision Date: 05 November 1976
• Docket Number: No. 75-4011,75-4011
• Citation: 541 F.2d 1156
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert W. KILLIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1156

541 F.2d 1156

UNITED STATES of America, Plaintiff-Appellee, v. Albert W. KILLIAN, Defendant-Appellant.

No. 75-4011.

United States Court of Appeals, Fifth Circuit.

Nov. 5, 1976.

William C. Andrews, Gainesville, Fla., J. Robert McClure, Jr., William C. Owen, Tallahassee, Fla., for defendant-appellant.

Nicholas P. Geeker, Stewart J. Carrouth, Asst. U. S. Attys., Melvin R. Horne, Tallahassee, Fla., for plaintiff-appellee.

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

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

Appellant Killian was indicted on September 15, 1975, for sixteen separate acts of abstraction and misapplication of bank funds in violation of 18 U.S.C. § 656 (1970). ¹ The jury found him guilty on all sixteen counts on October 9, 1975. Killian was thereafter given concurrent two-year sentences on each of the sixteen counts on the condition that after six months of confinement the remainder of the sentence would be suspended and Killian placed on supervised probation for three years. He also was fined $1,000 for each count, for a total of $16,000. Killian now appeals, raising points concerning sufficiency of the evidence, trial court limitations of direct and cross-examination of witnesses, prosecutorial summation and severity of sentence. We affirm.

The sixteen transactions in question occurred between September 18, 1972, and January 9, 1973, as parts of a float scheme between Killian's several accounts in the Bank of Hawthorne, of which he was a director and 43% shareholder, and his account in the Citizen's Bank of Gainesville. ² As director and plurality shareholder, Killian had access to the bank's physical plant via his own key and the assistance quite crucial to the success of his scheme of the president of the bank, William Burchette. On each day when one of the transactions took place, Killian entered the bank before working hours (using his own key) and received from the bank's bookkeeper Delia Burchette, the wife of William Burchette an adding machine tape indicating how much money was in one of his several accounts. ³ Armed with this knowledge, he proceeded to William Burchette's desk to purchase one or more cashier's checks in amounts ranging, on all but one occasion, between $19,800 and $26,000. In payment for the cashier's check he gave two personal checks, which we will call the "primary" check and the "second" check. The primary check was drawn on one of Killian's accounts at the Bank of Hawthorne, invariably on insufficient funds, ⁴ in the amount of the cashier's check being purchased. The second check was drawn on Killian's account at Citizen's Bank, ⁵ in an amount equal to (or perhaps slightly greater than) the primary check, to "cover" the primary check. Both personal checks were given to Burchette with the understanding that they were to be held in his desk until the cashier's check was returned to the bank for payment, usually three of four days later. Killian then deposited the cashier's check in his Citizen's Bank account before two o'clock that same day. In a few days ⁶ the cashier's check would clear banking channels and be returned to Hawthorne for payment. Intercepting it, Burchette would finally fill in the date on Killian's Citizen's Bank check and deposit it to Killian's Hawthorne account, send the now-good primary check to the bookkeeping department of his bank for processing and record the cashier's check in the bank's general ledger. ⁷ The effect of these machinations was that Killian's Citizen's Bank account reflected, for three or four days, funds equal to the face value of the cashier's check, even though the outstanding check on that account reposing in Burchette's desk would have wiped out that favorable entry if processed normally. ⁸ Killian thus arranged with Burchette's assistance his own line of short-term credit, free of the accompanying nuisance of the interest charge which others in less favored positions would pay. Since all of Killian's checks were eventually paid, the sole loss sustained by the Bank of Hawthorne was this interest-free use of its money.

Sufficiency of the Evidence

Appellant first contends that, the evidence being insufficient to establish the requisite willful misapplication of bank funds with intent to injure and defraud the bank, ⁹ his motions for judgment of acquittal and later for a new trial both merited favorable rulings. Neither the phrase " willfully misapplies" within § 656, nor its counterpart, "intent to injure and defraud," read into § 656 by the courts, ¹⁰ necessarily connotes an evil desire or a motive of causing injury. Deliberate misapplication of bank funds suffices, even if as is surely the norm the actor is motivated purely by his own self-interest or that of another and wishes no harm to anyone. We have held that the term "willful" means only that the actor knows and intends what he is doing. McBride v. United States, 225 F.2d 249, 254 (5th Cir. 1955), cert. denied, 350 U.S. 934, 76 S.Ct. 306, 100 L.Ed. 816 (1956). ¹¹ We have also noted, without necessarily approving, the definitional gloss given by other courts to the intent requirement implied in § 656. United States v. Wilson, 500 F.2d 715, 720 (5th Cir. 1974), cert. denied sub nom. Levin v. United States, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975); Williamson v. United States, 332 F.2d 123, 134 n. 16 (5th Cir. 1964). We find ourselves in agreement with the rule that the government, in prosecuting under § 656, proves the requisite intent to defraud and injure by showing "an unlawful act voluntarily done, the natural tendency of which may have been to injure the bank." United States v. Tokoph, 514 F.2d 597, 604 (10th Cir. 1975); Galbreath v. United States, 257 F. 648 (6th Cir. 1918). Tested by that standard and viewing the evidence in the light most favorable to the government, ¹² we cannot conclude that the trial court erred in denying appellant a judgment of acquittal or a new trial.

The evidence presented by the government included, inter alia, sixteen exhibits, each of which contained, for the transaction in question, the cashier's check, Killian's two personal checks (the primary and second checks), and the bank statement tending to show that the primary check was written on insufficient funds. Although a number of witnesses testified, undoubtedly crucial to the government's case was Burchette's testimony that appellant Killian instructed him to hold Killian's personal checks until the cashier's check was returned for payment. Understandably, then, damaging Burchette's credibility constituted a major portion of Killian's defense at trial. Nevertheless, the jury, entrusted with finding the facts, apparently chose to believe Burchette's testimony, and Killian's alternative explanation ¹³ did not raise a reasonable doubt in their minds. The evidence before the jury was sufficient to justify their verdict.

Killian also claims that improper summation by the prosecutor assisted the jury in reaching a guilty verdict on insufficient evidence. The gist of the argument complained of was that the exhibits alone could establish Killian's guilt that the jury need only find that Killian knew when he wrote his checks that his accounts contained insufficient funds. ¹⁴ We cannot find reversible error in the argument, nor any indication that the jury was thereby led into an erroneous verdict, for several reasons. First, no reported decisions in this or other circuits preclude the drawing of a permissive inference of intent to injure and defraud from a practice of writing checks on insufficient funds. ¹⁵ What is prohibited is a conclusive presumption a finding of guilt as a matter of law, taking the case from the jury once the fact of drawing checks on insufficient funds is proven. Benchwick v. United States, 297 F.2d 330, 333 n. 5 (9th Cir. 1961); Dow v. United States, 82 F. 904, 908 (8th Cir. 1897). The prosecutor's argument did not approach asserting such a conclusive presumption. Second, the trial court's instructions to the jury did not mirror the allegedly erroneous argument. Finally, Killian failed to object to the argument when it was made.

Limitation of Cross-Examination of Burchette and Contradiction of His Testimony

Burchette pled guilty to aiding and abetting Killian in his float scheme. The limitation of cross-examination is normally a matter within the discretion of the trial court, Ford v. United States, 233 F.2d 56, 61 (5th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956), so long as the sixth amendment right of confrontation is satisfied. United States v. Bass, 490 F.2d 846, 857-58 n. 12 (5th Cir. 1974). Although the need for careful scrutiny of accomplice testimony ¹⁶ suggests a greater solicitude for the defendant's right of cross-examination of such testimony, we have no trouble concluding that the trial court neither abused its discretion nor denied the right of confrontation in this case. The limitation complained of occurred when Killian's counsel attempted to follow up on Burchette's statement that he went along with Killian's float scheme for fear of being terminated if he did not. Killian wished to place before the jury his theory that Burchette effectively framed Killian by withholding the personal checks on his own volition, creating the appearance of a deliberate float, in order to gain leverage in the event Killian discovered Burchette's kiting and wished to have him terminated by the board of directors. The proper time to present this alternative theory was in argument to the jury, as Killian's counsel recognized by including it in his summation. In cross-examination, counsel had already obtained Burchette's admission that firing him would necessitate firing Killian if Killian appeared to be engaged in kiting checks; when counsel attempted to go further by restating the admission in an argumentative manner, the prosecutor's objection...