U.S. v. Walker, 80-5111

• Decision Date: 05 May 1982
• Docket Number: No. 80-5111,80-5111
• Citation: 677 F.2d 1014
• Parties: UNITED STATES of America, Appellee, v. Victoria Yamamoto WALKER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1014

677 F.2d 1014

UNITED STATES of America, Appellee, v. Victoria Yamamoto WALKER, Appellant.

No. 80-5111.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 5, 1982.

Decided May 5, 1982.

William Alden McDaniel, Jr., Washington, D. C. (Brendan V. Sullivan, Jr., Williams & Connolly, Washington, D. C., Darrel L. Longest, Bernstein & Longest, Rockville, Md. on brief), for appellant.

Joseph T. Melillo, Sp. Asst. U.S. Atty. (Justin W. Williams, U.S. Atty., Leonie M. Brinkema, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, WIDENER, Circuit Judge, and WILKINS, District Judge. ^*

WIDENER, Circuit Judge:

Victoria Yamamoto Walker appeals her conviction on two counts of bank embezzlement, in violation of 18 U.S.C. § 656, and two counts of making false entries in bank records, in violation of 18 U.S.C. § 1005. She was sentenced under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5010(b), to an indeterminate sentence on each count, to run concurrently. Various errors have been alleged as to both crimes. We find no error in the convictions for false entry and therefore affirm as to those. We vacate the convictions for embezzlement and remand for a new trial.

I

The government argues that application of the concurrent sentence rule is proper here, thus making consideration of the embezzlement counts unnecessary. The concurrent sentence rule, applicable when a defendant has received concurrent sentences on multiple counts of an indictment, provides that a reviewing court need not pass upon the validity of defendant's conviction for additional counts once it has affirmed his conviction on one count, but only if "there is no substantial possibility that the unreviewed conviction will adversely affect the defendant's right to parole or expose him to a substantial risk of adverse collateral consequences." United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir. 1980).

We cannot say that there is no substantial possibility that the embezzlement convictions will not expose Walker to a substantial risk of adverse consequences. Even the government cannot assure us that Walker's release date on her YCA sentence would not be affected.

II

We must therefore consider the embezzlement convictions. One assignment of error raised requires a new trial on those counts. The appellant contends, and we agree, that the district court incorrectly removed from the jury's consideration the issue of sole access to the funds involved, from which conversion, an element of the crime of embezzlement, may be inferred. The instruction at issue reads:

Now, as applied to this case, the Court tells you that both the criminal intent and the actual taking of the money by the defendant may be proved by circumstantial evidence in an embezzlement and where the defendant alone has access to the property and that is in this case, money in the cash drawer and a dollar shortage is disclosed and no explanation of the shortage is tendered by the accused you may, but you do not have to reasonably infer from the circumstances that the custodian of the property embezzled the missing funds. (Emphasis added)

While the district court correctly stated that conversion may be inferred from sole access plus an unexplained shortage, United States v. Powell, 413 F.2d 1037 (4th Cir. 1969), it is for the jury to decide if sole access did in fact exist. The appellant produced evidence at trial which tended to show that sole access did not in fact exist. In particular, there was testimony from the two depositors involved who could not identify Walker as the teller who accepted their deposits and who gave them their receipts. ¹ Also, Walker testified that on one of the days in question she found a duplicate key in the lock at her teller window.

A criminal defendant has the right to have the jury resolve all questions of fact, and it is error for the district judge to withdraw factual disputes from the jury. Mims v. United States, 375 F.2d 135 (5th Cir. 1967); United States v. Ornstein, 355 F.2d 222 (6th Cir. 1966); United States v. McKenzie, 301 F.2d 880 (6th Cir. 1962); United States v. Raub, 177 F.2d 312 (7th Cir. 1949); 2 Wright, Fed'l Prac. & Proc. § 371. The district court committed such error here by stating to the jury that this was a case of sole access. Such a fact is for the jury to determine.

Accordingly, we affirm the conviction on the two counts of false entry (counts II and IV) and vacate the convictions on the embezzlement counts (counts I and III) and remand for a new trial on those counts. ²

AFFIRMED IN PART; VACATED AND REMANDED IN PART ³.

HARRISON L. WINTER, Chief Judge, dissenting:

When read as a whole, ^* I do not think that the instructions of the district court removed from the jury the question of whether this defendant had sole access to the moneys allegedly embezzled. I respectfully dissent from the majority's contrary conclusion.

I.

The theory of the prosecution in this case was that defendant, admittedly employed as a bank teller on the days in question, received a deposit of a $5,000 cashier's check from a certain Evelyn Vines, and three days later a deposit of a $6,000 check from a certain Eileen Perez. In each instance there was evidence that defendant falsified bank records to show that the checks were cashed rather than deposited and that she converted the proceeds to her own use. Each depositor was given a receipt showing that the checks were deposited to her account, and the bank honored the receipts when the depositors' accounts were allegedly overdrawn. Neither depositor could identify the teller who handled her transaction-one thought that the teller was female, the other thought that the teller was male. However, the bank's records, i.e., the fraudulent cash slips and the fraudulent settlement sheets, bore the signature of defendant.

II.

In instructing the jury, the district court repeatedly stressed that the burden was on the government to prove beyond a reasonable doubt all elements of the crime and that a defendant never had the burden or duty of calling any witnesses or producing any evidence. The district court explained the theory of the prosecution and then gave the instruction which the majority concludes was reversible error:

Now, as applied to this case, the Court tells you that both the criminal intent and the actual taking of the money by the defendant may be proved by circumstantial evidence in an embezzlement and where the defendant alone has access to the property and that is in this case, money in the cash drawer and a dollar shortage is disclosed and no explanation of the shortage is tendered by the accused you may, but you do not have to reasonably infer from the circumstances that the custodian of the property embezzled the missing funds. Now, it does not require you to do so but you might infer from the circumstances, but you are the sole judges of the facts. (emphasis added)

In my view, the phrase "that is in this case" was meant only to mean that there was circumstantial evidence that defendant...