U.S. v. Whitlock, 78-1305

• Decision Date: 04 December 1980
• Docket Number: No. 78-1305,78-1305
• Parties: UNITED STATES of America v. Anita G. WHITLOCK, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1094

663 F.2d 1094

214 U.S.App.D.C. 151

UNITED STATES of America v. Anita G. WHITLOCK, Appellant.

No. 78-1305.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 1978.

Decided Dec. 4, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 77-646).

Kenneth J. Burchfiel, Jr., Washington, D. C. (appointed by this Court), for appellant.

John H. Korns, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the briefs were filed, John A. Terry, Michael W. Farrell and Stephen R. Spivack, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

PER CURIAM:

Judge Robinson files an opinion in Parts I and IV of which Judges MacKinnon and Robb concur. Judge MacKinnon files an opinion in which Judge Robb concurs. Thus, Parts I and IV of Judge Robinson's opinion together with Judge MacKinnon's opinion constitute the opinion of the court. The order of the District Court appealed from herein is affirmed.

So Ordered.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

After a bench trial, appellant was convicted in the District Court of embezzling $85,000 from the DuPont Circle Branch of Riggs National Bank in purported violation of 18 U.S.C. § 656. ¹ Acknowledging the theft, she contends that the court should have entered sua sponte a judgment of acquittal on the ground that the evidence did not demonstrate that she had prior lawful possession of the money, as was required to establish the crime of embezzlement. ² Alternatively, she argues that the Government failed to prove that she was mentally responsible when she appropriated the $85,000 ³ and, less expansively, that the court erred in ordering her commitment for a pretrial psychiatric evaluation and in receiving in evidence statements she allegedly made during the course of examinations therefor. ⁴

I believe the District Court's disposition should be sustained with the exception of the specification of the Section 656 offense. ⁵ I would reverse the conviction of embezzlement and remand the case with instructions to enter a judgment convicting appellant of willful misapplication of bank funds under that section, unless the District Court were to determine that a new trial should be granted in the interest of justice. My colleagues, however, uphold the conviction in all respects.

The factual background of the case is set forth in Part I of this opinion. The claims raised by appellant with respect to the Fifth Amendment and the sufficiency of the evidence-concerning which we are all agreed-are discussed in Part IV. Judge MacKinnon's opinion delineates the view of the court with respect to the affirmance of the conviction of embezzlement, a matter upon which I state my views in Parts II and III hereof.

I

On the morning of August 11, 1977, Terrence A. Burkett, head teller of Riggs' DuPont Circle Branch, noticed the apparent absence of bundles of currency from the branch's cash reserve vault. He then notified other employees, and an audit revealed that $85,000 was missing. ⁶ Naturally enough, the ensuing investigation focused immediately upon those with access to the vault.

The door of the vault could be opened only by use of a combination and a key. ⁷ Only Burkett had memorized the combination, only bank officers-including appellant ⁸-held keys; cash was to be put into or removed from the vault by Burkett and an officer together. ⁹ Officers could, however, obtain a copy of the combination from a staple-sealed envelope in the bank manager's vault in the event that Burkett was unavailable when cash was needed. ¹⁰ After a week of probing, bank security personnel had uncovered unusual financial transactions in the personal accounts maintained at Riggs by three of the officers, including appellant. ¹¹ Resultantly, Melvin L. Chrisman, senior vice president of the bank, conferred with appellant and asked her to elucidate the activity in her accounts, including two recent deposits rather sizable in amount. ¹² She tendered an explanation, but about an hour later telephoned Chrisman and requested him to set up a meeting with the chairman of the board to discuss the missing money. ¹³ At this meeting and at a subsequent one with an agent of the Federal Bureau of Investigation, appellant voluntarily admitted that she had taken the $85,000 ¹⁴ and described in detail how she had accomplished the theft. Approximately two weeks before August 4, she procured from the branch manager's vault the envelope containing the combination to the cash reserve vault. She then unsealed the envelope, obtained the combination, resealed the envelope and returned it to the manager's vault. ¹⁵ Between then and August 4 she entered the cash reserve vault three or four times by using the combination and her key, but did not appropriate any funds on those occasions because she could not "work up the nerve to take the money." ¹⁶ Finally, on August 4 she gathered the $85,000, put it in a clothing bag and took the bag back to her desk before leaving for the evening. ¹⁷

At trial, appellant did not undertake to retract or dispute this version of the affair, but sought instead to establish a defense of mental incapacity. Several lay witnesses, including four of her co-workers, testified that during the summer of 1977 she underwent a noticeable change of character; she became untypically short-tempered, easily upset and unusually critical of her subordinates, and sometimes seemed forgetful and nervous. ¹⁸ Additionally, Dr. Marshall deG. Ruffin, who had served as appellant's treating psychiatrist for sixteen years, testified that in 1964 he had diagnosed her condition as manicdepressive, ¹⁹ a severe mental illness characterized by cyclical mood-swings from depression to elation. Dr. Ruffin avowed that appellant, at the time she took the $85,000 knew that her action was wrong but that as a result of her illness she lacked substantial capacity to conform her behavior to the law. ²⁰ This conclusion was based on Dr. Ruffin's observations of appellant during an office visit on August 9 when appellant told him that she had pilfered the money, and during a telephone conversation on August 13 when he urged her to return it. ²¹

Three members of the staff of Saint Elizabeths Hospital testified in rebuttal for the Government. On the basis of a court-ordered mental examination of appellant in November, 1977, they concluded that she suffered from an hysterical personality and a depressive neurosis, but that these maladies did not deprive her of substantial capacity to appreciate the wrongfulness of the theft or to square her conduct with legal requirements. ²²

II

Appellant was indicted, tried and convicted on the specific charge of embezzling bank funds in contravention of Section 656. ²³ She now insists that the conviction must be set wholly for naught because, she says, the Government did not show that the bank had ever confided the $85,000 to her care. ²⁴ The Government argues that the evidence portrays her stewardship of the stolen money sufficiently to make out embezzlement. Although the Court agrees with the Government, my view does not coincide completely with either of these positions.

Embezzlement, as an offense, did not exist at common law; ²⁵ consequently, the exact composition of its ingredients depends ultimately upon the statute giving it birth. ²⁶ A seemingly invariable prerequisite of embezzlement statutes is that the accused have received or held the subject property in some particular character before he usurped it. Put another way, embezzlement has become a word of settled technical meaning, ²⁷ connoting that the accused was previously entrusted with possession-either actual or constructive-of the property. ²⁸ I discern nothing in the text of Section 656 rendering the word "embezzlement" ambiguous on this score, or suggesting that Congress envisioned for it anything other than its common meaning. ²⁹ So pervasive in the concept of embezzlement is the need for some type of prior lawful possession ³⁰ that the unmodified use of the word in Section 656 constrains me to conclude that it demands a relationship featuring no less. ³¹

With this construction of the statutory language, I share appellant's view that the Government's proof cannot support a conviction of embezzlement. The record is devoid of evidence indicating that appellant's function as a bank officer extended to any type of possession of cash in the reserve vault. Her assigned domain was the branch's note department, and from all that appears neither she nor the employees whom she supervised had any need for reserve-vault cash in the performance of their duties. To be sure, appellant had a key to the vault door and access to the combination, but their use was authorized only for admission of Burkett and other tellers when they themselves ran low on cash. ³² Appellant thus cannot be deemed to have been entrusted with the missing funds in such a way as to justify a conviction for embezzlement. Mere ability to perpetrate a theft of bank funds is not the possession that embezzlement inexorably demands. ³³

Our inquiry does not halt here, however, for Section 656 also makes punishable other kinds of misappropriation of protected bank funds. By its very terms, the section is transgressed not only when a national bank officer ³⁴ "embezzles" but also when he "abstracts, purloins or willfully misapplies any of the (bank's) moneys (or) funds...." ³⁵ Notwithstanding the incapability of the evidence to establish embezzlement, the uncontradicted proof of appellant's misdeed established beyond peradventure a willful misapplication of bank funds, and thus an offense necessarily included within the embezzlement charged.

The fundamental difference between embezzlement and willful misapplication under Section 656 has long been recognized. While embezzlement...