United States v. Bearden, 26915.

• Decision Date: 03 March 1970
• Docket Number: No. 26915.,26915.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Mitchell BEARDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 805 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Michael Mitchell BEARDEN, Defendant-Appellant.

No. 26915.

United States Court of Appeals, Fifth Circuit.

March 3, 1970.

COPYRIGHT MATERIAL OMITTED

Lloyd George Teekall (court appointed), Alexandria, La., for defendant-appellant.

Edward L. Shaheen, U. S. Atty., Q. L. Stewart, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before RIVES, BELL and DYER, Circuit Judges.

RIVES, Circuit Judge.

The Grand Jury on October 24, 1967, returned a sixty-five count indictment against Bearden in which he was charged under 18 U.S.C.A. § 656 with misapplication and embezzlement of moneys of the Rapides Bank and Trust Company, located in Alexandria, Louisiana. Prior to the trial twenty-four counts of the indictment, including the twelve counts alleging misapplication of funds, were dismissed. The jury returned a verdict of guilty on each of the remaining forty-one counts. Thereafter the district court judge sentenced Bearden to a total of fifteen years imprisonment.

The Rapides Bank and Trust Company (hereinafter Rapides Bank) in Alexandria, Louisiana, is a member of the Federal Reserve System, and, in addition, its deposits are insured by the Federal Deposit Insurance Corporation.¹ The bank provides normal banking facilities, including a trust department which handles not only the usual personal trust accounts but also bond accounts on various types of bonds, such as school and municipal bonds.

Bearden, an attorney and accountant, was employed by Rapides Bank in September 1959 and placed in charge of the Trust Department. As Trust Officer he was authorized to sign Rapides Bank money orders.

On December 27, 1966, bank employees, during a normal audit of bank money orders, discovered certain discrepancies in connection with a bank money order signed by Bearden in the amount of $12,104.25. Further examination disclosed that the money order was one of three totaling $42,104.25, which had been purchased with a Winn Parish School Board check. The other two money orders were in amounts of $6,000 and $24,000. The $12,104.25 and $6,000 money orders were used as the basis for deposits to a Rapides Bank checking account entitled "Avoyelles Warehouse Corporation." The bank ledger cards for that corporation reflected that all material pertaining to that account should be directed to Michael Bearden. The $24,000 money order remained outstanding and unaccounted for.

Additional examination on December 27 revealed that the $42,104.25 Winn Parish School Board check was intended for bonds, interest and fees; and although the bank received the check on December 9, 1966, it had not been posted to its proper account.

On December 28, 1966, Bearden was confronted with these irregularities in the presence of the chairman of the board, the president, the cashier, and the two employees who had discovered the discrepancies. Bearden admitted that he had taken the Winn Parish check, converted it into three money orders, and deposited the two money orders for $6,000 and $12,104.25 in the Avoyelles account. He further admitted that he had followed this same procedure with other money orders for approximately one and one-half years since "he was in a bind." From his coat pocket he produced the outstanding money order for $24,000 and stated it represented all the money that was missing.

Bearden then produced two additional Rapides Bank money orders (one for $12,638.58 and the other for $20,000) one of which ($20,000) he claimed represented proceeds of the sale of some stock which he owned and which would more than cover the $18,104.25 which he had deposited to the Avoyelles account from the Winn Parish School Board check. He was allowed to return home on the promise that he would return the next day to help clear up the irregularities attributed to him. Instead, he left the city. Rapides Bank reported the transactions to the FBI, and subsequently a complaint was filed on December 30, 1966, alleging that Bearden violated 18 U.S.C.A. § 656.

Bearden returned to Alexandria on February 21, 1967. While he was gone, Rapides Bank conducted an audit of its Trust Department. The results of the audit revealed apparent losses from various trust accounts. The Grand Jury, on October 24, 1967, returned the sixty-five count indictment against Bearden. During arraignment Bearden entered a plea of not guilty to all counts and advised the court that he would represent himself.

From January 19 through February 5, 1968, Bearden filed motions to quash the indictment, for a bill of particulars, and to produce. On March 10 he requested the appointment of counsel, which request was granted on March 20.

On May 1, 1968, Bearden's counsel filed motions to quash the indictment, for change of venue, for subpoenas duces tecum, and for bill of particulars. On June 7 the district court denied all of Bearden's motions, except the motion that the government produce all documentary evidence which pertained to the indictment and which would be used during the trial.

The government in compliance with this order produced voluminous documentary evidence, with an inventory of the documents, which not only included but exceeded the documents later introduced into evidence. Before the trial twenty-four counts of the indictment, including all misapplication counts, were dismissed. See Rule 48(a), Fed.R. Crim.P. The remaining forty-one counts charged embezzlements totaling $495,169.54. The jury returned a guilty verdict on each of the forty-one counts.

On appeal Bearden makes eleven specific contentions, each of which is briefly discussed.

(1)

Bearden's contention that his counsel should have been permitted to refile all motions made by Bearden during the period he was representing himself is without merit. The record clearly reflects that these motions either were refiled in other forms by court-appointed counsel or were ruled on de novo by the district court after appointment of counsel for Bearden.

(2)

Claiming that he could not adequately prepare his defense, Bearden requested a bill of particulars under Rule 7(f), Fed.R.Crim.P. The district court denied his motion.

The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare his defense, and to avoid or minimize the danger of surprise at trial. United States v. Sullivan, 421 F.2d 676 (5th Cir. 1970); Hickman v. United States, 406 F.2d 414 (5th Cir. 1969); Downing v. United States, 348 F.2d 594, 599 (5th Cir. 1965). See also 1 Wright, Federal Practice and Procedure § 129 (1969). Furthermore, the standard for reversal on the denial of a bill of particulars is prejudice or a clear abuse of discretion by the trial court. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Leary v. United States, 383 F.2d 851, 862 (5th Cir. 1967); Downing v. United States, supra; Joseph v. United States, 343 F. 2d 755, 756 (5th Cir. 1965).²

Under the abuse-of-discretion standard, we find no merit in Bearden's contention. Each count of the indictment accused Bearden of violating 18 U.S.C.A. § 656 by embezzling or misapplying a specific amount of funds of Rapides Bank on a specific date. Although we appreciate the difficult burden placed on Bearden's counsel in preparing for trial, the trial court properly denied use of a bill of particulars to identify the documents and records upon which each count of the indictment was founded.³ As we concluded in Hickman v. United States, supra at 415: "Here, the record discloses that appellant was fairly apprised of the Government's theories and the particulars upon which each charge was based. He was entitled to no more."

It should be pointed out that although the trial court denied the motion for bill of particulars, it did order the government to furnish Bearden and his counsel for review and inspection all the documentary evidence which the prosecution would use during the trial. That order was complied with, and the documents and records were reviewed and inspected long before the trial.

(3)

Bearden contends that the district court erred in denying his motion under Rule 17(c), Fed.R.Crim.P., for subpoenas duces tecum against the Rapides Bank, Avoyelles Wholesale Corporation and Gulf States Real Estate and Development Corporation. However, as ordered by the district court, the government allowed Bearden to inspect and examine all documents which it intended to introduce into evidence.

Allowance of a motion for subpoena duces tecum for production of documentary evidence before trial is within the sound discretion of the district court. Gevinson v. United States, 358 F.2d 761, 766 (5th Cir. 1966); see Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). In view of Bearden's opportunity to examine the government's documentary evidence before trial and in view of the absence of any showing of necessity⁴, we find the district court did not abuse its discretion in denying the motion for subpoenas duces tecum.

(4)

Bearden next contends that the district court erred in denying his motion to dismiss the indictment. The indictment charged Bearden with embezzlement on fifty-three counts and with misapplication of funds in twelve counts. Before the trial the government with consent of the court dismissed the twelve counts alleging misapplication of funds and twelve counts alleging embezzlement. The validity of these counts is therefore not before us.⁵

As to the sufficiency of the remaining forty-one counts,⁶ it is well settled that an indictment must set forth the offense with sufficient clarity and certainty to apprise the accused of the crime with which he is charged. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Van Liew v. United States, 321 F.2d 664, 668 (5th Cir. 1963). The sufficiency of an indictment is measured by two criteria: (1) whether...