United States v. Bristol, 72-2815. Summary Calendar.

• Citation: 473 F.2d 439
• Decision Date: 01 February 1973
• Docket Number: No. 72-2815. Summary Calendar.,72-2815. Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ted BRISTOL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

473 F.2d 439 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Ted BRISTOL, Defendant-Appellant.

No. 72-2815. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 1, 1973.

COPYRIGHT MATERIAL OMITTED

William M. Schultz, Houston, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., Theo W. Pinson, III, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

DYER, Circuit Judge:

Bristol, a Federal Deposit Insurance Corporation (FDIC) bank examiner, appeals from a judgment of conviction entered on a jury verdict of guilty of accepting a loan, in violation of 18 U.S.C. A. § 213,¹ from an officer and director of a state bank insured by the FDIC. Bristol seeks reversal of his conviction on the grounds that the indictment did not charge an offense under section 213 and that it was error not to require proof of a specific intent. In the alternative, he asks that his sentence be vacated in light of the suspended sentences given other defendants who pled guilty to a series of related crimes. Finding no reversible error in the indictment, the conviction, or the sentence, we affirm.

Bristol was an experienced bank examiner who, on several different occasions, had examined the Sharpstown State Bank, an institution insured by the FDIC. In early 1968 Bristol met with Sharp, whom he knew as the chairman of the board of that bank, and had a discussion concerning the possibility of purchasing stock in a company in which Sharp was contemplating acquiring a controlling interest. Several days later Bristol indicated a desire to buy 1000 shares and Sharp told him that financing would be no problem. No arrangements were made for the terms of any loan and no papers of any kind were prepared. Sharp subsequently drew a check for $9,787.50 on the account of Oak Forest Investment Company, a non-banking corporation he controlled, and made it payable to his own attorney who used the funds to purchase the stock for the benefit of Bristol. Sharp then drew a personal check for $10,000 and deposited it in the account of Oak Forest. Several months later Bristol talked with Sharp and mentioned that he had still not received the stock; shortly thereafter, however, he contacted Sharp to acknowledge that the stock had finally reached him. Based on this transaction, Bristol was indicted for knowingly accepting a loan from Sharp through Oak Forest.

Bristol first argues that the indictment was fatally defective because the loan, although perhaps arranged by Sharp, was not made or granted by him or his bank, but instead was made by a legitimate non-banking corporation. We disagree. While we recognize that 18 U.S.C.A. § 213 is a penal statute and must be strictly construed, we also note that this rule of construction:

does not require that such statute be strained or distorted in order to exclude conduct clearly intended to be within its scope. . . . Where the general purpose of legislation is manifest and subserved by giving words their ordinary meaning, the rule that criminal statutes are to be strictly construed is inapplicable. . . . Although provisions of criminal statutes should be confined to their literal terms, even penal provisions of statutes must be given fair meaning in accord with the evident intent of Congress. . . . Though penal laws are to be strictly construed, they are not to be construed so strictly as to defeat the obvious intention of Congress. . . . The rule of common sense must be applied to the construction of criminal statutes, the same as others.

Ryan v. United States, 9 Cir. 1960, 278 F.2d 836, 838 (citations omitted).

Congress, in passing section 213 and its companion section 212 (which prohibits bank officers from making a section 213 loan), intended to proscribe certain financial transactions which could lead to a bank examiner carrying out his duties with less than total, unbiased objectivity. With the intent of Congress evident from the face of the statute, a construction which would allow a bank officer to circumvent that intent simply by channeling a loan through a controlled shell corporation is untenable. Thus, we hold that the facts alleged in the indictment concerning the mechanics of the loan, if proved, would constitute a violation of 18 U.S.C.A. § 213.

Bristol next argues that the indictment was defective and that the district court's charge to the jury was erroneous because each failed to incorporate specific criminal intent among the elements of a violation of section 213. The indictment charged Bristol with doing the acts "knowingly" and the district court defined this general criminal intent to include voluntary, non-accidental acts; this intent was said to be ascertained by using the legal assumption that a person intends the natural consequences of his acts, irrespective of any knowledge concerning the criminal nature of those acts.

Section 213 itself gives us little guidance on the question of what level of intent is required because it makes no mention of any mens rea. Bristol, however, would have us read an "evil state of mind" requirement into the essential elements of the offense. This would be entirely inappropriate. Although the sanctions imposed under Anglo-American criminal jurisprudence are based on the concurrence of a criminal act and a criminal intent, a number of acts have been proscribed by federal statute and determined to be such significant threats to public safety or well-being that their mere non-accidental occurrence warrants the imposition of a penalty, even if the actor is ignorant of the illegality. See, e. g., United States v. Dotterweich, 1943, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (interstate delivery of adulterated drugs); United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619, and United States v. Balint, 1922, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (sale of drugs without written order); United States v. Weiler, 3 Cir. 1972, 458 F.2d 474, United States v. Quiroz, 9 Cir. 1971, 449 F.2d 583, and Braswell v. United States, 10 Cir. 1955, 224 F.2d 706, cert. denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752 (interstate transportation of firearms by a felon); United States v. Irwin, 2 Cir. 1965, 354 F.2d 192, cert. denied, 1966, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (certain kinds of bribery of public officials); Razete v. United States, 6 Cir. 1952, 199 F.2d 44, cert. denied, 344 U.S. 904, 73 S.Ct. 284, 97 L.Ed. 698 (graft). See also Roe v. United States, 5 Cir. 1961, 287 F.2d 435, cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29; United States v. De Witt, 5 Cir. 1959, 265 F.2d 393, 401 (Brown, J., dissenting), cert. denied, 361 U.S. 866, 80 S.Ct. 121, 4 L.Ed.2d 105.

The offense described in section 213 is analogous to those above. It is statutory in origin and has no common-law basis from which to bootstrap any specific intent requirement. Cf. Morissette v. United States, 1952, 342 U.S. 246, 72 S. Ct. 240, 96 L.Ed. 288. The public's need for disinterested bank examiners makes acts which frustrate that need malum prohibitum and this obviates the necessity for any specific intent.

With the standard established that a defendant must knowingly do the acts which constitute a violation of section 213, we must decide whether there was any substantial evidence upon which the jury could base a finding that Bristol knew the source of the loan. The court correctly made this an element of the offense in the charge to the jury² and the recitation of the facts earlier in this opinion, coupled with Bristol's payments of $6,000 to Sharp and $20,292.15 to Oak Forest after selling the stock, provides ample evidence for the jury's concluding that Bristol knew that the loan had come from Sharp. Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680; Gordon v. United States, 5 Cir. 1971, 438 F.2d 858, cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L. Ed.2d 56.

In conjunction with Bristol's main attack on the portion of the charge to the jury dealing with general criminal intent, he asserts two collateral arguments. The first is that his good faith belief that he was not violating the law (a belief that was allegedly reinforced by some advice of counsel) should be a defense to the charge. Even if his attorney had given advice after learning all the relevant facts, which the record indicates was not the case, Bristol's reliance thereon and good faith belief in his innocence would be no defense to a malum prohibitum crime that does not require a specific intent. See Shushan v. United States, 5 Cir. 1941, 117 F.2d 110, cert. denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531. See also United States v. Wood, 9 Cir. 1971, 446 F.2d 505; United States v. Custer Channel Wing Corp., 4 Cir. 1967, 376 F.2d 675, cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119; United States v. Hill, D.Conn.1969, 298 F.Supp. 1221; Note, Reliance on Advice of Counsel, 70 Yale L.J. 978 (1961).

Bristol's second collateral argument is that the portion of the charge which pertains to the legal assumption that a person intends the natural consequences of his acts, improperly placed the burden of proof on him.³ He cites as support for this argument the case of Mann v. United States, 5 Cir. 1963, 319 F.2d 404, cert. denied, 1964, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474. The citation of Mann, however, only discloses the tip of the iceberg of this Circuit's decisions on the question of "burden-shifting" instructions and the various forms those instructions have taken since 1963.⁴See, e. g., United States v. Wilkinson, 5 Cir. 1972, 460 F.2d 725; United States v. Driscoll, 5 Cir. 1972, 454 F.2d 792; United States v. DeSimone, 5 Cir. 1971, 452 F.2d 554, cert. denied, 1972, 406 U.S. 959, 92 S.Ct. 2067, 32 L.Ed.2d 346; United States v. Jenkins, 5 Cir. 1971, 442 F.2d 429; Henderson v. United States, 5 Cir. 1970, 425 F.2d 134; South v. United States, 5 Cir. 1969, ...