United States v. Frazier, 31108.

• Decision Date: 09 June 1971
• Docket Number: No. 31108.,31108.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas William FRAZIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 235 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas William FRAZIER, Defendant-Appellant.

No. 31108.

United States Court of Appeals, Fifth Circuit.

June 9, 1971.

Leroy Boling, Pensacola, Fla., court appointed, for defendant-appellant.

C. W. Eggart, Jr., Asst. U. S. Atty., William Stafford, U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

The appellant is here seeking reversal of his judgment of conviction and sentence to three years imprisonment, to be served concurrently, on each of Counts 2, 3, 4, 5 and 6^1a of an indictment charging violations of Title 18, U.S.C., Section 7, Title 18, U.S.C., Section 13 and Section 832.05, Florida Statutes Annotated, arising from the uttering and passing during September 1969, of five true-name, insufficient fund checks, in amounts respectively of $100 (Count Two), $100 (Count Three), $75 (Count Four), $100 (Count Five) and $100 (Count Six), at Air Force Base Exchanges at Eglin Air Force Base and satellite air force installations within the special territorial jurisdiction of the United States. Title 18, U.S.C., Sections 7 and 13, supra. Although we find the evidence as to scienter, the "intent to defraud" meager indeed, we conclude that it meets the classic test of Glasser v. United States, (1941) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. When viewed in the light most favorable to the government the evidence presented was sufficient basis for the jury to arrive at a verdict of guilty. Accordingly, we affirm.

Thomas William Frazier retired from the United States Air Force with the rank and grade of Master Sergeant in December 1962. Until shortly before Labor Day, September 1, 1969, he lived at Lutz, Florida, a small agricultural community near Tampa, Florida.² Frazier maintained a checking account with the First State Bank of Lutz. He was engaged in a one man furniture refinishing and repair business.

In September of 1969, Frazier moved to Fort Walton Beach, Florida, several hundred miles from Lutz and adjacent to another U.S. Air Force establishment, Eglin AFB. He planned to resume operation of his furniture repair business, and took immediate steps to accomplish this purpose. Most of Frazier's furniture refinishing business came from Air Force contacts at Mac Dill AFB and Eglin Field. He solicited and handled refinishing business generated when servicemen are transferred from one post to another by either government or private transport and find their household effects on arrival to be damaged and in need of repair, refurbishing, or both. Business was referred to Frazier by Base officials, including the staff judge advocate, who would usually be in contact with servicemen having damage claims. The gross receipts of this business were usually about $800.00 or more monthly, according to Frazier. The net was said to be considerably less, but was not put in figures.

His expected time of payment was difficult to estimate since it usually was dependent upon successful processing of damage claims by his service clientele.

Frazier's Air Force retirement pay was approximately $250.00 monthly, received about the end of each calendar month. When he left Lutz he asked a sister-in-law and her husband to handle at least some banking operations for him, the exact extent of which remained unclear after both they and Frazier testified. It is clear that one or both these parties were requested to intercept in the mails and deposit to his Lutz bank account a retirement check, which, as noted above was said to be in the amount of about $250.00. It is not clear whether they (or either of them) received further instructions as to additional checks from furniture repair customers which might turn up in the mails. Frazier testified he thought that he left Lutz with about four or five hundred dollars owing to him, expected it to come in shortly, and told one or both relatives to deposit any check coming in. He left four deposit slips with someone. He maintained that when he wrote and passed the checks described below, he believed there were sufficient funds in his bank account to cover them. Both the in-laws, a couple named Calliea, and a Lutz neighbor and friend, Allene Gonzalez, gave some testimony as to instructions received from Frazier with respect to depositing checks, the net effect of which was to cast considerable doubt on Frazier's testimony,³ both as to the instructions given and also as to his reasonable expectation of any checks, other than the retirement check soon after Labor Day. Calliea said no other check was mentioned; that he and Frazier were in the furniture repair business together prior to Frazier's leaving Lutz; and that as far as he knew Frazier was not then owed any remaining substantial sums for repair work. He said Frazier's incoming mail was forwarded unopened to Fort Walton Beach. Mrs. Calliea recalled instructions only as to the retirement check, as did Mrs. Gonzalez, who made the actual deposit after picking up the check at the Calliea residence, a few days after Labor Day. Mrs. Gonzalez said this was done at Frazier's request because she had a car and Mrs. Calliea did not.

When he reached Fort Walton Beach, during September 1969, Sergeant Frazier cashed six checks for $75 or $100 each, all drawn against his Lutz Bank account, at the two Base Exchanges, at Eglin Air Force Base and at Hurlburt Field, a satellite installation. The total was $550.00. All were dishonored by the Lutz Bank. Sergeant Frazier said he was told that the limit as to cashing checks at the several Post Exchanges was $100 per day, and that since he needed more than $500⁴ he had to cash six separate checks, rather than a single check for the amount needed. The net result was that Frazier was indicted for six separate offenses under the Florida bad check law, rather than a single charge.

The Florida Statute, Section 832.05(2)⁵, under which Frazier was charged, reads:

Ch. 832 WORTHLESS CHECKS AND DRAFTS

§ 832.05

(2) Worthless checks; penalty

(a) It shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver to another any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing or delivering such check or draft that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation; provided, that this section shall not apply to any check where the payee or holder knows or has been expressly notified prior to the drawing or uttering of same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any post dated check.

(b) Violation of the provisions of this subsection shall constitute a misdemeanor and shall be punishable by imprisonment in the county jail not exceeding six months or by fine not exceeding $300.00, unless the check, draft or other written order drawn, made, uttered, issued or delivered be in the amount of fifty dollars or its equivalent, or more and the payee or a subsequent holder thereof receives something of value therefor. In that event the violation shall constitute a felony and shall be punishable by imprisonment in the state penitentiary not exceeding five years, or in the county jail not exceeding twelve months, or by fine not exceeding $1,000.00.

It is of course manifest from the very language⁶ of Title 18, U.S.C., Section 7, that we must look to the Florida jurisprudence to learn what conduct is punishable under the offense denounced by the statute. The Florida Supreme Court has made it clear that "intent to defraud" is an indispensable element in proving violation of Section 832.05(2), F.S.A. Ennis v. State, Fla.1957, 95 So.2d 20. The holding of Ennis is that if "intent to defraud" is not a necessary element of the statutory offense, 832.05(2) would be unconstitutional as providing for imprisonment for debt without fraud contrary to Section 16 of the Declaration of Rights in the Florida Constitution.⁷ Cf. Snyder v. State, Fla. App.1967, 196 So.2d 217.

Although Florida's courts have never had occasion to define the "intent to defraud" required in offenses prosecuted under this precise statute, we think we are on safe ground in adopting for our purposes here a definition of "intent to defraud" found in Florida decisions under a fairly closely related statute, F.S. A., Section 811.021, which defines as a part of the statutory offense of larceny, the offense of obtaining money under false pretenses.⁸ In Green v. State, Fla.App.1966, 190 So.2d 614, 616, it is held with reference to the offense of obtaining money by false pretense portion of F.S.A. Section 811.021:

"* * * the intent to defraud in connection with this crime has been stated to be `the intent to induce another to part with his property by the use of false and deceptive means, when otherwise the owner would not have done so.\'"3

"3. 2 Burdick, The Law of Crime, § 649 at 508 (1946); Rosengarten v. State, supra, note 1."

(The fall citation to Rosengarten v. State is: Fla.App.1965, 171 So.2d 591.) To similar effect, see also Youngker v. State, Fla.App.1968, 215 So.2d 318, 324.

Frazier argues that intent to defraud on his part is completely negated by: firstly, his self-asserted and stoutly maintained belief that the checks in question would be good upon presentation; secondly, his arrangements as he understood them with his in-laws and Mrs. Gonzalez to make timely deposits to his account; thirdly, because he made complete restitution, partly by deductions from his retirement benefits, between the time he was charged and the date of trial; fourthly and most importantly, by his situation as a retired Air Force enlisted man, entitled to draw retirement...