United States v. Joiner, 28849.

• Decision Date: 02 October 1970
• Docket Number: No. 28849.,28849.
• Citation: 429 F.2d 489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmy JOINER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.2d 489 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy JOINER, Defendant-Appellant.

No. 28849.

United States Court of Appeals, Fifth Circuit.

August 10, 1970.

Rehearing Denied October 2, 1970.

Clifford Brown, Brown & Harding, Lubbock, Tex., for defendant-appellant.

Frank D. McCown, Tim Timmins, Asst. U. S. Attys., Dallas, Tex., Eldon B. Mahon, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Before BELL, COLEMAN and AINSWORTH, Circuit Judges.

COLEMAN, Circuit Judge:

On June 3, 1969, the grand jury for the Northern District of Texas, at Lubbock, charged this appellant, Jimmy Joiner, with having unlawfully, knowingly, and feloniously aided and abetted the President of the Lorenzo State Bank in the misapplication of $82,676.67 of the funds of that bank. That part of the indictment Count 3 which resulted in a conviction read as follows:

"COUNT 3

"On or about December 14, 1967, in the Lubbock Division of the Northern District of Texas, the defendant, A. W. LOTT, being an officer and employee, that is President of the Lorenzo State Bank, Lorenzo, Texas, (hereinafter called bank), the deposits of which bank were insured by the Federal Deposit Insurance Corporation, with the intent to injure and defraud said bank, did wilfully misapply the sum of $82,676.67 of the monies, funds and credits of the bank, and entrusted to its care and custody, in that the said A. W. LOTT, by reason of his possession and by virtue of the power, control, and authority he had over the monies, funds and credits of the bank as such officer, did divert the proceeds of a check drawn in favor of the bank by Johnny Vineyard in the amount of $51,436.67, and a note executed by Johnny Vineyard in favor of said bank in the amount of $31,240.00, and did cause the aggregate of such check and note to be paid in exchange for a certain item in the amount of $82,676.67, such item being dated November 30, 1967, drawn in the name of Jimmy Joiner, on an account styled `Jimmy Joiner,\' and the aforesaid account styled `Jimmy Joiner\' did not then contain sufficient funds to cover said item as the defendant A. W. LOTT well knew, whereby possession, control, and use of the said sum of $82,676.67 of the monies, funds and credits of the bank were depleted and lost to the bank and were then converted and misapplied to the use and benefit of A. W. LOTT and Jimmy Joiner.

"At the time aforesaid, JIMMY JOINER unlawfully, knowingly and feloniously aided, abetted, counselled, commanded, induced and procured the commission of the offense above set out. Emphasis by this Court.

"In violation of Title 18, United States Code, Sections 656 and 2."

On October 10, 1969, a jury convicted Mr. Joiner of this Count, while acquitting him of two others. The defendant was sentenced to imprisonment for a period of two years and to pay a fine of $5,000. We affirm the judgment of the District Court.

It is contended on appeal that the evidence is insufficient to support the conviction and that the Court erroneously refused certain instructions requested by the defense.

It must be conceded at the outset that on the issue of knowingly counselling, aiding, and abetting another in the commission of a crime this case is a very close one on the facts. The facts are exceedingly tangled and hard to unravel.

In March, 1967, A. W. LOTT, President of the Lorenzo State Bank, obtained a personal loan of $80,000 from the Citizens National Bank of Lubbock. He deposited these funds in his personal account at Lorenzo. By two personal checks subsequently written he credited these funds to an account styled "J & J Joiner". This account had been opened some years previously by Jimmy Joiner and his father. Mr. and Mrs. Jimmy Joiner drew checks against the account for the full amount of the $80,000. On the face of it this was simply a personal loan from Lott to Jimmy Joiner and no funds of the Lorenzo State Bank were involved.

On July 17, 1967, Jimmy Joiner forged his father's name to a note to the Lorenzo State Bank for $30,000, which was deposited in the J & J Joiner account. This note was still held by the bank when it was temporarily closed on February 8, 1968. The elder Joiner learned of the note only after the bank had been closed. This $30,000 deposit was used to pay checks drawn by Jimmy Joiner, some of them dated as far back as February 15, 1967, of which $24,660.78 had been held in the works of the bank, known as "cuts", items for which there had not been sufficient funds to pay.

It follows that on July 17, 1967, Jimmy Joiner owed A. W. Lott $80,000 and he owed the Lorenzo State Bank $30,000 on the note to which he had signed his father's name without authorization.

Apparently nothing else happened until October 11, 1967, when Mr. Lott wrote the President of Citizens National, authorizing that bank to charge the $80,000 note to the Lorenzo State Bank's correspondent account, which was done in the amount of $82,676.67, principal and interest. Lott's note was returned to him on November 1, 1967. The result was that the funds of the Lorenzo State Bank were depleted by $82,676.67, in payment of Lott's personal note.

Jimmy Joiner's name does not appear in this transaction until November 30, 1967, in a Lorenzo Bank credit ticket in the same amount, styled Citizens Lubbock, in the handwriting of A. W. Lott, bearing the notation, "Jimmy Joiner". The Lorenzo Bank records show that the $82,676.67 had not been paid from the J & J Joiner account.

Citizens National gave Lorenzo credit for the ticket. This balanced Lorenzo's books with Citizens and extinguished, so far as the books were concerned, the debit previously entered for the payment of Lott's personal note from Lorenzo bank funds.

Haney Bruce, former Cashier of the Lorenzo State Bank, testified that he saw the credit ticket and posted it on the general ledger for November 30, 1967. To him it indicated that the money was provided by Joiner for the payment of a loan participation held by Citizens National. Bruce further testified that on November 30, 1967, he saw a check in the "cuts" on Jimmy Joiner's account for "eighty something thousand dollars". This check was held in the "cuts", and unpaid, because the Joiner account was overdrawn. Bruce could not say that the check bore the genuine signature of Jimmy Joiner. The check was never charged to the account of Jimmy Joiner. It was later taken by Mr. Lott, and never seen again.

This check was replaced, in the "cuts", on December 14 by a note signed by Johnny Vineyard and by a check drawn by him on another bank. More of this later.

On the same day, Mr. Vineyard had written a check on the Lorenzo State Bank to the Insurance Company of North America for the amount of his note and the transferred funds. Unknown to him, none of the money had been deposited to his account, so that check was returned unpaid. About January 28 or 29, the check came to the Lorenzo Bank for the second time around and was paid. That payment, however, was balanced by another note signed by Mr. Vineyard for $85,176.67 on January 29, 1968, which will be discussed later. As previously stated, the bank was temporarily closed on February 8.

In 1967, Johnny Vineyard was in the business of writing insurance against crop damage by hail. He was thirty-seven years of age, had been in the insurance business for eleven years, and was a college graduate in agronomy. He represented the Insurance Company of North America and wrote policies on open account with his insurer, for which payment was due annually on the 15th of December, with a thirty day grace period. Some farmers paid cash for their policies but most gave their unsecured personal notes for the premium. On November 16, 1967, the company billed Vineyard for $108,281.82, premiums due as of December 15. Because all the farmer notes had not been collected Vineyard lacked about thirty thousand dollars having enough funds to pay the full amount due. He did not wish to use the grace period for the payment because he hoped that North America would handle his business for the next year.

Mr. Vineyard had known Jimmy Joiner for about three years. He knew Joiner well enough that on November 28 and December 1 he had loaned him $2,500 to assist in certain real estate transactions to which Joiner was a party. Vineyard was worried about where he could raise the $30,000 needed to meet his payment to North America. The usual practice was that lending institutions would advance eighty per cent on the premium notes, but a bank in Lubbock with which Vineyard usually did business declined to make such advances. Vineyard said this was due to a former partner of his, without detailing the reasons.

In any event, about December 10, 1967, Vineyard was drinking coffee with Joiner at a coffee shop in Lubbock and told him of his need for the funds to meet the payment due about five days later. Joiner told Vineyard that Mr. A. W. Lott of the Lorenzo State Bank might lend him the money against the former notes. Vineyard did not know Lott and had never done business with the Lorenzo State Bank.

The result of the conversation was that Vineyard and Joiner met in Lorenzo and went to see Mr. Lott. Lott told him to make a list of the crop hail notes, present the list, and "I think I can make you a loan".

Vineyard made the list and, again accompanied by Joiner, returned on the fourteenth, with hail notes amounting to about $39,000. He did not remember whether he endorsed them but, in any event, they were turned over to Lott. Lott agreed to lend $31,240, for which Vineyard executed his note, payable on demand. Amazing as it may be, Vineyard received no deposit slip for this money. He asked about executing a signature card, but Lott said that such would have to clear through the IBM machine in Lubbock and it was not needed since he had Vineyard's signature on the note.

Vineyard asked to transfer the $31,240 to another bank to be consolidated...