United States v. McNatt, Crim. No. 85-481-Y.

• Decision Date: 16 June 1986
• Docket Number: Crim. No. 85-481-Y.
• Citation: 637 F. Supp. 882
• Parties: UNITED STATES of America, Plaintiff, v. Jack McNATT, Defendant.
• Court: U.S. District Court — District of Massachusetts

637 F. Supp. 882

UNITED STATES of America, Plaintiff, v. Jack McNATT, Defendant.

Crim. No. 85-481-Y.

United States District Court, D. Massachusetts.

June 16, 1986.

Joseph J. Balliro, Balliro, Mondano & Balliro, Boston, Mass., for defendant.

Gary C. Crossen, U.S. Atty., for U.S.

MEMORANDUM AND ORDER ON THE MOTION OF THE DEFENDANT FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OF GUILTY

YOUNG, District Judge.

Pursuant to Rule 29 of the Fed.R.Crim. Proc., the Defendant Jack McNatt ("McNatt") brings this motion for a judgment of acquittal notwithstanding the verdict of guilty returned by the jury upon an indictment charging McNatt with aiding and abetting Arcangelo DiFronzo ("DiFronzo") with receiving stolen bank property in violation of 18 U.S.C. §§ 2 and 2113(c).

In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."

Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949) quoting L. Hand, J. in United States v. Peoni, 100 F.2d 401, 402 (2nd Cir.1938). The question for analysis is whether the United States has here presented sufficient evidence to warrant the jury concluding, beyond a reasonable doubt, that McNatt knowingly participated in DiFronzo's receipt of stolen bank property with the intention of aiding and abetting that result. United States v. Campa, 679 F.2d 1006, 1011 (1st Cir.1982); see United States v. Bradley, 421 F.2d 924, 927 (6th Cir.1970). In making this analysis, this Court must review the evidence considered as a whole, including all inferences that may reasonably be drawn therefrom, in the light most favorable to the United States. United States v. Indelicato, 611 F.2d 376, 384 (1st Cir.1979); United States v. Brown, 603 F.2d 1022 (1st Cir.1979); United States v. Gabriner, 571 F.2d 48, 50 (1st Cir.1978); United States v. Scibelli, 549 F.2d 222, 229 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977).

McNatt was a bank officer at the Bank of New England. Among various responsibilities, he had the responsibility for overseeing the check printing aspects of the bank's servicing of a major money market fund. In this capacity, he had access to account information of the bank's and the fund's clients and well knew the names and account numbers of the accounts containing the largest amounts of cash upon which extraordinarily large checks were drawn from time to time.¹ Likewise, McNatt had access (though not sole access) to the signature cards for these accounts. Finally, McNatt was entrusted with various blank check forms not yet encoded with the appropriate account and bank numbers necessary for computerized handling in actual practice. McNatt had these samples because it was his function to see to the printing of the proper finished product. It was bank policy that the sample blank checks ought not leave the bank nor should account numbers or balances be disclosed to those outside the bank's employ.

At trial, competent evidence permitted the inference that, on two separate occasions, certain blank sample checks came into DiFronzo's possession. McNatt's handwriting appears on certain of the blank sample checks which DiFronzo possessed on each of the two separate occasions. On at least one of the blank sample checks there appears, in McNatt's handwriting, the account and bank numbers and related information pertaining to an account which, on occasion, McNatt knew contained cash in excess of ten million dollars. DiFronzo was not an employee of the bank, had no access to the business areas of the bank open to McNatt, and had no business with the information or the blank sample checks.

Together with one Hardy, DiFronzo was a principal in a mail handling business. McNatt and Hardy appear to have been acquaintences, lunching together with some frequency during the times material to the indictment. On the day he tendered his resignation to the bank, McNatt, then appraised of an investigation into the suspected misuse of the sample blank checks, left the bank and drove to meet with Hardy.

The sample blank checks which turned up in DiFronzo's hands were ascertained to have been missing from the sample blank check forms committed to McNatt's custody. When confronted with his handwriting on certain of the checks, McNatt said that he didn't think that the writing on one of the checks was his but that it could have been.

That's it. Is that enough to convict McNatt of aiding and abetting DiFronzo in receipt of stolen bank property (the sample blank checks)? In the specific circumstances of this case, this Court concludes that it is not. To see why, it is necessary to consider the trial as a whole.

McNatt and DiFronzo were tried together on a three count indictment which charged each of them with conspiracy, bank larceny, and charged DiFronzo with receipt of stolen bank property and McNatt with aiding and abetting that crime. At trial, there was substantial evidence that DiFronzo was involved in a bizarre and intricate scheme involving the forging of a multi-million dollar check drawn on the Bank of New England. The scheme necessarily involved the obtaining of blank check forms, privately encoding those forms outside the bank's normal processes, and forging the authorized signature thereon, then cashing the check at some other bank — a bank in Beiruit was suggested but the conspirators ultimately settled upon an Atlanta bank. This extraordinary scheme was proved at trial through the conversations of DiFronzo and an undercover informant then working for the F.B.I. but posing as a co-conspirator with DiFronzo. While the success of such a scheme necessarily appeared to hinge on the presence of some inside person within the Bank of New England, and while DiFronzo admitted that he had such a contact, McNatt's name was never mentioned. DiFronzo's own statements were admitted against him pursuant to Fed.R.Evid. 801(d)(2)(A) and the statements of the undercover informant were admitted against DiFronzo as the statements of a co-conspirator of a party during the course and furtherance of a conspiracy. Fed.R.Evid. 801(d)(2)(E).

Following the procedure outlined in United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.1980), this Court also conditionally admitted the declarations of DiFronzo and the undercover informant against McNatt as well. Neither McNatt nor DiFronzo testified. Then, at the close of all the evidence, this Court made the rulings required by United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977). The Court ruled that although there was sufficient independent evidence to conclude by a fair preponderence of the evidence that McNatt was up to no good, the evidence was insufficient — without speculation — to conclude that McNatt was a part of the particular bizarre conspiracy that had so engrossed DiFronzo. Accordingly, the jury was emphatically instructed to disregard the statements of the undercover...