United States v. Meyer
Decision Date | 20 July 1959 |
Docket Number | No. 17371.,17371. |
Parties | UNITED STATES of America, Appellant, v. Baron deHirsch MEYER, Leonard L. Abess, W. George Kennedy and Sam R. Becker, Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
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James L. Guilmartin, U. S. Atty., Miami, Fla., for appellant.
Chester Bedell, Jacksonville, Fla., George F. Gilleland, W. Sanders Gramling, W. G. Ward, William C. Steel, J Edward Worton, William Manker, Miami, Fla., for appellees. Ward & Ward, Miami, Fla., Bedell & Bedell, Jacksonville, Fla., Scott, McCarthy, Preston, Steel & Gilleland, Worton & Manker, Miami, Fla., of counsel.
Before RIVES, TUTTLE and JONES, Circuit Judges.
This appeal is from a judgment sustaining a motion to dismiss an indictment of twenty-one counts, which occupy forty-seven pages of the printed record.
Count one of the indictment is drawn under the general conspiracy statute, Title 18 United States Code § 371, proscribing a conspiracy "either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose." It charges that the four named defendants together with Nathaniel B. Elkins, named as co-conspirator but not defendant, conspired to violate Title 18, Sections 656, 657, and 1006 of the United States Code in the manner and by the means set forth in the count.
Section 656 of Title 18 makes it a criminal offense for an officer, director or agent of a Federal Reserve bank, member bank, national bank or insured bank to embezzle, abstract, purloin or wilfully misapply any of the moneys, funds or credits of such bank. Section 657 proscribes the like offense when committed against an institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation. Section 1006 makes criminal the act of an officer, agent or employee who, with intent to defraud any such institution or to deceive any auditor or examiner or agency of the United States, makes any false entry in any book, report or statement of or to any such institution, or who, with intent to defraud the United States or any agency thereof, participates or shares in or receives directly or indirectly any money, profit, property or benefits through any transaction, loan, commission, contract or any other act of such institution.
Substantially following the language of those three sections, count one describes the banks and financial institutions and the positions in such banks and institutions held by each of the four defendants, and charges them and the co-conspirator with conspiring:
Those allegations are followed by a paragraph which contains the count's only reference to 12 U.S.C.A. §§ 371 or 371c mentioned by the district court in assigning its reasons for dismissing count one, and which paragraph is therefore quoted:
"That it was a further part of the said conspiracy for the defendants, who maintained control over the operations of the North Shore Bank to knowingly and wilfully allow and permit the said institution to lend money to the corporations named in paragraphs 5, 6 and 7 herein in a manner and means not permitted under the Federal Banking Laws, to wit, Title 12 U.S.C.A., Section 371c, in that such loans would not be secured by the collateral required by that section; moreover that such loans would be caused to be made, without disclosing to said bank that said loans involved no bonafide transactions of the said borrower, but that said loans would be used for the purpose of temporarily repaying loans to Federal Title and Insurance Corporation in order temporarily to improve the financial position of said corporation, and without disclosing that the proceeds of said loans were to be converted to the use of the defendants through Federal Title and Insurance Corporation."
As would be gathered from that reference to Title 12 U.S.C.A. § 371c, it prescribes the kind of collateral which must secure a loan or extension of credit from a member bank to one of its affiliates. Violation of that section is not, however, made a criminal offense.
The paragraph last quoted is followed by four other paragraphs each, like the quoted paragraph, beginning with the words, "That it was a further part of said conspiracy * * *" To facilitate an understanding of this opinion, we quote the opening clauses of each of those four paragraphs:
Count one closes with the averment of the commission of certain overt acts in furtherance of the alleged conspiracy.
The district court expressed its reasons for sustaining the motion to dismiss count one as follows:
At the outset we are confronted...
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