United States v. Posner
| Decision Date | 20 February 1976 |
| Docket Number | Crim. No. HM75-0120. |
| Citation | 408 F. Supp. 1145 |
| Parties | UNITED STATES of America v. Lester POSNER. |
| Court | U.S. District Court — District of Maryland |
COPYRIGHT MATERIAL OMITTED
Jervis S. Finney, U. S. Atty. for Dist. of Maryland, Joseph M. Fairbanks, Asst. U. S. Atty., Baltimore, Md., for the United States.
Charles G. Bernstein, Federal Public Defender for Dist. of Maryland, and Gerald M. Richman, Asst. Federal Public Defender, Baltimore, Md., for defendant Lester Posner.
This case came before the Court on January 23, 1976, for trial on a Stipulation of Facts filed by the parties. At the close of the trial, the government moved to re-open the case in order to introduce further evidence; the defendant moved for a judgment of acquittal.
The indictment in this case charges the defendant, Lester Posner, with "bank larceny" of approximately $183,382.36 from the Equitable Trust Co., Hampden Branch, Baltimore, Maryland, in violation of 18 U.S.C. § 2113(b) and (f). In essence, the facts show that the defendant, a customer of the above bank, became aware of the fact that the bank was depositing funds to his account in error, and that with this knowledge and the intent to convert those funds, the defendant withdrew over $180,000 of these funds over a fifteen-month period, and in fact applied the withdrawn funds to his own personal use. The primary question presented by this case is whether these activities constitute a violation of 18 U.S.C. § 2113(b), or constitute some other crime not punishable under federal law.
The parties entered into the following stipulation of facts, which were admitted as the complete facts by the parties:
1. At all material times alleged herein, the Equitable Trust Company, Hampden Office, 902 West 36th Street, Baltimore, Maryland, was a `bank' as defined in Title 18, Section 2113(f) of the United States Code, and its deposits were insured by the Federal Deposit Insurance Corporation under Certificate Number 1888-1, issued December 23, 1969.
2. Effective January 1, 1973, the Maryland State Lottery Agency (hereinafter referred to as `The Lottery') was created by Chapter 365, 1972 Laws of Maryland, and by an amendment to Article III, Section 36 of the Maryland Constitution which was ratified by the voters of the State of Maryland on November 7, 1972.
3. Approximately 55 banks within the State of Maryland are designated as distribution and collection centers for the Lottery. Pursuant to the procedures of the Lottery, Lottery tickets are distributed by these banks to sales agents each week. Each agent is required to report to his designated bank each week to remit his receipts for tickets sold the previous week, return unsold tickets, and pick up his tickets for the next week. Each agent receives a commission based on a percentage of his weekly receipts.
4. The sale of Lottery tickets began on or about May 15, 1973. From and after that date, the Equitable Trust Company, Hampden Branch, was a bank designated to distribute Lottery tickets and collect receipts from their sale. In this connection, a checking account entitled Maryland State Lottery Agency, Account Number 605 2093 1 (hereinafter referred to as `Lottery Account') was maintained by the Equitable Trust Company, Hampden Branch, for deposit of the weekly receipts.
5. From and after May 15, 1973, the Equitable Trust Company, Hampden Branch, had approximately 25 Lottery agents who picked up their tickets and turned in the receipts at that bank on Tuesday of each week. Each agent was required to fill out and sign a `Bank/Agent Form' indicating the number of tickets returned, number sold, total value of those sold, the commission, and the total amount of money being remitted (receipts less commission). After all of the agents had reported on each Tuesday, an employee of the bank was then required to fill out a `Bank/Agent Form' indicating the total remittance for all the agents. The total remittance was then deposited in the Lottery Account.
6. From and after May 15, 1973, Lester Posner was a duly designated agent of the Lottery assigned to the Equitable Trust Company, Hampden Branch. Posner sold Lottery tickets at his place of business, the Chestnut Foodrite Market, 3535 Chestnut Avenue, Baltimore, Maryland. On or about May 9, 1973, Posner opened a checking account at the Equitable Trust Company, Hampden Branch, entitled `Chestnut Foodrite Lottery Account', Account Number 606 0673 5 (hereinafter referred to as `Posner Account'). Posner's purpose for the Posner Account was to deposit each week his total receipts from the sale of Lottery tickets, and then to draw a check remitting his total amount due for that week (receipts less commission). During the period from May 23, 1973 through September 11, 1973, the largest deposit in the Posner Account was $437.50, and the smallest was $300.00.
7. Sometime prior to September 11, 1973, a supply of deposit tickets for the Lottery Account was received for use by the Equitable Trust Company, Hampden Branch. These deposit tickets were mistakenly pre-encoded with the account number of the Posner Account. As a result of the use of these deposit tickets by employees of the bank, each week from September 11, 1973 through and including December 12, 1974, the total weekly remittance from all the lottery agents at the Equitable Trust Company, Hampden Branch, was deposited in the Posner Account rather than the Lottery Account. The largest such weekly deposit during this period was $4,287.08, and the smallest was $2,005.90. The total amount mistakenly deposited in the Posner Account during this period of time was approximately $183,382.36.
8. During the period from October 12, 1973 to December 5, 1974, Posner withdrew a total of approximately $177,444.12 of the Lottery funds which had been mistakenly deposited to the Posner Account. These withdrawals were in the form of fourteen separate checks drawn on the Posner Account and signed by Posner. The following is a list of the amounts and dates of these checks:
Amount Date
$ 9,000.00 10/12/73
32,544.12 12/13/73
3,000.00 1/15/74
20,000.00 3/12/74
6,700.00 3/15/74
10,000.00 4/9/74
11,500.00 5/7/74
10,000.00 6/7/74
9,200.00 7/10/74
16,000.00 8/7/74
12,000.00 9/9/74
10,500.00 10/7/74
12,000.00 11/6/74
15,000.00 12/5/74
___________
$177,444.12
===========
9. At the time each of the above-mentioned checks was drawn by Lester Posner, he knew the funds mistakenly credited to the `Posner Account', as set forth in paragraphs 7 and 8 above were not rightfully his, and he drew each check with the intention of converting those funds to his own use. Each of the checks was honored and paid by the Equitable Trust Company, and the funds thus paid were in fact applied by Posner to his own use.
10. The Lottery funds withdrawn by Posner from the Posner Account have never been recovered by the Lottery or the Equitable Trust Company from Posner or any other source. At the present time, the Posner Account is closed with a balance of approximately $7,366.84.
The parties further stipulated during the course of the trial that the six checks drawn between 7/10/74 and 12/5/74 were negotiated at the Maryland National Bank by deposit to Posner's account by Posner; that the check dated 12/13/73 was deposited to the Commonwealth National Bank in Harrisburg, Pennsylvania; and the remainder was made out to cash, or to Chestnut Foodrite Account or Foodrite payroll account.
During the course of the trial, the government, as a consequence of questions posed by the Court, became concerned that there was no evidence showing that the defendant was ever physically present within the bank. At the end of the trial, the government, seeking to correct what was thought to be a defect in its proof, moved to reopen the case to take further evidence.
The granting of such a motion is within a court's sound discretion. Moore, Federal Practice, ¶ 59.0413. While courts have granted motions to reopen in civil cases submitted on an agreed statement of facts, St. Mary's Bank v. Cianchette, 99 F.Supp. 994, 996 (D.Me.1951), and in criminal non-jury cases, Haugen v. United States, 153 F.2d 850 (9th Cir. 1946), to correct a defect in formal proof, the Court has not been referred to and is unaware of any criminal case tried on stipulated facts in which such a motion has been granted. In considering such a motion, the Court must weigh the prejudice which would inure to the non-moving party. In the instant case, it would appear that the prejudice would be substantial. The defendant waived his right to trial by jury on the assumption that he would be tried by the Court on a known set of facts stipulated to by him and his counsel. To grant the government's motion would be to impose upon the defendant a risk he never reasonably anticipated in making his decision to waive a trial by jury. Furthermore, it seems doubtful that there is any evidence which the government could produce in stipulated form, since defense counsel refuses to stipulate to any evidence tending to show the presence of the defendant in the bank at any time. The government chose to try this case on stipulated facts; it cannot at this late stage change its mind to present evidence outside of those stipulated facts. In any event, the failure of the government to present evidence showing the defendant's presence in the bank, in the Court's view, does not harm its case, for reasons discussed infra. Accordingly, the government's motion to reopen will be denied.
The threshold consideration in determining whether the defendant's actions constitute a violation of 18 U.S.C. § 2113(b) is...
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