Westfall v. United States

• Decision Date: 30 June 1927
• Docket Number: No. 4596,4597.,4596
• Citation: 20 F.2d 604
• Parties: WESTFALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

20 F.2d 604 (1927)

WESTFALL v. UNITED STATES.

Nos. 4596, 4597.

Circuit Court of Appeals, Sixth Circuit.

June 30, 1927.

Dean S. Face, of Grand Rapids, Mich. (Jewell, Face & Messinger, of Grand Rapids, Mich., on the brief), for plaintiff in error.

Howard A. Ellis, Asst. U. S. Atty., of Grand Rapids, Mich. (Edward J. Bowman, U. S. Atty., of Grand Rapids, Mich., on the brief), for the United States.

Before DONAHUE and MOORMAN, Circuit Judges, and HICKENLOOPER, District Judge.

PER CURIAM.

Separate indictments were returned in the court below against the defendant Westfall, here plaintiff in error, one Carl W. Himmler, and others. The indictment upon which the defendant was first tried charges that Himmler, as branch manager of a certain state banking association member of the Federal Reserve System, as the officer, agent, and employee of the bank, and Westfall, as aiding and abetting, violated section 5209 of the Revised Statutes, as amended September 26, 1918 (chapter 177, § 7, 40 Stat. 972; Comp. Stat. § 9772; title 12, c. 5, § 592, U. S. Code), by which it is made a misdemeanor for any officer, director, agent, or employee of any Federal Reserve Bank, or any member bank, to abstract any of the moneys, funds or credits of such Federal Reserve Bank or member bank, with intent to injure or defraud such Federal Reserve Bank or member bank, or to deceive any officer of such Federal Reserve Bank or member bank, or any agent or examiner appointed to examine the affairs of such Federal Reserve Bank or member bank. This section also provides that every person who, with like intent, aids and abets any officer, director, agent, employee, or receiver in any violation of this section shall be deemed guilty of the same offense.

After conviction upon the indictment for the substantive offense the same defendants were placed upon trial under an indictment charging conspiracy to commit the crime charged as a substantive offense in the first indictment. The plaintiff in error duly moved his discharge and the return of a verdict in his favor upon the ground that he had been already placed in jeopardy for the same offense in the previous trial. This motion was overruled, a verdict of guilty was returned, and the court pronounced separate sentences of imprisonment in the federal penitentiary in the two cases; said sentences, however, running concurrently.

The contention most earnestly urged upon the court, and which was applicable to both convictions, was that the provisions of the Act of Congress of December 23, 1913 (c. 6, § 9, 38 Stat. 259), as amended June 21, 1917 (c. 32, § 3, 40 Stat. 232; Comp. Stat. § 9792; U. S. Code, tit. 12, c. 3, § 324), to the effect that officers, agents, and employees of a state bank member of the Federal Reserve System shall be subject to the provisions of and to the penalties prescribed by section 5209 of the Revised Statutes, was unconstitutional. This question was certified to the Supreme Court, and the contention is answered and the constitutionality of the provision is sustained by the opinion of that court delivered May 16, 1927. We pass, therefore, to a consideration of the other contentions of error in the trial of both cases.

The evidence disclosed that with the consent of the defendant Himmler a number of drafts, notes, and checks of the defendant Westfall and the enterprises with which he was associated had been permitted to accumulate in the hands of Himmler, were unpaid, and were carried as cash items, to the aggregate amount of approximately $9,650. Learning that the bank examiners were about to enter upon an examination of the branch bank of which Himmler was manager, this fact was communicated to Westfall by telephone, and several of his associates were given blank checks upon another bank, and were sent to Himmler to cover the matter for the examination by giving checks upon the other bank for the aggregate amount of the delinquent items, which new checks would appear as in the process of collection. In order that such checks might be paid upon presentation, the certificate of deposit for $10,000 described in the indictment was given to the associates of Westfall, returned to him or brought to his notice, and deposited for the purpose of meeting the then outstanding checks. Upon these facts it was earnestly contended that Westfall could not have been guilty of aiding and abetting in abstracting the moneys, funds, or credits of the Federal Reserve member bank, since the fact that the certificate had been issued did not come to his attention until afterward, and the crime was complete as far as Himmler was concerned when the certificate was issued and delivered.

The indictment sets forth the means by which the funds of the bank were abstracted, and it is there thus alleged that there were no funds whatever on deposit for the payment of the certificate of deposit, and no consideration of any kind moved to the bank therefor; that the certificate of deposit was thereafter paid by Himmler, and that the funds thus paid were converted to the use, benefit, and advantage of Westfall and others, and were wholly lost to the member bank. As pointed out by the District Judge, the bank had not parted with any funds until the certificate was presented for payment and paid; there had been no abstracting of funds; there...