Williams v. United States
Decision Date | 08 April 1960 |
Docket Number | No. 16530.,16530. |
Parties | B. A. WILLIAMS, II, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Arthur A. Brooks, Jr., Hollywood, Cal., for appellant.
Louis B. Blissard, U. S. Atty., Daral G. Conklin, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.
Before POPE, MAGRUDER and MERRILL, Circuit Judges.
Williams appeals from judgment of conviction of the crime of mail fraud under 18 U.S.C. § 1341.1 He contends (1) that there is no evidence of intent to defraud; (2) that there is no evidence that the use of the mails involved was for the purpose of executing the scheme to defraud; (3) that the information filed against him was defective.
The information charged Williams with devising a check-kiting scheme involving three banks — one in Hawaii, one in Seattle, and one in Denver; and, in connection with this scheme, with causing checks drawn on these banks to be placed in the mails. The information was drawn in six counts, each reciting the same general scheme but relating to separate uses of the mails. It charged:
In 1957 and 1958, Williams was engaged in oil drilling operations. Liens had been filed against certain of his leasehold interests, and he was faced with the necessity of raising funds to release the liens. To this end, he attempted to sell interests in his leases. He testified that on April 24, 1958, he was advised by his Seattle agent that oral commitments for sale of interests had been secured; that he had instructed his agent to consummate the sales and deposit the proceeds to his Seattle account; that he had then drawn a check on the Seattle bank, deposited it in his Hawaii bank and drawn on that bank to make payment to his creditors. He had then learned that the Seattle funds had not come through. The transactions specified in Counts 2 to 6 of the information followed, resulting in an overdraft of approximately $50,000.00 at the Bank of Hawaii on or about May 15, 1958. Eventually all checks were made good and no bank has suffered a loss. Williams contends that these facts demonstrate lack of fraudulent intent.
Section 1341 requires a specific intent to defraud. United States v. Broxmeyer, 2 Cir., 1951, 192 F.2d 230; Federman v. United States, 7 Cir., 1929, 36 F.2d 441, certiorari denied 281 U.S. 729, 50 S.Ct. 246, 74 L.Ed. 1146. Even where the defendant has knowledge of lack of funds at the time the check is drawn, fraudulent intent is negatived by proof that he had a reasonable expectation that deposits would cover the check at the time it was presented for payment. See People v. Griffith, 1953, 120 Cal.App.2d 873, 262 P.2d 355; Pruitt v. State, 1918, 83 Tex.Cr. 148, 202 S.W. 81; State v. Foxton, 1914, 166 Iowa 181, 147 N.W. 347, 354, 52 L.R.A.,N.S., 919; State v. Lord, 1899, 77 Minn. 267, 79 N.W. 968. Williams contends that such is the case here.
The expectation of the defendant must, however, be more than mere hope. The circumstances must be such as to justify a reasonably certain belief that funds will be available. See United States v. Broxmeyer, supra; People v. Becker, 1934, 137 Cal.App. 349, 30 P.2d 562.
The question before us is whether the evidence was such that a jury could find beyond reasonable doubt that Williams had no such expectation. Schino v. United States, 9 Cir., 1954, 209 F.2d 67, 72, certiorari denied 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087. The expectation upon which he relies is that the Seattle sales would be immediately consummated and the proceeds deposited to his Seattle account, all before the checks mentioned in Count 1 would be presented for payment.
Counts 2 to 6, however, do not relate to that expectation. As to these counts, the manager of the Hawaii bank testified that he had asked Williams whether he did not know that he was kiting and that Williams had answered: "Yes, but it didn't start out that way." Williams' own testimony makes it clear that he knew precisely what he was doing; that he was engaged in desperate efforts to raise money and was seeking temporary credit to give him time to continue in these efforts. The fact that he had hoped and intended that his checks would eventually be made good does not alter the fact that he had acted with knowledge that the checks, when drawn, were not covered by deposits and would not be covered until his efforts to raise money succeeded. In United States v. Broxmeyer, supra, 192 F.2d at page 232, it was said:
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