Williamson v. United States

• Decision Date: 18 May 1964
• Docket Number: No. 20660.,20660.
• Citation: 332 F.2d 123
• Parties: J. W. WILLIAMSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

332 F.2d 123 (1964)

J. W. WILLIAMSON, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20660.

United States Court of Appeals Fifth Circuit.

May 18, 1964.

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Gladstone L. Kohloss, Charles V. Silliman, Orlando, Fla., for appellant.

Thomas J. Hanlon, III, Joe H. Mount, Asst. U. S. Attys., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, and POPE^* and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

The Appellant Williamson appeals from a judgment of conviction for violating 18 U.S.C.A. § 656 based on a jury verdict of guilty as to all 13 counts charged. A sentence of two years on each count was imposed, four of which are consecutive making an aggregate sentence of eight years. Reversal is sought on two grounds. The first, insufficiency of the evidence was properly preserved by appropriate motions for judgments of acquittal, F.R.Crim. P. 29(a). The second, failure of the Court to charge on accomplice's testimony, is pressed as plain error there having been neither exception nor affirmative request for a proper charge. F.R. Crim.P. 52(b). We overrule the first, but for reasons discussed, we hold as to the second that this is that exceptional case in which an error not preserved must yet be noticed since on this record a fair trial required that the jury be properly instructed on the evaluation and use of accomplice testimony. We therefore reverse.

Williams was the assistant cashier of the Brevard State Bank, an F.D.I.C. insured bank. On the Government's theory and evidence, he was accused of purposefully advancing the Bank's credit to a local automobile dealer, Mike Mackin, on the basis of automobile installment loan contracts known by both of them to be spurious. The indictment, by separate counts as to each such loan contracts charged all of the offenses in the statutory language set forth in 18 U.S.C.A. § 656 subjecting to criminal penalties a bank officer or employee who "embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits" of the bank.¹ But after such generality, each count specified that the misuse of bank funds was accomplished by 1 a spurious loan to a specified borrower-purchaser, 2 the issuance of the bank's check to the dealer and 3 a conversion of bank funds by Williamson "to his own use."²

It aids an understanding of this case to recognize at the outset that the Government's case was made entirely by the accomplice Mike Mackin. If his testimony is disregarded, there is simply no case. For example, the abundant evidence, if credited, that the particular contracts were not signed by the individuals therein named and hence were spurious,³ does not implicate Williamson, and certainly not sufficiently to withstand the severe burden of proof beyond a reasonable doubt. What, and all, that implicates Williamson under proper criminal standards, is the testimony of Mackin. This is not the case, therefore, in which the accomplice supplies significant testimony to overcome psychologically weak evidence by a categorical confession of guilt plus the inevitable finger pointed at the accused. All of this makes it important therefore to consider the Government's case inescapably advanced through the story of the accomplice and to weigh it carefully to determine whether the testimony of the accomplice was both so critical and also so suspect that the jury needed the law's traditional caveat as to its evaluation and use.

In so doing, we must keep carefully in mind the procedures followed regularly or frequently by the bank personnel including Williamson. These procedures were normal commercial actions if innocently done but were, of course, significant steps in the consummation of a crime once criminal purpose is assumed or proved. The bank was interested in developing a substantial volume in the financing of installment loans or credits. It had a number of automobile dealer customers whose installment sales paper was financed through the bank. It also apparently had a considerable volume in direct personal loans by the bank to individuals for the purpose of buying appliances, equipment, residential improvements and the like. Williamson was in charge of this department. Included in the automobile dealers was Mike Mackin.

In the Mackin transactions, the bank did not purport to make a loan to the automobile purchaser. Rather, transactions took the form of an assignment by the dealer Mackin of the installment contract to the bank.⁴ The bank handled his paper principally in one of two ways. Under one procedure, the automobile purchaser would supply credit data⁵ on a loan application form supplied by and identified with the Brevard Bank. This application form, signed by the prospective buyer, would be brought to the bank. The bank would make a credit check. Sometimes the bank would notify Mackin whereupon he would deliver the original installment sales contract⁶ signed by the buyer and assigned by Mackin. On other occasions Mackin, in anticipation of ultimate credit approval, would deliver the original signed and assigned sales contract at the same time the application form was submitted. In either event, on the receipt of the assigned sales contract, the loan would be consummated, Mackin would receive the funds by check or credit, and the automobile would be delivered to the purchaser.

A second procedure, frequently followed, had this one substantial difference. Instead of there being a loan application signed by the prospective buyer-borrower, Mackin would simply call the bank by telephone, advise them of the prospective sale and, working from a blank form at his end, give to the clerk or Williamson the credit information called for by the form. Working with an unsigned application, the bank would then make a credit check. If the application was approved, Mackin would be notified and on the receipt by the bank of a properly signed sales contract assigned by Mackin, the bank would advance its credit. Under this procedure, the automobile purchaser would sign only the installment sales contract. More important, the handwriting or handprinting of the loan application would inescapably be that of Williamson or one of his clerical assistants.

It rounds out the picture to state that on final consummation, the bank took the following steps. From the gross amount of the credit to be advanced, it first deducted any insurance or other closing costs. It then deducted a stated percentage amount which was deposited to Mackin's dealer reserve account. This was a cumulative account to protect the bank against losses from defaults on the part of any of the borrower-purchasers. The net balance was then made available to Mackin in one of two ways. The most usual one was for his general account to be credited with the net proceeds thereby subjecting them to his unlimited checking and withdrawals. Occasionally, but apparently very infrequently, the bank would issue its check to Mackin.⁷

We come then to Mackin's part in this situation and as a witness on the trial. He was a sportscar dealer selling Triumph sportcars. The Brevard Bank had been floor-planning the acquisition of his cars from the manufacturer-distributor. The bank had also been presumably handling much of his sales contract paper. In any event, there were a number of transactions between Mackin and the bank involving the extension of large credits. According to Mackin's version, Williamson became greatly disturbed about a $13,000 overdraft in Mackin's account. Mackin fixed this as April 1961, but it is quite plain that this had to be in 1960 since all of the count transactions precipitated, so he said, by this incident took place prior to January 23, 1961 (see note 3, supra). The overdrafts were, on Mackin's story, represented by specific checks which Williamson had in a little black box. In the course of this discussion, Mackin insisted he had no other course of credit to make good the losses. Mackin testified that at this point Williamson suggested a fantastic scheme of Mackin taking a lonesome boat ride from which he apparently would never return thus setting in train recovery from a large double indemnity accident policy which Mackin would then take out. As Mackin tells it, when this seemed not to be too plausible, the two of them hit upon this scheme of spurious installment sales contracts. Under it, Williamson or Mackin, or both, would select, as needed, the names of automobile purchase prospects whose credit presumably would pass muster at the bank. With the name selected, Mackin would then initiate the routine of loan applications, bank credit inquiry, bank approval, delivery of signed installment sales contracts with Mackin's assignment followed by the bank crediting his account for the net proceeds. Mackin's testimony concerning two other incidents in this whole matter warrants some specific mention. Mackin stated that at one time Williamson called to tell him that Frisbee, executive vice president of the bank, was very upset and for him to come to the bank for a conference which he did. At the bank, he and Williamson conferred with Frisbee. According to Mackin, Frisbee stated that he had information which raised many questions about the November 21, 1960, Skinfill contract, see count 23, note 3, supra. Mackin says that Frisbee finally came out and asked Mackin whether the contract was spurious, and that Mackin admitted that it was. Frisbee asked if there were any others, and, according to Mackin, Williamson then volunteered that there were two or three others which Mackin named. Frisbee then demanded that Mackin pay up the Skinfill contract within 24 hours (which was done). Mackin further testified that despite this ultimatum, Frisbee in effect told him not to worry, that he should be patient and "just trust your banker." The other aspect involves the alleged payment of $1,500 and $1,000 in cash to...