United States v. Anita G. Whitlock

663 F.2d 1094, 214 U.S. App. D.C. 151, 1980 U.S. App. LEXIS 11746

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 4, 1980
• Docket: 78-1305
• Status: Published

Opinions

PER CURIAM:

Judge Robinson files an opinion in Parts I and IV of which Judges MacKinnon and Robb concur. Judge MacKinnon files an opinion in which Judge Robb concurs. Thus, Parts I and IV of Judge Robinson’s opinion together with Judge MacKinnon’s opinion constitute the opinion of the court. The order of the District Court appealed from herein is affirmed.

So Ordered.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

After a bench trial, appellant was convicted in the District Court of embezzling $85,000 from the DuPont Circle Branch of Riggs National Bank in purported violation of 18 U.S.C. § 656.¹ Acknowledging the theft, she contends that the court should have entered sua sponte a judgment of acquittal on the ground that the evidence did not demonstrate that she had prior lawful possession of the money, as was required to establish the crime of embezzlement.² Alternatively, she argues that the Government failed to prove that she was mentally responsible when she appropriated the $85,-000³ and, less expansively, that the court erred in ordering her commitment for a pretrial psychiatric evaluation and in receiving in evidence statements she allegedly made during the course of examinations therefor.⁴

I believe the District Court’s disposition should be sustained with the exception of the specification of the Section 656 offense.⁵ I would reverse the conviction of embezzlement and remand the case with instructions to enter a judgment convicting appellant of willful misapplication of bank funds under that section, unless the District Court were to determine that a new trial should be granted in the interest of justice. My colleagues, however, uphold the conviction in all respects.

The factual background of the case is set forth in Part I of this opinion. The claims raised by appellant with respect to the Fifth Amendment and the sufficiency of the evidence — concerning which we are all agreed — are discussed in Part IV. Judge MacKinnon’s opinion delineates the view of the court with respect to the affirmance of the conviction of embezzlement, a matter upon which I state my views in Parts II and III hereof.

I

On the morning of August 11, 1977, Terrence A. Burkett, head teller of Riggs’ DuPont Circle Branch, noticed the apparent absence of bundles of currency from the branch’s cash reserve vault. He then notified other employees, and an audit revealed that $85,000 was missing.⁶ Naturally enough, the ensuing investigation focused immediately upon those with access to the vault.

The door of the vault could be opened only by use of a combination and a key.⁷ Only Burkett had memorized the combination, only bank officers — including appellant⁸ — held keys; cash was to be put into or removed from the vault by Burkett and an officer together.⁹ Officers could, however, obtain a copy of the combination from a staple-sealed envelope in the bank manager’s vault in the event that Burkett was unavailable when cash was needed.¹⁰ After a week of probing, bank security personnel had uncovered unusual financial transactions in the personal accounts maintained at Riggs by three of the officers, including appellant.¹¹ Resultantly, Melvin L. Chris-man, senior vice president of the bank, conferred with appellant and asked her to elucidate the activity in her accounts, including two recent deposits rather sizable in amount.¹² She tendered an explanation, but about an hour later telephoned Chris-man and requested him to set up a meeting with the chairman of the board to discuss the missing money.¹³ At this meeting and at -a subsequent one with an agent of the Federal Bureau of Investigation, appellant voluntarily admitted that she had taken the $85,000¹⁴ and described in detail how she had accomplished the theft. Approximately two weeks before August 4, she procured from the branch manager’s vault the envelope containing the combination to the cash reserve vault. She then unsealed the envelope, obtained the combination, resealed the envelope and returned it to the manager’s vault.¹⁵ Between then and August 4 she entered the cash reserve vault three or four times by using the combination and her key, but did not appropriate any funds on those occasions because she could not “work up the nerve to take the money.” ¹⁶ Finally, on August 4 she gathered the $85,000, put it in a clothing bag and took the bag back to her desk before leaving for the evening.¹⁷

At trial, appellant did not undertake to retract or dispute this version of the affair, but sought instead to establish a defense of mental incapacity. Several lay witnesses, including four of her co-workers, testified that during the summer of 1977 she underwent a noticeable change of character; she became untypically short-tempered, easily upset and unusually critical of her subordinates, and sometimes seemed forgetful and nervous.¹⁸ Additionally, Dr. Marshall deG. Ruffin, who had served as appellant’s treating psychiatrist for sixteen years, testified that in 1964 he had diagnosed her condition as manicdepressive,¹⁹ a severe mental illness characterized by cyclical mood-swings from depression to elation. Dr. Ruffin avowed that appellant, at the time she took the $85,000 knew that her action was wrong but that as a result of her illness she lacked substantial capacity to conform her behavior to the law.²⁰ This conclusion was based on Dr. Ruffin’s observations of appellant during an office visit on August 9 when appellant told him that she had pilfered the money, and during a telephone conversation on August 13 when he urged her to return it.²¹

Three members of the staff of Saint Elizabeth’s Hospital testified in rebuttal for the Government. On the basis of a court-ordered mental examination of appellant in November, 1977, they concluded that she suffered from an hysterical personality and a depressive neurosis, but that these maladies did not deprive her of substantial capacity to appreciate the wrongfulness of the theft or to square her conduct with legal requirements.²²

II

Appellant was indicted, tried and convicted on the specific charge of embezzling bank funds in contravention of Section 656.²³ She now insists that the conviction must be set wholly for naught because, she says, the Government did not show that the bank had ever confided the $85,000 to her care.²⁴ The Government argues that the evidence portrays her stewardship of the stolen money sufficiently to make out embezzlement. Although the Court agrees with the Government, my view does not coincide completely with either of these positions.

Embezzlement, as an offense, did not exist at common law; ²⁵ consequently, the exact composition of its ingredients depends ultimately upon the statute giving it birth.²⁶ A seemingly invariable prerequisite of embezzlement statutes is that the accused have received or held the subject property in some particular character before he usurped it. Put another way, embezzlement has become a word of settled technical meaning,²⁷ connoting that the accused was previously entrusted with possession— either actual or constructive — of the property.²⁸ I discern nothing in the text of Section 656 rendering the word “embezzlement” ambiguous on this score, or suggesting that Congress envisioned for it anything other than its common meaning.²⁹ So pervasive in the concept of embezzlement is the need for some type of prior lawful possession ³⁰ that the unmodified use of the word in Section 656 constrains me to conclude that it demands a relationship featuring no less.³¹

With this construction of the statutory language, I share appellant’s view that the Government’s proof cannot support a conviction of embezzlement. The record is devoid of evidence indicating that appellant’s function as a bank officer extended to any type of possession of cash in the reserve vault. Her assigned domain was the branch’s note department, and from all that appears neither she nor the employees whom she supervised had any need for reserve-vault cash in the performance of their duties. To be sure, appellant had a key to the vault door and access to the combination, but their use was authorized only for admission of Burkett and other tellers when they themselves ran low on cash.³² Appellant thus cannot be deemed to have been entrusted with the missing funds in such a way as to justify a conviction for embezzlement. Mere ability to perpetrate a theft of bank funds is not the possession that embezzlement inexorably demands.³³

Our inquiry does not halt here, however, for Section 656 also makes punishable other kinds of misappropriation of protected bank funds. By its very terms, the section is transgressed not only when a national bank officer ³⁴ “embezzles” but also when he “abstracts, purloins or willfully misapplies any of the [bank’s] moneys [or] funds....”³⁵ Notwithstanding the incapability of the evidence to establish embezzlement, the uncontradicted proof of appellant’s misdeed established beyond peradventure a willful misapplication of bank funds, and thus an offense necessarily included within the embezzlement charged.

The fundamental difference between embezzlement and willful misapplication under Section 656 has long been recognized. While embezzlement contemplates only the situation wherein the officer has lawful possession of the funds before misappropriating them,³⁶ no such prior relationship is needed when the charge is willful misapplication.³⁷ Nearly a century ago in United States v. Northway ■³⁸ the Supreme Court addressed the nearly identical language of Section 656’s statutory predecessor and flatly held that “[a] wilful and criminal misapplication of the funds of the [bank] may be made by an officer or agent of the bank without having previously received them into his manual possession.”³⁹ Said the Court,

if ... it be necessary to the commission of the offence of wilfully misapplying the funds of the bank that they should have come previously into the possession of the defendant in his official capacity, so that he could be said to have been intrusted with their possession, all distinction between the offences of wilfully misapplying the funds and of embezzlement would disappear. But it is evidently the intention of the statute not to use the words “embezzle” and “wilfully misapply” as synonymous. In order to misapply the funds of the bank it is not necessary that the officer charged should be in actual possession of them by virtue of a trust committed to him. He may abstract them from the other funds of the bank unlawfully, and afterwards criminally misapply them, or by virtue of his official relation to the bank, he may have such control, direction, and power of management as to direct an application of the funds in such a manner and under such circumstances as to constitute the offence of wilful misapplication.⁴⁰

The implication of Northway and its progeny ⁴¹ for the instant litigation is readily apparent. “Misapplication” in Section 656 covers activities not necessarily amounting to “embezzlement.” ⁴² Though the Government’s case is deficient when the proof is measured solely by the requirements of embezzlement, it is manifest that the evidence disclosed a willful and fraudulent misapplication of the $85,000 within the ambit of Section 656.⁴³ Using North-way’s description of the offense of misapplication, appellant “abstract[ed] [the money] from the other funds of the bank unlawfully, and afterwards criminally misapplied] them . ...”⁴⁴ It follows that appellant’s conviction must be sustained if, notwithstanding that the charge of the indictment was embezzlement under that section, the conviction may nevertheless be properly bottomed upon misapplication, which the section equally proscribes and punishes. To that question I now turn.

Ill

For unassailable reasons, an accused may not be convicted of a crime with which he has not been charged.⁴⁵ The Fifth Amendment bars prosecution of civilians for infamous offenses save by indictment or presentment of a grand jury.⁴⁶ The Sixth Amendment requires notification of the nature and cause of the accusation, whether felony or misdemeanor, to enable the accused to prepare his defense.⁴⁷ The indictment not only serves this notice function ⁴⁸ but also safeguards against oppression by the prosecutor ⁴⁹ and against future jeopardy for the same offense.⁵⁰

This does not mean, however, that a conviction must always be limited to the highest crime described in the indictment. Criminal Rule 31(c) provides, inter alia, that the accused “may be found guilty of an offense necessarily included in the offense charged.” ⁵¹ This provision is but a restatement of prior law⁵² rooted in a practice developed at common law to assist the prosecution when its proof of some element of the crime charged fell short.⁵³ At the core of the doctrine is the precept that the indictment charging the higher offense adequately notifies the accused that he may be called upon to defend against the included offense as well.⁵⁴

This ability to enter a conviction of a necessarily-included offense is not confined solely to trial courts and juries. Federal appellate courts are statutorily authorized to “modify . .. any judgment ... of a court lawfully brought before it for review, and [to] remand the cause and direct the entry of such appropriate judgment ... as may be just under the circumstances.” ⁵⁵ It is well settled that upon review of a conviction for insufficiency of the evidence to sustain some element of the offense charged, the court is empowered to reduce the conviction to a necessarily-included crime when all elements thereof draw ample support from the evidence and the modification poses no prejudice to the accused.⁵⁶ And I am satisfied that a national bank officer’s willful misapplication of bank funds is a necessarily-included offense of embezzlement of such funds, and that appellant’s conviction can stand on that basis.

A necessarily-included offense is one perforce established by proof of another offense having added components.⁵⁷ The indispensable characteristic of the included offense is that all of its essential elements are among the more numerous elements of the other offense.⁵⁸ That clearly is the situation here. The elements of the crime of misapplication under Section 656 are (a) conversion of bank funds to the use of someone other than the bank and (b) intent to injure and defraud the bank.⁵⁹ Embezzlement under Section 656 has both of these elements and differs from misapplication only by the addition of prior lawful possession of the funds by the embezzler.⁶⁰ Because proof of embezzlement must establish both elements of misapplication, the latter falls well within the traditional concept of the necessarily-included offense.

The previous invocations of authority to affirm for included offenses have, however, involved situations in which both of the relevant offenses have had their origins in the common law,⁶¹ while embezzlement⁶² and bank-funds misapplication ⁶³ are statutory crimes. Moreover, both offenses are specified in a single statutory section lacking any hint that aside from the difference in number of elements either is a greater or lesser charge than the other; indeed, both carry the same penalty. Nonetheless, I see nothing in these circumstances to affect the case before us. In the past we have exercised our reduction powers with respect to offenses blending statutory with common law components,⁶⁴ and I see no reason to treat differently a statutory offense without any common law moorings at all.⁶⁵ Although Section 656 maintains a definitional distinction between embezzlement and misapplication,⁶⁶ there is no indication that Congress contemplated that technical considerations would prevent application of the well-entrenched doctrine of necessarily-included offenses.⁶⁷

Because misapplication is, then, an offense necessarily embraced within a charge of Section 656 embezzlement, by finding appellant guilty of embezzlement the trial judge inescapably was satisfied on the existence of the two essential elements of misapplication. Consequently, if there was enough evidence to support those elements, the failure of proof of the additional element required for embezzlement becomes wholly immaterial to the outcome. And the stark fact of the matter is that appellant did not dispute the deliberate and fraudulent conversion of funds that so plainly establish the offense of misapplication, and does not undertake to do so now.⁶⁸ Thus, though I differ with the court in that I find insufficient evidence of prior lawful possession of the $85,000, I would still uphold the Section 656 conviction — as one of misapplication rather than embezzlement — so long as there is no undue prejudice from the failure to charge her specifically with that offense.⁶⁹

The record on appeal reflects no such prejudice. The indictment for embezzlement gave clear notice of every fact the Government expected to prove, whether any resulting conviction would ultimately be for embezzlement or willful misapplication,⁷⁰ and no fact pertinent to misapplication has been contested in the least. Furthermore, the indictment, as required,⁷¹ cited Section 656 as the statutory provision assertedly violated,⁷² and that section criminalizes the proven misapplication no less than the alleged embezzlement of the $85,-000. Appellant’s primary defense at trial was that she lacked mental capacity to commit embezzlement, and there is no indication that the defense presentation would have been different had misapplication been charged.⁷³ In sum, I perceive no prejudice to appellant were we to affirm the conviction for misapplication rather than embezzlement. Nonetheless, if the court had adopted this disposition I would have preferred to follow a precautionary procedure we have established in earlier cases; ⁷⁴ I would therefore remand the case to the District Court with instructions to enter a conviction for misapplication or, instead, to grant a new trial if, from his vantage point less remote from the trial, he deemed that in the best interests of justice.⁷⁵

IV

We are in complete agreement with respect to appellant’s contention that the evidence was insufficient to establish that she was criminally responsible for the activity for which she was prosecuted. We note at the outset that this appeal presents no occasion for determining either the degree or the allocation of the burden of proof in that regard ⁷⁶ for the District Court ruled that the Government had the onus of demonstrating appellant’s mental competence beyond a reasonable doubt⁷⁷ and found that the Government had done so. We need only decide whether appellant was “so clearly and so seriously disabled” at the time she took the $85,000 that the court was “compelled to doubt [her] responsibility,” ⁷⁸ and we hold that appellant was not so disabled.

The psychologist and two psychiatrists who testified for the Government⁷⁹ stated that they had perceived no indication that appellant suffered from any serious mental illness, such as psychosis or manic-depression, which would cause her to lose touch with reality.⁸⁰ All three had discerned an abnormal condition, but uniformly they diagnosed it as an hysterical personality — a personality trait consistent with behavior described by appellant’s lay witnesses,⁸¹ and one which is much less severe than a psychosis and which would not substantially impair control of her behavior.⁸² The Government’s evidence further showed that appellant had pondered an appropriation of bank funds for approximately two months,⁸³ and that the need she felt for more money was quite normal. She wished to buy her father’s interest in the house where her mother lived so that the latter, who was in poor health, could be freed from what appellant viewed as an unhappy marriage.⁸⁴ She also wanted to pay off her own debts, which then were in excess of $21,000.⁸⁵

In preparation for the offense, appellant had taken the envelope containing the reserve-vault combination from the manager’s vault, carefully opened it, and resealed it by reinserting staples very near the location of the original staples in an obvious effort to conceal the fact that it had been tampered with.⁸⁶ Using the combination and her key, she had entered the vault on three or four occasions before she was finally able to summon enough courage to steal the $85,000.⁸⁷ After the loss of the money was discovered, she denied to the FBI agent investigating the incident that she was the culprit.⁸⁸ In addition, appellant held a responsible position with the bank during this time, and there is no indication of seriously abnormal behavior or of inability to perform her job. We believe these facts adequately support the conclusion that, as one witness put it, she “always was completely in control of the situation.” ⁸⁹

Appellant makes several pointed attacks, on the reliability of this evidence. She claims that the Government’s experts were incompetent to testify because they did not spend much time interviewing her and did not contact her treating psychiatrist; that their testimony was tainted by their alleged suspicion that she would try to deceive them into believing that she was mentally ill; that Dr. Mcllroy, one of the Government psychiatrists, was an “incredible witness” because assertedly he testified that he molded his opinions to reach the desired result; and that the lay evidence strongly contradicted the Government experts’ account. We find no merit in these claims. First, we are unwilling to hold that in order for a psychiatrist or psychologist to qualify as an expert witness he must spend some particular number of hours with the patient, or must invariably consult the patient’s private psychiatrist. An expert must, of course, have an adequate factual basis for his conclusion,⁹⁰ but we cannot say that such a basis was lacking here. Each of the Government’s experts observed appellant for an appreciable period, and together they devoted a total of approximately eight hours to interviewing her.⁹¹ Their diagnoses were predicated not only on these interviews but also on a battery of psychological tests and on ward notes made by the nursing staff during appellant’s two-week stay at the hospital.⁹² Furthermore, we deem their failure to contact appellant’s treating psychiatrist reasonable in light of the fact that each had either read the latter’s report⁹³ or had decided that a more objective evaluation would result from seeing the appellant “blind.” ⁹⁴ Appellant’s other complaints about the Government’s experts give us little pause; we have reviewed the record and find that invariably they mischaracterize the witnesses’ statements.⁹⁵ It follows that, with the experts qualified, “[t]he weight and sufficiency of [their] testimony [were] matters to be decided by the trier of fact.” ⁹⁶

Appellant also advances several contentions emanating from the District Court’s order committing her for a pretrial psychiatric evaluation and from testimony based on statements adduced from her during the examinations. The purpose of the order was to develop information bearing on her competence to stand trial and, as well, on her criminal responsibility for the taking of the $85,000.⁹⁷ Appellant argues that the court went amiss in ordering the commitment under the District of Columbia Code ⁹⁸ rather than the United States Code,⁹⁹ and further, as we understand it, that in any event the inquiry should not have extended to her mental state at the time of the offense.¹⁰⁰ She also argues that the examinations and the testimony violated her privilege against self-incrimination.

We begin by noting that none of these alleged errors was objected to in the District Court.¹⁰¹ It appears, too, that the commitment order of which appellant now so fervently complains was drafted by her trial counsel.¹⁰² Moreover, her complaint that the local statute, unlike its federal counterpart, imposes the burden of proving an insanity defense upon the accused rings hollow since the court followed the federal standard;¹⁰³ and the difference she perceives between the laws regarding psychiatric commitment if the defense is successful was negated by her conviction. Finally, appellant’s contention that her pretrial commitment should have been limited solely to an examination as to competence to stand trial overlooks the fact that federal courts have inherent power — indeed, a solemn obligation — to call for a psychiatric evaluation of criminal responsibility “in a case where it is obvious that the trial will revolve about the issue of the accused’s mental state at the time of the crime.” ¹⁰⁴ In these circumstances, we have no cause to disturb the commitment order.

Appellant also charges that the District Court erred in failing to include with that order a copy of the explanatory instruction to psychiatrists required by our Washington decision,¹⁰⁵ in failing to instruct the expert witnesses prior to rendition of their testimony,¹⁰⁶ and in admitting psychiatric testimony impermissible in scope and case in prohibited terms.¹⁰⁷ All of these contentions could readily have been addressed had appellant registered suitable objections at trial. Beyond that, no prejudice likely resulted, for appellant was tried by the court rather than by a jury, and the experts could hardly have usurped the role of the fact-finder.

Appellant’s claim that the testimony of the Government’s experts infringed her right against self-incrimination fares but little better. We recognize that some of the experts’ testimony incorporated statements by appellant regarding the manner in which she planned and committed the offense.¹⁰⁸ Had this testimony been admitted for its tendency to buttress appellant’s guilt, the self-incrimination question would generate grave concern.¹⁰⁹ But the challenged testimony was elicited solely for the purpose of supporting the experts’ conclusion that appellant was criminally responsible for her actions at the time of the offense.¹¹⁰ Furthermore, since appellant raised no issue as to guilt or innocence apart from her claim of mental illness, we detect no harm from its introduction, and certainly no plain error.¹¹¹

1 . Quoted in relevant part infra note 23. The District Court suspended imposition of sentence and placed appellant on supervised probation for three years with specific conditions, including outpatient psychiatric treatment and medication as prescribed by her physician.

2 . Discussed in Parts II, III infra.

3 . Discussed in Part IV infra.

⁴

5 . As we shall see, Part II infra, § 656 criminalizes four types of misconduct, including embezzlement and willful misapplication of the funds of certain banks.

6 . Trial Transcript (Tr.) 26-27.

7 . Tr. 18-19.

8 . Tr. 18. Appellant had the title of assistant manager and assistant cashier. Tr. 33. Functionally, she was in charge of the branch’s note department. Tr. 33-34.

9 . Tr. 18-21, 24.

10 . Tr. 19. The combination was changed whenever it became known in this manner to someone other than Burkett. Tr. 19-21.

11 . Tr. 62-63.

12 . Tr. 62-64.

13 . Tr. 66-67.

14 . Tr. 67-68, 89.

15 . Tr. 90.

16 . Tr. 91.

17 . Tr. 90. Most of the money was recovered from a bag in a closet at appellant’s home and from an account in a Maryland bank. Tr. 91, 97-99. The bank was fully reimbursed for the $85,000 taken. Tr. 117.

18 . Tr. 133, 148, 153, 163-168.

19 . Tr. 182.

20 . Tr. 204, 217, 248.

21 . Tr. 197-199.

22 . Tr. 279, 343-344, 360-361, 402.

23 . 18 U.S.C. § 656 (1976) in relevant part provides:

Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

(Emphasis supplied). Riggs’ name suggests that it is within the ambit of § 656 as a “national” rather than an “insured” bank. However that may be, § 656 defines “insured bank” as including “any bank, ... the deposits of which are insured by the Federal Deposit Insurance Corporation,” and the indictment charged and the parties stipulated that Riggs’ deposits are so insured. Consequently, one way or the other, § 656 is fully applicable to the case at bar.

24 . Appellant did not move for a judgment of acquittal in the District Court. See Fed.R. Crim.P. 29. For this reason, the Government suggests that the present contention is not properly before us. This court has said that absent such a motion the evidentiary basis for a conviction by jury is open to appellate reexamination only to prevent a manifest miscarriage of justice, United States v. Baber, 145 U.S.App.D.C. 98, 101 & n.8, 447 F.2d 1267, 1270 & n.8, cert. denied, 404 U.S. 957, 92 S.Ct. 324, 30 L.Ed.2d 274 (1971); United States v. McCray, 140 U.S.App.D.C. 67, 69 n.2, 433 F.2d 1173, 1175 n.2 (1970), and that view is widespread in the federal circuits. See 2 C. Wright, Federal Practice, § 469 (1969 & Supp. 1979) and cases cited.

In contrast, for cases — like the instant one— which are tried to the court on a plea of not guilty, the rule has been declared to be that failure to move for a judgment of acquittal does not foreclose an attack on the sufficiency of the evidence on appeal. Hall v. United States, 286 F.2d 676, 677 (5th Cir. 1960), cert. denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961); United States v. Besase, 373 F.2d 120, 121 (6th Cir. 1967); United States v. Hon, 306 F.2d 52, 54 (7th Cir. 1962); In re J.N.H., 293 A.2d 878, 880 (D.C.App.1972). That, I think, is as it should be. As the Fifth Circuit has observed, in nonjury cases “[t]he plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary.” Hall v. United States, supra, 286 F.2d at 677 (emphasis supplied). Moreover, the courts of appeals are empowered to notice “plain error or defects affecting substantial rights,” Fed.R.Crim.P. 52(b), and within that description would seem to fall “the imperative duty of a court to see that all the elements of [the accused’s] crime are proved, or at least that testimony is offered which justifies a . . . finding [on] those elements.” Clyatt v. United States, 197 U.S. 207, 222, 25 S.Ct. 429, 433, 49 L.Ed. 726, 732 (1905). Equally importantly, the Criminal Rules proclaim that “[t]he court .. . of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” Fed.R.Crim.P. 29(a) (emphasis supplied). I realize that some of these considerations arguably apply as forcefully to jury as to nonjury trials. See C. Wright, supra, § 469 at 265-268. Since, however, I am bound by recent decisions of other panels of this court, United States v. Caldwell, 178 U.S.App.D.C. 20, 56 n.19, 543 F.2d 1333, 1369 n.19 (supplemental opinion 1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), and cases cited I undertake no modification of the holding in Baber and McCray, supra. I simply say that it is inapposite in the situation here.

25 . For a discussion of the origin and evolution of embezzlement as a crime, see W. LaFave & A. Scott, Jr., Criminal Law, § 84 (1972).

26 . State v. Parker, 112 Conn. 39, 151 A. 325, 328 (1930); State v. January, 353 Mo. 324, 182 S.W.2d 323, 326 (1944).

27 . United States v. Northway, 120 U.S. 327, 334, 7 S.Ct. 580, 584, 30 L.Ed. 664, 666 (1887); Williamson v. United States, 332 F.2d 123, 133 & n.15 (5th Cir. 1964); Williams v. United States, 275 F. 129, 135 (9th Cir. 1921).

28 . Moore v. United States, 160 U.S. 268, 269-270, 16 S.Ct. 294, 295, 40 L.Ed. 422, 424 (1895); Rohde v. United States, 34 App.D.C. 249, 253 (1910); Colella v. United States, 360 F.2d 792, 799-800 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); United States v. Sayklay, 542 F.2d 942, 944 (5th Cir. 1976).

29 . See United States v. Northway, supra note 27, 120 U.S. at 334, 7 S.Ct. at 584, 30 L.Ed. at 666; United States v. Kehoe, 365 F.Supp. 920, 922-924 (S.D.Tex.1973).

30 . Moore v. United States, supra note 28, 160 U.S. at 269-270, 16 S.Ct. at 295, 40 L.Ed. at 424; Arbuckle v. United States, 79 U.S.App.D.C. 282, 283, 146 F.2d 657, 658 (1944); Talbert v. United States, 42 App.D.C. 1, 14-15, cert. denied, 234 U.S. 762, 34 S.Ct. 997, 58 L.Ed. 1581 (1914); Rohde v. United States, supra note 28, 34 App.D.C. at 253.

31 . Accord, United States v. Sayklay, supra note 28; United States v. Breese, 173 F. 402, 405-406 (C.C.W.D.N.C. 1909); United States v. Harper, 33 F. 471, 474 — 476 (C.C.S.D.Ohio 1887); United States v. Orbiz, 358 F.Supp. 200, 202-203 (D.P.R.1973). See also United States v. Northway, supra note 27, 120 U.S. at 334, 7 S.Ct. at 584, 30 L.Ed. at 666.

32 . My colleagues criticize my position on the ground that I would insist upon actual possession as an essential element of embezzlement. See opinion of Judge MacKinnon. On the contrary, I recognize that constructive possession may suffice. My point is that appellant did not have any lawful possession whatever of money in the reserve vault, but only the means of access thereto.

33 . Government of Virgin Islands v. Leonard, 548 F.2d 478, 480-481 (3d Cir. 1977); United States v. Sayklay, supra note 28, 542 F.2d at 944.

34 . The prohibitions of § 656 extend, of course, to institutions other than national banks, and to personnel other than officers. See note 23 supra.

35 . See note 23 supra.

36 . See cases cited supra notes 28-31 and accompanying text.

37 . United States v. Northway, supra note 27, 120 U.S. at 334, 7 S.Ct. at 584, 30 L.Ed. at 666; United States v. Reece, 280 F. 913, 916 (D. Idaho 1922); United States v. Fish, 24 F. 585, 591 (C.C.S.D.N.Y. 1885); United States v. Breese, supra note 31, 173 F. at 406; United States v. Harper, supra note 31, 33 F. at 477-479. See Evans v. United States, 153 U.S. 584, 589-590, 14 S.Ct. 934, 937, 38 L.Ed. 830, 832 (1894).

38 . Supra note 27.

39 . 120 U.S. at 331-332, 7 S.Ct. at 583, 30 L.Ed. at 665.

40 . Id. at 332, 7 S.Ct. at 583, 30 L.Ed. at 665-666.

41 . See cases cited supra note 37.

42 . Williamson v. United States, supra note 27, 332 F.2d at 133 n.15.

43 . In this view, it is not necessary to consider whether appellant’s conduct amounted to an “abstraction]” or “purloining]” within the meaning of § 656. See generally, United States v. Northway, supra note 27, 120 U.S. at 334-336, 7 S.Ct. at 584-585, 30 L.Ed. at 666-667.

44 . See text supra at note 40.

45 . Albrecht v. United States, 273 U.S. 1, 8, 47 S.Ct. 250, 252, 71 L.Ed. 505, 509 (1927); Jackson v. United States, 123 U.S.App.D.C. 276, 278, 359 F.2d 260, 262, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966); Spence v. Dowd, 145 F.2d 451, 453 (7th Cir. 1944).

46 . “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger....” U.S. Const., amend. 5.

47 . “In all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation....” U.S. Const., amend. 6.

48 . United States v. Haldeman, 181 U.S.App.D.C. 254, 346, 559 F.2d 31, 123 (en banc 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Gaither v. United States, 134 U.S.App.D.C. 154, 164-165, 413 F.2d 1061, 1071-1072 (1969); Pino v. United States, 125 U.S.App.D.C. 225, 227-228, 370 F.2d 247, 249-250 (1966), cert. denied, 387 U.S. 922, 87 S.Ct. 2038, 18 L.Ed.2d 977 (1967); United States v. Radowitz, 507 F.2d 109, 111-112 (3d Cir. 1974).

49 . United States v. Dionisio, 410 U.S. 1, 16, 17 & n.15, 93 S.Ct. 764, 773 & n.15, 35 L.Ed.2d 67, 81 & n.15 (1973); Stirone v. United States, 361 U.S. 212, 218 & n.3, 80 S.Ct. 270, 273 & n.3, 4 L.Ed.2d 252, 257 & n.3 (1960); Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041, 1048 (1959); United States v. Radowitz, supra note 48, 507 F.2d at 112.

50 . Gaither v. United States, supra note 48, 134 U.S.App.D.C. at 165, 413 F.2d at 1072; United States v. Seeger, 303 F.2d 478, 482 (2d Cir. 1962); United States v. Radowitz, supra note 48, 507 F.2d at 112; Van Liew v. United States, 321 F.2d 664, 669 (5th Cir. 1963).

51 . “The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.” Fed.R.Crim.P. 31(c).

52 . Berra v. United States, 351 U.S. 131, 134-135 & n.6, 76 S.Ct. 685, 688 & n.6, 100 L.Ed. 1013, 1018 & n.6 (1956).

53 . Austin v. United States, 127 U.S.App.D.C. 180, 191-193, 382 F.2d 129, 140-142 (1967); Kelly v. United States, 125 U.S.App.D.C. 205, 207, 370 F.2d 227, 229 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).

54 . Walker v. United States, 135 U.S.App.D.C. 280, 283, 418 F.2d 1116, 1119 (1969); Fuller v. United States, 132 U.S.App.D.C. 264, 294-295, 407 F.2d 1199, 1229-1230 (en banc 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

55 . “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106 (1976).

56 . United States v. Bryant, 137 U.S.App.D.C. 124, 132-133, 420 F.2d 1327, 1335-1336 (1969), rev’d on other grounds, U.S. v. Gray, 155 U.S.App.D.C. 275, 477 F.2d 444 (1977); Allison v. United States, 133 U.S.App.D.C. 159, 164-165, 409 F.2d 445, 450-451 (1969), rev’d on other grounds, U.S. v. Gray, 155 U.S.App.D.C. 275, 477 F.2d 444 (1977); Fuller v. United States, supra note 54, 132 U.S.App.D.C. at 293 & n.29, 407 F.2d at 1228 & n.29; Austin v. United States, supra note 53, 127 U.S.App.D.C. at 191-193, 382 F.2d at 140-142.

The authority of a federal appellate court to reduce a conviction to a necessarily-included crime is not disturbed by the Supreme Court’s recent decision in Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Although the Court there stated that “appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial,” id. at 107, 99 S.Ct. at 2194, 60 L.Ed.2d at 751, the circumstances of that case differ in significant respects from the situation that confronts us here. In Dunn, the court of appeals had affirmed a conviction by reference to facts which had been adduced at trial but which had not constituted any part of the foundation for the original conviction and had not been charged in the indictment. This clearly violated the constitutional guaranties underlying the rule that a defendant can be convicted only of an offense for which he has been tried. Id. at 106, 99 S.Ct. at 2194, 60 L.Ed.2d at 750-751. In reversing, the Supreme Court relied on earlier cases which likewise emphasized that an accused may not be charged with one offense but convicted by an appellate court of a separate and distinct offense, comprised of different elements or based on different facts, id.; see Eaton v. City of Tulsa, 415 U.S. 697, 698-699, 94 S.Ct. 1228, 1229-1230, 39 L.Ed.2d 693, 695-696 (1974); Cole v. Arkansas, 333 U.S. 196, 200-201, 68 S.Ct. 514, 516-517, 92 L.Ed. 644, 647-648 (1948) — holdings premised on the requirement that the accused receive notice of the charge against him so that he may defend against it. Id. at 201, 68 S.Ct. at 517, 92 L.Ed. at 647. In contrast, a conviction of a necessarily-included offense is permitted precisely because the original indictment provides such notice, and because the included offense is part of, and neither separate nor distinct from, the crime as charged. See notes 43-52 supra and accompanying text. Moreover, the facts that would establish a conviction of the included offense by definition will embrace all facts warranting a finding of guilt on the included offense. See notes 57-60 infra and accompanying text. Consequently, Dunn and its predecessors do not limit this well established doctrine.

57 . Perhaps much more frequently, courts refer to this offense as a “lesser-included offense,” and so it usually is. Ordinarily, that offense has not only a larger number of elements but also a greater maximum penalty. Here, however, while embezzlement does indeed have more elements, misapplication is of exactly the same grade as embezzlement and is punishable just as severely. - See note 23 supra. To avoid any possible misimpression, we refer to misapplication as a “necessarily-” rather than a “lesser-included offense.” This does not herald any departure from the well settled principles comprising this branch of criminal procedure, for the doctrine of lesser-included offenses is best typified by the offense necessarily included as a matter of law. See 8A J. Moore, Federal Practice (| 31.03 [2] (1978 rev.).

58 . Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882, 887-888 (1965); Berra v. United States, supra note 52, 351 U.S. at 134, 76 S.Ct. at 688, 100 L.Ed. at 1018; Stevenson v. United States, 162 U.S. 313, 315, 16 S.Ct. 839, 840, 40 L.Ed. 980, 981 (1896); United States v. Whitaker, 144 U.S.App.D.C. 344, 347, 447 F.2d 314, 317 (1971); Fuller v. United States, supra note 54, 132 U.S.App.D.C. at 293, 407 F.2d at 1228.

59 . United States v. Heinze, 218 U.S. 532, 540-544, 31 S.Ct. 98, 100-102, 54 L.Ed. 1139, 1143-1144 (1910); United States v. Northway, supra note 27, 120 U.S. at 332, 7 S.Ct. at 583, 30 L.Ed. at 665-666; Bishop v. United States, 16 F.2d 410, 412 (8th Cir. 1926), modified in other respects, 19 F.2d 224 (8th Cir. 1927).

60 . United States v. Northway, supra note 27, 120 U.S. at 332, 7 S.Ct. at 583, 30 L.Ed. at 665-666; Jewett v. United States, 100 F. 832, 840 (1st Cir.), cert. denied, 179 U.S. 683, 21 S.Ct. 916, 45 L.Ed. 385 (1900); United States v. Youtsey, 91 F. 864, 867 (C.C.D.Ky.1898).

61 . As a conspicuous example, we have reduced a conviction of assault with intent to commit rape to one of assault. United States v. Bryant, supra note 56, 137 U.S.App.D.C. at 132-133, 420 F.2d at 1335-1336. See also Walker v. United States, 135 U.S.App.D.C. 280, 283-284, 418 F.2d 1116, 1119-1120 (1969) (robbery necessarily includes larceny); Joyner v. United States, 116 U.S.App.D.C. 76, 77, 320 F.2d 798, 799 (1963) (robbery charged as a taking by force and violence necessarily includes assault with intent to rob); Lamore v. United States, 78 U.S.App.D.C. 12, 136 F.2d 766 (1943) (robbery necessarily includes larceny). In none of these cases, however, did the court rely on the common law origin of any of the crimes.

62 : See notes 25-26 supra and accompanying text.

⁶³

64 . United States v. Melton, 160 U.S.App.D.C. 252, 264, 491 F.2d 45, 57 (1973) (order on rehearing) (reducing conviction of burglary under D.C.Code § 22-1801 (1973) to conviction of unlawful entry under § 22-3102); see United States v. Thomas, 144 U.S.App.D.C. 44, 49, 444 F.2d 919, 924 (1971) (suggesting that conviction of first degree burglary under D.C.Code § 22-1801(a) (1973) could under proper circumstances be reduced to conviction of lesser included offenses of second degree burglary under § 22-1801(b) or unlawful entry under § 22-3102). In prosecutions charging murder, degrees of which were unknown to the common law, e. g.. Bishop v. United States, 71 App.D.C. , 107 F.2d 297, 301 (1939), we have reduced first degree to second degree. Hemphill v. United States, 131 U.S.App.D.C. 46, 50, 402 F.2d 187, 191 (1968); Austin v. United States, supra note 53, 127 U.S.App.D.C. at 191— 194, 382 F.2d at 140-143. See also Fuller v. United States, supra note 54, 132 U.S.App.D.C. at 292-297, 407 F.2d at 1227-1232.

65 . See Allison v. United States, supra note 56, 133 U.S.App.D.C. at 164-166, 409 F.2d at 450-452 (reduction of conviction of assault with intent to commit carnal knowledge to one of taking indecent liberties with a minor child); United States v. Industrial Laboratories Co., 456 F.2d 908, 911-912 (10th Cir. 1972) (reducing conviction of the felony of introducing an adulterated drug into interstate commerce with intent to defraud or mislead to the misdemean- or of introducing an adulterated drug into interstate commerce without such intent, both violations of 21 U.S.C. § 331(a) (1976)).

66 . See United States v. Northway, supra note 27, 120 U.S. at 332, 7 S.Ct. at 583, 30 L.Ed. at 665-666.

67 . I am aware of the disposition made in United States v. Sayklay, supra note 28. There the court reversed a conviction for embezzlement, resting on facts clearly demonstrating guilt of willful misapplication of bank funds, because the prosecution failed to show prior lawful possession. The court, correctly in my view, observed that its action was compelled because Congress chose to carry forward the distinction between the two crimes. 542 F.2d at 944. The court did not, however, consider the possibility of reducing the conviction to misapplication as a lesser-included offense.

68 . See Brief for Appellant at 2-3, 18.

69 . See cases cited supra note 56.

70 . The indictment read:

On or about August 4, 1977, within the District of Columbia, ANITA G. WHITLOCK, being an officer and employee of the Riggs National Bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, with intent to injure and defraud said bank, wilfully and knowingly did embezzle and convert to her own use the sum of $85,000.00 of the moneys and funds of such bank. (Violation of Title 18, U.S. Code, Section 656).

71 . Fed.R.Crim.P. 7(c)(1) provides in relevant part that “[t]he indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.”

72 . See note 70 supra.

73 . Compare Allison v. United States, supra note 56, 133 U.S.App.D.C. at 165, 409 F.2d at 451 with Austin v. United States, supra note 53, 127 U.S.App.D.C. at 194, 382 F.2d at 143.

74 . See Allison v. United States, supra note 56, 133 U.S.App.D.C. at 165-166, 409 F.2d at 451-452; Austin v. United States, supra note 53, 127 U.S.App.D.C. at 193-194, 382 F.2d at 142-143.

75 . As will now appear, Part IV infra, appellant’s remaining grievances do not warrant reversal.

76 . In earlier cases we expressly reserved decision on the question whether imposing on the defendant the burden of establishing his insanity defense to federal criminal charges constitutes a denial of the equal protection of the laws. See United States v. Caldwell, supra note 24, 178 U.S.App.D.C. at 52-54, 543 F.2d at 1365-1367; United States v. Greene, 160 U.S.App.D.C. 21, 29, 489 F.2d 1145, 1153 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974); United States v. Brawner, 153 U.S.App.D.C. 1, 28, 471 F.2d 969, 996 (en banc 1972). Once again, we need not address this issue. See text infra at note 77.

77 . Tr. 5-13.

78 . United States v. Green, 150 U.S.App.D.C. 222, 225, 463 F.2d 1313, 1315 (1972), quoting United States v. Eichberg, 142 U.S.App.D.C. 110, 111, 439 F.2d 620, 621 (1971).

79 . See text supra at note 22.

80 . Tr. 286, 338, 399.

81 . See note 18 supra and accompanying text.

82 . Tr. 279-280, 343, 399.

83 . Tr. 283.

84 . Tr. 282, 351-352.

85 . Tr. 91-93, 426^27.

86 . Tr. 79-80, 90.

87 . Tr. 90-91. Dr. Richard Ratner, a psychiatrist at St. Elizabeths Hospital who testified for the Government, suggested that these trips to the vault were actually “dry runs” during which appellant planned her strategy so that she could remove the money without being caught. Tr. 283.

88 . Tr. 57.

89 . Tr. 357 (testimony of Dr. Richard Mcllroy).

90 . See Fed.R.Evid. 602, 701, 703.

91 . Tr. 278-279, 310-311, 335, 387, 393.

92 . Tr. 278, 359-360.

93 . Tr. 285, 353-354.

94 . Tr. 389-390.

95 . For example, appellant asserts that “Dr. Ratner,” one of the Government experts, “testified that an integral part of his reasoning as a forensic psychiatrist was a suspicion of his clients, based on embarrassment at his own naivete, or simple paranoia about the machinations of clients who ‘pride themselves on the ability to fool psychiatrists into thinking they are mentally ill.’ ” Brief for Appellant at 38. In fact, Dr. Ratner’s statement about patients who attempt to mislead psychiatrists was made in explanation of why he believed his forensic experience would give him greater diagnostic ability than that of a practicing psychiatrist, even one who had been such for a greater period of time. He explained that “[p]sychiatrists who don’t have a lot of experience in the forensic area tend to be more or less taking a person at his word, taking what a person tells him at face value,” Tr. 325, whereas, with the additional expertise involved in forensic psychiatry, “[o]ne tends less to rely on the dynamics as we perceive them in an individual and have to rely more on what is observable.” Tr. 326.

96 . United States v. Green, supra note 78, 150 U.S.App.D.C. at 225, 463 F.2d at 1316.

97 . United States v. Whitlock, Crim. No. 77-646 (D.D.C.) (order of Nov. 4, 1977).

98 . D.C.Code 24-301 (1973).

99 . 18 U.S.C. § 4244 (1976).

100 . Brief for Appellant at 48-49. Neither statute expressly provides for more than examinations probing competence to stand trial. The commitment order, in going beyond, followed a longstanding practice in this circuit predicated upon the court’s inherent powers in this area. See Williams v. United States, 102 U.S.App.D.C. 51, 55-56, 250 F.2d 19, 23-24 (1957); see text infra at note 104.

101 . See Fed.R.Crim.P. 51.

102 . Transcript of Proceedings, Nov. 1, 1977, at 3-4;

THE COURT: All right — counsel will prepare an order.

[GOVERNMENT COUNSEL]: I have no objection to that, Your Honor.

[DEFENSE COUNSEL]: Fine — I will be glad to do that Your Honor. . . .

103 . See notes 74-75 supra and accompanying text.

104 . Winn v. United States, 106 U.S.App.D.C. 133, 135, 270 F.2d 326, 328 (1959), cert. denied, 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed.2d 812 (1961).

105 . Washington v. United States, 129 U.S.App.D.C. 29, 41—42, 390 F.2d 444, 455-456 (1967).

106 . See id. at 43, 390 F.2d at 457.

107 . See id. at 41-42, 390 F.2d at 455-456.

108 . E. g., Tr. 282-284.

109 . See United States v. Reifsteck, 535 F.2d 1030, 1034 n.2 (8th Cir. 1976).

110 . See, e. g., Tr. 302, where Dr. Ratner stated that appellant’s “methodical” execution of “a detailed and successful plan to break the law” is inconsistent with a conclusion that she acted from an irresistible impulse.

111 . Concomitantly, appellant complains that the District Court entered a judgment of conviction without at any time enunciating the principles by which criminal responsibility is properly to be assessed. We find no fault in this regard. It is readily apparent from the record that the court was familiar with the standard which we formulated in United States v. Brawner, supra note 76. The court employed that standard both in its instructions to the psychiatric staff at Saint Elizabeth’s Hospital upon committing appellant to that institution, United States v. Whitlock, Crim. No. 77-646 (D.D.C.) (order of Nov. 4, 1977), and in its instructions to Dr. Ruffin, the psychiatrist who testified on behalf of appellant, Tr. 177. Apparently there was no disagreement between counsel for the Government and for appellant over the test for criminal responsibility, and consequently no need for either to request a specific ruling on the yardstick applicable. In the absence of such a request and in light of clear indications that the court was fully conversant with the applicable law, we cannot say that it plainly erred.