United States v. Nelson Bell

678 F.2d 547, 1982 U.S. App. LEXIS 18818

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 1, 1982
• Docket: 79-5741
• Status: Published

Opinions

VANCE, Circuit Judge:

Nelson Bell was convicted under 18 U.S.C. § 2113(b) and sentenced to imprisonment for one year. He appealed, contending that the evidence was insufficient to support the jury finding that he took or carried away money from a savings and loan association with the intent to steal or purloin. A divided panel of this court reversed. United States v. Bell, 649 F.2d 281 (5th Cir. 1981). Sitting en banc we now affirm Bell’s conviction.

On October 13, 1978 Lawrence and Elaine Rogovin mailed a $10,000 check from Cincinnati, Ohio to their investment agent in Miami, Florida. The check was made payable to the Rogovins, and had the following limited endorsement on the back: “Deposit only to the account of Lawrence and Elaine G. Rogovin at Dade Federal Savings & Loan, Account No. 02-1-159976-0.” The agent never received the check.

On October 17 Nelson Bell opened an account at a branch of Dade Federal and was assigned account number 03-1-081526-6. He used his own name, but gave a false address, birth date and social security number. Later that day he deposited the Rogo-vins’ check to account number 03-1-081526-6 at another branch of Dade Federal. The evidence does not show how Bell, who was unknown to the Rogovins, obtained the check. It does show, however, that he was not authorized to deposit or cash the Rogovins’ check. At the time of deposit the original account number in the endorsement had been scratched out and Bell’s new account number had been added. Dade Federal inexplicably accepted the obviously altered check, guaranteed the endorsement and processed it for payment. After a twenty day holding period the check had cleared. The amount of the deposited check, which had been credited to Bell’s account, then became available for withdrawal. On the twenty-first day, before the Rogovins discovered the loss of the check, Bell withdrew the $10,000 in cash and closed the account.

Bell was convicted under the federal bank robbery statute, 18 U.S.C. § 2113(b), which provides:

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both ....

Bell contends that the taking of the $10,000 was not within the statute because it did not constitute common law larceny, a specific intent crime requiring a trespassory taking. The question whether a nontrespassory taking is within the federal statute was treated at some length in Thaggard v. United States, 354 F.2d 735 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). We reaffirm this court’s conclusion in Thaggard that the term “steal,” as used in 18 U.S.C. § 2113(b), embraces “all felonious takings . . . with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” Id. at 737 (quoting United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 430 (1957)).¹ Bell’s conduct, which involved taking by means of deceit or false pretenses, can therefore be reached by the federal bank robbery statute.

Bell also argues that the evidence is insufficient to support his conviction unless it excludes every reasonable hypothesis of innocence, on the theory that if there is such a reasonable hypothesis the jury must necessarily have had a reasonable doubt of his guilt. Specifically, he alleges that since the jury could reasonably have found that he believed that his crime was completed before he withdrew the $10,000, the jury must have had a reasonable doubt of his specific intent to steal from Dade Federal. He additionally contends that the proof was insufficient to establish that he altered the endorsement on the Rogovins’ check.²

We hold that the appellant has incorrectly stated the standard of review for sufficiency of the evidence. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.³ A jury is free to choose among reasonable constructions of the evidence. Viewing the evidence presented in this case and the inferences that may be drawn from it in the light most favorable to the government, see, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we conclude that it was sufficient to allow a reasonable jury to find that Bell altered the endorsement on the check, deposited it to his account, and thereby was enabled to take and did take $10,000 with intent to steal from the care, custody, control, management or possession of Dade Federal.

AFFIRMED.

1 . See United States v. Ferraro, 414 F.2d 802, 804 (5th Cir. 1969); Williams v. United States, 402 F.2d 258, 259 (5th Cir. 1968). The second, seventh and eighth circuits have similarly relied on United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), in deciding that a narrow construction of section 2113(b) is not warranted. See United States v. Guiffre, 576 F.2d 126, 127-28 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978); United States v. Johnson, 575 F.2d 678, 679-80 (8th Cir. 1978); United States v. Fistel, 460 F.2d 157, 162-63 (2d Cir. 1972); cf. United States v. Maloney, 607 F.2d 222, 229-30 & n.12 (9th Cir. 1979) (crimes under 18 U.S.C. § 1153 not limited to common law larceny), cert. denied, 445 U.S. 918, 100 S.Ct. 1280, 63 L.Ed.2d 603 (1980); United States v. Bryan, 483 F.2d 88, 91 & n.l (3d Cir. 1973) (crimes under 18 U.S.C. § 659 not limited to common law larceny). But see United States v. Feroni, 655 F.2d 707, 709-11 (6th Cir. 1981); United States v. Pinto, 646 F.2d 833, 836-37 (3d Cir.), cert. denied, -U.S.-, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981); LeMasters v. United States, 378 F.2d 262, 263-68 (9th Cir. 1967); United States v. Rogers, 289 F.2d 433, 437-38 (4th Cir. 1961).

2 . Appellant does not dispute that he took and carried away over $100 that belonged to or was in the care, custody, control, management or possession of Dade Federal, which the parties stipulated to be a federally insured savings and loan association.

3 . The fifth circuit at one time took the position that the government had a heavier burden of proof when relying on circumstantial evidence of a crime than when relying on direct evidence. Under that view, the district court was required to grant an acquittal unless the circumstantial evidence was “inconsistent with every reasonable hypothesis of innocence.” E.g., Kassin v. United States, 87 F.2d 183, 184 (5th Cir. 1937). In 1954 the Supreme Court stated that circumstantial evidence was not intrinsically different from testimonial evidence, and described the every reasonable hypothesis jury instruction as “confusing and incorrect.” Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). Despite the Supreme Court’s criticism the fifth circuit did not abandon the hypothesis of innocence language, but attempted to reconcile it with Holland by rephrasing the test. See United States v. Squella-Avendano, 478 F.2d 433, 437 (5th Cir. 1973); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); Riggs v. United States, 280 F.2d 949, 954-55 (5th Cir. 1960); Cuthbert v. United States, 278 F.2d 220, 224-25 (5th Cir. 1960). All of the other circuits have abandoned the hypothesis of innocence phraseology. See United States v. Davis, 562 F.2d 681, 689 & n.10 (D.C.Cir.1977); United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978); United States v. Elsbery, 602 F.2d 1054, 1057 (2d Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979); United States v. Fiore, 467 F.2d 86, 88 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181 (1973); United States v. Hamilton, 457 F.2d 95, 98 (3d Cir. 1972); United States v. Chappell, 353 F.2d 83, 84 (4th Cir. 1965); United States v. Conti, 339 F.2d 10, 12-13 (6th Cir. 1964); United States v. Wigoda, 521 F.2d 1221, 1225 (7th Cir. 1975), cert, denied, 424 U.S. 949, 96 S.Ct. 1421, 47 L.Ed.2d 355 (1976); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977); United States v. Nelson, 419 F.2d 1237, 1242-45 & nn. 18 & 19 (9th Cir. 1969); United States v. Merrick, 464 F.2d 1087, 1092 (10th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314 (1972). We conclude that the difference is not merely semantic, and specifically adopt, as the more precise statement of the law, the test as set out in the text above.