UNITED STATES of America, Plaintiff-Appellee, v. Blanca ACOSTA, Defendant-Appellant, 748 F.2d 577

HANCOCK, District Judge: Appellant Blanca Acosta was a customer service representative at the Westchester, Florida branch of Intercontinental Bank. As part of her duties she would carry customer transactions — funds for deposit or withdrawal slips — from the customer reception area to the teller and return with deposit slips or withdrawn funds for the waiting customers. Appellant also had access to account signature cards and was in charge of “hold mail” accounts whereby account statements would be held for indefinite periods, rather than mailed regularly, for depositors who lived abroad.

After a number of depositors complained about low balances in their accounts, the bank undertook an investigation. All the accounts in question were “no-passbook” savings accounts as to which the depositor could withdraw money without presentation of a passbook. When theft was suspected as the reason for the low account balances, the bank turned the results of its investigation over to the FBI, and appellant’s indictment resulted.

Appellant was indicted in three counts for three separate violations of 18 U.S.C. § 656, involving misapplication or embezzlement of funds totaling approximately $24,000 from three different bank accounts. The evidence at trial was sufficient to prove appellant had taken withdrawal slips, forged signatures for account holders and withdrawn money from the accounts by giving the slips to a teller as if the customer were waiting in the reception area. The proof also showed the bank had reimbursed the customers approximately $20,000 of the $24,000 which appellant had improperly taken from the accounts.

A jury found appellant guilty on all three counts after a two-day trial. She raises two points on appeal: (1) jury instructions regarding the elements of a

section 656 offense authorized the jury to return a non-unanimous verdict, and (2) the evidence was insufficient to prove the offenses charged. Because we find the first point is without merit and further find ample evidence to support the convictions, we affirm.

Count I of the indictment charged that: On or about December 8, 1980, at Miami, Dade County, in the Southern District of Florida, the defendant, BLANCA ACOSTA being an employee of the Intercontinental Bank, Westchester Branch, 8755 S.W. 24 Street, Miami, Florida, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation, did knowingly, willfully, and with intent to injure and defraud said bank, embezzle, abstract, purloin, and misapply monies and funds entrusted to the custody and care of said bank in that she removed $6,448 from said bank; in violation of Title 18, United States Code,

Section 656. The purposes of an indictment are to inform the accused of the charge against him so that he may prepare a defense and to enable the accused to raise an acquittal or conviction as a bar to a subsequent prosecution for the same offense. Count I satisfies these purposes. Furthermore, Count I is not duplicitous even though it charges that defendant willfully embezzled, abstracted, purloined and misapplied the bank’s money. In Fields v. United States, 408 F.2d 885, 887 (5th Cir.1969), the former Fifth Circuit observed: ...

Where a statute specifies several alternative ways in which an offense can be committed, the indictment may allege the several ways in the conjunctive, and a conviction thereon will stand if proof of one or more of the means is sufficient.

Section 656 of Title 18 embraces but a single generic offense, the offense of willfully taking the money of a bank by one of its employees, which offense may be committed in several alternative ways: embezzling (a taking), abstracting (a taking), purloining (a taking) and misapplying (a taking). Appellant Acosta did not question the sufficiency of the indictment in the district court and does not directly challenge the indictment in this court. The challenge is indirect. Appellant’s first issue on appeal is based on the sixth amendment requirement of a unanimous jury verdict to convict in a federal criminal case.

See also Fed.R. Crim.P. Rule 31(a). Appellant’s argument starts from the proposition that since the district court used a general verdict form, it is not clear whether twelve jurors concurred in a verdict of guilty of “embezzlement” or whether twelve jurors concurred in a verdict of guilty of “misapplication” or whether some jurors felt embezzlement had been proven while others felt that only misapplication had been proven.

Appellant correctly asserts that embezzlement is different from willful misapplication in that embezzlement embraces an aspect of “entrustment” that is not necessarily an aspect of misapplication. United States v. Sayklay, 542 F.2d 942 (5th Cir. 1976). In Sayklay, the defendant was charged only with embezzlement and the evidence did not support a finding of a breach of a fiduciary duty arising from the entrustment of money.

Sayklay simply stands for the principle that if a person is charged only with embezzlement, there must be proof of entrustment; proof of a misapplication without proof of entrustment will not support a verdict of guilty where only embezzlement is charged. Sayklay cannot stand for the converse principle that if a person is charged only with misapplication, proof of embezzlement will not support a verdict of guilty. Proof of embezzlement will support a verdict of guilty of misapplication because any proof sufficient to support embezzlement necessarily is sufficient to support misapplication.

Under 18 U.S.C. § 656, “embezzlement” is the willful taking of an insured bank’s money by its employee, after the money has lawfully come within the control of the person taking it, with intent to defraud the bank, while “misapplication” is simply the willful taking of an insured bank’s money by its employee with intent to defraud the bank. The trial judge gave the jury a very clear, correct charge concerning the elements of a

section 656 offense, defining for the jury the difference between embezzlement and misapplication. Any juror who voted for an embezzlement conviction of appellant Acosta under Count I must have been satisfied by the evidence that Acosta, while a bank employee, willfully took the bank’s money with intent to defraud the bank. This is precisely the same conclusion reached by any juror who voted for a misapplication conviction of appellant Acosta under Count I.

In returning their verdict, all the jurors agreed that Acosta had willfully taken the bank’s money with intent to defraud the bank, and thus that Acosta was guilty of misapplication; even if in fact some of the jurors also were satisfied the money had lawfully come within Acosta’s control, then that did not eliminate unanimity among the jurors. They still were in agreement that Acosta was guilty of misapplication.

Had the defendant in Sayklay been charged with misapplication, the court’s decision surely would have been different; here appellant was charged with misapplication and our decision is not controlled by Sayklay. Our decision is controlled by Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). In Turner, the second count of the indictment charged defendant under 26 U.S.C. § 4704 with knowingly purchasing, dispensing and distributing heroin not in or from the original stamped package.

The “purchase” of heroin is materially different from the “distribution” of heroin, even more so than the differences between embezzlement and willful misapplication. The court, at page 420, 90 S.Ct. at page 654, held: The conviction on Count 2 with respect to heroin must be affirmed . . . . The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner’s indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged. Here the evidence proved Turner was distributing heroin.

The status of the case with respect to the other allegations is irrelevant to the validity of Turner’s conviction. In reaching this conclusion, the court cited with approval the former Fifth Circuit cases of Price v. United States, 150 F.2d 283 (5th Cir.1945) and Smith v. United States, 234 F.2d 385 (5th Cir.1956), by which we are also bound. Appellant argues that United States v. Gipson, 553 F.2d 453 (5th Cir.1977), requires us to reverse her conviction. In Gipson, the defendant was charged with receiving, concealing, storing, bartering, selling and disposing of a stolen motor vehicle.

In response to a question from the jury during deliberations, the court in effect told the jury it could return a verdict of guilty even if there were disagreement among the jurors as to whether the act committed by the defendant was receiving, concealing, storing, bartering, selling or disposing of the vehicle. Defendant objected to this supplemental instruction, and following a conviction sought reversal alleging a violation of his right to a unanimous verdict. The Gipson court acknowledged that normally it would be prohibited from inquiring into the jury’s verdict: ...

Courts have long held that a jury verdict cannot be set aside on the grounds that it is inconsistent . . . . The situation here is different. Gipson’s non-unanimity challenge is based not on the result reached by the jury, but on a court instruction that may have judicially sanctioned a non-unanimous verdict. If this was the import of the challenged instruction, then it was infirm, both under Fed. R.Crim.P. 31(

a) and the sixth amendment, and the instruction constitutes cause for the reversal of Gipson’s conviction, unless it was harmless beyond a reasonable doubt. Id. at 457. (Citations omitted) Since the district court’s instruction to the Acosta jury correctly stated the law, we, unlike the court in Gipson, are prohibited from inquiring into the jury’s verdict. Appellant does not argue, as was argued in Gipson, that what the court instructed was erroneous; rather appellant argues that the court omitted an instruction that would have insured that the jury return a unanimous verdict.

Appellant failed, however, to object to the court’s alleged omission in its charge, and unless that omission was plain error, appellant cannot predicate reversible error thereon. We do not view the claimed omission as plain error. There is a second reason why Gipson does not authorize relief for appellant. As more fully discussed above, we, unlike the Gipson court, view any error here as harmless beyond a reasonable doubt.

Any juror voting for a verdict of guilty of misapplication was satisfied the government had proved the defendant, a bank employee, willfully took the insured bank’s money with intent to defraud the bank. This was all that needed to be proved for a conviction of misapplication. Any juror voting for a verdict of guilty of embezzlement was equally satisfied the government had proved the defendant, a bank employee, willfully took the insured bank’s money with intent to defraud the bank.

Any error thus associated with the conviction under Count I, which charged both embezzlement and misapplication, is harmless beyond any reasonable doubt. There is an even more basic reason why Gipson provides no comfort to appellant. The Gipson court reached its decision only after finding two distinct conceptual groupings under 18 U.S.C. § 2313, “the first consisting of receiving, concealing and storing, and the second comprised of bartering, selling and disposing.” Id. at 458. We view 18 U.S.C. § 656 as a single conceptual grouping.

True, a “taking” by embezzlement requires proof of entrustment which is not necessary for a “taking” by misapplication. But the “ridding oneself” of a vehicle by bartering requires a contract by which one party exchanges the vehicle for other goods, whereas the “ridding oneself” of a vehicle by disposing of it does not require such a contract. For example, a person may be guilty of disposing of a vehicle by driving it off a cliff into a river. Every bartering embraces a disposing but the converse is not true. Similarly, every embezzlement embraces a misapplication but the converse is not true.

We simply do not find in

section 656 the two distinct conceptual groupings the Gipson court found in

section 2313. And without two or more such groupings, Gipson has no application. Our next' task is the simple one of reviewing the record to determine if it contains sufficient evidence to support a conviction for willful misapplication of the bank’s money. Our brief recitation of some of the proof at trial, set forth at the beginning of this opinion, is supported by the record. Ample evidence as to dates and amounts set forth in each count is also in the record.

Indeed, the entire record contains overwhelming evidence of appellant’s willful misapplication of the bank’s money as charged in all three counts of the indictment. After a thorough review of the record and a careful consideration of the issues on appeal, we AFFIRM the convictions of appellant. .

Section 656 states in part: Whoever ... embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of [a member] bank or any moneys, funds, assets or securities intrusted 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____ . Counts II and III are identical with Count I except for dates and amounts, which are December 26, 1980 and $8,904.87 for Count II and December 29, 1980 and $8,575.91 for Count III.

What is said throughout our opinion as to Count I applies equally to Counts II and III. . “The error of duplicity is present where more than a single crime is charged in one count of an indictment." United States v. Ramos, 666 F.2d 469, 473 (11th Cir.1982). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. .

The form of verdict used was "We the jury find the defendant, Blanca Acosta as to count one _, as to count two _, as to count three__” The jury inserted the word "Guilty" in each of the blanks and the verdict was signed by the foreperson. . After paraphrasing

section 656 the court charged: So, in order to establish the offense as charged the Government must prove the following essential elements beyond a reasonable doubt: First: That the Defendant was an officer or employee of the bank described in the indictment; Second: That the bank was a national bank or an insured bank; Third: That the Defendant, being an officer or employee, knowingly and willfully embezzled or misapplied funds or credits belonging to the bank or intrusted to its care; and Fourth: That the Defendant acted with the intent to injure and defraud said bank.

A "national bank” includes any national banking association organized under the national banking law; and "insured bank” includes any bank, state or national, the deposits of which are insured by the Federal Deposit Insurance Corporation. To "embezzle" means the wrongful or willful taking of money or property of someone else after the money or property has lawfully come within the possession or control of the person taking it; and to “take” money or property means to knowingly and willfully deprive the owner of its use and benefit by converting it to one’s own use with intent to defraud the bank.

However, no particular type of moving or carrying away is required to constitute a "taking.” Any appreciable change of the location of the property with the requisite willful intent constitutes a taking whether or not there is an actual removal of it from the owner’s premises. To "misapply” a bank's money or property means a willful conversion or taking by a bank employee of such money or property to his own use and benefit, or the use and benefit of another, whether or not such money or property has been intrusted to his care, and with intent to defraud the bank.

To act with "intent to defraud" means to act with intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to someone else or bringing about a financial gain to one’s self. The charge is the same as set forth as Offense Instruction 9, Committee on Pattern Jury Instructions, District Judges Association (former) Fifth Circuit, Pattern Jury Instructions (Criminal Cases) 76-77 (West 1979), with the exception of the properly added fourth element (that defendant acted with the intent to injure and defraud said bank). United States v. Salinas, 601 F.2d 1279 (5th Cir.1979). .

Evidence was presented that appellant’s receipt of the money may have been with the cooperation of a friendly teller. . This statute, prior to its repeal in 1970, prohibited the purchase, sale, dispensing or distribution of narcotic drugs except in their original stamped package. . Appellant Acosta did not object to any aspect of the court’s charge. . Appellant Acosta points out that a defendant’s right to a unanimous verdict may not be waived. Such principle might be relevant if we were dealing here with clearly erroneous instructions to the jury that could support a valid argument for lack of unanimity.

But what we have in this case is at most a failure to give what appellant argues was a necessary instruction on the subject of unanimity. Surely appellant would concede that, were a district court to fail to give the boiler plate instruction "any verdict you return must be unanimous," a defendant could not attack a verdict for alleged lack of unanimity without having objected to such omission.