United States v. Spohn ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4325
HOLLY SPOHN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-95-84-V)
Submitted: December 14, 1999
Decided: January 10, 2000
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Kenneth M. Smith, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Holly Spohn appeals from a fifteen-month sentence imposed fol-
lowing her convictions for two counts of causing a false entry to be
made into the records of a federally insured bank, 18 U.S.C. § 1005(1994), and one count of embezzling and misapplying federally
insured money from that bank, 18 U.S.C.A. § 656 (West Supp. 1999).
We have reviewed the record, find no reversible error, and affirm.
Spohn contends that the Government did not present evidence to
support its allegation that she was an employee of First Union
National Bank and that the evidence was therefore insufficient to sup-
port her convictions under 18 U.S.C. § 1005. To secure a conviction
under this statute, the Government need not prove that the defendant
belonged to any particular class of individuals or that the defendant
was connected to the bank in any capacity. See United States v. Edick,
432 F.2d 350, 352 (4th Cir. 1970). Therefore, any allegation that
Spohn was an employee of First Union National Bank was unneces-
sary to the indictment and constituted surplusage that the Government
was not required to prove. See United States v. Miller, 471 U.S. 130,
136-37 (1985).
Spohn further contends that the Government did not present evi-
dence to support its allegation that she was an employee of First
Union National Bank and that the evidence was therefore insufficient
to support her conviction under 18 U.S.C.A. § 656. The evidence at
trial established that Spohn belonged to the class of persons eligible
for prosecution under this statute. Thus, we find that any variance
between the type of agency relationship alleged in the indictment and
proved at trial did not constructively amend the indictment. See
United States v. Redd, 161 F.3d 793, 795-96 (4th Cir. 1998), cert.
denied, ___ U.S. ___, 119 S. Ct. 1371 (1999). Our review of the
record also demonstrates that Spohn was more than adequately
informed of the nature of the charges against her and suffered no prej-
udice from this variance. See id.Accordingly, we affirm Spohn's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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