United States v. Jones, William J. ( 2004 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 03-3574
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    WILLIAM J. JONES,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. IP 02-129-CR T/F—John Daniel Tinder, Judge.
    ____________
    ARGUED FEBRUARY 26, 2004—DECIDED JUNE 25, 2004
    ____________
    Before BAUER, POSNER, and KANNE, Circuit Judges.
    KANNE, Circuit Judge. A jury convicted William J. Jones
    under 18 U.S.C. § 656 on nineteen counts of stealing in
    excess of $1000 from Bank One’s automatic teller machines
    (“ATMs”). Jones, who had access to the ATMs through his
    job as an ATM repairman, challenges his conviction by
    arguing that § 656 does not apply to him, as he was not an
    “officer, director, agent or employee of, or connected in any
    capacity with” Bank One. We affirm the judgment of the
    district court, finding that under a plain reading of the
    statute, Jones, who worked for a company contracted by
    2                                              No. 03-3574
    Bank One to maintain and service its ATMs, was connected
    with Bank One and subject to § 656’s prohibitions.
    I. History
    During the period covered by the superceding indictment
    entered against Jones, National Cash Register Corporation
    (“NCR”) contracted with Bank One to service its
    Indianapolis-area ATMs. Jones worked as a repairman for
    NCR. Generally, when one of Bank One’s ATMs malfunc-
    tioned, it would send a signal to NCR’s call center in
    Columbia, South Carolina. A dispatcher would then send a
    repairperson to the ATM in need of service.
    As part of his duties, Jones had access to the cash vaults
    within the ATMs. Most repairs could be made without
    opening the vault, but NCR left it to its repairpersons’
    discretion whether the vault needed to be accessed, either
    to repair the ATM or to perform routine maintenance. The
    ATMs’ vaults were fitted with special locks that tracked
    who opened them.
    In support of its case at trial, the government offered
    records that showed Jones as the only person to have
    opened the vaults to twenty-four ATMs from which money
    was missing during the relevant time period. It also offered
    Jones’s handwritten confession. Jones was convicted, after
    a two-day jury trial, under 18 U.S.C. § 656 of nineteen
    separate incidents of stealing money from the ATMs. Jones
    timely appealed.
    II. Analysis
    Jones’s sole argument on appeal is that because he
    worked for NCR and not Bank One, his actions did not fall
    No. 03-3574                                                        3
    under § 656.1 This is a question of law, which we review de
    novo. See Olson v. Risk Mgmt. Alternatives, Inc., 
    366 F.3d 509
    , 511 (7th Cir. 2004) (stating that we review issues of
    statutory interpretation de novo).
    In the face of a broadly-worded statute, which by its plain
    terms applies to those “connected in any capacity” with
    Bank One, see 18 U.S.C. § 656, Jones unconvincingly urges
    us to limit § 656’s reach to only those categories of persons
    explicitly enumerated in the statute, i.e. officers, directors,
    agents, or employees of the banking institution in question.
    He argues, without citing supporting case law, that the
    words, “or connected in any capacity with,” renders the
    enumerated list preceding that phrase meaningless. To
    avoid such a result, he reasons, the catch-all phrase should
    be ignored in favor of the limited class of offenders. He
    further supports his interpretation by asserting, again
    without authority, that the actions prohibited by the
    statute—embezzling, abstracting, purloining, and willfully
    misapplying—can only be accomplished by an employee or
    an agent. He suggests that “stealing” (which we note can be
    a synonym for “abstracting” or “purloining”) would have
    been the better word if Congress meant for the statute to
    apply to a larger group of offenders.
    The first rule of statutory construction is to give words
    their plain meaning. “It is well established that where the
    statute’s language is plain, the sole function of the
    1
    The statute reads in pertinent part:
    Whoever, being an officer, director, agent or employee of,
    or connected in any capacity with [any federally insured
    bank], . . . embezzles, abstracts, purloins or willfully misap-
    plies any of the moneys, funds or credits of such bank, . . .
    shall be fined not more than $1,000,000 or imprisoned not
    more than 30 years or both . . . .
    18 U.S.C. § 656.
    4                                               No. 03-3574
    courts—at least where the disposition required by the text
    is not absurd—is to enforce it according to its terms.” Lamie
    v. U.S. Tr., ___ U.S. ___, 
    124 S. Ct. 1023
    , 1030 (2004)
    (quotation omitted). There is nothing ambiguous or absurd
    in Congress’s adding the phrase “or connected in any
    capacity with” to the list of enumerated persons who could
    steal funds from federally insured banks. We and other
    circuits, when confronted with identical language tailing a
    specified list in similar statutes, have consistently con-
    strued the phrase to capture those outside the enumerated
    offenders. See, e.g., United States v. Harris, 
    729 F.2d 441
    ,
    445 (7th Cir. 1984) (finding that a natural and literal
    application of the phrase “connected in any capacity with,”
    when construing identical language in 18 U.S.C. § 657,
    covers those not technically an agent of the institution in
    question but who are doing its work); United States v.
    Coleman, 
    590 F.2d 228
    , 230-31 (7th Cir. 1978) (finding
    sufficient connection for purposes of 18 U.S.C. § 665 when
    an assistant director of a city department used personnel
    trained by another organization receiving the federal funds
    in question for impermissible jobs); United States v.
    Ratchford, 
    942 F.2d 702
    , 704-05 (10th Cir. 1991) (holding
    that a property manager working for a bank contractor was
    appropriately prosecuted under § 657); United States v.
    Prater, 
    805 F.2d 1441
    , 1446 (11th Cir. 1986) (finding that
    the president of a bank’s subsidiary was “an integral part”
    of the bank’s processes and thus liable under §§ 657 and
    1006); United States v. Bolstad, 
    998 F.2d 597
    , 598 (8th Cir.
    1993) (same).
    This broad construction of the “connected in any capacity”
    language comports with the purpose of the statute—to
    protect federal monetary interests. See 
    Harris, 729 F.2d at 445
    (“The federal government has a greater interest than
    the states in deterring the embezzlement of federal property
    . . . and the danger of embezzlement is no less when the
    embezzler happens to be an employee not of the federal
    No. 03-3574                                                         5
    agency that owns the property but of a contractor who has
    custody of it.”); United States v. Gillett, 
    249 F.3d 1200
    , 1204
    (9th Cir. 2001) (noting that by construing § 656 broadly, “we
    will ‘effectuate congressional intent to protect federally
    insured lenders from fraud’ ”) (quoting 
    Ratchford, 942 F.2d at 705
    ); 
    Prater, 805 F.2d at 1446
    (“The Eleventh Circuit has
    clearly indicated that the phrase ‘connected in any capacity’
    should be construed broadly to effectuate congressional
    intent by protecting federally insured lenders from fraud.”);
    United States v. Edick, 
    432 F.2d 350
    , 351 (4th Cir. 1970)
    (employee of corporation providing proofing and bookkeep-
    ing services to member banks “reached by literal language”
    of § 656, with inclusion in the class of those eligible for
    prosecution “clearly required by congressional purpose”).
    Having decided that § 656 means what it says,2 we must
    decide if Jones is “connected in any capacity” with Bank
    One such that § 656 is applicable to him. The answer is yes.
    Jones, as an ATM repairman employed by NCR, provided
    a service for Bank One that it would otherwise have had to
    provide for itself. Because of his work on its behalf, Bank
    One granted Jones access to its property, including its ATM
    vaults. That special access provided him with the opportu-
    nity to steal the federally insured funds therein.
    We note that other circuits passing on similar facts have
    2
    Jones makes other arguments for limiting § 656’s reach by
    pointing to interpretive tools outside the statute itself, such as the
    statute’s historical and statutory notes and a 1918 Supreme Court
    case interpreting a predecessor statute. We need not dwell on
    them, however, because not only are they unconvincing, they are
    extraneous. As stated previously, where the meaning of a statute
    is unambiguous, our sole task is to apply it straightforwardly to
    the facts at issue without referring to legislative history or other
    devices. See 
    Lamie, 124 S. Ct. at 1030-31
    , 1033 (noting that an
    examination of a predecessor statute and legislative history to
    determine congressional intent is unnecessary when the amended
    statute’s language is plain and unambiguous).
    6                                               No. 03-3574
    unanimously found § 656’s broad “connected in any capac-
    ity” language to encompass contractors whose theft was
    made possible by the services they provided to the banks.
    See 
    Gillett, 249 F.3d at 1201
    (employee of Brinks armored
    car service appropriately charged under § 656 as a person
    “connected in any capacity” with a federally insured bank);
    United States v. Meeks, 
    69 F.3d 742
    , 743-44 (5th Cir. 1995)
    (finding employees of locksmith company contracted to
    maintain the bank’s safety deposit boxes can be charged
    under § 656); United States v. Coney, 
    949 F.2d 966
    , 967 (8th
    Cir. 1991) (employee of armored car company responsible
    for transporting bank’s currency captured by § 656’s broad
    language); 
    Edick, 432 F.2d at 351
    (employee of corporation
    providing proofing and bookkeeping services properly
    charged under § 656).
    We find that under a plain reading of § 656, the govern-
    ment properly prosecuted Jones as a person who was
    “connected in any capacity” with Bank One.
    III. Conclusion
    The judgment of the district court is AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—6-25-04