United States v. Campbell , 52 F.3d 521 ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-60051
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOYCE M. CAMPBELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(March 31, 1995)
Before VAN GRAAFEILAND*, JOLLY and WIENER, Circuit Judges.
PER CURIAM:
A jury found Defendant-Appellant Joyce M. Campbell guilty of
embezzlement in violation of 18 U.S.C. §656. In addition to
ordering Campbell to pay restitution in the amount of $ 8,611.97,
the court sentenced her to ten months imprisonment followed by
three years supervised release. Campbell appeals, seeking
reversal of her conviction. We conclude, however, that her
conviction of embezzlement was free of reversible error and
*
Circuit Judge, United States Court of Appeals for the
Second Circuit, sitting by designation.
therefore affirm the district court's judgment in all respects.
I
FACTS AND PROCEEDINGS
Campbell was originally hired as a teller at the West Biloxi
(Mississippi) branch of Peoples Bank, but she had been promoted
and was working as an account representative during the time
covered in her indictment. As an account representative,
Campbell served as secretary to the branch manager and performed
teller duties, including the filling out of forms used to move
bank funds internally. The bank maintained a policy that
permitted the transfer of a customer's funds from one account to
another, or the application of a customer's funds to an
outstanding loan balance, in response to the customer's telephone
request.
After receiving a complaint from a customer that funds had
mysteriously been withdrawn from his account, the bank discovered
Campbell's activities in converting customer funds. The
government charged her with embezzlement and, at trial, presented
evidence of nineteen transactions in which Campbell had caused
funds to be transferred out of customers' accounts. Each such
transfer was either credited to Campbell's account or applied to
another customer's account to cover some previous improper,
Campbell-generated withdrawal. The evidence showed that Campbell
fraudulently withdrew the funds by falsifying information on the
bank's internal documents, such as checking account and savings
account deposit slips, bank charge slips, and savings withdrawal
2
slips, to reflect that a customer had made a telephone request
for a transfer of funds. In each instance, Campbell gave these
documents to one of three different bank tellers, who routinely
processed them without question on the basis of the account
numbers Campbell had supplied.
After the government presented its evidence, Campbell moved
for a judgment of acquittal, arguing that she did not have lawful
possession of the funds at issue and therefore could not be
convicted of embezzlement. The district court reserved its
ruling until after Campbell had presented her case, at which time
the court denied her motion for acquittal, observing that
Campbell had lawful possession of the funds by virtue of her
authority and power to move the funds from one account to
another. The jury subsequently convicted Campbell of
embezzlement, and this appeal ensued.
II
ANALYSIS
We review a district court's denial of a motion for judgment
of acquittal de novo.1 A motion for acquittal should be granted
if the government fails to present sufficient proof to sustain a
jury verdict of guilt on the charge, albeit we review the
evidence supporting conviction in the light most favorable to the
1
See United States v. Leed, 981 F.2d 202, 205 (5th Cir.
1993)(citing United States v. Sanchez, 961 F.2d 1169, 1173 (5th
Cir. 1992), cert. denied, 113 S. Ct. 330 (1992)), cert. denied,
113 S. Ct. 2971 (1993).
3
government.2
The Supreme Court in Moore v. United States3 defined
embezzlement as "the fraudulent appropriation of property by a
person to whom such property has been intrusted, or into whose
hands it has lawfully come."4 Campbell argues that the
government failed to prove a requisite element of the crime of
embezzlement, i.e., that she had lawful possession of the funds
involved in the transactions. Although Campbell concedes that
she moved funds from customer accounts to her own account, she
maintains that her handling of these funds was not lawful because
the customer had not approved of the transactions before Campbell
caused them to be processed. Campbell also stresses that she
cannot be found guilty of embezzlement because she did not
personally transfer the bank's funds, arguing that the tellers
involved in the transactions, and not Campbell, processed the
transfers after Campbell submitted the falsified documents.
In support of her position on appeal, Campbell contends that
her activities were similar to those of the defendant in United
States v. Sayklay5, in which we held that Sayklay, the defendant
bookkeeper, had not embezzled the bank's funds, even though the
2
See United States v. Stone, 960 F.2d 426, 430-31 (5th Cir.
1992)(affirmance of conviction is proper if rational trier of
fact could have found that evidence established each essential
element of offense beyond reasonable doubt).
3
16 S. Ct. 294 (1895).
4
Id. at 295.
5
542 F.2d 942 (5th Cir. 1976).
4
facts clearly showed her willful misapplication of the bank's
funds. Through her bookkeeper position, Sayklay had access to
other bank employees' account numbers, blank checks and a check-
encoding machine, which she used to falsify checks drawn on her
co-workers' accounts. Sayklay presented the fraudulent checks to
a teller who gave her cash in return. In reversing Sayklay's
conviction, we stated that although "defendant's position at the
bank aided her in her crime, . . . it did not place her in lawful
possession of others' funds that she converted to her own use."6
We find that the facts in the instant case are clearly
distinguishable from those in Sayklay and therefore conclude that
Campbell's arguments are without merit. Unlike the defendant in
Sayklay, who could only manipulate the accounts through
falsifying documents, Campbell had the authority to do directly
that which she elected to do indirectly through the unwitting
participation of the tellers whom Campbell interposed
unnecessarily. Thus she had constructive legal control of the
funds that she caused to be moved from one account to the other.
In Sayklay we delineated a distinction between the funds that the
defendant bookkeeper misappropriated and funds held by a bank
teller, observing that "[u]nlike funds in possession of a bank
president or a teller, the funds [that the defendant] stole were
not entrusted to her in any capacity whatever for the use and
benefit of the bank."7 We noted as significant in Sayklay the
6
Id. at 944.
7
See id.
5
fact that the only way the defendant bookkeeper could get access
to the funds was by "unlawful means."8 Campbell, however, as an
account representative who also performed teller duties, was
endowed with authorized access to customer accounts and bank
funds; she did not need the services of another teller to process
the documents required to convert the funds to her own use.
Campbell nevertheless insists that, as the proof presented
at trial showed that she did not convert the funds herself
directly but instead used other tellers to effect the conversion
of funds, she may not properly be convicted of embezzlement.
This is pure sophistry. Even though Campbell did not personally
conduct the processing of the documents that she falsified, she
nevertheless had the authority to process them and merely avoided
processing them personally by submitting them to the other
tellers - - clearly a superfluous step added unnecessarily by
Campbell. Her use of the other tellers as unknowing tools (not
unlike the bank's internal documents, which also served as tools)
with which to advance her scheme and decrease her identifiable
linkage to the transactions does not shield her from criminal
liability for embezzlement. The fact remains that the bank
entrusted Campbell with control and custody of its funds.
In rejecting Campbell's reliance on Sayklay, we find instead
that Campbell's machinations more closely parallel those we
8
See id.
6
considered in United States v. Ehrlich9. In Ehrlich, we found
that the defendant, a bank loan clerk, was properly convicted of
embezzlement because she had been entrusted with control and
constructive possession of funds in the bank's general ledger
accounts.10 We rejected that defendant's contention, as we do
Campbell's, that her position was similar to that of the
defendant in Sayklay, noting that in Ehrlich the defendant
routinely and lawfully moved funds between various bank accounts
through the use of debit and credit slips.11 The government's
evidence in the instant case reflects that Campbell had the
authority to transfer funds between customer accounts and that
she routinely performed these transfers.
Nevertheless, Campbell argues that she had authority to
transfer the funds only after receiving a genuine customer
request, and that her misappropriations were therefore
accomplished without authority. This specious argument is
unavailing, however: All crimes of embezzlement involve an
unlawful act at some point. We look for authority emanating from
the bank, not from its customers, in considering this element of
embezzlement. The bank's vesting of Campbell with control and
authority over the funds in the usual course of routine banking
transactions guides our determination here.
9
902 F.2d 327 (5th Cir. 1990), cert. den. 498 U.S. 1069
(1991).
10
See id. at 329.
11
See id.
7
Like the defendant in Ehrlich, Campbell had more than mere
access to the instrumentalities necessary to convert bank funds
to her own use. Her position as account representative and part-
time teller gave Campbell lawful access to customer funds and
equally lawful authority and control to transfer funds. As the
monies that Campbell caused to be converted to her own use came
from funds lawfully entrusted to her by the bank, her
embezzlement conviction was proper.
III
CONCLUSION
Campbell's actions in causing the transfer of customer funds
for her own benefit more closely resemble the acts of the
defendant in Ehrlich than those of the defendant in Sayklay. We
thus conclude that the district court did not err in denying
Campbell's motion for judgment of acquittal on the embezzlement
charge. Her conviction on that charge is, therefore,
AFFIRMED.
8