United States v. Nelson Bell

TJOFLAT, Circuit Judge, joined by GOD-BOLD, Chief Judge, HATCHETT and THOMAS A. CLARK, Circuit Judges,

dissenting:

There is little question that Nelson Bell engaged in some form of criminal activity:

Bell wrongfully obtained $10,000 that belonged to another. The issue, however, is not whether Bell committed a crime, but whether his conduct was proscribed by the federal bank robbery statute, 18 U.S.C. § 2113 (b) (1976). Because I believe that it was not, I respectfully dissent.

The majority asserts that Bell’s presentation of the altered check to Dade Federal for credit to his account and his subsequent withdrawal of the funds represented by that check amounted to the crime of fraud by false pretenses and that this activity violated section 2113(b). Assuming, ar-guendo, that Bell committed fraud by false pretenses, 1 I take issue with the majority over whether the federal bank robbery statute should be interpreted to proscribe that crime.

That statute 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 .... 18 U.S.C. § 2113 (b) (1976).

There can be no doubt that this provision is ambiguous. “[Tjhroughout our jurisprudence, the courts have considered that ‘ambiguity concerning the ambit of criminal *551 statutes should be resolved in favor of lenity.’ ” United States v. McClain, 545 F.2d 988, 995 (5th Cir. 1977), quoting Rewis v. United States, 401 U.S. 808 , 91 S.Ct. 1056 , 28 L.Ed.2d 493 (1971). “The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself: It is founded on the tenderness of the law for the rights of individuals.” United States v. Boston and Maine R.R., 380 U.S. 157, 160 , 85 S.Ct. 868, 870 , 13 L.Ed.2d 728 (1965), quoting United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 5 L.Ed. 37 (1820). “Of course, the doctrine of strict construction is not absolute. ‘[T]he intention of the law-maker must govern in the construction of penal . . . statutes.’ ” McClain, 545 F.2d at 996 (citations omitted).

Applying these principles, the Court of Appeals for the Ninth Circuit analyzed the legislative history of section 2113(b), and not only concluded that a narrow construction of that provision was appropriate, but also specifically held the crime of false pretenses beyond the statute’s reach. LeMas-ters v. United States, 378 F.2d 262, 267-68 (9th Cir. 1967). I can do no better than recite the Ninth Circuit’s painstaking parsing of congressional intent:

The 1937 enactment of 18 U.S.Code § 2113(b) had a background and legislative history wholly different from those of the 1919 stolen motor vehicle act. We are aware of no background of evil at which Congress was pointing the statute except the evil of interstate operation of gangster bank robbers. As we have seen, the Senate in 1984 passed a bill clearly and expressly creating several federal crimes against banks, including the crime of obtaining by false pretense. The House, and the Congress, rejected the bill, enacting only the robbery provisions. In 1937, without any further discussion of evil to be cured, Congress enacted § 2113 clearly covering robbery and burglary, and including § 2113(b), the provision containing the ambiguous words “steal” and “purloin.” In construing the words we are obliged by the Turley case to give them a “meaning consistent with the context in which [they] appear.” We think that that context, in the light of legislative history, requires that they be construed as not covering the obtaining of money by false pretenses. The words are used in conjunction with the words “takes and carries away,” and these are the classic words used to define larceny. The words do not have a necessary common law meaning; rather, they are ambiguous. They are used in a statute, the purpose of which, as stated in its title, is “ * * * to include larceny.” In such a case, the title is “a useful aid in resolving ambiguilty [sic], ...”

In the bank situation we see no reason, urgent or otherwise, why Congress in 1937 should have wanted to enter the field of obtaining by false pretenses, duplicating state law which was adequate and effectively enforced, and the duplication of which would bring innumerable cases, most of them small, within the jurisdiction of federal prosecutors and courts. Congress was as aware in 1987 as it was in 1934, when it rejected the unambiguous provision making obtaining by false pretense from a bank of [sic] federal crime, that such an extension of federal law would serve no purpose except to confuse and dilute state responsibility for local crimes which were being adequately dealt with by state law. None of the reasons which persuaded the circuits and finally the Supreme Court to interpret broadly the word stolen in the motor vehicle act were present in 1937, when Congress wrote § 2113, or are present today.

If the oft cited canon of statutory construction that ambiguities in penal statutes are to be resolved in favor of the accused has any vitality, this is a plain case for its application.

Id. (citations omitted) (emphasis supplied). See Jerome v. United States, 318 U.S. 101, 105-6 , 63 S.Ct. 483, 486 , 87 L.Ed. 640 (1943); United States v. Feroni, 655 F.2d 707, 710-711 (6th Cir. 1981).

I find this analysis of congressional intent very persuasive. The resolution of the ambiguity which section 2113(b) manifests is significantly aided by the legislative history *552 which shows that Congress expressly considered, but rejected, the inclusion of fraud by false pretenses within the statute’s purview. 2 I am also cognizant of the precept of strict construction of criminal statutes and of the Supreme Court’s directive that federal courts “must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Jerome v. United States, 318 U.S. at 104 , 63 S.Ct. at 485 (interpreting earlier version of federal bank robbery statute). Given all of this, I would hold that section 2113(b) does not encompass conduct which amounts only to fraud by false pretenses. Accord, United States v. Feroni, 655 F.2d 707 (6th Cir. 1981); United States v. Pinto, 646 F.2d 833 (3d Cir.), cert. denied, 454 U.S. 816 , 102 S.Ct. 94 , 70 L.Ed.2d 85 (1981); LeMasters v. United States, 378 F.2d 262 (9th Cir. 1967).

I disagree with the majority that Thag-gard 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), controls this case. In Thaggard, the defendant drew money from his bank account when he knew that the bank had mistakenly overcre-dited that account. Thus, the common law equivalent of Thaggard’s activity was more in the nature of conversion, rather than false pretenses. Moreover, the bank in Thaggard, unlike Dade Federal in this case, suffered a tangible loss. See note 1, supra. Finally, the majority’s reading of Thaggard as holding that section 2113(b) embraces “all felonious takings” is erroneous: that language in Thaggard is plainly dicta, not at all necessary to the result. The majority’s use of Thaggard to extend section 2113(b)’s reach to include fraud by false pretenses is, therefore, misguided, especially in light of the legislative history and rules of construction I have discussed.

I have no quarrel with the majority’s adoption of a test for sufficiency of the evidence which inquires whether “a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” Majority opinion at p. 549. The application of this test does not change my analysis of this case or the conclusions I have reached, however, for even if there were overwhelming evidence that Bell subjected Dade Federal to the crime of fraud by false pretenses, I would nevertheless hold that a section 2113(b) prosecution could not lie.

I respectfully dissent.

. Although the majority finds, and my analysis assumes, sufficient evidence that Bell committed fraud by false pretenses against Dade Federal, 1 have serious doubts whether this is actually the case. The elements of common law false pretenses are a false representation of fact, scienter, intent to induce action in reliance on the misrepresentation, justifiable reliance by the party fraudulently induced, and loss to that party resulting from such reliance. Prosser, Law of Torts, § 105 at 685-86 (4th ed. 1972); see generally Torda, Wharton’s Criminal Law, §§ 422-452 (14th ed. 1980). There is no evidence in this case that Dade Federal suffered any loss as a result of Bell’s activities. The evidence showed that Bell presented the altered check to Dade Federal for deposit to his account. Dade Federal did not immediately credit Bell’s account; instead it waited until the check had been paid by the drawee bank in Cincinnati. According to the evidence then, when Bell withdrew the $10,000 from his Dade Federal account he in essence withdrew funds that had been provided Dade Federal by the Cincinnati bank. There was no proof that Dade Federal was ever called upon by the Cincinnati bank to absorb that bank’s loss, or that of the drawer, and the trial judge’s instructions did not speak to that issue. Therefore, we have a case in which the government failed to prove that the alleged victim of fraud by false pretenses, Dade Federal, suffered any loss.

The government’s proof established nothing more than that Dade Federal was a conduit through which Bell was enabled to appropriate the funds of another. Therefore, even if § 2113(b) could be read to prohibit fraud by false pretenses, the evidence presented in this case was insufficient to convict Bell.

. Notably, none of the decisions which “broadly constru[e] § 2113(b) [see majority opinion, note 1, supra ] examines the legislative history of that enactment. Each of those decisions is nothing more than a mechanical application of [United States v. Turley, 352 U.S. 407 , 77 S.Ct. 397 , 1 L.Ed.2d 430 (1957) ]. They provide no discussion of why the context of § 2113(b) suggests that a broad interpretation of its provisions is appropriate.” United States v. Feroni, 655 F.2d 707, 710 (6th Cir. 1981). Conversely, the courts that have adopted a narrower construction of § 2113(b) have relied extensively on the statute’s legislative history. See Feroni, supra; United States v. Pinto, 646 F.2d 833 (3d Cir.), cert. denied, 454 U.S. 816 , 102 S.Ct. 94 , 70 L.Ed.2d 85 (1981); LeMasters v. United States, 378 F.2d 262 (9th Cir. 1967); United States v. Rogers, 289 F.2d 433, 437-38 (4th Cir. 1961).