Petition — Tidwell v. United States

Supreme Court, U. S,

FILED

1 = -pEC sO 1977

Se ny CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No. 17-787

LEWIE FRANK TIDWELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES G. ETHEREDGE

221 North Eglin Parkway

Fort Walton Beach, Fla. 32548

Attorney for Petitioner

a ce A A AEC

Washington O.C @ CL8 PUBLISHERS © LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

I oe Veda aed eoacds 2

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i cas ob a Caaew eeu snes es 3

DUMRUUEEETE GOW BU GI occ cc cc ccc vr cnccccece 3

REASONS FOR GRANTING THE WRIT .............. 4

EE a nS rare 12

Appendix A — Opinion of the Court of Appeals ......... la

Appendix B — Order Denying Petition for Re-

PE cect eee Cis seraeese ce eeeveeudendeneee lb

Appendix C — Opinion of Trial Court Denying

ee ee ee lee Ws ce eeb beans eka lc

Appendix D — Pertinent Text of Statutes Involved ....... ld

Appendix E — Excerpts from Transcript ............4.. le

TABLE OF AUTHORITIES

Cases:

Benton v. Maryland, 395 U.S. 784 (1969) ........... 10,11

Cohen v. United States, 378 F.2d 751 (9th Cir.

1967) cert. denied 389 U.S. 897 (1967) ............ 10

Mullaney v. Wilbur, 421 U.S. 684 (1975) .............. 9

Seals y. United States, 221 F.2d 243 (8th Cir.

SR rae PE rere ee eee eer ree 8

United States v. Barash, 365 F.2d 395 (2nd Cir.

rr ne igs neo En a 9.11

United States v. Bertolotti, 529 F.2d 149 (2nd Cir.

eG we ae Cee ae ae ed ae wa 9,10

United States v. Docherty, 468 F.2d 989 (2nd Cir.

GUN a ee alae a ON Cee a ee ae ee ere ee 8

(ii)

Page

United States v. Harrison, 279 F.2d 19 (Sth Cir

“4-5 5 6 SEM a Oe Sse een 5,6,7,8

United States v. Jerkins, 530 F.2d 1203 (Sth Cir

DE 6's os 06 aos oie ee 2a aoa bee eee ll

United States v. Mann, 517 F.2d 259 (Sth Cir

SEE.) uu waa tes Ge atate hae a eel aonb ac 6 a ale eek 8

United States v. Pollock, 503 F.2d 91 (9th Cir

See ee eee eye eT ee ere Tee Oe eee 5,8

United States v. Schmidt, 471 F.2d 385 (3rd Cir

<1 4c eect andes dt hic cee ae Osa cui 8

United States v. Releford, 352 F.2d 36 (6th Cir

teak bales eee ee od coe ees 10

United States v. Wilkinson, 460 F.2d 725 (Sth Cir

REP IF TD Pe oa a tay eral KON Dy eae ane 10

Statutes:

i SC rh ea ae pie oe ear ete arg 3,6

Se Cs ED bc ude ebas bend awed to or

5 CN ETT SPER ers ee ee ee 3,7

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Ye et a a ie es ete he passim

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No.

LEWIE FRANK TIDWELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Lewie Frank Tidwell, prays that a writ of

certiorari issue to review the judgment herein of the

United States Court of Appeals for the Fifth Circuit

entered in the above entitled case on September 14,

1977, petition for rehearing denied on November 1,

1977.

OPINION BELOW

The opinion of the Court of Appeals is not yet

reported. It affirmed a judgment of conviction of

petitioner for: |. willfully and knowingly issuing Letters

of Credit, drawn against the credit of Eglin National

Bank, without authority of the bank’s Board of

Directors in violation of Title 18 U.S.C. §1005; and 2.

willfully and knowingly misapplying bank funds with

the intent to injure or defraud the bank in violation of

Title 18 U.S.C. §656. Petitioner was tried in the

District Court by a jury and the Order of the Trial

Court denying defendant's motion for new trial is

attached as Appendix C.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on September 14,

1977, petition for rehearing denied on November |,

1977. Jurisdiction of this court is invoked under Title

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

FIRST: Did the Court below abuse its judicial

discretion by refusing to consider the petitioner's

conviction on the first five counts of the seven counts

upon which he was convicted?

SECOND: Did the lower court err in holding that the

trial court’s “natural and probable consequence” charge

did not shift the burden of proof to the defendant?

THIRD: Did the Court below err by failing to

address a major portion of petitioner’s appeal?

STATUTES INVOLVED

The statutes involved are United States Revised

Statutes §5209, 12 U.S.C. 592 (1913), and 18 U.S.C.

§ §334, 656 and 1005. Because these provisions are

lengthy, their pertinent text is set forth as Appendix D,

p. Id.

STATEMENT OF THE CASE

A ten count indictment was filed on August 18,

1976, in the United States District Court for the

Northern District of Florida against the petitioner,

Lewie Frank Tidwell. Two counts were withdrawn from

the jury’s consideration and the petitioner was

acquitted on a third count by the jury.

The remaining 7 counts fall into two categories: 1.

Counts One, Three, Five, Six and Seven alleged that

Tidwell willfully and knowingly issued various letters of

credit, drawn against the credit of Eglin National Bank,

without authority of the Bank’s board of directors, in

violation of Title 18 U.S.C. §1005; and 2. Counts Nine

and Ten alleged that Tidwell willfully and knowingly

misapplied bank funds with the intent to injure or

defraud the bank in violation of Title 18 U.S.C. §656.

Tidwell was sentenced to three years on each count,

all sentences to run concurrently. On appeal Tidwell

argued three points relative to the trial court

4

proceedings and one point regarding proceedings on the

appellate level. Tidwell argued that a violation of 18

U.S.C. §1005 required an “intent to injure or defraud

the bank.” The trial court refused to give a requested

jury instruction to that effect. Tidwell’s second

argument on appeal was that the trial court’s refusal to

allow into evidence a certified copy of the foreclosure

proceedings pertinent to Counts Nine and Ten crippled

his defense, and that the trial court’s “‘natural and

probable consequence” instruction shifted to the

Defendant the burden of proving a lack of the required

intent. In addition, Tidwell’s third argument was that

when convictions on a bulk of the counts in a

multi-count indictment are erroneous, the cause should

be remanded for a new trial on the remaining counts,

or, at the very least, for a determination from the trial

court that the unsound convictions did not influence

the trial court in his sentence. This last contention was

not addressed by the appellate court and_ the

convictions as to Counts Nine and Ten were affirmed.

The Court declined to address the attacks on the

remaining five counts as a matter of “judicial

discretion.” The order denying a petition for re-hearing

was entered November |, 1977.

REASONS FOR GRANTING THE WRIT

This petition raises three substantial questions

concerning the administration of criminal justice in the

federal courts. The first two questions involve serious

conflicts in opinions among the district courts and the

third question involves the continued abuse of dis-

cretion practiced by the district courts in_ the

application of the “concurrent sentence doctrine.’ This

court has not passed on the question of what elements

the Government must prove to establish a violation of

Title 18 U.S.C. §1005 although at least two circuit

courts have addressed the issue, each reaching a

different conclusion. Nor has this Court clearly resolved

the continuing conflict among circuit courts regarding

the “natural and probable consequence”’ charge used in

District Courts throughout the jurisdiction of this court.

In addition, although this Court has established general

guidelines for the application of the “concurrent

sentence doctrine’ regarding the direct effect on the

defendant, it has not established such guidelines

regarding the collateral effects.

FIRST

Throughout the trial proceedings and on appeal, the

petitioner maintained that an intent “to injure or

defraud the bank” was an essential element of a

violation of Title 18 U.S.C. §1005. This contention was

derived from an exhaustive review of the legislative

history of the statutes involved and the decision from

the Ninth Circuit Court of Appeals in United States v.

Pollock, 503 F.2d 91 (9th Cir. 1974). The lower court

(see Appendix A) as well as the trial court (see

Appendix C) acknowledged the opinion of the 9th

Circuit but refused to apply that rationale in the instant

case. The trial court, relying on the _ precedent

established by the Fifth Circuit in United States vy.

Harrison, 279 F.2d 19 (Sth Cir. 1960), held that:

6

“It may well be that the Fifth Circuit, inasmuch as

it has adopted the petition of these other courts

reading this language into 18 U.S.C. §656, may

also recede from its prior decision and hold such

intent also to be an essential element of 18 U.S.C.

§ 1005. As it has not yet done so, however, this

Court concluded at trial, and now concludes, it

should adhere to the rule of Harrison to the effect

that such intent to injure or defraud is not an

essential element. The rule in Harrison, if changed,

should be changed by the Fifth Circuit and not

this Court.”

The Fifth Circuit also acknowledging the possibility of

irreconcilable opinions declines to address those points

of the appeal as a matter of judicial discretion.

Title 18 U.S.C. §1005 presently consists of three

separate paragraphs, only one of which includes the

words “with intent to injure or defraud.” (See

Appendix D, 18 U.S.C. §1005). The petitioner was

charged under ‘paragraph 2 of this section, said

paragraph not including the words in question. The

omission of the intent from the other two paragraphs

was a Oversight on the revisor’s part, as becomes evident

from an examination of the statute’s legislative history.

Title 18 U.S.C. §1005, as it presently exists, had its

Origins with Revised Statutes, Section 5209 which, in a

single paragraph, set out the violation charged in the

instant case, and included the words “with intent, in

either case, to injure or defraud.’ (See Appendix D,

Rev. Stat. Section 5209). In 1913, Revised Statutes,

Section 5209 was recodified as 12 U.S.C. §592, which

again included all parts of the sections in a single

paragraph and did require “intent, in any case, to injure

or defraud.” (See Appendix D, 12 U.S.C. §592).

The most recent revision of those sections occurred

in 1948 when the statute was revised and its contents

separated into three separate statutes, those being 18

U.S.C. §§334, 656 and 1005. The revisor’s notes state

that the revisions were intended to clarify and

condense, without changing in any way the nieaning or

substance of the existing law.'

The Ninth Circuit Court of Appeal in considering the

revisor’s notes as well as the legislative history of the

statute required that an intent to injure or defraud the

bank was an essential element of a violation of Section

1005.

The Fifth Circuit in 1960, however, in Harrison v.

United States, supra, concluded that since the language

of the statute was clear and unambiguous, no intent to

injure or defraud was a required element of a violation

of 18 U.S.C. Section 1005.

As previously noted three separate statutes have the

same origin in 12 U.S.C. Section 592. At least 4 circuit

'“Revision note — Former Section 592 of Title 12 was

separated into three sections the first of which, embracing

provisions relating to embezzlement, abstracting, purloining, or

willfully misapplying moneys, funds, or credits, constitutes part

of the basis for this section (Section 656). Of the other two

sections, one §334 of this title, relates only to the issuance and

circulation of federal reserve notes and other, §/005 of this title,

to false entries or the wrongful issue of bank obligations. The

original section, containing more than 500 words, was verbose,

diffuse, redundant and complicated. The enumeration of banks

affected is repeated eight times. The revised section without

changing in any way the meaning or substance of existing law,

clarifies, condenses, and combines related provisions largely

rewritten in matters of style.” (Emphasis added) 18 USC §656,

revisor’s note.

courts have reviewed the legislative history as it relates

to Section 656, which incidentally, does not include the

language “with intent to injure or defraud” and have

reached a common result that such an intent was left

Out as an oversight on the revisor’s part. United States

v. Docherty, 468 F.2d 989 (2nd Cir. 1972); United

States v. Schmidt, 471 F.2d 385 (3rd Cir. 1972);

United States v. Mann, 517 F.2d 259 (Sth Cir. 1975):

and United States v. Seals, 221 F.2d 243 (8th Cir.

1955). This rationale was supplied by the Ninth Circuit

in United States v. Pollock, supra, and did hold that

such an intent is an essential element of Section 1005

as well. Thus, a clear and unresolved conflict exists

among the circuit courts relative to whether or not an

intent to iniure or defraud should be an essential

element under Title 18 U.S.C. Section 1005.

The lower court admitted that the question was

squarely before it, and admitted that there were

problems in reconciling the Fifth Circuit decisions in

United States v. Harrison, supra, and United States vy.

Mann, supra, but declined to de so. Such an action

constitutes an abuse of discretion on the part of the

Fifth Circuit, and this Court should resolve the conflict

now existing among the circuit courts under the

jurisdiction of this Court.

SECOND

Unlike the convictions in Counts 1, 3, 5, 6 and 7,

the petitioner was convicted on Counts 9 and 10 after

the trial court instructed the jury that a violation of 18

U.S.C. §656 required that the government prove

beyond and to the exclusion of every reasonable doubt

that *he defendant intended to injure or defraud the

bank. Thereafter, the trial court instructed the jury on

several Occasions as to what tests the government must

meet regarding the burden of proof of intent. (See

Appendix E).

While it is generally impossible to prove by direct

evidence the intent of the defendant in a criminal case

where intent is an essential element, the instruction on

the “natural and probable consequences” tends, in

many cases, to shift the burden of proof from the

government to the defendant. This court, in Mullaney v.

Wilbur, 421 U.S. 684 (1975), held that due process

“requires the prosecution to bear the burden of proof

beyond the reasonable doubt on every element that

constitutes the crime charged against the defendant.”

Thus, the error inherent in the “natural and probable

consequences” charge takes on a_ constitutional

dimension, and must be judged accordingly.

While such an_ instruction may technically be

required, its application has created confusion and

disparity among the circuit courts. The Second Circuit,

for example, in United States v. Bertolotti, 529 F.2d

149 (2nd Cir. 1975), stated:

“We have for many years warned against the use

of this type of charge, United States v. Barash,

365 F.2d 395, 402-03 (2nd Cir. 1966), and are

somewhat surprised as its continued appearance.

Given our disposition of this case, there is no need

to determine whether the “district courts” errone-

ous charge constitutes reversible error. We wish,

however, to take this opportunity to again stress

our disapproval ‘of the “natural and probable

consequences” charge and to remind trial judges

10

that its continued use may jeopardize otherwise

sound convictions.”

Similar problems on the wording of such instruction

have arisen in other circuits. See United States vy.

Wilkinson, 460 F.2d 725 (Sth Cir. 1972); United States

vy. Releford, 352 F.2d 36 (6th Cir. 1965); and Cohen y.

United States, 378 F.2d 751 (9th Cir. 1967) cert.

denied, 389 U.S. 897 (1967).

The apparent difficulty in determining the exact

wording for such an instruction is the probability that

the jury may infer that the mere doing of an act creates

the intent required by the statute, thus enabling the

government to secure a conviction without proving

beyond a reasonable doubt that the necessary intent

existed. This position was argued strenuously before the

trial judge. (See Appendix E), but with no avail.

The circuit court in comparing its previous decisions

relative to the natural and probable charge, determined

that error existed in the instruction. This holding,

however, would probably not have been the same had

the issue been questioned before the Second Circuit.

See United States v. Bertolotti, supra.

Because of its universal application, the “natural and

probable consequences” charge should be reviewed by

this court so that its application would gain some

uniformity within the courts under the jurisdiction of

this court.

THIRD

Although the application of the “concurrent sentence

doctrine’ was discussed by this court in Benton vy.

Marvland, 395 U.S. 784 (1969), this court did not

1]

discuss the possible collateral effects which would make

it necessary or proper for the circuit courts to elect not

to apply the doctrine and address the issues raised by

an appellant in a criminal case. In Benton, this Court

did establish that there is “no jurisdictional bar to

consideration of challenges to multiple convictions, even

though concurrent sentences were imposed.” The

apparent rationale behind that decision was that in any

criminal case there are certain direct consequences to

the defendant. More over, this Court, in Benton

concluded that the mere possibility of collateral

consequences is enough to give a criminal case the

“impact of actuality’ which make it necessary to

review multiple convictions.

In the present case, although the defendant argued

on appeal, that his case should be remanded to the trial

court for a new trial because of the “‘spill-over’’ effect

of the erroneous convictions on the convictions that

were sound, the Fifth Circuit did not address those

contentions.

In United States v. Barash, 365 F.2d 395 (2nd Cir.

1966) the Court held that there is a distinct possibility

in multi-count indictments in which many of the counts

are erroneous that there is a “‘spill-over” effect, and

that “the jury might not have exercised its perogative

of leniency if these charges alone had been before it.”

Also applying the rationale of Barash, supra, and the

rationale adopted by the Fifth Circuit in United States

v. Jerkins, 530 F.2d 1203 (Sth Cir. 1976) that the

convictions on the unsound counts may have in some

way affected the trial court in its determination of the

sentence to be imposed under the remaining counts

which may be sound.

P-

The net result of the appellate court’s failure to

address the argument of the petitioner relative to

Counts |, 3, 5, 6, and 7 of this multi-count indictment

is that the relief prayed for by the petitioner was

denied. That relief being that the court did not

determine whether the defendant was entitled to a new

trial, nor whether the defendant was entitled to have

his cause remanded for review of sentence, nor did the

appellate court address the defendant's plea for petition

for re-hearing relative to the disastrous collateral effect

of the court’s failure to so decide.

As pointed out in the petitioner’s petition for

re-hearing before the Fifth Circuit, he stood to have the

entry of a substantial money judgment against him

simply because of the failure of the appellate court to

address his contentions. (See Appendix E)

The “concurrent sentence” doctrine as applied in the

instant case results in a serious abuse of discretion and

allows disastrous collateral effects, and this court should

establish definitive guidelines as to the application of

the judicial discretion available to the district courts in

applying the concurrent sentence doctrine.

CONCLUSION

For the reasons stated, il is respectfully stated that

this Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

JAMES G. ETHEREDGE

221 North Eglin Parkway

Fort Walton Beach, Fla. 32548

Attorney for Petitioner

13

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a true copy of the

foregoing Petition for Writ of Certiorari has on this

Ist day of December, 1977, been delivered by US.

Mail to the Honorable Emory O. Williams, Assistant

United States Attorney, P.O. Box 12313, Pensacola,

Florida 32581, attorney for Respondent herein and to

the Solicitor General, Department of Justice, Washing-

ton, D.C. 20530.

JAMES G. ETHEREDGE

la

APPENDIX A

UNITED STATES of America,

Plaintiff- Appellee,

v.

Lewie Frank TIDWELL,

Defendant-Appellart.

No. 76-4205.

United States Court of Appeals,

Fifth Circuit.

Sept. 14, 1977.

Appeal from the United States Dis-

trict Court for the Northern District of

Florida.

Before WISDOM, SIMPSON §$and

TJOFLAT, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant, Lewie Frank Tidwell, was

convicted upon trial by jury under seven

counts of an original ten-count indict-

ment.! These counts fell into two

groups: Counts One, Three, Five, Six

1. Count Two was dismissed for failure to state

an offense and judgment of acquittal was en-

tered as to Count Four when the government

failed to introduce evidence to support it. The

jury found Tidwell not guilty of Count Eight.

2a

and Seven alleged that Tidwell wilfully

and knowingly issued various letters of

credit, drawn against the credit of the

Eglin National Bank, without authority

of the Bank’s board of directors, in viola-

tion of Title 18, U.S.C. § 1005. Counts

Nine and Ten alleged that Tidwell wil-

fully and knowingly misapplied tank

funds with the intent to injure and de-

fraud the bank in violation of Title 18,

U.S.C. § 656. Tidwell was sentenced to

three years on each count, all sentences

to run concurrently. In this appeal, he

raises three points, one relating to the

unauthorized issuance charges, the oth-

ers to the misapplication of funds

charges. We affirm his conviction as to

Counts Nine and Ten and do not reach

the other counts under the concurrent

sentence doctrine.

I. THE FACTS

Tidwell was hired in September 1972

to serve as president of the Eglin Na-

tional Bank. While in that position, he

drew and issued several letters of credit

for the benefit of different persons. At

no time did he notify or seek approval

from the board of directors with regard

to these potential obligations. The un-

authorized issuance of these letters of

credit, including one in the amount of

$43,500 to Marvin Chapman, formed the

basis for Counts One through Seven.

3a

Counts Nine and Ten involved a com-

plex transaction in which several banks,

principally Eglin and Merchants Nation-

al of Mobile, loaned $600,000 to Marvin

Chapman who offered as security two

parcels of undeveloped land. In June

1974 Chapman approached Tidwell and

offered 37 condominium units valued at

$700,000 as additional collateral for his

indebtedness if Eglin would do two

things: (1) cover a check for $43,000

written by Chapman without sufficient

funds, and (2) pay approximately $40,000

for the mortgage on the condominiums

held by the Great American Mortgage

Company. Tidwell contacted Merchants

Bank and on July 17, 1974, Merchants

credited Eglin’s account in the amount

of $85,000 to pay off the first mortgage

on the condominiums. Tidwell applied

$43,000 of these funds to cover Chap-

man’s bad check, and attempted to pay

off the mortgage with $38,000 of the

remaining funds. Great American, how-

ever, refused Eglin’s offer. In early Au-

gust 1974, a $43,500 letter of credit is-

sued to Chapman by Tidwell against Eg-

lin’s credit was called and required im-

mediate payment. Tidwell used the re-

maining funds credited to Eglin’s

account by Merchants to pay this obliga-

tion. The payments on Chapman's bad

check and his letter of credit formed the

basis for Count Nine. Finally, after an-

other intervening unsuccessful attempt,

4a

Tidwell was able to secure the first

mortgage for $41,562.61 which he paid

out of Eglin’s funds without approval or

knowledge of the board of directors.

This use of the bank's money formed the

basis for Count Ten.

Tidwell urges two grounds for reversal

of his conviction on Counts Nine and

Ten: (1) that the trial judge’s instruc-

tion concerning the “natural and proba-

ble consequences” of one’s acts shifted

the burden of proof to the defendant on

the issue of intent, and (2) that the ex-

clusion of evidence showing that the

bank later foreclosed on the mortgage

obtained by Tidwell seriously impaired

his defense by not letting the jury know

the actual consequences of Tidwell’s acts.

We find no merit to either of these ar-

guments.

Il. THE “NATURAL AND PROBA-

BLE CONSEQUENCES”

INSTRUCTION

{1} Tidwell claims that error occurred

as a result of the following portion of

the trial judge’s instructions to the jury:

It is reasonable to infer that a per-

son ordinarily intends the natural and

probable consequences of his knowing

acts. The jury may but is not re-

quired to draw the inference and find

that the accused intended all of the

consequences which one standing in

Sa

like circumstances and possessing like

knowledge should reasonably have ex-

pected to result from any intentional

act or conscious omission. Any such

inference drawn is entitled to be con-

sidered by the jury in determining

whether or not the Government has

proved beyond a reasonable doubt that

the defendant possessed the requisite

criminal intent. (T. 542)

This charge was duly objected to at the

trial, preserving the point for appellate

review.

This instruction bears little resem-

blance to that which was first con-

demned in Mann v. United States, 319

F.2d 404 (5th Cir. 1963), cert. denied, 375

U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474

(1964), as impermissibly shifting the bur-

den of proof to the defendant. In Mann,

the trial judge had given the following

charge:

“It is reasonable to infer that a person

ordinarily intends the natural and

probable consequences of acts know-

ingly done or knowingly omitted. So

unless the contrary appears from the

evidence, the jury may draw the infer-

ence that the accused intended all the

consequences which one standing in

like circumstances and possessing like

knowledge should reasonably have ex-

pected to result from any act know-

ingly done or knowingly omitted by

the accused.”

6a

Id. at 407. We held that the words “So

unless the contrary appears from the ev-

idence” shifted the burden of proof from

the prosecution to the defendant to

prove lack of intent. Jd. at 409. No

comparable language was included in the

instant charge.

In addition to the lack of any burden

shifting language, the instruction given

falls within exceptions to the Mann rule

developed by post-Mann cases in this Cir-

cuit. By repeatedly reminding the jury

that the government bears the burden of

proving beyond a reasonable doubt every

element of the crime, the trial judge in-

cluded adequate “curative provisions”, in

compliance with United States v. Jen-

kins, 442 F.2d 429, 488 (5th Cir. 1971).

Also, testing the charge “as a whole and

not by a single isolated sentence”, we

find no reversible error. United States

v. Duke, 527 F.2d 386, 392-93 (5th Cir.

1976), cert. denied, 426 U.S. 952, 96 S.Ct.

3177, 49 L.Ed.2d 1190. Finally, the in-

stant charge follows almost verbatim the

charge which we approved in United

States v. Wilkinson, 460 F.2d 725, 733

(5th Cir. 1972). Instead of using only

the language approved in Wilkinson,

“(t]he jury may draw the inference that

the accused intended ail of the conse-

quences... .”, the trial judge here

added that the jury “may but it is not

required to draw the inference .

These additional words gave further as-

surance that the jury would understand

Ta

the burden of proof to which the prose-

cution is held. Although we do not now

require an instruction more carefully

worded than that set forth in Wilkinson,

we favor the instant charge as a more

effective way of avoiding the abuse con-

demned in Mann.

We hold that the instant charge did

not shift the burden of proof on the is-

sue of intent. The trial judge was care-

ful to avoid such a result.

III. EXCLUSION OF THE FORECLO-

SURE PROCEEDINGS

During the trial, Tidwell’s counsel of-

fered as evidence certified copies of the

complaint and final judgment in a mort-

gage foreclosure action by the Eglin Na-

tional Bank against Marvin Chapman.

The trial judge, conceding relevance, sus-

tained an objection to the introduction of

this evidence on the ground that it was

repetitious. T. 420-21. On appeal, Tid-

well argues that exclusion of the evi-

dence as to the mortgage foreclosure ac-

tion was reversible error because it crip-

pled his defense on the only issue in dis-

pute with regard to the misapplication

counts, namely, whether he misapplied

the funds with an intent to injure and

defraud the bank.

[2,3] In United States v. Mann, 517

F.2d 259 (5th Cir. 1975), cert. denied, 423

U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97

(1976), we identified the four essential

8a

elements of a violation of 18 U.S.C.

§ 656:

(1) that the accused was an officer,

director, etc. of a bank,

(2) that the bank was connected in

some way with a national or federally

insured bank,

(3) that the accused wilfully misap-

plied the money, funds, etc. of said

bank, and

(4) that the accused acted with in-

tent to injure and defraud said bank.’

2. The statute, which reads as follows, does not

mention specific intent:

§ 656. Theft, embezzlement, or misapplica-

tion by bank officer or employee

Whoever, being an officer, director, agent

or employee of, or connected in any capacity

with any Federal Reserve bank, member

bank, national bank or insured bank, or a

receiver of a national bank, or any agent or

employee of the receiver, or a Federal Re-

serve Agent, or an agent or employee of a

Federal Reserve Agent or of the Board of

Governors of the Federal Reserve System,

embezzies, abstracts, purloins or willfully

misapplies any of the moneys, funds or cred-

its of such bank or any moneys, funds, as-

sets or securities intrusted to the custody or

care of such bank, or to the custody or care

of any such agent, officer, director, employ-

ee or receiver, shall be fined not more than

$5,000 or imprisoned not more than five

years, or both; but if the amount embezzled,

abstracted, purloined or misapplied does not

exceed $100, he shall be fined not more than

9a

It is well established that “the requisite

intent can be inferred from the facts

and circumstances shown at trial”.

United States v. Tokoph, 514 F.2d 597,

603 (10th Cir. 1975). This intent exists

“if a person acts knowingly and if the

natural result of his conduct would be to

injure or defraud the bank even though

this may not have been his motive”.

United States v. Schmidt, 471 F.2d 385,

386 (3d Cir. 1972). Furthermore, and as

the trial judge properly instructed the

jury,

An intent to injure or defraud

is not inconsistent with a desire for

the ultimate success and welfare of

the bank . . . A wrongful mis-

application of funds, even if made in

the hope or belief that the bank’s wel-

fare would ultimately be promoted is

none the less a violation of the statute,

if the necessary effect is or may be to

injure or defraud the bank.

Golden v. United States, 318 F.2d 357,

361-62 (1st Cir. 1963), citing Galbreath v.

United States, 257 F. 648, 656 (6th Cir.

1918).3 In accord with these principles,

$1,000 or imprisoned not more than one

year, or both.

Rather, the intent requirement has been judi-

cially read into the statute on the basis of its

legislative history. See, e. g., United States v.

Docherty, 468 F.2d 989 (2d Cir. 1972).

3. In instructing the jury, the trial judge quoted

verbatim from Golden. T. 541-42.

10a

evidence that a Section 656 violation

eventually worked to the bank’s advan-

tage does not negate the requisite in-

tent:

The ultimate or future possibility or

probability of benefit to the bank is

not a defense to a misapplication of

funds at the time of purchase of the

loans. The offense occurred and was

complete when the misapplication took

place. What might have later hap-

pened as to repayment is not material

and could not be a defense.

United States v. Acree, 466 F.2d 1114,

1118 (10th Cir. 1972), cert. denied, 410

U.S. 918, 93 S.Ct. 962, 35 L.Ed.2d 278

(1973).

[4,5] The ultimate ability of the Eg-

lin Bank to foreclose on the Chapman

mortgage, while not a defense, had at

least colorable relevance to Tidwell’s

state of mind at the time of the misap-

plications involved. The issue before the

jury was whether Tidwell at the time of

misapplying the funds should have

known that a natural result of his con-

duct would be to injure or defraud the

bank. Vo this end, Tidwell was permit-

ted to testify that he was able to secure

$700,000 worth of collateral for $128,-

062.61, that he had “no choice” but to

pay the Chapman lett>r of credit, that

the “ultimate result” he intended “was

to put the Eglin National Bank ._.

in a much better secured position so that

lla

”

there would be no loss , and

that a first mortgage was in fact se-

cured. T. 486-87. The jury could have

interpreted this testimony as negating

the requisite intent; it chose not to.

Evidence of the later foreclosure on the

mortgage might have lent credibility to

Tidwell’s version of his state of mind at

the time of misappropriation by tending

to prove that Tidwell could not have

known that his acts would have a natu-

ral tendency to harm the bank. To this

extent the evidence was logically rele-

vant. But it might also have induced

the jury to decide the case on whether

the bank suffered a pecuniary loss as a

result of Tidwell’s acts rather than on

grounds material to the offense alleged.’

4. The judge instructed the jury on this point:

In determining whether the defendant acted

with intent to injure or defraud the bank it

is not necessary that the evidence establish

he personally profited by his acts or intend-

ed to do so. However, if he did not person-

ally profit by his acts, such may be con-

sidered by you in determining his intent. T.

542.

5. Such a danger was clearly present in this

case. The trial judge instructed the jury that

“i]t is not necessary, however, that actual in-

jury to the bank be shown”. T. 541. During

its deliberations, the jury passed a note to the

judge asking “Did the bank loose [sic] any

money’’? T. 551. In response to the note, the

judge repeated his earlier instruction. T. 557.

eS

12a

Under the Federal Rules of Evidence,

the trial judge has broad discretion to

exclude evidence where itSprobative val-

ue is substantially outweighed by such

dangers as confusion of issues, mislead-

ing the jury, or needless presentation of

cumulative evidence. Fed.R.Evid. 403.

See United States v. Johnson, Slip opin-

ion 5617, —— F.2d ——~— (5th Cir. 1977)

[No. 76-2447, decided Sept. 1, 1977]. Be-

cause such dangers were present in this

case and the evidence offered had no

more than attenuated probative value at

best, we hold that the trial judge did not

abuse his discretion by excluding the

foreclosure evidence.

The conviction below as to Counts

Nine and Ten was free from harmful

error and will be affirmed.

IV. THE UNAUTHORIZED

ISSUANCE QUESTION

Counts One, Three, Five, Six and Sev-

en alleged violations of Title 18, US.C.

§ 1005 in that Tidwell, as an officer of

the bank, issued letters of credit of the

bank without authority of the directors.

The indictment did not allege that Tid-

well issued these notes “with intent to

injure or defraud” the bank, and the tri-

al judge refused to instruct the jury that

such intent is an element of the crime.

Although the statute on its face does not

require proof of intent to complete the

offense of unauthorized issuance, Tidwell

l3a

argues that Congress intended such a re-

quirement but was careless in revising

the statute.

In Harrison v. United States, 279 F.2d

19 (5th Cir. 1960), cert. denied, 364 U.S.

864, 81 S.Ct. 105, 5 L.Ed.2d 86, we held

that “no specific intent to injure or de-

fraud a bank is an ingredient in the of-

fense charged in the first two para-

graphs of Section 1005”. Id. at 23. We

reached this conclusion based on the

words of the statute which “itself seems

too plain to require judicial construc-

tion”. Fifteen years later, however, in

United States v. Mann, supra, 517 F.2d

259, we held that an intent to injure or

defraud the bank was an implied ele-

ment of the offense charged in 18 U.S.C.

§ 656. Both Sections 656 and 1005 are

derived from the same statute, which

was broken down and recodified in 1948.

(Formerly 12 U.S.C. § 592). In light of

this common origin, the Ninth Circuit

reasoned that since it had earlier read an

intent to injure or defraud into 18 U.S.C.

§ 656, “we must also read that require-

ment into the second paragraph of 18

U.S.C. § 1005”. United States v. Pol-

lack, 503 F.2d 87, 91 (9th Cir. 1974). Al-

though the instant case falls squarely

within Harrison, Tidwell contends that

Harrison and Mann cannot be reconciled

and urges that we adopt the view ex-

pressed by the Ninth Circuit in Pollack.

To do this we would have to overrule

Harrison.

14a

As we have recently pointed out,

“(t]he established policy of this Court is

to recognize the binding effect of a prior

decision by another panel of the Court

subject only to a reversal of the Court

sitting en banc”. McDaniel v. Fulton

Nat'l Bank of Atlanta, 543 F.2d 568, 570

(5th Cir. 1976). This policy would re-

quire us to affirm Tidwell’s conviction on

the unauthorized issuance counts if we

reached them, leaving him free to peti-

tion for a rehearing en banc in order to

urge reversal of Harrison.

[6] However, as the case stands on

appeal, it is unnecessary for us to reach

the unauthorized issuance counts. Tid-

well was sentenced to three years on

each of the seven counts for which he

was convicted, the sentences to run con-

currently. Since we have affirmed his

convictions as to Counts Nine and Ten,

we need not decide the issue raised with

regard to Counts One, Three, Five, Six

and Seven pursuant to the concurrent

sentence doctrine. Although we have

jurisdiction to decide this issue, see Ben-

ton v. Maryland, 395 U.S. 784, 791, 89

S.Ct. 2056, 2060-61, 23 L.Ed.2d 707

(1969); United States v. Stone, 472 F.2d

909, 916 n. 5 (5th Cir. 1973), we decline

to do so as a matter of judicial discretion

under the criteria set forth in United

States v. Binetti, 547 F.2d 265, 269 (5th

Cir. 1977).

AFFIRMED.

Ib

APPENDIX B

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

November |, 1977

TO ALL PARTIES LISTED BELOW:

No. 76-4205 - U.S.A. v. LEWIE FRANK TIDWELL

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing,** and no member

of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition( )

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By /s/ Brenda M. Hauck

Deputy Clerk

**on behalf of appellant, Lewie Frank Tidwell,

ce: Messrs. James G. Etheredge

Richard H. Black

Mr. Emory O. Williams. Jr.

Ic

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS. PCR-76-58

LEWIE FRANK TIDWELL,

Detendant.

ORDER

Before the court is defendant’s motion for new trial.

Counts |, 3, 5, 6 and 7 of the indictment. according to

a 1960 Fifth Circuit decision, do not require an “intent

to injure or defraud” the bank as an element of the

offense. Harrison v. United States, 279 F.2d 19 (Sth

Cir. 1960). Each count charges an offense under

paragraph 2 of 18 U.S.C. §1005.

Defendant contends that Fifth Circuit,. in’ that

opinion, did not review the legislative intent of 18

U.S.C. §1005, as did the Ninth Circuit Court of

Appeals in the 1974 opinion, United States v. Pollack,

503 F.2d 87 (9th Cir. 1974). In that case, Ninth Circuit

reached the conclusion such intent to injure or defraud

was an essential element of the crime in view of the

legislative history.

Defendant points out that in 1975 a subsequent

panel of Fifth Circuit reviewed the same question as it

related to 18 U.S.C. §656 and concluded, as did the

Ninth Circuit, that it was an oversight on the reviser’s

part that these elements were omitted in the new

section. United States v. Mann, 517 F.2d 959 (Sth Cir.

1975).

In Mann, the Fifth Circuit reached the conclusion

that, notwithstanding the lack of such specific language

in the section, 18 U.S.C. §656 did have as an essential

element an intent to injure and defraud the bank. In so

doing, it reached the conclusion, as have other courts,

on consideration of the 1948 revision and the reviser’s

notes, that the revised sections did not change the

meaning or substance of existing law.

In at least one case, the statement has been made:

“In applying provisions of 18 U.S.C. §656... courts

must be mindful of its history and avoid undue

extension as a result of the ill-conceived work of the

1948 reviser.”’ United States v. Docherty, 468 F.2d 989

(2d Cir. 1972). Perhaps the most extensive discussion of

the legislative history of these revised sections is found

in United States v. Pollack, supra.

It well may be that Fifth Circuit, inasmuch as it has

adopted the position of these other courts reading this

language into 18 U.S.C. §656, may also recede from its

prior decision and hold such intent also to be an

essential element of 18 U.S.C. §1005. As it has not yet

done so, however, this court concluded at trial, and

now concludes, it should adhere to the ruling of

Harrison to the effect thet such intent to injure or

defraud is not an essential element. The rule in

Harrison, if changed, should be changed by Fifth

Circuit and not this court.

In the revision resulting in new sections 656 and

1005, there are some different language changes in

3¢

paragraphing of the sections that may at least make

some difference in construction of the new statutes.

Beyond that, however, this court is also impressed

with the reasoning of Merrison:

It is to be noted that the indictment charged in

Court ‘that the issuing of the Cashier’s check was

done’ with intent to defraud the bank and the

depositors thereof. However, even a casual reading

of this section makes plain that no specific intent

to injure or defraud a bank is an ingredient in the

offense charged in the first two paragraphs of

Section 1005. Each of the first three paragraphs

states a separate and distinct crime. Neither the

first nor the second requires proof of any intent to

injure or defraud the bank. The acts described in

those two paragraphs are made criminal per-se. We

find very little case law on this subject. In fact,

the only case found is United States v. Johnson,

Ohio 1879, 4 Cir., Law Bul. 361 Fed.Cas.No.

15,483. This case cited for the proposition that an

intent to injure or defraud was not necessary to

complete the crime of drawing bills of exchange or

signing notes without authority of bank directors.

The statute itself seems too plain to require

judicial construction.

(United States v. Harrison, supra, at 23.)

To this court, the language in these two sections is

too plain to permit or require judicial construction.

They are not ambiguous; there is not justification for

going into the legislative history to determine the intent

of Congress when the plain and unambiguous language

of the statute does not justify such inquiry.

It is axiomatic that, in construing a statute, it is

improper to resort to extrinsic circumstances, nor may

the legislative history compel a construction at variance

nat eet

40 ane ee eet eee eae

4c

with its plain words. Resort to the legislative history is

here justified, it appears to this court, only under the

cases holding such resort is not forbidden no matter

how clear the words may appear on_ superficial

examination. Yet, also, to this court, on either close or

superficial examination of the words in 656 and 1005,

they appear plain and unambiguous.

[COPY MISSING] and apparently to the courts

relying on it, consists only of the reviser’s statements.

Yet, absent other history, it is also possible it agreed

with the reviser’s statement that, “It is believed that the

revised sections adequately and correctly represent the

intent of Congress as the same can be gathered from

the overlapping and confusing enactments,” and that

these sections, expressly making intent to injure or

defraud, or to deceive, a part only of the third

paragraph of 1005, express the congressional intent.

Nowhere in the reviser’s notes, as this court has read

them, is there express mention of the omission of

language of intent to injure or defraud as it was

contained in the prior sections, although the notes do

say that certain language was omitted as unnecessary.

It is also noted at least one court was able to reach

the conclusion that, with reference to 656, Congress in

omitting the words, “intent to injure or defraud,”

undoubtedly considered these words to be redundant.

(See reference in Pollack, supra.) Yet, clearly, Congress

did not consider them redundant in enacting 1005, for

that section expressly included them in its third

paragraph.

Other grounds set forth in such motion for new trial

have been considered and have been found to be

without merit.

Sc

By reason of the foregoing, it is,

ORDERED: Defendant’s motion for new trial should

be and the same is hereby denied.

DONE AND ORDERED this 17th day of November,

1976.

/s/ Winston E. Arnow

WINSTON E. ARNOW

Chief Judge

Lt them te ct Ma

vee A RS Ak TE te EE Ce ee be

swe

PRsea ree ome

Id

APPENDIX D

Rev. Stat. 5209:

“Every president, director, cashier, teller, clerk, or

agent of any association, who embezzles, abstracts,

or willfully misapplies any of the moneys, funds,

or credits of the association; or who, without

authority from the directors issues or puts in

circulation any of the notes of the association; or

who, without such authority, issues or puts forth

any certificate of deposit, draws any order or bill

of exchange, makes any acceptance, assigns any

note, bond, draft, bill of exchange, mortgage,

judgment, or decree; or who makes any false entry

in any book, report, or statement of the

association, with intent, in either case, to injure or

defraud the association or any other company,

body politic or corporate, or any _ individual

person, or to deceive any officer of the associa-

tion, Or any agent appointed to examine the affairs

of any such association; and every person who

with like intent aids or abets any officer, clerk, or

agent in any violation of this section, shall be

deemed guilty of a misdemeanor, and shall be

imprisoned not less than five years nor more than

ten.”’ (Emphasis added)

12 U.S.C. §592:

“Any officer, director, agent, or employee of ...a

national banking association... who embezzles,

abstracts, or willfully misapplies any of the

moneys, funds, or credits of such... national

banking association ...or who, without authority

from the directors of such...national banking

association ... issues Or puts in circulation any of

the notes of such... national banking associa-

tion... or who, without such authority, issues or

puts forth any certificate of deposit, draws any

2d

order or bill of exchange, makes any acceptance,

assigns any note, bond, draft, bill of exchange,

mortgage, judgment, or decree, or who makes any

false entry in any book, report, or statement of

such... national banking association... with

intent in any case to injure or defraud such...

national banking association... or any other

company, body politic or corporate, or any

individual person, or to deceive any officer of

such... national banking association . .. and every

receiver of a national banking association who,

with like intent to defraud or injure, embezzles,

abstracts, purloins, or willfully misapplies any of

the moneys, funds, or assets of his trust, and every

person who, with like intent, aids or abets any

officer, director, agent, employee, or receiver in

any violation of this section shall be deemed guilty

of a misdemeanor, and upon conviction thereof in

any district court of the United States shall be

fined not more than $5,000 or shall be imprisoned

for not more than five years, or both, in the

discretion of the Court.” (Emphasis added.)

Section 656:

Theft, embezzlement, or misapplication by bank

officer or employee.— Whoever, being an officer,

director, agent or employee of, or connected in

any capacity with any Federal Reserve bank,

member bank, national bank or insured bank, or a

receiver of a national bank, or any agent or

employee of the receiver, or a Federal Reserve

Agent, or an agent or employee of a Federal

Reserve Agent or of the Board of Governors of the

Federal Reserve System, embezzles, abstracts,

purloins or willfully misapplies any of the moneys,

funds or credits of such bank or any moneys,

funds, assets or securities intrusted to the custody

or care of such bank, or to the custody or care of

any such agent, officer, director, employee or

oll. «le. ota mae

al El a tnt 6) DRS nt AE oP Ain On te

Anse «doe

et ee

nae

ee ne ee ee ee 6 ey TES

<a ak he eee tee

3d

receiver, shall be fined not more than $5,000 or

imprisoned not more than five years, or both, but

if the amount embezzled, abstracted, purloined or

misapplied does not exceed $100, he shall be fined

not more than $1,000 or imprisoned not more

than one year, or both.

As used in this section, the term “national bank”

is synonymous with “national banking associa-

tion”, “member bank’, means and includes any

national bank, state bank, or bank and trust

company which has become a member of one of

the Federal Reserve banks; and “insured bank”’

includes any bank, banking association, trust

company, savings bank, or other banking institu-

tion, the deposits of which are insured by the

Federal Deposit Insurance Corporation. (June 25,

1948, c. 645, §1, 62 Stat. 729.

Section 1005:

Bank entries, reports and transactions.— Whoever,

being an officer, director, agent or employee of

any Federal Reserve bank, member bank, national

bank or insured bank, without authority from the

directors of such bank, issues or puts in circulation

any notes of such bank; or

Whoever, without such authority, makes, draws,

issues, puts forth, or assigns any certificates of

deposit, draft, order, bill of exchange, acceptance,

note, debenture, bond, or other obligation, or

mortgage, judgment or decree; or

Whoever makes any false entry in any book,

report, or statement of such bank with intent to

injure or defraud such bank, or any other

company, body politic or corporate, or any

individual person, or to deceive any officer of such

bank, or the Comptroller of the Currency, or the

Federal Deposit Insurance Corporation, or any

agent or examiner appointed to examine the affairs

4d

of such bank, or the Board of Governors of the

Federal Reserve System—

Shall be fined not more than $5,000 or imprisoned

not more than five years, or both.

As used in this section, the term “national bank”’

is synonymous with “national banking associa-

tion”: “member bank’ means and includes any

national bank, state bank, or bank or trust

company, which has become a member of one of

the Federal Reserve banks; and “insured bank”

includes any state bank, banking association, trust

company, savings bank, or other banking associa-

tion, trust company, savings bank, or other

banking institution, the deposits of which are

insured by the Federal Deposit Insurance Corpora-

tion. (June 25, 1948, c. 645, §1, 62 Stat. 750.)

a a,

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|

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le

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EGLIN NATIONAL BANK,

Plaintiff,

VS.

THE HOME INDEMNITY COMPANY, NO. PCA [illegible |

Defendant and

Third Party Plaintiff,

VS.

LEWIE TIDWELL.,

Third Party Defendant.

JUDGMENT AGAINST THIRD PARTY

DEFENDANT, LEWIE TIDWELL

The third party subrogation claim of the Home

Indemnity Company against Lewie Tidwell is before the

court for entry of judgment, as agreed by the parties,

and as set forth in the court’s pretrial orders. The

judgment entered herein is conditioned upon full

payment by the Home Indemnity Company of the

judgment entered by the court on September 20, 1976.

It is,

ORDERED AND ADJUDGED that the third party

plaintiff, Home Indemnity Company, recover from the

third party defendant, Lewie Tidwell, the sum of

$105,104.25 with interest at the rate of six percent

(6%) per annum until the judgment is satisfied. This

judgement is conditioned upon full payment by the

Home Indemnity Company to the Eglin National Bank

of the judgment entered on September 20, 1976, with

the interest provided herein to commence on the date

of such payment.

DONE AND ORDERED this 5 day of October,

1976.

/s/ Winston E. Arnow

WINSTON E. ARNOW

Chief Judge

*_ * *

[517] (Further off the record conference)

MR. ETHEREDGE: Let me get an objection on the

record.

THE COURT: Let the record show that the

reference, this objection goes to the charge on proof of

intent that comes substantially as the same language as

U.S. versus Wilkinson, 460 Federal Second 725, Fifth

Circuit, 1973. The objection is what?

MR. ETHEREDGE: On this point I’m relying on a

case the Court has cited to us, United States versus

Harrison, which is a 1960 Fifth Circuit case holding to

the effect that the Court in a situation where specific

intent to defraud is a necessary ingredient of the crime,

it would be improper for the Court to charge to such a

presumption, that it’s presumed —

THE COURT: You misunderstand, sir. That is the

very thing they criticized in another one. They draw

3e

the line between presumption and inference. The charge

that used to be given talked about presumption and if |

recall correctly that’s the very thing the Fifth Circuit

was critical of and said go to this one.

MR. ETHERFDGE: The objection goes a little

further than that. Using the terms “presumption or

inference” really is more a term of art, | think, as to

carrying any kind of weight.

[518] THE COURT: The cases point out the

difference.

LAW CLERK: The other cases were more like the

jury should draw the inference.

THE COURT: There’s another one on the presump-

tion, but they didn’t like the presumption. The change

here was from “‘should”’ to ““may” and I’ve gone further

and said “may, but is not required to.” Do you want to

object to it?

MR. ETHEREDGE: I think I’ve got the objection

there.

THE COURT: The ground for it is what?

MR. ETHEREDGE: That an inference or presump-

tion I don’t think should be drawn under those

circumstances because it would allow the jury to reach

the result in a specific intent situation that the mere

doing of the act with nothing more was sufficient for

conviction when there must be proof beyond a

reasonable doubt that the specific intent did exist.

That’s the nature of the objection. And I think it’s

stated in that Harrison case.

THE COURT: Well, do you want to be heard on it?

MR. WILLIAMS: No, he lost me.

THE COURT: You want the charge given”

MR. WILLIAMS: Yes, sir.

THE COURT: I'm going ahead to give it. When you

get through with it, you're almost getting to circum-

stantial evidence whenever you try to prove intent.

There’s no way * * *