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United States v. Hamilton

decided: March 13, 1972.

UNITED STATES OF AMERICA
v.
JAMES HAMILTON ET AL. APPEAL OF DONALD KIBLER



Van Dusen, James Rosen, Circuit Judges, and Becker, District Judge.

Author: Rosen

Opinion OF THE COURT

JAMES ROSEN, Circuit Judge.

Appellant, Donald Kibler, and co-defendants James Hamilton and Wilma Harding, were indicted on June 18, 1969 for violations of 18 U.S.C. § 2113(c) and 18 U.S.C. § 2. The five count indictment charged them with receiving, possessing and disposing of five checks taken from the Westinghouse Electric A.B. Building Employees Federal Credit Union No. 406 with the intent to steal and purloin them.

Wilma Harding originally pleaded not guilty, but then changed her plea to guilty. On November 13, 1970, she was sentenced to five concurrent sentences of six months each. The sentences of imprisonment were suspended and she was placed on probation for three years.

Hamilton and Kibler, who were tried jointly, were arraigned on August 7, 1970, when both pleaded not guilty. The trial date was then set for February 11, 1971, but on motion of Kibler's attorney, the trial was continued twice, and carried until September 16, 1971. At that time, Hamilton moved for a continuance which was denied. His counsel explained that an office fire during the prior weekend had destroyed information which could have been used to impeach Wilma Harding, the Government's principal witness against Kibler and Hamilton. Kibler did not join in Hamilton's motion for a continuance.

Russell F. Drennen, the treasurer of the Credit Union,*fn1 testified that on the morning of February 3, 1969, he discovered that the desk belonging to the Credit Union had been broken into. The desk was "chewed open, the lock was broke, splintered."*fn2 A preliminary inventory at that time did not reveal anything missing. Three days later, however, when he inspected his check book in response to an inquiry by the Mellon National Bank concerning a certain check, he did discover 42 missing checks. Mr. Drennen identified the checks named in the indictment as being among the 42 missing checks.

Wilma Harding testified that on the morning of February 27, 1969, James Hamilton asked her help in cashing certain checks. She agreed to help him and proceeded to drive with Hamilton and Kibler to five different Mellon National branches in order to negotiate the checks. She testified that it was Kibler who drove the car in which the three were occupants, that it was he who filled out the checks to Susan Watson as payee,*fn3 and that it was he who furnished her with false identification*fn4 in the name of Susan Watson. Wilma Harding cashed four of the checks, giving all of the proceeds to Hamilton.*fn5 He, in turn, gave half of the money to Kibler. As she was attempting to cash the fifth check, she was arrested.

Kibler testified in his own behalf. He denied that he knew Wilma Harding at the time of the alleged criminal acts, and further denied any involvement with the five checks.

On September 22, 1970 after five days of trial, the jury returned guilty verdicts against appellant Kibler and codefendant Hamilton on all five counts.*fn6 Kibler filed a timely Rule 33 motion for a new trial on September 24, 1970, challenging, inter alia, the sufficiency of the evidence to support his conviction. In addition, the appellant's motion purported to reserve "the right to file additional and supplemental reasons for a new trial."*fn7

After a hearing on the Rule 33 motion, the trial judge held that there was no justification for a new trial on the ground of insufficient evidence and that the reservation clause was ineffective in extending the time for filing reasons beyond the seven day period provided in Rule 33. Accordingly, the motion was denied. Appellant was subsequently sentenced to imprisonment for two consecutive one-year periods and was placed on probation for a period of five years.

Kibler contends that there was insufficient evidence to support the guilty verdict. He claims that the government did not meet its burden of proving beyond a reasonable doubt that (1) the checks were taken from the Credit Union by burglary or larceny in violation of § 2113(c) and that (2) the appellant knew that the property involved was the subject matter of a particular theft.

The appellant concedes that the evidence in this case was sufficient to establish embezzlement or taking under false pretenses, but argues that it was insufficient to establish larceny.*fn8

Appellant Kibler advances the argument that the three day interval between the breaking into the desk and the discovery of the missing checks required the jury to conclude that an embezzlement occurred after the breaking and entering and therefore the evidence does not support a finding of larceny. We disagree that the facts mandate a conclusion of embezzlement. Drennen, who was a part-time treasurer, spent about an hour each day working for the Credit Union. From the part-time nature of his position the jury could reasonably conclude that when he discovered the desk had been broken into, he did not make a thorough ...


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