APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 71-400)
Seitz, Chief Judge, Kalodner and Aldisert, Circuit Judges.
Appellant, William Bloom, contests the district court judgment, entered after a jury verdict, finding him guilty of conspiring with and aiding and abetting one Ralph Cades in violation of 18 U.S.C. § 656 (1970), willful misapplication of federally-insured bank funds by a bank officer, director, agent or employee.*fn1 Bloom was president of Scooper-Dooper, Inc. which maintained checking accounts at City Bank of Philadelphia ("City Bank") and Pennsylvania Bank of New Jersey ("Pennsauken Bank"). This case grew out of Bloom's operation of a "check-kiting" scheme involving alternating deposits of worthless checks drawn on Scooper-Dooper's account at one bank to cover equally worthless checks on its account at the other. Cades, as president and chairman of the board of City Bank, approved payment of Scooper-Dooper's City Bank checks.
When this case went to trial, Bloom was one of four co-defendants. During trial, the district judge granted motions, not contested by the Government, dismissing the charges against two defendants for lack of evidence. At the same time, the court approved an agreement between Cades and the Government severing him from the trial and providing that at the completion of the trial Cades enter pleas of nolo contendere to three counts of violating § 656. The Government agreed to a dismissal with prejudice of the remaining counts against Cades, including a conspiracy count. The trial continued with Bloom the sole defendant. He was convicted and contends here, inter alia, that the evidence against him was not sufficient to sustain his conviction.
I. REQUISITES OF AIDING AND ABETTING
In order to convict a defendant of aiding and abetting the commission of a crime, it is first essential that the Government demonstrate that the substantive crime has been committed. United States v. Tornabene, 222 F.2d 875, 878 (3d Cir. 1955). We shall assume that the Government presented sufficient evidence to warrant conviction of Cades under the statute defining the principal offense, 18 U.S.C. § 656 (1970).*fn2
To convict Bloom of aiding and abetting, the Government must further show that he facilitated Cades' violation of § 656 and that Bloom intended to facilitate that violation. See United States v. Docherty, 468 F.2d 989, 992-93 (2d Cir. 1972).
In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his actions to make it succeed." L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402.
Nye & Nissen v. United States, 336 U.S. 613, 619, 93 L. Ed. 919, 69 S. Ct. 766 (1949); accord, United States v. Barber, 429 F.2d 1394, 1397 (3d Cir. 1970).
Bloom's check-kiting actions clearly facilitated Cades' misapplication of bank funds through approval of worthless Scooper-Dooper checks. Bloom contends, however, that he did not intend to aid Cades' violation of § 656. Were § 656 violated by a bank officer's misapplication of bank funds, without more, it would be considerably easier for us to dispose of Bloom's contention. However, Section 656 also requires that the bank officer intend to defraud the bank.*fn3 Bloom argues that there is no evidence showing that he was aware of Cades' intent to defraud City Bank, much less that Bloom intended to aid Cades' commission of a crime. Certainly, Bloom intended to defraud City Bank by his own actions. That intent might, assuming other elements of the crime are proven, suffice to convict Bloom of a substantive crime such as "mail fraud."*fn4 The Government has chosen instead to charge him with aiding and abetting Cades' violation of § 656 and consequently must prove Bloom's desire not to defraud City Bank but to help Cades do so.
II. SUFFICIENCY OF EVIDENCE OF INTENT TO AID AND ABET
We assume in analyzing the sufficiency of the evidence that the government may meet its burden by showing (1) Cades' intent to defraud City Bank, (2) Bloom's awareness of it, and (3) subsequent actions by Bloom facilitating such fraud; from this evidence, we presume that the jury could reasonably infer Bloom's intent to aid and abet Cades' violation of § 656. After carefully searching the ...