Appeal from a judgment of conviction of the United States District Court for the Eastern District of New York, Charles, P. Sifton, Judge, after a jury trial, for unlawfully taking with intent to steal and purloin money from the custody of a bank, whose deposits were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(b).
Moore,*fn* Cardamone and Pierce, Circuit Judges.
The principal issue on this appeal is whether conduct which may constitute larceny by false pretenses is encompassed within 18 U.S.C. § 2113(b) (1976), which provides that "whoever takes and carries away, with intent to steal or purloin, any property or money" belonging to a federally insured bank commits a federal crime. As we held in United States v. Fistel, 460 F.2d 157, 163 (2d Cir. 1972), the federal bank robbery statute prohibits a broader range of conduct than common law larceny, and covers all "takings with intent to deprive the owner of permanent use of the property taken." Finding this, as well as the defendant's remaining contentions without merit, we affirm his conviction.
On August 18, 1981, Joseph Skolnik mailed a $5,000.00 check from his home in Long Beach, New York, to the investment firm of E. F. Hutton in Manhattan. The check was drawn on Skolnik's bank, the Central Federal Savings & Loan Association of Nassau County, New York, to his own order, and endorsed by him in blank on the back. The investment firm never received the check and consequently never credited Skolnik's account.*fn1
On September 1, 1981, the appellant Alfred Hinton opened an account at the Republic National Bank, Brooklyn, New York, in the name of Joseph Skolnik. He signed a savings account signature card using the name of Joseph Skolnik, supplied a City of New York employee identification card bearing the name of Joseph Skolnik and the picture of Alfred Hinton, and deposited a small amount of cash. On September 3, 1981, Hinton returned to the bank and deposited Skolnik's $5,000.00 check, which Hinton had apparently acquired wrongfully.*fn2
Over the next five days, Hinton withdrew approximately $3,500.00 from the "Skolnik" account, signing the name "Joseph Skolnik" to the withdrawal slips. On September 11, 1981, the appellant was arrested at the same branch of the Republic National Bank. He had in his possession various articles, including a passbook and withdrawal slips for the "Skolnik" account.
Appellant was indicted in a single count indictment on October 13, 1981, for possessing a check which he knew was stolen from an authorized depository for United States mail, in violation of 18 U.S.C. § 1708 (1976). The case was scheduled for trial on April 19, 1982, and during the interim period plea bargaining discussions occurred between the appellant's assigned counsel and the government's attorney, at which time defense counsel confronted the Assistant United States Attorney with a perceived defect in the government's case with regard to the knowing possession of stolen mail from an authorized mail depository.
On April 2, 1982, the assigned counsel was permitted to withdraw from the case at Hinton's request, and new counsel was appointed. On April 13, 1982, the appellant was arraigned on a superseding indictment which added a second count charging appellant with stealing from a bank insured by the Federal Deposit Insurance Corporation (F.D.I.C.), in violation of 18 U.S.C. § 2113(b).
On April 16, 1982, the district court conducted a hearing in connection with appellant's written motion to dismiss Count Two. The movant alleged (1) prosecutorial vindictiveness, (2) ineffective assistance of counsel, (3) a breach of Fed. R. Crim. P. 11(e)(6)(C) and (D) concerning the use of statements made during plea negotiations, and (4) a violation of the Speedy Trial Act, 18 U.S.C. § 3161(b) (1976).*fn3 This motion was premised on Hinton's contention that his first assigned counsel had compromised his defense by revealing to the prosecution, during plea negotiations, that the government would find it difficult to prove that the check was in Hinton's possession with knowledge that it was stolen from an authorized United States mail depository. Thereafter, the government's attorney proceeded to seek the superseding indictment, which charged appellant with a violation of 18 U.S.C. § 2113(b). Hinton contended that the government would not have sought the superseding indictment had it not been apprised of the defect in its case.
In connection with appellant's motion to dismiss the superseding indictment, the district judge received an affidavit from the government, held a hearing to inquire into the motives of the Assistant United States Attorney in seeking the superseding indictment, and received an affidavit from Hinton's first counsel, recounting his recollection of the plea bargaining discussions. On April 19, 1982, the court denied the motion.
Following a two-day trial which commenced on that date, the jury returned a verdict finding the defendant not guilty of Count One (possession of stolen mail), but guilty of Count Two (stealing from a federally insured bank). The appellant was ...