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January 23, 1986


The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge :

The United States charged defendant Ida Moss in a two count indictment with two substantive violations of 18 U.S.C. § 656. The defendant having waived a jury, trial was to the Court. The Government asserts alternative bases of Moss's culpability: as a principal, and as an aider and abettor under 18 U.S.C. § 2.

 At the pertinent times Moss was an employee of the Chemical Bank branch at 55 Water Street in Manhattan. The Chemical Bank (hereinafter "Chemical") is insured by the Federal Deposit Insurance Corporation.

 18 U.S.C. § 656 provides in part:

 "Whoever, being an...employee of...any insured bank...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...employee...,shall be fined not more than $5,000 or imprisoned not more than five years, or both;..." (emphasis added).

 In quoting from the statute, I have emphasized the phrase upon which, given the facts of the case, the Government particularly relies.


 Chemical's "Lockbox" Operation

 At its 55 Water Street branch, Chemical maintains a "remittance banking" department, also known as a "lockbox" department. I shall use the latter phrase.

 Chemical offers its lockbox services to depositors whose business generates large numbers of checks payable to the depositors. Rather than bringing its checks to the bank for individual deposit, such a depositor instructs its debtors to mail checks to a post office box maintained by Chemical. A bank employee picks up the mail at the post office daily. The mail is then delivered to the lockbox department of the bank, which at the pertinent times employed about 70 people.

 Checks coming into the lockbox department are processed by bank employees with such titles as "mail extractors," "work flow coordinators," "listers," and "data capture clerks." These job titles accurately reflect what the individuals do. In short, each check coming into the lockbox department is "extracted" from its envelope, photocopied, reviewed for negotiability, entered on a listing tape compiled in respect of the particular payee-depositor, and its details punched into the computer. The checks are then deposited in the appropriate account. The photocopies of the checks, together with accompanying invoices or other documents, are mailed to the depositor.


 The Scheme By Which the Lockbox Operation Was Compromised

 The record shows that on five separate occasions, Chemical's lockbox operation was victimized by individuals employing essentially the same method of operation.

 That method involved removing a check from the lockbox department; altering the name of the payee; opening a bank account in the name of the altered payee; depositing the check in that account; and thereafter withdrawing the proceeds.

 The method may be illustrated by what happened to the check referred to in count one of the indictment. That check, GX8, was drawn by the Peltz Food Corporation in the amount of $5,131.34, and made payable to "Aicco." "Aicco" is an acronym for the A-1 Credit Corporation, a premium finance company. That is to say, Aicco funds the large insurance premiums of its commercial customers, and then bills its customers for reimbursement (plus commissions) on a monthly basis. Thus Aicco is the sort of Chemical depositor whose business generates large numbers of checks, making it a suitable recipient of lockbox services.

 The check in question, as the analysis of the evidence infra will show, was stolen from the lockbox department. The name of the payee, "Aicco," was altered so that it read "Aicconetta Winston." Thereafter an account was opened in the name of "Aicconetta Winston" at the 15 Beaver Street branch of the Seamen's Bank for Savings, and the Peltz Food Corporation check in question deposited in that account under a forged endorsement in blank reading "Aicconetta Winston." Thereafter the funds were withdrawn.

 The Peltz Food Corporation check referred to in the first count of the indictment, GX8, was dated May 10, 1983. The check described in the second count of the indictment, GX9, dated May 9, 1983, was drawn by Boson Equipment, Inc. to the order of Aicco in the amount of $5,870.84. That check suffered the same fate.

 Evidence adduced by defendant shows that the same method of operation was followed both before and after the diversion of the two checks referred to in the indictment. Specifically, on January 10, 1983 the New Haven News Agency, Inc. drew a check in the amount of $4,423.35 to the order of "Dell," presumably the well-known publishing house, and a Chemical depositor. The name of the payee was altered to "Dellamarva de Hargrove," and deposited in an account opened under that fictitious name at the Greenpoint Savings Bank in Brooklyn. This check is DXA on the trial.

 On June 21, 1983, Labor King Temporaries drew a check, DXC, in the amount of $5,836.11 payable to Aicco. The payee's name was altered to read "Aiccoriel Ram," and deposited in an account opened under that name at the Wall Street branch of the Emigrant Savings Bank.

 Finally, on July 5, 1983, Top Form Mills, Inc. drew a check, DXB, in the amount of $7,078.88 to the order of Aicco. Again, Aicco's name was changed to "Aiccoriel Ram" and deposited at the Wall Street branch of Emigrant Savings Bank.

 These funds were, in consummation of the scheme, eventually withdrawn from those accounts.


 The Employment of Ida Moss at Chemical Bank

 The evidence shows that the Aicco check, GX8, was processed in Chemical's lockbox department on May 12, 1983. The Aicco check, GX9, was processed on May 16, 1983.

 At those times, defendant Ida Moss was employed in the lockbox department as a lister and data capture clerk. She worked the second shift in the lockbox department, which operates from 8:00 a.m. to 4:00 p.m. The first shift is from 10:00 p.m. to 6:00 a.m. Ms. Moss was originally sent to Chemical by Office Force, a temporary employment agency. She worked at Chemical approximately a year, leaving Chemical's employ on July 15, 1983. Chemical's personnel file, GX27, contains the notation for her leaving: "Not enough money."


 The Evidence of Defendant's Involvement With the Two Checks Referred to in the Indictment

 The Government offered evidence from witnesses qualified to testify on the subjects of fingerprints and handwriting. I found these witnesses, during their direct and cross-examination, to be forthright and candid. I regard their findings and opinions, as testified to, to be honestly held, and accurate within the limitations of the respective disciplines.

 Having said that much, I turn first to the documentary evidence relevant to the opening of the "Aicconetta Winston" account at the Seamen's Savings Bank, and the subsequent deposits and withdrawals. These transactions had the inevitable consequence of generating pieces of paper.

 The Aicconetta Winston account at Seamen's was opened on May 13, 1983. The person opening an account is required to fill out a new account card giving certain personal information. The new account card in question is in evidence as GXll. Charles Haywood, the Government's handwriting expert, concluded on the basis of his comparison with the new account card and known exemplars of Moss's handwriting, that Moss filled out all entries on the new account card except ...

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