United States v. Victoria Yamamoto Walker

WIDENER, Circuit Judge:

Victoria Yamamoto Walker appeals her conviction on two counts of bank embezzlement, in violation of 18 U.S.C. § 656, and two counts of making false entries in bank records, in violation of 18 U.S.C. § 1005. She was sentenced under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5010(b), to an indeterminate sentence on each count, to run concurrently. Various errors have been alleged as to both crimes. We find no error in the convictions for false entry and therefore affirm as to those. We vacate the convictions for' embezzlement and remand for a new trial.

I

The government argues that application of the concurrent sentence rule is proper here, thus making consideration of the embezzlement counts unnecessary. The concurrent sentence rule, applicable when a defendant has received concurrent sentences on multiple counts of an indictment, provides that a reviewing court need not pass upon the validity of defendant’s conviction for additional counts once it has affirmed his conviction on one count, but only if “there is no substantial possibility that the unreviewed conviction will adversely affect the defendant’s right to parole or expose him to a substantial risk of adverse collateral consequences.” United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir. 1980).

We cannot say that there is no substantial possibility that the embezzlement convictions will not expose Walker to a substantial risk of adverse consequences. Even the government cannot assure us that Walker’s release date on her YCA sentence would not be affected.

II

We must therefore consider the embezzlement convictions. One assignment of error raised requires a new trial on those counts. The appellant contends, and we agree, that the district court incorrectly removed from the jury’s consideration the issue of sole access to the funds involved, from which conversion, an element of the crime of embezzlement, may be inferred. The instruction at issue reads:

Now, as applied to this case, the Court tells you that both the criminal intent and the actual taking of the money by the defendant may be proved by circumstantial evidence in an embezzlement and where the defendant alone has access to the property and that is in this case, money in the cash drawer and a dollar shortage is disclosed and no explanation of the shortage is tendered by the accused you may, but you do not have to reasonably infer from the circumstances that the custodian of the property embezzled the missing funds. (Emphasis added)

While the district court correctly stated that conversion may be inferred from sole access plus an unexplained shortage, United States v. Powell, 413 F.2d 1037 (4th Cir. 1969), it is for the jury to decide if sole access did in fact exist. The appellant produced evidence at trial which tended to show that sole access did not in fact exist. In particular, there was testimony from the two depositors involved who could not identify Walker as the teller who accepted their deposits and who gave them their receipts.¹ Also, Walker testified that on one of the days in question she found a duplicate key in the lock at her teller window.

A criminal defendant has the right to have the jury resolve all questions of fact, and it is error for the district judge to withdraw factual disputes from the jury. Mims v. United States, 375 F.2d 135 (5th Cir. 1967); United States v. Ornstein, 355 F.2d 222 (6th Cir. 1966); United States v. McKenzie, 301 F.2d 880 (6th Cir. 1962); United States v. Raub, 177 F.2d 312 (7th Cir. 1949); 2 Wright, Fed’l Prac. & Proc. § 371. The district court committed such error here by stating to the jury that this was a case of sole access. Such a fact is for the jury to determine.

Accordingly, we affirm the conviction on the two counts of false entry (counts II and IV) and vacate the convictions on the embezzlement counts (counts I and III) and remand for a new trial on those counts.²

AFFIRMED IN PART; VACATED AND REMANDED IN PART³.

1 . One depositor, Evelyn Vines, identified the teller that she gave her deposit to as a white woman, while Walker is Japanese. The other depositor, Eileen Perez, testified that the teller she dealt with was a man.

2 . We further find that the convictions for false entry and embezzlement were not so intertwined that it was highly probable that Walker was prejudiced on the false entry counts by the erroneous instruction on the embezzlement counts. Cf. United States v. Caudle, 606 F.2d 451, 454 (4th Cir. 1979). The record contains abundant evidence of the false entries. For example, the evidence shows Walker’s signature on the two settlement sheets which reflect the transactions in question as payouts rather than the deposits they were.

3 . The dissent argues that the instructions read as a whole are clear. We disagree. We think the instructions read as a whole are at best misleading, for in one place the jury is told that they must find sole access and in another they are told that such a finding is left to them. First instructing a jury in one way and then in another, as was done here, requires reversal for a new trial as has been held in numerous cases on factual situations not substantially different from the one at hand. E.g. United States v. Pope, 561 F.2d 663 (6th Cir. 1977); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966); Polansky v. United States, 332 F.2d 233 (1st Cir. 1964); Smith v. United States, 230 F.2d 935 (6th Cir. 1956); Frank v. United States, 220 F.2d 559 (10th Cir. 1955).

While we do not doubt that reading the instructions as a whole is required as hornbook law, we think its application here is an oversimplification and that the correct rule is stated in Frank, supra, at p. 565, quoting McFarland v. United States, 85 U.S.App.D.C. 19, 174 F.2d 538, 539 (1949), as follows:

“If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudicial, for the jury might have followed the erroneous instructions. Nicola v. United States, 3 Cir., 1934, 72 F.2d 780, 787; Drossos v. United States, 8 Cir., 1924, 2 F.2d 538, 539.”