United States v. Gordon B. Carlson

616 F.2d 446 UNITED STATES of America, Plaintiff-Appellee, v. Gordon B. CARLSON, Defendant-Appellant. No. 79-1341. United States Court of Appeals, Ninth Circuit. April 4, 1980. Gene Huntley, Baker, Mont., for defendant-appellant. Lorraine Gallinger, Asst. U. S. Atty., Billings, Mont., for plaintiff-appellee. Appeal from the United States District Court for the District of Montana, Billings Division. Before MERRILL, ANDERSON and SCHROEDER, Circuit Judges. MERRILL, Circuit Judge: 1 Appellant was convicted of three counts (counts X, XVI and XVII of the grand jury indictment) of misapplying bank funds in violation of 18 U.S.C. § 656 . 1 Count X read as follows: 2 "On or about the 25th day of March, 1976, in the District of Montana, GORDON B. CARLSON, being an officer, that is President of the 1st National Bank of Hinsdale, a member Bank of the Federal Reserve System, with intent to injure and defraud the said 1st National Bank of Hinsdale, did wilfully and knowingly misapply and cause to be misapplied moneys and funds of the said Bank in the amount of $20,000.00 by fraudulently causing to be disbursed by the said Bank, and converting to his personal use, monies from a promissory…

Appellant was convicted of three counts (counts X, XVI and XVII of the grand jury indictment) of misapplying bank funds in violation of 18 U.S.C. § 656 . 1 Count X read as follows:

Counts XVI and XVII were identical, save as to amount, date and number of the promissory note and name of the purported borrower.

At trial, the government sought to prove that appellant, on these occasions, had purported to make bank loans to the third persons named in the indictment but that the proceeds of those loans had wound up in his own bank account. The government also contended that one of the loans was not adequately secured. Appellant’s defense was that he had had no intent to defraud. He also denied that the one loan was inadequately secured.

Over objection by appellant the district court, in instructing the jury, charged that misapplication may be committed:

It is contended by appellant that the instruction impermissibly broadened the scope of the indictment to permit conviction of appellant for acts of misapplication other than that for which he was indicted by the grand jury. We agree.

We have no quarrel with the rules of law stated in the challenged instructions and assume, without…

dissenting:

In my view, no substantial or fundamental right of the defendant has been impaired. I commence by emphasizing that defendant does not contend that he was surprised or misled, either in apprehending the government’s proof or in formulating, preparing or presenting his defense. He does not and, indeed, could not claim the risk of double jeopardy. The indictment is clear and precise and, when taken with the evidence adduced at trial, amply protects the defendant from any risk of double punishment. United States v. Peterson, 592 F.2d 1035, 1037-38 (9th Cir. 1979), Rule 52(a), Fed.R.Cr.P., 28 U.S.C. § 2111 .

The majority opinion takes one instruction out of context, and, by ignoring all of the other instructions which were given to the jury, finds reversible error. If this court chooses to view each instruction in isolation as the majority has done, then it is quite possible that reversible error can now be found in every case where an appeal is taken.

The majority finds that “the instruction impermissibly broadened the scope of the indictment to permit conviction of [Carlson] for acts-of misapplication other than that for which he was indicted by the grand jury.”…