United States v. Jose Cepeda Mafnas, Also Known as Joseph Cepeda Mafnas

Appellant (Mafnas) was convicted in the U.S. District Court of Guam of stealing money from two federally insured banks in violation of 18 U.S.C. § 2113 (b) which makes it a crime to “... take ... with intent to steal ... any money belonging to ... any bank .... ”

Mafnas was employed by the Guam Armored Car Service (Service), which was hired by the Bank of Hawaii and the Bank of America to deliver bags of money.

On three occasions Mafnas opened the bags and removed money. As a result he was convicted of three counts of stealing money from the banks.

This Circuit has held that § 2113(b) applies only to common law larceny which requires a trespassory taking. Bennett v. United States, 399 F.2d 740 (9th Cir.1968); LeMasters v. United States, 378 F.2d 262 (9th Cir.1967). Mafnas argues his taking was embezzlement rather than larceny as he had lawful possession of the bags, with the consent of the banks, when he took the money.

This problem arose centuries ago, and common law has evolved to handle it. The law distinguishes between possession and custody. R. Perkins and R. Boyce, Criminal Law 296-302 (1982), 3 Wharton’s Criminal Law 346-57 (C. Torcia, 14th ed. 1980).

3 Wharton’s…