specially concurring:
I concur fully in the reasoning and disposition of the foregoing opinion. I write separately to identify another problem which the district court should address on remand.
At the time of the criminal conduct made the subject of this prosecution, the criminal statute in question expressly provided that what was embezzled or wilfully misapplied must be “the monies, funds or credits of such bank or any money, funds or credits intrusted to the custody or care of such bank.” 18 U.S.C. § 656 (1988), (current version at 18 U.S.C.A. § 656 (West Supp.1997)). There is absolutely nothing in the stipulation of facts filed by the parties in this case which would indicate that the Krugerrands in the safety deposit boxes leased by First RepublicBank Dallas, N.A. (the “Bank”) to Mrs. Roberdo or her company, La Madrid Corp., N.V., were the property of any person or entity other than Mrs. Roberdo and her corporation. Consequently, absent some other direct proof, it would seem clear to me that the Krugerrands were not “the money, funds or credits ... of such bank.” Likewise, there is nothing in the stipulation of facts which would indicate that the Krugerrands in the safety deposit box had been “intrusted to the custody or care of such bank.” To the contrary, the safety deposit lease agreement appended as Exhibit A to the Stipulations expressly exempts the Bank from any liability “for the safekeeping of the contents of the safe or for any loss, damage, or expense which results from or is caused by, in whole or in part, any of the following: ... (iii) loss, disappearance ... theft, burglary, embezzlement or other criminal act_” Consequently, unless there is other documentary evidence establishing an agreement on the part of the Bank to be responsible for the Krugerrands in the safety deposit box, it would appear to me that the Krugerrands were never “intrusted to the custody or care of such bank.” Therefore, I think there is a serious question as to whether the statutory requirements as to the Bank’s ownership or care and custody of the Krugerrands have been established in this case; and the district court should undertake to resolve this question upon remand.