United States v. Daniels

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10672

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus
RANDLE CURTIS DANIELS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

May 21, 2001

Before REYNALDO G. GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Randle Daniels appeals his conviction for bank theft and money

laundering. Daniels’s main argument is that he believed in good

faith that he was entitled to the money he took from Colonial

Savings Bank; that as a matter of law he lacked the required mens

rea. We disagree, and affirm.

I

Colonial Savings held the mortgage on Daniels’s home. A hail

storm damaged its roof. His insurance company sent him a check for

$46,000 to cover the cost of repairs.
 Aware of the mortgage, the insurance company made the check

payable to Randle Daniels and Colonial Savings jointly. Daniels

took the check to Colonial Savings and asked them to endorse it to

him. The bank refused, preferring to hold the money in a trust

account, disbursing it as actual repairs were made. Daniels and

the bank resolved their differences, agreeing that the bank would

pay Daniels $16,000 immediately, and place the remaining $30,000

into a trust account, to be disbursed as Daniels presented receipts

for repairs.

While the $16,000 check was being prepared, Daniels stole a

blank, signed bank check from the desk of a bank employee. He made

that check out for $29,800, and directed his girlfriend, Marsha

Veach, to deposit it in her account. She did so and later wrote

him a check for $29,500.

The check was traced to Daniels, and he was charged with bank

theft and money laundering. His defense at trial was that a bank

representative gave him the blank check. A jury convicted him of

both charges and he now appeals.

II

Daniels argues that, as a matter of law, he lacked specific

intent to steal as required by 18 U.S.C. § 2113. Since Daniels

believed the proceeds from the insurance check to be his, his

argument goes, he cannot have had the required scienter.

The relevant portion of section 2113 provides that a defendant

who “takes and carries away, with intent to steal or purloin, any

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property or money or any other thing of value exceeding $1,000

belonging to, or in the care, custody, control, management, or

possession of any bank” shall be punished.1 In Carter v. United

States,2 albeit in dictum, the Supreme Court stated that 18 U.S.C.

§ 2113(b) required a specific intent to steal or purloin because

without such an intent requirement, the “statute would run the risk

of punishing seemingly innocent conduct in the case of a defendant

who peaceably takes money believing it to be his.”3

Daniels’s argument is essentially an insufficiency of the

evidence contention. As such, it is unpersuasive. A rational jury

could have concluded that Daniels did not believe he was entitled

to take the money. The check was payable to both Daniels and

Colonial Savings. With Daniels’s debt to Colonial Savings secured

by his home, Daniels had to be aware of the bank’s interest in the

insurance proceeds. At least a rational juror could have so found.

Daniels acknowledged as much in his agreement with the bank. His

awareness of the bank’s interest and his intent to unlawfully

defeat it is further evidenced by his covert conduct – waiting

until the bank representative had left his presence before taking

the bank check from a desk drawer.

III

1
18 U.S.C. § 2113(b) (West 2000).
2
530 U.S. 255 (2000).
3
Id. at 269.

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 Daniels contends that the jury charge on money laundering

constructively amended the indictment. The indictment charged

Daniels with causing the withdrawal of $29,500 from Veach’s bank

account. The trial judge instructed the jury that it must find

that Daniels “knowingly engaged or attempted to engage in a

monetary transaction in criminally derived property that is of

value greater than $10,000.” At trial, there was evidence that

Daniels ordered both the deposit of the check and also the

withdrawal of the money. Veach initially testified as a government

witness that Daniels directed her to make the deposit and

withdrawal. On cross examination, she stated that it was her idea

to make the withdrawal. The argument is that the jury instruction

permitted the jury to convict Daniels for causing the deposit of

the illicit funds under an indictment charging only their

withdrawal.

A criminal defendant has a Fifth Amendment right to be “tried

only on charges presented in a grand jury indictment,”4 and

therefore only the grand jury may amend an indictment once it has

been issued.5 A jury charge constructively amends an indictment,

in violation of the Fifth Amendment, if it permits the jury “to

convict the defendant upon a factual basis that effectively

4
United States v. Chandler, 858 F.2d 254, 256 (5th Cir.
1988).
5
See id.

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modifies an essential element of the crime charged.”6 That is,

constructive amendment occurs if the jury is permitted to convict

on “an alternative basis permitted by the statute but not charged

in the indictment.”7

Daniels did not object at trial to the jury instructions. We

therefore review only for plain error.8 A jury charge is plain

error if: (1) it was erroneous; (2) the error was plain; and (3)

the plain error affected the substantial rights of the defendant.9

If those conditions are met, we have discretion to correct the

error; discretion we will exercise if the error “seriously

6
Id. at 257.
7
United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir.
1998).
8
See Fed. R. Crim. P. 52(b). It is now clear that this
circuit applies plain error review to forfeited constructive
amendment arguments. Although United States v. Mize, 756 F.2d 353,
355-57 (5th Cir. 1985), held that constructive amendment required
automatic reversal, later cases in this circuit have clarified the
interaction between the automatic reversal rule and plain error
review. In United States v. Reyes, 102 F.3d 1361, 1364-66 (5th
Cir. 1996), we held that under United States v. Olano, 507 U.S. 725
(1993), we have discretion to correct a constructive amendment if
the defendant failed to object at trial. Further, in United States
v. Fletcher, 121 F.3d 187, 192-93 (5th Cir. 1997), we expressly
recognized the tension between plain error review and the
“automatic reversal” rule of Mize, and reconciled it in favor of
plain error review, following the Supreme Court’s guidance in
Olano.
9
See Olano, 507 U.S. at 731-34; Fletcher, 121 F.3d at 192.

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affect[s] the fairness, integrity or public reputation of judicial

proceedings.”10

Assuming without deciding that the first three requirements

are met, in this case we decline to exercise our discretion to

correct any error. The unindicted act of causing the deposit of

illicit funds could have properly been charged in the indictment

and is prohibited by statute.11 The two acts – deposit and

withdrawal – are so closely linked here that we are convinced that

the “fairness, integrity or public reputation of judicial

proceedings” is not implicated. There is no evidence of bad faith

on the part of the prosecutor. It was obvious that evidence of the

deposit and other transactions would be relevant to prove that

Daniels controlled the funds and to impeach any testimony that the

withdrawal was Veach’s own idea. The jury may have credited her

testimony and convicted Daniels for the unindicted act of

depositing illicit funds; but it is equally possible that the jury

disbelieved her testimony and properly convicted Daniels for the

indicted act of withdrawing illicit funds. After all, under

Daniels’s claim of entitlement, a withdrawal at his direction would

have been inevitable – unless he intended to make the funds a gift

10
See Olano, 507 U.S. at 736; Fletcher, 121 F.3d at 192.
11
See Reyes, 102 F.3d at 1365 (declining to exercise
discretion to correct a constructive amendment, under plain error
review, in part because the offense upon which the jury was charged
could have been charged in the indictment).

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to Veach. This claimed constructive amendment did not render the

proceedings fundamentally unfair.

IV

The remainder of Daniels’s arguments are equally meritless.

Daniels argues that the evidence was insufficient to support his

conviction because “Colonial Savings Mortgage,” the entity from

which he claims to have taken the check, is not a bank. When

reviewing challenges to the sufficiency of evidence, we view the

evidence and all inferences that can be drawn therefrom in the

light most favorable to the verdict.12 At trial, Judy Monroe

testified that she worked for Colonial Savings Bank, that it was a

banking institution insured by the FDIC, and that the stolen check

bore her signature. While her testimony, and the testimony of

others, sometimes distinguished between Capital Savings Mortgage

and Capital Savings Bank, nothing in the record establishes that

Capital Savings Mortgage was a legal entity distinct from Capital

Savings Bank. While identifying the source of the check, she

stated that she worked for Colonial Savings Bank and confirmed its

FDIC insurance. She differentiated between the mortgage company

and the bank only in explaining specific procedures. The

government offered sufficient evidence to support the jury’s

finding that Daniels took the check from an insured bank.

12
See United States v. Moreno, 185 F.3d 465, 471 (5th Cir.
1999).

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 Daniels also argues that when computing the value of the check

he stole, we should deduct the $30,000 he was entitled to receive.

Daniels accepts the premise that the check can be valued by the

amount he filled in. Since the check was made out for less than

$30,000, however, Daniels argues that he stole nothing worth $1,000

or more. As we have explained, Colonial Savings held the mortgage

on the insured property, and by its terms had an interest in the

insurance proceeds. Daniels acknowledged that interest in his

agreement with the bank, an agreement reached before he took the

check and deposited it.

Daniels complains of the trial court’s answer to a question by

the jury. The jury asked for clarification of the phrase “intent

to steal.” The judge responded that it “means with a purpose to

steal and that the taking or carrying away was not by accident [or]

mistake.” While Daniels objected to the supplemental instruction,

he did not do so on the grounds urged here,13 thus our review is for

plain error.14 Daniels essentially repeats his scienter argument,

13
Daniels objected to any supplemental instruction, on the
grounds that the jury’s note did not make clear what they were
confused about. Daniels also objected to the wording of the trial
judge’s proposed instruction, but it was modified to address the
objection, a modification he accepted.
14
See United States v. Cabral-Castillo, 35 F.3d 182, 188-89
(5th Cir. 1994) (holding that where defendant objected to a
sentencing adjustment, but on grounds different from those raised
on appeal, the new arguments raised on appeal would be reviewed for
plain error only).

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and it is no more compelling here. We reject it for the reasons

stated previously.

The judgment of conviction is AFFIRMED.

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