UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-11079
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JESSE MEEKS,
KENNY HOGUE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
November 13, 1995
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Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether employees of a locksmith company, which
contracted with a bank to maintain its safe deposit boxes, can be
prosecuted under 18 U.S.C. § 656, which proscribes theft by a bank
officer, director, agent, employee, or other person "connected in
any capacity with" any federally insured bank. (Emphasis added.)
Because we conclude that, in dismissing the indictment, the
district court construed the statute too narrowly by holding that
defendants Jesse Meeks and Kenny Hogue were not so connected, we
REVERSE and REMAND.
I.
The indictment, which was not filed until mid-1994, but which
references mid-1985 to mid-1987, bases the claimed § 656 violation
on the allegation that a safe and lock company, which employed
Meeks and Hogue, was "a contractor connected with" the bank.1 In
moving to dismiss the indictment, Meeks and Hogue asserted, inter
alia, that, contrary to the wording of § 656, they were not
"connected" with the bank in "any capacity".
For purposes of the motion, the parties stipulated, among
other things, that the bank contracted with the locksmith company
for it to repair and maintain the bank's safe deposit boxes; that
this afforded Meeks and Hogue access to the vault that housed those
boxes; and that, while in the vault in 1985, they broke into safe
deposit boxes and stole gold coins. Based upon the stipulated
facts, and as hereinafter discussed, the district court dismissed
the indictment.
II.
The sole issue is the proper construction of § 656. It
provides:
1
Of course, had it timely done so, the Government could have
prosecuted Meeks and Hogue under the bank larceny statute, 18
U.S.C. § 2113(b), thereby avoiding this statutory construction
controversy. In any event, Congress may, in its discretion,
criminalize the same conduct under more than one statute, and
prosecutorial discretion extends to the selection of the statutory
provision under which a defendant will be prosecuted. E.g., United
States v. Smith, 523 F.2d 771, 780 (5th Cir. 1975), cert. denied,
429 U.S. 817 (1976). But, even if the Government's failure to
charge these defendants within the statute of limitations for bank
larceny provided the sole motivation for choosing to prosecute them
instead under § 656, that in itself is of no consequence.
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Whoever, being an officer, director, agent or
employee of, or connected in any capacity with
any ... insured bank ... embezzles ... or
willfully misapplies any of the moneys ... of
such bank ... shall be fined not more than
$1,000,000 or imprisoned not more than 30
years....
18 U.S.C. § 656.
Meeks and Hogue urge us to accept the construction, upon which
the district court based dismissal, that to be "connected in any
capacity" with the bank, they must have occupied a position of
trust. The Government counters that the relationship (connection)
between the bank and the locksmith company that employed Meeks and
Hogue provided an adequate basis for the statute to apply.
For their non-connection assertion in district court, and in
order to distinguish their relationship with the bank from those of
insiders or persons occupying positions of trust, Meeks and Hogue
cited the bank's policy requiring lock company representatives to
be monitored while they had access to the safe deposit boxes.
Adopting this position, the district court noted that the
relationship was not one of trust, but rather of distrust. Based
on this apparent lack of trust, as well as the fact that the
defendants were employed by the locksmith company, rather than by
the bank, the court agreed that they did not occupy a position of
trust and, from this conclusion, held § 656 inapplicable.
As support for the assumption that § 656 requires a position
of trust more significant than that enjoyed by the defendants, in
order for a person to be "connected in any capacity", the district
court noted that courts had consistently held that depositors are
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not within the statute's scope. But, obviously, there are
significant distinctions between a depositor, who is merely a
creditor of the bank and who has, without more, no expanded access
to bank funds, and Meeks and Hogue, who were employed to service
the bank and who were given access to property entrusted to the
bank that an ordinary, unconnected party would be denied. For
example, it is most doubtful that a depositor would have been
allowed into the vault with tools appropriate for opening locked
safe deposit boxes. These differences lead us to conclude that,
even assuming arguendo that the statute does not reach depositors,
this does not preclude it reaching Meeks and Hogue.2
The statute's plain language must be given effect if § 656 is
to accomplish its purpose -- "to preserve and protect the assets of
banks having a federal relationship". Garrett v. United States,
396 F.2d 489, 491 (5th Cir.), cert. denied, 393 U.S. 952 (1968).
Needless to say, when the language of a statute is clear and
unambiguous, judicial inquiry into its meaning is unnecessary. The
Supreme Court has directed that "a court should always turn first
to one, cardinal canon before all others. [It has] stated time and
again that courts must presume that a legislature says in a statute
2
We note that depositors have faced prosecution for aiding and
abetting a violation of § 656 when their overdrafts were large and
persistent. See United States v. Rodriguez-Alvarado, 952 F.2d 586
(1st Cir. 1991) (holding depositor criminally liable under § 656
for aiding and abetting misapplication of bank funds by bank
employee who authorized cashing of checks on accounts with
insufficient funds); United States v. Hughes, 891 F.2d 597, 600-01
(6th Cir. 1989) (finding sufficient evidence to convict two
depositors for aiding and abetting misapplication of bank funds
under § 656 in association with large overdrafts).
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what it means and means in a statute what it says there."
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
Along that line, the statute's plain language provides no
basis for a narrow reading of its scope. The words "connected in
any capacity", as normally used, comprise a broad modifying phrase.
Absent binding contrary precedent, we cannot distort the usual
meaning of the phrase to require a more specialized type of
connection with the bank than that held by Meeks and Hogue. See
Perrin v. United States, 444 U.S. 37, 42 (1979) (words having no
special meaning in law and not specially defined by Congress are to
be given common, ordinary meaning).
The capacity in which Meeks and Hogue were connected with the
bank was as employees of an independent contractor that provided
the bank with a necessary service, which required (and permitted)
its employees to be in a restricted area of the bank. Irrespective
of the outer limits of the statute's reach, we cannot say that
these defendants fell beyond that reach when they serviced the safe
deposit boxes from within the vault of the bank.
Moreover, the case before us is not controlled by the case
law, cited by Meeks and Hogue, involving defendants who faced § 656
prosecution and who occupied positions of trust with the banks they
victimized. It goes without saying that a court's discussion of
the factors that impacted its determination that a particular
defendant was encompassed by § 656 does not mean that each of those
factors becomes, from that day forward, a necessary attribute of a
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person whose conduct is reached by the statute.3 These cases do
not require that a person occupy a position of trust in order to be
covered by § 656; rather, they merely provide examples of
situations in which the requisite connection happened to be one of
trust.4 Simply put, application of § 656 is fact specific. E.g.,
United States v. Ratchford, 942 F.2d 702, 705 (10th Cir. 1991),
cert. denied, 502 U.S. 1100 (1992).
On the other hand, we are guided by cases broadly construing
the same phrase when used in this and other statutes. Sections
656, 657, and 1006 each contain the same "connected in any
capacity" language, and each has received broad construction.5 In
3
Meeks asserts erroneously in his brief that "the Government
agreed [in district court] that it was required to establish a
trust relationship between Meeks and the Bank as a prerequisite to
securing his conviction under 18 U.S.C. § 656". In the referenced
record passage, the Government states merely that, if required, it
would demonstrate at trial that a trust relationship existed.
Moreover, in district court, the Government expressly refuted the
defendant's characterization of cases as holding that a
relationship of trust is required.
4
We decline to follow United States v. Davis, 953 F.2d 1482,
1489 (10th Cir.), cert. denied, 504 U.S. 945 (1992), to the extent
that it may imply that § 656 requires a relationship of trust.
5
18 U.S.C. § 657 and § 1006 proscribe the conduct proscribed by
§ 656 when that conduct victimizes the Reconstruction Finance
Corporation, Federal Deposit Insurance Corporation, National Credit
Union Administration, Home Owners' Loan Corporation, Farm Credit
Administration, Department of Housing and Urban Development,
Federal Crop Insurance Corporation, Farmers' Home Corporation, the
Secretary of Agriculture acting through the Farmers' Home
Administration, or any land bank, intermediate credit bank, bank
for cooperatives or any lending, mortgage, insurance, credit or
savings and loan corporation or association authorized or acting
under the laws of the United States or any institution, the
accounts of which are insured by the Federal Savings and Loan
Insurance Corporation or by the Administrator of the National
Credit Union Administration or any small business investment
company.
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sum, we find the case at hand to be another appropriate factual
scenario in which to construe the statute broadly enough to reach
defendants' conduct. See United States v. Bolsted, 998 F.2d 597,
598 (8th Cir. 1993) (characterizing "connected in any capacity"
language in § 657 as "broad language" and finding defendant
sufficiently connected, even though he lacked authority to approve
loans); United States v. Coney, 949 F.2d 966, 967 (8th Cir. 1991)
(characterizing same language in § 656 as "broad language" and
finding defendant armored car driver to be covered by statute);
Ratchford, 942 F.2d at 705 (instructing that "[a]lthough each case
is fact specific, the courts have given a broad interpretation of
§ 657 to effectuate congressional intent to protect federally
insured lenders from fraud" and that § 657 is "normally afforded"
a "broad interpretation"); United States v. Prater, 805 F.2d 1441,
1446 (11th Cir. 1986) (explaining necessity of examining facts of
each case and noting that "where the defendant is not directly
employed by the insured bank, courts have focused on the
relationship between the employing entity and the bank's business
in deciding whether there is sufficient `connection'").
III.
For the foregoing reasons, the dismissal of the indictment is
REVERSED and this matter is REMANDED for further proceedings.
REVERSED and REMANDED
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