Richard Jaynes v. United States

DENMAN, Chief Judge. Jaynes appeals from the conviction on five counts of an indictment, all the sentences being concurrent. In this situation if the sentence on any one count is valid, there should be an affirmance. *368 Count four of the indictment charged: “That on or about the third day of July, 1953, at Ketchikan, Division Number One, Territory of Alaska, Richard Jaynes, being then and there the Cashier of the First National Bank of Ketchikan, a bank insured by the Federal Deposit Insurance Corporation, did wilfully unlawfully and feloniously make a false entry in a book of the said bank, to wit, a false entry m the Cashier's check No. 22504, in the amount of $1,000, whereas in truth and in fact the said cashiers check No 22504 was not in the amount of $1,000, but was made instead, in the amount of $10,000, with the intent then and there to injure and defraud the said bank and to deceive any agent or examiner appointed to examine the affairs of said bank.” So far as material 18 U.S.C. § 1005 provides: “Whoever makes any false entry in any book, report, or statement of such bank with intent to inj'ure or defraud such bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve Sys-tern * * # ” (Emphasis added) Appellant was employed by the First National Bank of Ketchikan as cashier. . n , , . , , , , Appellant was having a home constructed and had difficulty* meeting the costs of construction. Taking advantage of his position at the bank Jaynes wrote a cashier’s cheek for $10,000 payable to a fictitious person and delivered the check to his contractor. However, Jaynes falsely entered the amount of this check iu the bank’s permanent record as $1,000. There is testimony that the transaction was camouflaged because defendant felt that it was nobody’s business but that of the defendant and the contractor, Jaynes contendg that he wag authorized by the bank president and vice president to make the falBe entry and that hig offer of f to ghow thig wag imp rly rejected. Authorization by the bank officials is no defense to a charge of making a false entry to deceive a bank examiner. United States v. Klock, 2 Cir., 210 F.2d 215 216. If believed, the rejected testimony might have constituted a defense to the charge of making a false entry with intent to defraud the bank. United States v. Klock, 2 Cir., 210 F.2d 217, 220 However, under the statute, making either the false entry to deceive the examiner or to defraud the bank alone constitutes a crime. Count four charged the crime committed by both methods and the charge that there was intent to defraud ^ank may be disregarded as surplusage. This is not a case where a jury ^as found a defendant guilty on a count charging, for ^ instance, defrauding the bank or deceiving the bank examiner. In such a case, if a conviction was improper- ^ obtained as to one of the charges the reviewing court cannot know whether the jury found the defendant guilty on the charge wherein the error was committed and innocent on the other charge. Here we know that the jury had to find the defei\dant gulltJ °? tbe+ cbafe °f mtent to deceive and intent to defraud. There being no error in the exclusion of the offer of proof on the issue of intent to deceive the bank examiner or agent appointed to examine the affairs of the bank, the judgment is affirmed.