Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-8643
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES VINCENT AGUILAR,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( July 14, 1992 )
Before GOLDBERG, JONES, and DEMOSS, Circuit Judges.
DEMOSS, Circuit Judge:
James Vincent Aguilar (Aguilar) appeals his conviction for
seven counts of theft of government property under 18 U.S.C. § 641.
In each count, the indictment charged that Aguilar "willfully and
knowingly did steal and purloin U.S. currency and merchandise. . .
by submitting to the Fort Bliss Post Exchange a personal check
which he then well knew would be insufficient." The district court
sentenced Aguilar to three years probation on each of the counts,
the sentences to run concurrently.

Aguilar contends on appeal that the indictment fails to charge
an offense under Williams v. United States, 458 U.S. 279 (1982),
which holds that a bad check is not a false representation,
therefore, obtaining goods by writing bad checks cannot constitute
a "wrongful taking" from the Government. We disagree and affirm
the conviction as to Counts Two through Seven.
I. BACKGROUND
Aguilar is the husband of Staff Sergeant Barbara Simmons,
stationed at Fort Bliss, Texas. Between May 26, 1990, and June 9,
1990, Aguilar wrote several checks to the Fort Bliss Post Exchange
(the "PX") and the post commissary for various amounts, in exchange
for goods and cash. The checks were written on an account at the
Sunset-Ogden branch of the Bank of America in Los Angeles,
California, and at the time they were written, the account had been
closed for insufficient funds. According to bank officer Bruce
Baker, Aguilar's account had a balance of $8.14 as of January 12,
1990, and the bank did not send him any account statements after
January 1990 because his address was invalid, and he left no
forwarding address. There was no activity in the account between
January and May 1990, and when service charges depleted the
balance, the bank closed the account. Aguilar claims he did not
learn the account had been closed until after he wrote the
insufficient funds checks at issue here.
The seven checks for which Aguilar was indicted were
introduced as Government Exhibits 1-A through 1-G. The dates on
all the checks correspond to the dates in the indictment, with the
2

exception of the check labeled Exhibit 1-A, referred to in Count
One. The date on that check was May 25, 1999. Aguilar contends
that reversal is warranted as to Count One because a post-dated
check is not payable until the stated date.
18 U.S.C. § 641 provides,
Whoever embezzles, steals, purloins, or knowingly
converts . . . any . . . money, or thing of value of the
United States . . . Shall be fined not more than $10,000
or imprisoned not more than ten years, or both; but if
the value of such property does not exceed the sum of
$100, he shall be fined not more than $1,000 or
imprisoned not more than a year, or both.
Whether an indictment sufficiently alleges the elements of an
offense is a question of law to be reviewed de novo. United States
v. Shelton, 937 F.2d 140, 142 (5th Cir. 1991).
II. DID AGUILAR "STEAL" GOVERNMENT PROPERTY?
The elements of the offense of theft of government property
under § 641 were expressed in the district court's jury
instructions:
In order to establish a violation of this statute, the
government must prove beyond a reasonable doubt:
First: That the money or property contained in the
indictment belonged to the United States Government and
had a value in excess of $100 at the time alleged.
Second: That the defendant stole or converted such money
or property for the defendant's own use or for the use of
another; and
Third: That the defendant did so knowing the money or
property was not his and with the intent to deprive the
owner of the use or benefit of the money or property.
Record Vol. 2, p. 99.
The district court defined the term "steal" as "the wrongful taking
of money or property belonging to another with intent to deprive
3

the owner of its use or benefit either temporarily or permanently."
Id. at 102-103. The issue in this case is whether payment by check
upon a closed account is a "wrongful taking", so as to constitute
"stealing" as charged in the indictment.
Traditionally, most jurisdictions place bad-check writing
within the offense of false pretenses. 2 Wayne R. LaFave & Austin
W. Scott, Jr., Substantive Criminal Law § 8.9(a), at 417-18 (1986).
They hold that the giving of a check is an implied representation
that the drawer has credit at the drawee bank sufficient to cover
the amount of the check. Id. at 417. Because of the difficulty in
applying the crime of false pretenses to the situation where
property is obtained by means of a no-account or insufficient-funds
check, most if not all states have enacted bad-check legislation
creating a new statutory crime separate from, and generally with
penalties less severe than, the crime of false pretenses. Id. at
416.
Aguilar contends that § 641 does not cover issuance of bad
checks, citing Williams, where the Supreme Court reversed
convictions for making a false statement to a federally-insured
bank under 18 U.S.C. § 10141. Williams was engaged in check
kiting, i.e., opening an account with one bank, writing a check on
that account for an amount larger than the balance, depositing the
1 Section 1014 states, "[w]hoever knowingly makes any false
statement or report, or willfully overvalues any land, property
or security, for the purpose of influencing in any way the action
of . . . any institution the accounts of which are insured by the
Federal Deposit Insurance Corporation, . . . upon any
application, . . . or loan, . . . shall be fined not more than
$1,000,000 or imprisoned not more than 30 years, or both."
4

bad check with another bank, and drawing cash on the deposited
check. Id. at 281-82. The Court held that writing and depositing
the bad checks did not constitute either a "false statement" or
"willful overvaluation," as required for convictions under § 1014,
and reasoned that "a check is not a factual assertion at all, and
therefore cannot be characterized as 'true' or 'false.'" Id. at
284.2
No case has directly applied Williams to § 641. This Circuit
has applied Williams and held in United States v. Medeles, 916 F.2d
195 (5th Cir. 1990), that the mere presentation of a check which
the defendant knows to contain insufficient finds does not amount
to a false pretense under 18 U.S.C. § 1344(a)(2). Section
1344(a)(2) punishes one who
knowingly executes, . . . a scheme or artifice--. . .(2)
to obtain any of the moneys, . . . owned be or under the
custody or control of a federally chartered of insured
financial institution by means of false or fraudulent
pretenses, representations, or promises, . . . (emphasis
added)
Under both Williams and Medeles, a presentation of a check on an
account with insufficient funds does not constitute a "false
representation" or "false pretense" as used in § 1014 and §
1344(a(2). Significantly, Williams and Medeles were both based on
statutes specifically requiring a "false statement" and a "false
pretense[]" respectively. Section 641, on which this case is
based, does not have language to that effect: § 641 makes it a
crime to "steal [] . . . any . . . money, or thing of value of the
2 The Court based its conclusion on the definition of a
check in the Uniform Commercial Code. Id. at 285.
5

United States" without explicitly mentioning false pretenses.
Therefore, we find this case distinguishable from both Williams and
Medeles, and hold that the common law meaning of false pretenses,
contributes to the meaning of the term "steal" in § 641.
In Boone v. United States, 235 F.2d 939 (4th Cir. 1956),
stealing
by
"false
pretenses"
under
federal
statutory
interpretation was held to differ from common law theft by "false
pretenses." In Boone, the defendant had transported a vehicle
across state lines after purchasing it with a check he represented
to be good but knew to be worthless, and was convicted of violating
18 U.S.C. § 2312, which provided that "[w]hoever transports in
interstate . . . commerce a motor vehicle . . . knowing the same to
have been stolen shall be . . . " guilty of a crime. (emphasis
added) The defendant contended his conviction to be error because
a "stolen" car was not taken through larceny only. The court
affirmed the conviction, reasoning that "while 'stolen' is
constantly identified with larceny, the term was never at common
law equated or exclusively dedicated to larceny . . . . Nor in law
is 'steal' or 'stolen' a word of art," Id. at 940. The court
further stated that regardless of what significance the common law,
the courts, or the lexicologists have ascribed to "stolen",
decisive here is the meaning that the Congress attributed to it.
Id. at 940-41. The court then concluded that Congress meant to
include more than common law larceny in the meaning of the word
"stolen". The court affirmed the conviction holding that where an
6

automobile is purchased with a worthless check and transported
interstate, it is "stolen" under § 2312.3
In Morrisette v. United States, 342 U.S. 246, 271-72 (1952),
the Court explained Congress' intent in its wording of § 641:
It is not surprising if there is considerable overlapping
in the embezzlement, stealing, purloining and knowing
conversion grouped in this statute. What has concerned
codifiers of the larceny-type offense is that gaps or
crevices have separated particular crimes of this general
class and guilty men have escaped through the breaches.
. . . The purpose which we here attribute to Congress
parallels that of codifiers of common law in England and
the States and demonstrates that the serious problem in
drafting such a statute is to avoid gaps and loopholes
between offenses. . . . (footnotes omitted).
We think that Congress intended the provisions of larceny-type
offenses codified under § 641, to include the offense of which
Aguilar was charged in this case.4
This Circuit has held that a "hot" check can constitute bank
theft under § 2113(b), if sufficient evidence, other than the bad
check itself, exists to prove intent to steal. United States v.
Khamis, 674 F.2d 390 (5th Cir. 1982). Khamis had deposited a
$5,000 check signed by one, Al Morgargest, and withdrew the funds
the next day. The government's handwriting expert testified that
Khamis wrote everything on the check, except for the signature of
Al-Morgargest. On appeal Khamis contended that the evidence did
3 Boone was followed by the Supreme Court in United States
v. Turley, 352 U.S. 407 (1957), which construed § 2312 in the
same manner.
4 We are not alone in this conclusion. See, United States
v. Williams, 946 F.2d 888 (4th Cir. 1991) (table--unpublished)
(available on WESTLAW).
7

not support the proposition that he intended to steal the $5,000
represented by the check explaining this incident as nothing more
than a "deposit of a 'hot check' against which subsequent
withdrawals were made." Id. at 393. This explanation was rejected
by the jury, and this Court refused to disturb the holding for
insufficiency of evidence. The Court noted that evidence of intent
to steal existed beyond the check itself: (1) a conflicting
explanation given by Khamis to the bank when contacted about the
dishonored check; (2) the testimony of the handwriting expert that
Khamis had written the check; (3) Khamis' denial that he wrote the
check; (4) testimony that the address on the check was not Khamis
residence but was the English Language Center which Khamis once
attended; and (5) evidence reflecting the totality of the check
kiting scheme in which this transaction played a part. The Khamis
court reasoned that, "[t]he jury was entitled to conclude that
Khamis' deposit of a worthless check and the withdrawal and use of
the funds represented by the check, in the circumstances presented,
constituted a taking of the $5,000 with intent to steal from the
bank, . . ." Id. at 394 (emphasis added).5
In sum, we do not think that Williams forecloses Aguilar's
conviction for stealing government property if the government
5 After Williams was decided, the Khamis court reversed the
conviction under 18 U.S.C. § 1014, but left undisturbed the §
2113(b) conviction.
In a similar case, the Seventh Circuit applied Williams to
determine that check kiting could not constitute bank theft under
18 U.S.C. § 2113(b), unless there was evidence of
misrepresentations other than "the kited checks themselves."
United States v. Kucik, 844 F.2d 493, 500 (7th Cir. 1988).
8

proves that he knowingly passed a bad check with the intent not to
honor it. A "hot" check alone cannot be a false statement under
§1014, but it can be used to convict a defendant under § 641 of
theft by false pretenses if the government shows that the defendant
intended not to honor the check, thereby proving the element of
intent to deprive. Whether the government sufficiently proved
Aguilar's intent to deprive the U.S. of its property is the next
issue we will address.
III. AGUILAR'S INTENT
The burden of proof is on the Government to prove each element
to the offense beyond a reasonable doubt. In re Winship, 397 U.S.
358, 364 (1970). In determining whether this burden has been
successfully discharged, the evidence and all reasonable inferences
that may be drawn from the evidence must be viewed in the light
most favorable to the Government. United States v. Prieto-Tejas,
779 F.2d 1098, 1101 (5th Cir. 1986). When reviewing the evidence
for sufficiency, this court has stated that it should decide
whether a "reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt." United States v.
Ayala, 887 F.2d 62, 67 (5th Cir. 1989).
Aguilar contends his convictions must be reversed because the
government made no showing that he intended to deprive the United
States of its property. Aguilar states that in simple state law
theft-by-check prosecutions, it must further be shown that he did
not intend to pay at the time the check was written. See e.g.,
Wilson v. State, 663 S.W. 2d 834, 836-37 (Tex. Crim. App. 1984) (en
9

banc). Aguilar asserts that the evidence showed that at the time
he wrote the checks, he intended for the checks to be honored by
the bank in due course. In his statements to the investigating
officers, Aguilar consistently stated that he intended to put money
in his account to cover the checks. Aguilar contends that the fact
that the account was closed is of no moment because no evidence
showed that he knew that the account was closed.
The government asserts that this is not a case in which a
defendant wrote checks on an insufficient funds account with the
good faith intention to deposit in that account an amount that
would cover the checks before they cleared in the normal course of
business. The account was closed at the time of issuance of the
checks after some five months of inactivity. The bank officer
testified that the bank did not send Aguilar an account statement
from January 1990, onward because his previous address was not
valid, and the bank did not have a forwarding address for him.
During the five months of inactivity, the account balance dwindled
to $8.14. As of January 12, 1990, the balance was depleted by
service charges and the account was closed. The next time Aguilar
attempted to access the account was on May 25, 1990 when he wrote
the first check to the PX for $329.37, as stated in Count One of
the indictment. This check was followed by several other checks
amounting to a total of $2,349.69, according to the other six
counts in the indictment.6 Before trial, the Army tried
6 Additionally, under FRE 404(b) the government submitted
evidence of fifteen other bad checks written on the same closed
account by Aguilar to the PX between May 25, and June 11, 1990.
10

unsuccessfully to collect from Aguilar, who did not pay any amount
of money in restitution, even though he claimed that he intended to
honor the checks. Moreover, Aguilar admitted to the FBI that he
had written the entire series of twenty-two checks when he knew
there was no money in the account. The government contends that
based on all this evidence, a reasonable jury could infer that
Aguilar intended not to honor the checks and, therefore, intended
to deprive the government of its property. Especially telling is
the number of checks written within a 17 day period with no attempt
on Aguilar's part to make offsetting deposits.
We agree and hold that the government presented sufficient
evidence from which a reasonable jury could infer that Aguilar did
not intend to honor the checks when he wrote them.
IV. COUNT ONE: THE "POST-DATED" CHECK
Aguilar contends that his conviction as to Count One must
nevertheless be reversed because the evidence at trial clearly
showed that the date written on the check was May 25, 1999.
(Government's Exhibit 1-A, Record, Vol. 2, pp. 42-44). He argues
that a post-dated check cannot constitute an implied representation
that the drawer presently has enough in his account to cover the
check, which is not even payable until the stated date. See, Tex.
Bus. & Com. Code Ann. § 3.114(b).
The government responds that the date of the check was an
issue before the jury, and "by its finding of guilty in this count,
the jury evidently felt that it said '1990'." Government Brief at
10. In light of the appearance of the check itself and the
11

testimony presented at trial7, no rational jury could have reached
this conclusion. Aguilar's conviction as to Count One must
therefore be reversed.
For these reasons, we REVERSE the conviction as to Count One
and otherwise AFFIRM as to the other counts of conviction.
7 Markita Jordan, an employee at the Fort Bliss Commissary,
testified that the check was "written" on May 25, 1990, but she
also admitted that Aguilar wrote "May 25, 1999" on the check.
The check itself was viewed as part of this record and clearly
shows 1999.
12