895 F2d 1419 United States v. White

895 F.2d 1419

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America Plaintiff-Appellee,
v.
Charmaine WHITE, Defendant-Appellant.

No. 89-10182.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1990.
Decided Feb. 8, 1990.

N.D.Cal.

864 F.2d 660, APPEAL AFTER REMAND.

AFFIRMED.

Appeal from the United States District Court for the Northern District of California, Thelton E. Henderson, District Judge, Presiding.

Before WALLACE, ALARCON, and LEAVY, Circuit Judges.

1

MEMORANDUM*

2

Charmaine White (White) appeals from her conviction for bank embezzlement in violation of 18 U.S.C. Sec. 656 after a bench trial. White contends that (1) the district court abused its discretion by dismissing an earlier indictment without prejudice after a Speedy Trial Act violation; and (2) her conviction is not supported by sufficient evidence because the government did not carry its burden of proving an intent to defraud. We affirm.

BACKGROUND

3

Between January and May of 1985, White, an employee of Wells Fargo Bank, made unauthorized credit card transactions causing the bank to lose about $18,000. White later signed a statement admitting the unauthorized transactions, explaining that she was motivated by a "financial bind," and declaring that she knew that "this was wrong."

4

White was indicted on October 16, 1985 for bank embezzlement in violation of 18 U.S.C. Sec. 656. On January 21, 1986, White moved for a dismissal of the indictment under the Speedy Trial Act, 18 U.S.C. Sec. 3162, on the ground that more than 70 days had elapsed from the time of White's arraignment without a trial. On February 11, 1986, the district court dismissed the indictment without prejudice.

5

On March 12, 1986, the government filed a superseding indictment. White waived trial by jury. The parties submitted the matter to the district court on stipulated facts. The government stipulated to the admission into evidence of the medical report of a defense psychiatric expert "to the extent the court determines notwithstanding Federal Evidence Rule 704." The expert's report concluded that, because of mental problems, White "lacked the specific intent to defraud the Wells Fargo Bank." The district court found that the report constituted evidence of lack of intent, but rejected White's argument that the failure to contradict the defense expert's opinion should preclude conviction. White was convicted and sentenced to three years probation conditioned on her making restitution to Wells Fargo.

6

We reversed the order dismissing the original indictment without prejudice. United States v. White, 864 F.2d 660, 661 (9th Cir.1988). We remanded with directions that the district court make specific findings in support of its decision to dismiss the indictment without prejudice. Id. We did not dispose of the remaining issues presented in the appeal from the judgment of conviction. Upon remand, the district court, in a three-page order, made express findings and concluded that "the facts and circumstances are such that a dismissal with prejudice would have an adverse impact on the administration of justice by rewarding defendant for delays caused by the actions of defense counsel."

DISCUSSION

I. The Dismissal Without Prejudice

7

White contends that the district court should have dismissed her indictment with prejudice under the Speedy Trial Act, 18 U.S.C. Sec. 3162 (Act). White argues that the district court improperly balanced the relevant factors. The decision to dismiss for noncompliance with the Act with or without prejudice is within the discretion of the district judge. United States v. Taylor, 108 S.Ct. 2413, 2419 (1988); United States v. White, 864 F.2d at 661. We will not reverse a district court's exercise of discretion unless we have a definite and firm conviction that the court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985).

8

The Speedy Trial Act lists four factors to be considered by a trial judge in deciding whether to dismiss an indictment with or without prejudice:

9

the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; the impact of a reprosecution on the administration of this chapter and on the administration of justice.

10

18 U.S.C. Sec. 3162(a)(2) (1982).

11

The district court found that "a bank embezzlement of $15,000 is a serious offense involving a felonious breach of trust." White argues that the crime is not serious because the government customarily offers to recommend a sentence of probation with a fine of $1,000 in embezzlement cases involving a theft of less than $15,000. In the instant matter, the embezzlement exceeded $15,000. The district court did not abuse its discretion in concluding that embezzlement of $18,000 is a serious offense.

12

In weighing the facts and circumstances that led to the dismissal, the district court found that the original trial date, set within the deadline imposed by the Speedy Trial Act, was vacated at the specific request of White's counsel. White's counsel assured the court that the case was not likely to go to trial and the court did not set a new trial date. Instead, a status conference was scheduled for December 23, 1985. On that date, when counsel appeared, the courtroom was closed because the court's calendaring staff "goofed." Thereafter, the case was inadvertently set beyond the statutory deadline. No showing was made that the prosecutor acted negligently or in bad faith. Taylor, 108 S.Ct. at 2420-21. The facts show that the delay was no more than "an isolated unwitting violation." Id. at 2421.

13

The district court further found that reprosecution would not have an adverse impact on the administration of the Act because the delay in this case of eight days was minimal. Cf. id. ("The longer the delay, the greater the presumptive or actual prejudice to the defendant...."); United States v. Arango, 879 F.2d 1501, 1508 (7th Cir.1989) (three-month delay not per se substantial enough to justify dismissal with prejudice).

14

In considering the fourth and final factor, the court concluded that dismissal with prejudice would have an adverse impact on the administration of justice "by rewarding defendant for delays caused by the actions of defense counsel." Cf. Arango, 879 F.2d at 1508 ("[D]ismissing the indictment with prejudice would not serve any purpose of encouraging the government to avoid the neglect or bad faith in the prosecution of its cases.").

15

The district court's findings demonstrate that it properly weighed each of the relevant factors and did not abuse its discretion in dismissing the indictment without prejudice, and did not do so merely to punish defense counsel for seeking a delay to obtain further evidence or information to assist in trial preparation or in making a plea recommendation to his client. The district court stated that its decision to dismiss without prejudice was "based primarily on the 'facts and circumstances' leading to dismissal." It was proper for the court to weigh the fact that defense counsel informed the court that the case was not likely to go to trial in concluding that the failure to set a trial date within 70 days was caused, at least in part, by the court's reliance on this representation. There is no evidence in the record that the delay was the result of "a truly neglectful attitude on the part of the Government." Taylor, 108 S.Ct. at 2420. The seriousness of the crime, the Government's lack of culpability, defense counsel's representations that the case would probably not go to trial, and the brevity of the delay support the district court's exercise of its discretion.

II. The Sufficiency of the Evidence

16

White also contends that the evidence was insufficient to support a conviction for embezzlement because the government failed to carry its burden of proving intent to defraud. In determining the sufficiency of the evidence, we must decide whether, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988).

17

To establish a violation of the bank embezzlement statute, 18 U.S.C. Sec. 656, the government must show an intent to defraud. United States v. Alcantar, 832 F.2d 1175, 1178 (9th Cir.1987) (finding intent to defraud when defendant "took advantage of her position of trust at the bank willfully to withdraw uncovered cashier's checks ... for her own benefit"). Whether the defendant had the requisite criminal intent is a question for the trier of fact. Morissette v. United States, 342 U.S. 246, 274 (1952); United States v. Ford, 632 F.2d 1354, 1362 (9th Cir.1980), cert. denied, 450 U.S. 934 (1981). The defense may offer evidence of a mental defect to raise a reasonable doubt "whether the defendant possessed the ability to attain the culpable state of mind which defines the crime." United States v. Twine, 853 F.2d 676, 678 (9th Cir.1988).

18

The psychiatric report submitted by White pursuant to stipulation contains the following legal conclusion:

19

[B]ecause of her mental problems, and because of the severity of the situation in which she found herself, it is my conclusion that during the time period beginning January 28, 1985 through May 29, 1985, she lacked the specific intent to defraud the Wells Fargo Bank.

20

White contends that the district court must enter a judgment of acquittal whenever the defense offers a psychiatric opinion that the accused lacked the requisite mental state and the government neither discredits the expert's evidence through cross-examination nor proffers conflicting evidence from its own expert.

21

Rule 704(b) of the Federal Rules of Evidence provides:

22

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

23

Fed.R.Evid. 704(b). As set forth above, the government stipulated that the district court could consider the defense psychiatric expert's opinion concerning White's intent to defraud notwithstanding the bar against such evidence contained in Rule 704(b). The government's stipulation did not make the report dispositive on the issue of intent, nor did it entitle White to an acquittal as a matter of law. As a result of the stipulation, the district court was permitted to consider the psychiatric expert's conclusion as evidence tending to show a lack of specific intent to defraud. The court, acting as a trier of fact, remained free to question the persuasiveness of the psychiatric expert's opinion. Twine, 853 F.2d at 679 n. 1 (citing United States v. Erskine, 588 F.2d 721, 723 (9th Cir.1978)).

24

White relies on Ninth Circuit authority regarding psychiatric evidence offered to prove an insanity defense to support her contention that a trial court must find a defendant not guilty if the government fails to rebut such evidence with cross-examination or the testimony of a psychiatrist or other expert.1 Even when an insanity defense is raised, we do not require that the record show that the government cross-examined the defense expert or presented psychiatric evidence in rebuttal to support a finding that the defendant was not insane. The government may rebut or discredit psychiatric testimony in one of three ways:

25

Once the defendant has introduced sufficient expert testimony to support a reasonable doubt as to sanity, the government must: (1) introduce its own expert testimony in rebuttal; or (2) discredit the defendant's expert testimony on cross-examination; or (3) rely upon evidence from which the jury may infer that the defendant's expert testimony depends upon an incorrect view of the facts.

26

United States v. McGraw, 515 F.2d 758, 760 (9th Cir.1975); see also United States v. Ingman, 426 F.2d 973, 977 (9th Cir.1970) ("A jury may, of course, reject [a psychiatrist's] expert opinion if it finds that the opinion was based on an incorrect view of the facts.").

27

The government presented evidence that discredited the conclusion the defense expert drew from the facts. White admitted that she knew her actions were wrong, that she secretly used the computer terminal of another employee to carry out the unauthorized transactions, and that she sent bank statements to a friend's home to conceal the embezzlement. This evidence, which the defense expert did not mention in his report, was sufficient to permit a rational trier of fact to reject the expert's conclusion and find an intent to defraud beyond a reasonable doubt. The district court properly rejected White's contention that the failure to rebut her expert's testimony compelled a finding of not guilty.

28

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

It is not clear that case law applicable to an insanity defense is relevant to the defense that the accused lacked the requisite mental state. "The use of expert testimony for [the purpose of negating mens rea] is entirely distinct from the use of such testimony to relieve a defendant of criminal responsibility based on the insanity defense or one of its variants, such as diminished capacity." United States v. Demma, 523 F.2d 981, 986 n. 14 (9th Cir.1975). We need not resolve this issue because we conclude that the government offered adequate evidence to discredit the psychiatric evidence