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18 U.S.C.S. § 656 in part provides: whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $ 5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $ 100, he shall be fined not more than $ 1,000 or imprisoned not more than one year, or both.
Appellant Anita Whitlock was convicted in the District Court of embezzling $ 85,000 from the DuPont Circle Branch of Riggs National Bank in purported violation of 18 U.S.C. § 656. Acknowledging the theft, appellant contended that the district court should have entered sua sponte a judgment of acquittal on the ground that the evidence did not demonstrate that she had prior lawful possession of the money, as was required to establish the crime of embezzlement. Alternatively, she argued that the Government failed to prove that she was mentally responsible when she appropriated the $ 85,000.
Under the circumstances, could appellant’s embezzlement conviction stand?
The court affirmed the embezzlement conviction. According to the court, the appellant’s stewardship of the bank funds sufficiently supported an embezzlement conviction because she was entrusted with the bank funds constructively. The court opined that although the mere ability to perpetrate a theft of bank funds was not the "possession" that embezzlement inexorably demanded, the uncontradicted evidence established that the bank employee willfully misapplied the bank funds without having previously received them into her manual possession, and such offense was necessarily included within the embezzlement charged.