*Circuit Judge of the Second Circuit, sitting by

designation. 

 

**Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-60051

UNITED STATES,

Plaintiff-Appellee,

versus

JOYCE M. CAMPBELL,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

(CR-1:93-28(BR)(R))

(March 31, 1995)

Before VAN GRAAFEILAND*, JOLLY and WIENER, Circuit Judges.

PER CURIAM:** 

A jury found Defendant-Appellant Joyce M. Campbell guilty of

embezzlement in violation of 18 U.S.C. §656. In addition to

ordering Campbell to pay restitution in the amount of $ 8,611.97,
2

the court sentenced her to ten months imprisonment followed by

three years supervised release. Campbell appeals, seeking

reversal of her conviction. We conclude, however, that her

conviction of embezzlement was free of reversible error and

therefore affirm the district court's judgment in all respects. 

I

FACTS AND PROCEEDINGS

Campbell was originally hired as a teller at the West Biloxi

(Mississippi) branch of Peoples Bank, but she had been promoted

and was working as an account representative during the time

covered in her indictment. As an account representative,

Campbell served as secretary to the branch manager and performed

teller duties, including the filling out of forms used to move

bank funds internally. The bank maintained a policy that

permitted the transfer of a customer's funds from one account to

another, or the application of a customer's funds to an

outstanding loan balance, in response to the customer's telephone

request.

After receiving a complaint from a customer that funds had

mysteriously been withdrawn from his account, the bank discovered

Campbell's activities in converting customer funds. The

government charged her with embezzlement and, at trial, presented

evidence of nineteen transactions in which Campbell had caused

funds to be transferred out of customers' accounts. Each such

transfer was either credited to Campbell's account or applied to

another customer's account to cover some previous improper,
 

1See United States v. Leed, 981 F.2d 202, 205 (5th Cir.

1993)(citing United States v. Sanchez, 961 F.2d 1169, 1173 (5th

Cir. 1992), cert. denied, 113 S.Ct. 330 (1992)), cert. denied,

113 S.Ct. 2971 (1993).

3

Campbell-generated withdrawal. The evidence showed that Campbell

fraudulently withdrew the funds by falsifying information on the

bank's internal documents, such as checking account and savings

account deposit slips, bank charge slips, and savings withdrawal

slips, to reflect that a customer had made a telephone request

for a transfer of funds. In each instance, Campbell gave these

documents to one of three different bank tellers, who routinely

processed them without question on the basis of the account

numbers Campbell had supplied. 

After the government presented its evidence, Campbell moved

for a judgment of acquittal, arguing that she did not have lawful

possession of the funds at issue and therefore could not be

convicted of embezzlement. The district court reserved its

ruling until after Campbell had presented her case, at which time

the court denied her motion for acquittal, observing that

Campbell had lawful possession of the funds by virtue of her

authority and power to move the funds from one account to

another. The jury subsequently convicted Campbell of

embezzlement, and this appeal ensued.

II

ANALYSIS

We review a district court's denial of a motion for judgment

of acquittal de novo.

1 A motion for acquittal should be granted
 

2See United States v. Stone, 960 F.2d 426, 430-31 (5th Cir.

1992)(affirmance of conviction is proper if rational trier of

fact could have found that evidence established each essential

element of offense beyond reasonable doubt).

 

316 S.Ct. 294 (1895).

 

4Id. at 295.

4

if the government fails to present sufficient proof to sustain a

jury verdict of guilt on the charge, albeit we review the

evidence supporting conviction in the light most favorable to the

government.2 

 The Supreme Court in Moore v. United States3 defined

embezzlement as "the fraudulent appropriation of property by a

person to whom such property has been intrusted, or into whose

hands it has lawfully come."4 Campbell argues that the

government failed to prove a requisite element of the crime of

embezzlement, i.e., that she had lawful possession of the funds

involved in the transactions. Although Campbell concedes that

she moved funds from customer accounts to her own account, she

maintains that her handling of these funds was not lawful because

the customer had not approved of the transactions before Campbell

caused them to be processed. Campbell also stresses that she

cannot be found guilty of embezzlement because she did not

personally transfer the bank's funds, arguing that the tellers

involved in the transactions, and not Campbell, processed the

transfers after Campbell submitted the falsified documents. 

In support of her position on appeal, Campbell contends that

her activities were similar to those of the defendant in United
 

5542 F.2d 942 (5th Cir. 1976).

 

6Id. at 944.

5

States v. Sayklay5, in which we held that Sayklay, the defendant

bookkeeper, had not embezzled the bank's funds, even though the

facts clearly showed her willful misapplication of the bank's

funds. Through her bookkeeper position, Sayklay had access to

other bank employees' account numbers, blank checks and a checkencoding machine, which she used to falsify checks drawn on her

co-workers' accounts. Sayklay presented the fraudulent checks to

a teller who gave her cash in return. In reversing Sayklay's

conviction, we stated that although "defendant's position at the

bank aided her in her crime, . . . it did not place her in lawful

possession of others' funds that she converted to her own use."6

We find that the facts in the instant case are clearly

distinguishable from those in Sayklay and therefore conclude that

Campbell's arguments are without merit. Unlike the defendant in

Sayklay, who could only manipulate the accounts through

falsifying documents, Campbell had the authority to do directly

that which she elected to do indirectly through the unwitting

participation of the tellers whom Campbell interposed

unnecessarily. Thus she had constructive legal control of the

funds that she caused to be moved from one account to the other. 

In Sayklay we delineated a distinction between the funds that the

defendant bookkeeper misappropriated and funds held by a bank

teller, observing that "[u]nlike funds in possession of a bank

president or a teller, the funds [that the defendant] stole were
 

7See id.

 

8See id.

6

not entrusted to her in any capacity whatever for the use and

benefit of the bank."7 We noted as significant in Sayklay the

fact that the only way the defendant bookkeeper could get access

to the funds was by "unlawful means."8 Campbell, however, as an

account representative who also performed teller duties, was

endowed with authorized access to customer accounts and bank

funds; she did not need the services of another teller to process

the documents required to convert the funds to her own use. 

Campbell nevertheless insists that, as the proof presented

at trial showed that she did not convert the funds herself

directly but instead used other tellers to effect the conversion

of funds, she may not properly be convicted of embezzlement. 

This is pure sophistry. Even though Campbell did not personally

conduct the processing of the documents that she falsified, she

nevertheless had the authority to process them and merely avoided

processing them personally by submitting them to the other

tellers - - clearly a superfluous step added unnecessarily by

Campbell. Her use of the other tellers as unknowing tools (not

unlike the bank's internal documents, which also served as tools)

with which to advance her scheme and decrease her identifiable

linkage to the transactions does not shield her from criminal

liability for embezzlement. The fact remains that the bank

entrusted Campbell with control and custody of its funds.

In rejecting Campbell's reliance on Sayklay, we find instead
 

9902 F.2d 327 (5th Cir. 1990), cert. den. 498 U.S. 1069

(1991).

 

10See id. at 329.

 

11See id.

7

that Campbell's machinations more closely parallel those we

considered in United States v. Ehrlich9. In Ehrlich, we found

that the defendant, a bank loan clerk, was properly convicted of

embezzlement because she had been entrusted with control and

constructive possession of funds in the bank's general ledger

accounts.10 We rejected that defendant's contention, as we do

Campbell's, that her position was similar to that of the

defendant in Sayklay, noting that in Ehrlich the defendant

routinely and lawfully moved funds between various bank accounts

through the use of debit and credit slips.11 The government's

evidence in the instant case reflects that Campbell had the

authority to transfer funds between customer accounts and that

she routinely performed these transfers. 

Nevertheless, Campbell argues that she had authority to

transfer the funds only after receiving a genuine customer

request, and that her misappropriations were therefore

accomplished without authority. This specious argument is

unavailing, however: All crimes of embezzlement involve an

unlawful act at some point. We look for authority emanating from

the bank, not from its customers, in considering this element of

embezzlement. The bank's vesting of Campbell with control and

authority over the funds in the usual course of routine banking
8

transactions guides our determination here. 

Like the defendant in Ehrlich, Campbell had more than mere

access to the instrumentalities necessary to convert bank funds

to her own use. Her position as account representative and parttime teller gave Campbell lawful access to customer funds and

equally lawful authority and control to transfer funds. As the

monies that Campbell caused to be converted to her own use came

from funds lawfully entrusted to her by the bank, her

embezzlement conviction was proper. 

 

III

CONCLUSION

Campbell's actions in causing the transfer of customer funds

for her own benefit more closely resemble the acts of the

defendant in Ehrlich than those of the defendant in Sayklay. We

thus conclude that the district court did not err in denying

Campbell's motion for judgment of acquittal on the embezzlement

charge. Her conviction on that charge is, therefore, 

AFFIRMED.