any property or money * * * belonging to, or in the care, custody, control, management, or possession of any bank * * * shall be fined * * * or imprisoned * * * or both; * * *.
'(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank * * * in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.'
The moving defendants contend that they cannot be indicted under subsection (c) for receiving the money from Barnes in this case because Barnes allegedly took the money from the bank in violation of 18 U.S.C. § 656 (under which section he is here indicted) and not in violation of subsection (b) of § 2113,
and because an essential element of the offense of receiving under subsection (c) is that the money or property be received 'knowing the same to have been taken * * * in violation of subsection (b) of this section.'
This contention is without merit. The fact that Barnes is indicted under § 656 and not under § 2113(b) does not interdict the indictment of Miller and Dubas under § 2113(c). If the government should be able to establish at trial that Barnes's acts and intent amounted to a violation of § 2113(b) and that Miller and Dubas received the money from him, knowing it to have been taken from the bank in violation of § 2113(b), they can be found guilty of violating § 2113(c), even though Barnes could not be found guilty of violating § 2113(b) for the reason that he has not been indicted under that provision.
Accordingly, the motion to dismiss will be denied as to Counts IX, X, XI, XIII, XIV, and XV.
AIDING AND ABETTING
In Count VIII Dubas and in Count XII Miller are separately indicted for aiding and abetting in violation of 18 U.S.C. §§ 2
and 656. Each count charges that the respective defendant 'did knowingly and unlawfully aid, abet and counsel' Barnes in the commission of the offense charged in Count II, viz.: that Barnes 'did knowingly and unlawfully embezzle' in violation of 18 U.S.C. § 656, which provides:
'Whoever, being an * * * employee of * * * any * * * insured bank * * * embezzles, abstracts, purloins or willfully misapplies any of the moneys * * * of such bank * * * shall be fined * * * or imprisoned * * * or both * * *.'
The moving defendants contend that Counts VIII and XII are defective in failing to charge that the aiding and abetting were done willfully or with an intent to defraud or injure the bank.
Cases cited by the moving defendants in support of their contention
are of no help since they deal with a charge of willful misapplication, and offense separately set forth in the statute, which specifically uses the term 'willful', implying intent. The case at bar deals with embezzlement, with which the statute does not explicitly couple any qualifying term. Moreover, as Judge Learned Hand held in United States v. Matot, 146 F.2d 197, 198 (2d Cir., 1944) under the earlier form of § 656 which included the words 'with intent in any case to injure or defraud such Federal reserve bank,' the term 'embezzlement' presupposes a fraudulent intent. Thus, to charge that a person 'embezzled' sufficiently charges that he did what he did with a fraudulent intent.
Counts VIII and XII charge Miller and Dubas with 'knowingly and unlawfully' aiding, abetting, and counselling Barnes to 'knowingly and unlawfully' embezzle. Under § 656 this is a sufficient averment, and the motion to dismiss as to Counts VIII and XII will be denied.