ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Crim. No. 78-00067-01)
Before Adams, Rosenn and Weis, Circuit Judges.
Donald Thomas was charged in a thirty-one count indictment with various offenses arising out of his employment as president of the First National Bank of Carbondale, Pennsylvania. After a jury returned a verdict of guilty on seven of the thirty-one counts, the district judge sentenced Thomas to imprisonment on each count, with all sentences to run concurrently. Thomas filed a timely appeal. We affirm.
Thomas was convicted on counts two through five and nine through eleven. Counts two through four charged that Thomas, as bank president, knowingly and with intent to defraud the bank misapplied funds by causing bills "submitted by Talarico Construction Company to be inflated" in violation of 18 U.S.C. § 656 (1976).*fn1 Count five alleged that Thomas ordered a letter sent to the Small Business Administration which falsely stated that the bank had not received money owed to it from the American General Life Insurance Co. The indictment charged that this act violated 18 U.S.C. § 1001 (1976).*fn2 Count nine asserted that Thomas, in violation of § 656, had misapplied funds that had been paid to the bank by one of its debtors, William Fendrock. And, counts ten and eleven alleged that Thomas had misapplied funds by excessively charging the bank's discount installment loan account, again in violation of § 656. The remaining counts, on which Thomas was acquitted, charged that he had embezzled bank funds, misapplied other funds from Fendrock's account,*fn3 made a false entry in the bank's general ledger,*fn4 and caused overdrafts to be honored on the account of R & D Investments with knowledge that there were not sufficient funds in R & D's account to cover the overdrafts.*fn5
Four principal arguments are presented on appeal: (1) The district court erred in denying Thomas' motions to sever the counts of the indictment and to order separate trials on each of six groups of counts. (2) Thomas' conviction on counts two through four and nine through eleven should be reversed because the prosecution failed to prove that the First National Bank of Carbondale was insured by the Federal Deposit Insurance Corporation (FDIC). (3) The evidence unconstitutionally varied from the terms of counts nine through eleven in that the indictment charged misapplication of bank funds while the testimony concerned misapplication of funds And credits. (4) The evidence was insufficient to support the verdict on counts nine through eleven because intent to defraud the bank was not established.
We conclude that the district court correctly denied Thomas' motions to sever the counts of the indictment and that the prosecution's failure to prove that the bank was insured by the FDIC is not a ground for reversal. We also conclude that there was no variance between the indictment and the evidence because the indictment set forth the acts on which Thomas was convicted and the evidence was properly limited to those factual allegations. The record also demonstrates that there was sufficient evidence from which the jury could infer that Thomas intended to defraud the bank.
Prior to and during trial, Thomas moved to divide the counts into six groups and to order separate trials of each group. The district court denied the motions. In its pretrial order, the court reasoned that all of the counts involved actions allegedly taken by Thomas "in contravention of his duties as a bank officer and which injured and defrauded the bank," and thus were of a "sufficiently similar character to permit their joinder under (Fed.R.Crim.P.) 8(a)."*fn6
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
The district court did not err in applying this standard. Each count alleged that Thomas used his position as bank president to gain access to and to alter bank records and accounts, and to misappropriate bank funds. And the various counts involved transactions that all occurred within an eighteen-month period of time. Thus, because each offense charged was similar in character to the others, initial joinder of the counts was permissible under Rule 8(a). See United States v. Catena, 500 F.2d 1319, 1325-26 (3d Cir. 1974) (affirming denial of Rule 14 motion to sever 141 counts involving separate acts of medicare fraud); United States v. Tillman, 470 F.2d 142, 143 (3d Cir. 1972) (per curiam), Cert. denied, 410 U.S. 968, 93 S. Ct. 1451, 35 L. Ed. 2d 702 (1973) (joinder of counts alleging separate sales of heroin and of cocaine held proper). Cf. United States v. Graci, 504 F.2d 411, 411-12 (3d Cir. 1974) (joinder of indictments charging conspiracy and sale of stolen government property, and unlawful delivery of a prescription drug held improper).
Although joinder is authorized by Rule 8(a), factual information adduced before or during trial may indicate that joint trial of the counts might be unfair to the defendant. To protect against this possibility, Fed.R.Crim.P. 14 provides in part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance ...