United States District Court, Northern District of Illinois, E.D
February 5, 1971
UNITED STATES OF AMERICA, PLAINTIFF,
DONALD A. HUMMER AND WILLIAM E. VAUGHN, JR., DEFENDANTS.
The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER ON MOTION TO DISMISS INDICTMENT
After the Government rested its case during the trial of this
matter, the defendant William Vaughn moved to dismiss the
indictment on the grounds that it failed to allege the essential
element of felonious intent. For the reasons stated, this court
is of the opinion that the motion should be denied.
The indictment charges the defendant Vaughn with embezzling
certain specifically described packages which were intended to be
conveyed in the United States mail while he was an employee of
the United States Post Office, in violation of 18 U.S.C. § 1709.
The indictment follows the statutory language. It does not
contain a separate allegation pertaining to intent. Defendant
Vaughn now claims that such an omission renders the indictment
fatally defective. He cites the decision by Judge Andrew A.
Caffrey in United States v. Jordan, 284 F. Supp. 758 (D.Mass.
1968), which held that felonious intent must be alleged in an
indictment brought under 18 U.S.C. § 1709. Judge Caffrey relied
on an earlier decision of the United States Court of Appeals for
the First Circuit which held that such an allegation is necessary
in an indictment brought under a materially different statute.
Hughes v. United States, 338 F.2d 651
(1st Cir. 1964). While that decision does support defendant
Vaughn's position, this court is of the opinion the Jordan case
does not state the law of this Circuit. In United States v.
Alexander, 415 F.2d 1352, 1357-1358 (7th Cir. 1969), the United
States Court of Appeals for the Seventh Circuit approved the
definition of "embezzlement" as "the fraudulent appropriation of
property by a person to whom such property has been entrusted or
into whose hands it has lawfully come." Such a definition
implicitly includes wrongful or felonious intent. A person could
not fraudulently appropriate the property of another to himself
without felonious intent. The court concludes that the word
"embezzled" used in both the statute and this indictment connotes
to both lawyers and laymen that the act alleged was done with
wrongful and felonious intent, and the indictment is therefore
It is therefore ordered that the motion to dismiss the
indictment be, and it is hereby denied.
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