Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 74 CR 182 Thomas R. McMillen, Judge.
Hastings, Senior Circuit Judge, Stevens and Tone, Circuit Judges.
Appellant was found guilty of embezzling two packages which had come into her possession as a mail handler in the Postal Service.*fn1 By motion in arrest of judgment she attacked the sufficiency of the indictment because it did not expressly allege that she acted with felonious intent.*fn2 The district court held that the word "embezzle" necessarily embraced the element of willfulness, and therefore the indictment, though it could have been improved, was sufficient. On appeal, in addition to her attack on the indictment, defendant also challenges the sufficiency of the evidence.
Appellant relies on the rule that an indictment must allege all essential elements of a crime. United States v. Debrow, 346 U.S. 374, 376, 98 L. Ed. 92, 74 S. Ct. 113. She argues that the defendant's mens rea is such an element of embezzlement and, therefore, in the language of Rule 12(b)(2), the indictment failed to charge an offense.*fn3
Defendant did not question the indictment in advance of trial. That omission does not constitute a waiver, but it does make it appropriate to construe the indictment liberally in favor of sufficiency. United States v. Norman, 391 F.2d 212, 213 (6th Cir. 1968), cert. denied, 390 U.S. 1014, 20 L. Ed. 2d 163, 88 S. Ct. 1265;*fn4 see also Hagner v. United States, 285 U.S. 427, 433, 76 L. Ed. 861, 52 S. Ct. 417. So construed, it is reasonable to find that the requisite intent was implicitly charged by the use of the word "embezzle" in the context of a description of unlawful behavior with respect to a package entrusted to the defendant.
We have recently identified the two constitutional concerns that compel an indictment procedure:
(1) that an indictment adequately apprise a defendant of the charge against him so that he can prepare his defense and (2) that if future proceedings are brought against the defendant for a similar offense, the record shows to what extent the defense of double jeopardy is available.
United States v. Ray, 514 F.2d 418, 422 (7th Cir. 1975). These concerns were plainly satisfied in this case.
Appellant argues, however, that a third concern -- the need to be sure that the grand jury considered all of the essential elements of the crime before returning the indictment -- requires reversal. She contends that, had the grand jury been properly instructed, it might not have returned an indictment. This argument is most strongly supported by United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973). In that case the court held that the failure to charge that the defendant acted willfully invalidated an indictment under 18 U.S.C. § 641. That holding is not applicable here.
The indictment against Denmon merely charged that he had sold certain government property "without authority."*fn5 No word, such as "embezzling" or "smuggling,"*fn6 which implicitly describes a criminal intent, was included in the indictment. Thus, neither expressly nor impliedly was the intent element of the offense alleged in the Denmon indictment. There was, therefore, special force to the argument that the grand jury might not have considered all of the essential elements of the charged offense. Id. at 1095.
We are persuaded, however, as Judge Robson held in United States v. Hummer, 322 F. Supp. 601 (N.D. Ill. 1971), that the word "embezzle" "connotes to both lawyers and laymen" that the act was performed with wrongful intent. 322 F. Supp. at 602. Both the dictionary definition and the accepted usage of the word are consistent with this conclusion. Moreover, to the extent that doubt may exist as to the grand jury's understanding of its own charge, we believe that the indictment should be construed liberally because the criminal rules contemplate raising the issue by motion in advance of trial when there would still be opportunity to have a new indictment returned.
Appellant also relies on a footnote in Morissette v. United States, 342 U.S. 246, 270, 96 L. Ed. 288, 72 S. Ct. 240 n. 30, that states that an indictment in the words of the statute is defective if the statute itself does not expressly and clearly set forth all the elements of an offense.*fn7 We acknowledge the ...