On Appeal From the United States District Court For the Western District of Pennsylvania. D.C. Criminal Action No. 92-238
Before: Sloviter, Chief Circuit Judge and Stapleton, Circuit Judge, and Restani, Court of International Trade Judge*fn1
Defendant-appellant Cheryl Schneider ("Schneider") appeals from the judgment of conviction rendered against her on January 15, 1993 following a jury trial before the United States District Court for the Western District of Pennsylvania. The question presented is whether the crime of embezzlement is described by the language of 18 U.S.C. § 661 (1988). We conclude that it is, and thus we affirm.
On November 12, 1992, a one-count indictment was issued against Schneider, charging her with theft of funds, committed within the special territorial jurisdiction of the United States under 18 U.S.C. §§ 661 and 662 (1988). At the time of the indictment, Schneider was a full-time unit administrator with the United States Army Reserve, as well as secretary-treasurer for Local 2970 of the American Federation of Government Employees ("Local 2970").*fn2 The funds stolen were the property of the union.
Initially, an audit for Local 2970 had been scheduled by the Department of Labor as a result of the local's failure to file two annual financial reports. During the course of the audit, the investigator determined that nine checks written to Schneider were not properly recorded in the union's disbursement journal, and eight of the nine checks lacked accompanying backup documentation. Schneider was subsequently charged with having stolen money from the union by writing these checks payable to herself as reimbursements for undocumented expenses she allegedly incurred on behalf of the union.
Schneider's trial began on January 11, 1993, and a verdict was reached on January 15, 1993. On January 27, Schneider filed a motion for judgment of acquittal, which was denied. Schneider was sentenced on March 31, 1993 to six months of house detention and three years of probation. Schneider also was ordered to pay restitution of $1,485.00, and a special assessment of $50.00.
On appeal, Schneider asserts that the motion for judgment of acquittal was improperly denied, as the charged offense defined in 18 U.S.C. § 661 does not include the act of embezzlement of funds. Schneider also argues that the jury was instructed incorrectly on this point.
In this case, appellate jurisdiction is based on 28 U.S.C. § 1291 (1988), as the appeal is from a final judgment of a district court. An appeal from a denial of a motion for judgment of acquittal is subject to de novo review, where the question is one of statutory interpretation. United States v. Tabacca, 924 F.2d 906, 910 (9th Cir. 1991). A plenary standard also applies to a review of jury instructions where their interpretation turns on a matter of statutory construction. United States v. McGill, 964 F.2d 222, 235 (3d Cir.), cert. denied, 121 L. Ed. 2d 588, 113 S. Ct. 664 (1992); United States v. Messerlian, 832 F.2d 778, 789 (3d Cir. 1987), cert. denied, 485 U.S. 988, 99 L. Ed. 2d 501, 108 S. Ct. 1291 (1988). The charge to the jury, taken as a whole and in light of the evidence presented, must fairly and adequately submit the issues in the case to the jury. McGill, 964 F.2d at 235; Messerlian, 832 F.2d at 789.
Chapter 31 of Title 18 of the United States Code is captioned as "Embezzlement and Theft." Section 661, which is found ...