                                                                                       [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                                  ________________________            U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                         No. 98-5393                         06/29/99
                                    Non-Argument Calendar                THOMAS K. KAHN
                                  ________________________                    CLERK

                               D. C. Docket No. 97-CR-941-ASG

UNITED STATES OF AMERICA,
                                                                                Plaintiff-Appellee,

                                              versus

PAUL MAXWELL KING,
                                                                             Defendant-Appellant.

                                  ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                _________________________
                                        (June 29, 1999)

Before BIRCH and BARKETT, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

       A federal grand jury returned a single-count indictment charging Paul Maxwell King

(“King”) with stealing money insured by the Federal Deposit Insurance Corporation in violation of

18 U.S.C. § 2113(b). After being found guilty at a jury trial, King was sentenced to a 12-month term

of imprisonment and ordered to pay restitution in the amount of $9,334.66 to Loomis Fargo (an

armored transport company). On appeal, King argues the money being transported by Loomis Fargo

was not in the care, custody or control of a federally insured bank when stolen, and therefore, the

government failed to prove an essential element of 18 U.S.C. § 2113(b). We disagree with King’s

contention and affirm his conviction. King’s second assignment of error is the district court’s

sentence ordering him to pay restitution to Loomis Fargo. Because King was neither charged with
nor convicted of the crime for which he was ordered to pay restitution, we vacate that portion of the

sentence.

                                              FACTS

       On December 12, 1997, a Loomis Fargo & Company armored transport vehicle

picked up $8,764.00 from the Metro-Dade Rickenbacker Causeway toll authorities to be delivered

for deposit in the First Union National Bank, and $183.000.00 from the International Bank of Miami

to be delivered to the Federal Reserve Bank of Miami. Occupying the vehicle for Loomis Fargo

were the driver, James Williams, and the messenger, Jeremiah Campbell.

       Campbell and Williams made an unscheduled stop at the Miami Lakes Technical School to

check on an afternoon pickup. At the school, Williams and Campbell went to the restroom leaving

the vehicle unattended. When they returned from the bathroom, the truck had been moved to the

another area of the parking lock and the money was gone. Upon this discovery, Campbell and

Williams called the Metro-Dade police to investigate.

       At the scene of the crime police officers interviewed Anthony Shiggs, an eyewitness, who

stated that he saw a man exit the armored vehicle carrying two bags and then flee the scene in a red

Honda. Shiggs, suspicious of the scenario, followed the Honda as it left the parking lot but lost it

thereafter in traffic. He was, however, able to remember the tag number and he provided such to

the police. A record check revealed the Honda was registered to King.

       Law enforcement officials proceeded to King’s address and found the red Honda Shiggs

described in the parking lot of the residence. When King exited the house he was arrested.

Subsequently, the police searched King’s home and found $183,000 in the master bedroom. The

additional $8,764 belonging to the Rickenbacker Toll Plaza was not recovered, however, a shopping

bag on King’s person contained money seals and bag tabs matching those used by the Rickenbacker




                                                 2
Toll Plaza. The police were also able to recover additional evidence that linked King to Jeremiah

Campbell, the Loomis Fargo messenger1.

       A federal grand jury returned an indictment charging King with stealing money from a bank

insured by the FDIC in violation of 18 U.S.C. § 2113(b). The case proceeded to trial and the jury

found King guilty of the charged offense. The district judge sentenced King to a 12 month term of

imprisonment and ordered King to pay restitution to Loomis Fargo in the amount of $9,334.66. This

appeal followed.

                                         DISCUSSION

       To sustain a conviction under 18 U.S.C § 2113(b) the government is required

to prove three things: (1)the defendant carried away in excess of $1,000; (2)the money was

belonging to or in the care, custody, control, management or possession of the bank; and (3) the

defendant’s intent was to steal the money. See United States v. Cornillie, 92 F.3d 1108, 1109 (11th

Cir. 1996). King’s principal contention is that the second element was not satisfied and therefore

his conviction must be reversed. The gist of his argument is that, because the money was stolen

from an armored vehicle, it was in the care, custody or possession of Loomis Fargo, not the bank.

We find this argument to be unpersuasive and inconsistent with the spirit of 18 U.S.C. § 2113.

       The evidence at trial showed that the International Bank of Miami sent money to and

received money from the Federal Reserve, and that the bank contracted with Loomis Fargo to

provide for the transportation of this money. Loomis Fargo was responsible for any loss of cash

from the moment they picked it up until they dropped it off. The bank, however, was never without

legal title to the money. The contract simply provided Loomis Fargo with custody of the money for




       1
         King was found carrying a set of key to a Loomis Fargo armored vehicle, although it
was not the same armored vehicle that had been burglarized. This set of keys was directly
linked to Jeremiah Campbell. The police also found a deposit slip for Jeremiah Campbell in
King’s Honda.

                                                3
the limited purpose of transferring the funds to the Federal Reserve.2 “It is, of course, plain that the

money, while in the care, custody, and control of the [armored transport] was, in contemplation of

the law, in the custody, care and control of the bank.” White v. United State, 85 F.2d 268, 269 (D.C.

Cir. 1936); See also, United States v. Damm, 133 F.3d 636, 638 (8th Cir. 1998)(“funds in the

American Security truck being transferred by banks to businesses are properly considered bank

property for FBRA purposes ...”)(internal citations omitted); United States v. Mafnas, 701 F.2d 83,

85 (9th Cir. 1983)(money considered bank property notwithstanding the fact the money was in

possession of armored truck when stolen); United States v. Jakalski, 237 F.2d 503, 505-506 (7th Cir.

1956)(argument that money stolen from armored car service was not bank property considered to

be without merit).3 Accordingly, we find no error in the trial judge’s instruction that money stolen

from an armored car is properly considered to be money “in the care, custody, control, management

or possession of any bank” within the meaning of 18 U.S.C. § 21113(b).

       The second issue on appeal is whether the district judge’s order of restitution -for the theft

of the money belonging to the toll plaza- was warranted. King was never charged with or convicted

of the theft of that money. He argues that he cannot be ordered to pay restitution to a victim for an

offense for which he was not charged with or convicted of. The government concedes this was

error. Accordingly, we vacate the restitution portion of King’s sentence.



       2
        King also argues that the contract did not merely provide Loomis Fargo with custody,
but created a bailment situation. We need not address that question as it has no effect on
whether the money, in the contemplation of 18 U.S.C. § 2113(b), was belonging to or in the care,
custody, control or management of the bank when stolen.
       3
          King relies on Lubin v. United States, 313 F.2d 419 (9th Cir. 1963), to support his
argument. This reliance, however, is misplaced. In Lubin, the armored vehicle picked up cash
from the bank to deliver it to various business. The purpose of the pick up was to cash
employees’ payroll checks, and allow the armored truck company to derive a profit from the
check-cashing by discounting the checks it cashed. Thus, when the money was returned to the
bank in the afternoon the deposit exceeded the amount withdrawn in the morning. The form of
the transaction was such that a promissory note was delivered in exchange for the money,
thereby allowing legal title to pass from the bank to the armored truck company. In this case,
legal title never passed to Loomis Fargo.

                                                   4
AFFIRMED in part, VACATED in part.




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