                REVISED, JANUARY 28, 1998

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 96-11378


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee


                                VERSUS


                     KENNY HOGUE and JESSE MEEKS,

                                              Defendants-Appellants.




             Appeals from the United States District Court
                   for the Northern District of Texas
                             Dallas Division
          __________________________________________________

                           January 12, 1998

Before DeMOSS and DENNIS, Circuit Judges, and LEE*, District Judge.

DENNIS, Circuit Judge:



     This is the second appeal involving the prosecution of      Jesse

B. Meeks (“Meeks”) and Kenny Ray Hogue (“Hogue”)on an indictment

under 18 U.S.C. § 656 for the misappropriation of Krugerrands from

safe deposit boxes in the vault of First Republic Bank Dallas, N.A.

(the “Bank”).     At the time of their alleged offenses, Meeks and


      *
        District Judge of the Southern District of Mississippi,
sitting by designation.
Hogue were engaged in their employment as locksmiths by Underwood

Safe and Vault Service (“Underwood Safe”), which had contracted

with the Bank to provide locksmith services to the Bank for the

repair and maintenance of its safe deposit boxes.                In the first

case, the district court dismissed the indictment on grounds that,

under the facts stipulated to by the parties, the defendants were

not amenable to conviction because they were not “connected in any

capacity” with the Bank as required by the statute.                   Upon the

government’s appeal, this court reversed, holding that the district

court incorrectly construed the statute by reading into it the

requirement that the offender must have occupied a position of

trust with the bank at the time of the offense.               United States v.

Meeks, 69 F.3d 742, 743 (5th Cir. 1995), cert. denied, __ U.S. __,

116 S.Ct. 1337 (1996) (“Meeks I”).         On remand, after a bench trial,

the district court convicted Meeks and Hogue, stating that it was

compelled by this court’s decision in Meeks I to find that they

were connected in a capacity with the Bank at the time of the

offenses.    Meeks and Hogue appealed.         Because we cannot determine

from the present record whether the district court found beyond a

reasonable   doubt    that   Meeks   and     Hogue    were   connected   in   any

capacity with the Bank at the time of the alleged offenses, we now

vacate the district court judgment and remand the case for further

proceedings.

                                     FACTS

     Meeks     and   Hogue   were    employees       of   Underwood   Safe,    an

independent contractor that contracted with the Bank to provide


                                       2
locksmith    services     for    the    Bank’s   safe    deposit     vault,    which

included drilling safe deposit boxes that had been abandoned by

depositors and changing the locks and keys on safe deposit boxes.

The Bank required that all such locksmith work be monitored by bank

employees.    Sometime in 1985, while Meeks was inside the vault

performing his locksmith duties, Ms. Maria del Carmen Garcia-

Rendueles de Roberdo (“Rendueles”), the lessee of several safe

deposit boxes, asked Meeks to help her remove a box.                      While Meeks

was assisting Rendueles, he discovered that the box contained

Krugerrand coins that were being transferred into two other boxes

leased by Rendueles or her company.

     Meeks   reported      the    existence      of   the     Krugerrands     to   his

employer, Erwin Underwood (“Underwood”), the owner of Underwood

Safe. At Underwood’s urging, Meeks agreed to force open Rendueles’

safe deposit boxes, take the Krugerrands, and split the coins

between them.     Hogue, who was also employed by Underwood Vault,

agreed, in exchange for receiving a share of the stolen property,

to assist in the theft and act as a lookout during the crime.

Sometime between 1985 and 1987,           Meeks and Hogue removed all of the

Krugerrands from two of the three boxes by forcibly prying open the

door hinges of the boxes with a metal tool.

     In   1994,   seven    years       after   the    theft    of   the    coins   was

discovered, Meeks and Hogue were indicted under 18 U.S.C. § 656.1

At the time of the offenses, Section 656 provided that “[w]hoever,


    1
      Despite the evidence of his involvement, Erwin Underwood was
not indicted.

                                          3
being an officer, director, agent or employee of, or connected in

any capacity with” certain banks or institutions, who embezzles,

abstracts,   purloins,       or   willfully         misapplies     certain   assets

belonging or entrusted to the banks or institutions, shall be fined

or imprisoned, or both.       18 U.S.C. § 656 (1976).2

      In the indictment, the appellants were charged with violations

of 18 U.S.C. § 656 while acting as “employees of Underwood Safe and

Vault Company, a contractor connected with First Republic Bank.”

The appellants moved to dismiss the indictment on the ground that

it failed to state an offense because it did not allege facts

sufficient to establish that appellants were “connected in any

capacity with” the Bank, as required by 18 U.S.C. § 656.

      Ordinarily, a motion to dismiss an indictment for failure to

state an offense challenges the sufficiency of the indictment

itself,   requiring    the    court      to   take    the    allegations     of   the

indictment as true and to determine whether an offense has been

stated.   United States v. Cadillac Overall Supply Co., 568 F.2d

1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903 (1978).                    If the

district court dismisses an indictment because it does not allege

an offense, on review the indictment is to be tested not by whether

its   allegations     are    in   fact       true    but    by   the   indictment’s

“sufficiency to charge an offense.”                 United States v. Mann, 517

F.2d 259, 266 (5th Cir. 1975) (quoting United States v. Sampson,


      2
       The alleged criminal activities of Meeks and Hogue occurred
between 1985 and 1987, before the 1989, 1990 and 1994 amendments to
§ 656.


                                         4
371 U.S. 75, 78-79 (1962)), cert. denied, 423 U.S. 1087 (1976).

     In Meeks I, however, neither the district court nor this court

of appeals based its decision strictly upon the facts recited in

the indictment.   Because the Government and the defendants entered

into a joint stipulation of facts for purposes of the motion to

dismiss the indictment, each court considered the allegations of

the indictment as expanded by the stipulated facts.   The district

court dismissed the indictment, concluding that the stipulated

facts showed that Meeks and Hogue were not “sufficiently ‘connected

in any capacity with’ a bank pursuant to § 656 [because Meeks and

Hogue did not] exercise some position of control over the bank’s

affairs, enjoy a relationship of trust with the bank, or [were]

entrusted with bank funds or property.” (Mem. Op. and Order at 7).

     Upon the Government’s appeal in Meeks I, this court reversed,

holding that (1) § 656 does not require that the offender exercise

control over the bank’s affairs, occupy a position of trust with

the bank, or be entrusted with bank funds or property, in order to

be “connected in any capacity” with a bank under the statute; (2)

the words of the statute should be given their common, ordinary

meaning; and (3) under the facts alleged in the indictment and the

joint stipulation, it could not be said that no reasonable trier of

the facts could have found that Meeks and Hogue were “connected in

any capacity with” the Bank at the time of the charged offenses.

Meeks I, 69 F.3d 744-45.

     On remand, after a bench trial, the district court convicted

Meeks and Hogue of violations of 18 U.S.C. § 656.   Meeks and Hogue


                                 5
filed the present appeal (Meeks II).                 In Meeks II, the major

controversies concern the meaning and effect of (1) this court’s

decision in Meeks I and (2) the district court’s findings of fact

and conclusions of law upon remand following Meeks I.

                                  DISCUSSION

                                         1.

       When a person is charged with a crime, he is entitled to a

presumption      of   innocence    and    may     insist   that   his   guilt    be

established beyond a reasonable doubt.               Herrera v. Collins, 506

U.S. 390, 398 (1993); In re Winship, 397 U.S. 358, 364 (1970).                   As

a result, the prosecution bears the burden of proving all elements

of the offense charged and must persuade the fact finder beyond a

reasonable doubt of the facts necessary to establish each of those

elements.      Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993); see

also Estelle v. McGuire, 502 U.S. 62, 69 (1991)(“[T]he prosecution

must   prove    all   the   elements     of   a   criminal   offense    beyond    a

reasonable doubt.”); United States v. Gaudin, 515 U.S. 506, 523

(1995)(Rehnquist, C.J., concurring).               Therefore, a judge may not

direct a verdict of guilty no matter how conclusive the evidence.

United States v. Johnson, 718 F.2d 1317, 1321 (5th Cir. 1983) (en

banc) (citing Connecticut v. Johnson, 460 U.S. 73, 84 (1983)

(plurality opinion) (quoting United Bhd. of Carpenters & Joiners v.

United States, 330 U.S. 395, 408 (1947))). Accord Sullivan, 508

U.S. at 277.

       The Winship doctrine requires that the fact finder will

rationally apply the fundamental substantive constitutional beyond-


                                         6
a-reasonable-doubt standard to the facts in evidence.    Jackson v.

Virginia, 443 U.S. 307, 316-17 (1979).   Under Winship, the trier of

facts is bound by this duty whether it is a court or a jury.     Id.

at 317 n.8.; see Winship, 397 U.S. at 360 (arising from a juvenile

adjudicatory hearing in which a state family court judge found that

the juvenile had committed an act which, if done by an adult, would

constitute larceny).

     The fact finder in a criminal case traditionally has been

permitted to enter an unassailable but unreasonable verdict of “not

guilty.”   This is the logical corollary of the rule that there can

be no appeal from a judgment of acquittal, even if the evidence is

overwhelming.    Jackson, 443 U.S. at 318 n.10.   The power of the

fact finder to err upon the side of mercy, however, has never been

thought to include a power to enter an unreasonable verdict of

guilty.    Id. (citing Carpenters & Joiners, 330 U.S. at 408); cf.

Capital Traction Co. v. Hof, 174 U.S. 1, 13-14 (1899).

                                 2.

           At the time of the alleged offenses, 18 U.S.C. § 656, in

pertinent part, provided:

     Whoever, being an officer, director, agent or employee
     of, or connected in any capacity with any         Federal
     Reserve bank, member bank, national bank or insured bank.
     . . embezzles, abstracts, purloins or willfully
     misapplies any of the moneys, funds or credits of such
     bank or any moneys, funds, assets or securities intrusted
     to the custody or care of such bank. . . shall be fined
     not more than $5,000 or imprisoned not more than five
     years, or both. . . .

     The essential elements of the crime Meeks and Hogue were

accused of are that they (1) were connected in a capacity with a


                                 7
federally insured bank (2) when they embezzled, purloined or

willfully misapplied (3) moneys, funds, or assets (4) entrusted to

the custody or care of such bank.              Accordingly, in the present

case, the district court, in the bench trial, was required to find

beyond a reasonable doubt, inter alia, that Meeks and Hogue were

connected   in    some     capacity    with    the    bank    at    the    time   the

Krugerrands were misappropriated, in order to convict them of

violating 18 U.S.C. § 656.

                                       3.

     Federal Rule of Criminal Procedure 23(c), in pertinent part,

provides: “In a case tried without a jury the court shall make a

general finding and shall in addition, on request made before the

general finding, find the facts specially. Such findings may be

oral.”   Although the district court was not requested to do so, it

orally   made    special    findings    of    facts   as     well   as    a   general

finding.3   The purpose of special findings of facts is to afford a

reviewing court a clear understanding of the basis of the trial

court’s decision.        United States v. Johnson, 496 F.2d 1131, 1138

n.7 (5th Cir. 1974) (citing Gulf King Shrimp Co. v. Wirtz, 407 F.2d

508, 515 (5th Cir. 1969); Featherstone v. Barash, 345 F.2d 246, 249

(10th Cir. 1965)), cert. denied, 420 U.S. 972 (1975).                     Certain of

the standards for determining whether a trial court’s findings of

fact are adequate are the same in civil and criminal cases.                       See


     3
      Some judges make findings in all criminal cases in which the
jury is waived, even though there has been no request from a party.
See 2 CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 374, at 311-12 &
n.5 (2d ed. 1982).

                                        8
Johnson, 496 F.2d at 1138 n.7.                “‘The ultimate test as to the

adequacy of findings will always be whether they are sufficiently

comprehensive and pertinent to the issues to provide a basis for

decision.’” Id. (quoting Gulf King Shrimp Co., 407 F.2d at 515

(quoting Carr v. Yokohama Specie Bank, Ltd., 200 F.2d 251, 255 (9th

Cir. 1952))).      “‘Findings may be sufficient if they permit a clear

understanding      of   the   basis   of     decision   of     the   trial   court,

irrespective of their mere form of arrangement.’”                    Id. (quoting

Featherstone, 345 F.2d at 250).

       Applying    these   standards,        we   conclude    that   the   district

court’s oral findings are inadequate because they do not permit a

clear understanding of whether its decision was based on its own

finding beyond a reasonable doubt that Meeks and Hogue were persons

“connected in any capacity” with the Bank or, rather, upon its

erroneous conclusion that it was bound by a finding to this effect

contained in the Meeks I appellate opinion.                  The district court’s

oral    findings    are    susceptible       to    either     interpretation    and

therefore create grave doubt as to whether the defendants were

convicted without the trier of the facts having found the existence

of every essential element of the crime charged beyond a reasonable

doubt.    See Haywood v. United States, 393 F.2d 780, 782 (5th Cir.

1968).

       We therefore remand this case to the district court to conduct

proceedings as to this question and to make written findings of

fact supportive of its ultimate conclusion.                  Should the district

court find beyond a reasonable doubt that Meeks and Hogue were


                                         9
persons connected in any capacity with the Bank at the time of the

charged    offenses,   the   convictions   and   sentences   should   be

sustained.    On the other hand, if the district court finds that

proof of this essential element of the crime is not sufficient, the

charges should be dismissed.

                                   4.

     The Government argues that the convictions and sentences

should be affirmed because this court in Meeks I held as a matter

of law that employees of an independent contractor that contracted

to repair and maintain a bank’s safe deposit boxes are persons

“connected in any capacity” with the bank within the meaning of 18

U.S.C. § 656.   In support of this argument, the Government quotes

two passages from the Meeks I opinion:

     [T]he statute’s plain language provides no basis for a
     narrow reading of its scope. The words “connected in any
     capacity”, as normally used, comprise a broad modifying
     phrase.   Absent binding contrary precedent, we cannot
     distort the usual meaning of the phrase to require a more
     specialized type of connection with the bank than that
     held by Meeks and Hogue.
          The capacity in which Meeks and Hogue were connected
     with the bank was as employees of an independent
     contractor that provided the bank with a necessary
     service, which required (and permitted) its employees to
     be in a restricted area of the bank. Irrespective of the
     outer limits of the statute’s reach, we cannot say that
     these defendants fell beyond that reach when they
     serviced the safe deposit boxes from within the vault of
     the bank.

Meeks I, 69 F.3d at 744 (citation omitted).

     The Government reads too much into these portions of the

opinion.     Meeks I made these statements in explaining why it

rejected the interpretation of the statute that had been adopted by

the district court, viz., that “to be sufficiently ‘connected in

                                   10
any capacity with’ a bank pursuant to § 656, the defendant must

exercise some position of control over the bank’s affairs, enjoy a

relationship of trust with the bank, or be entrusted with bank

funds or property.”        Within this context, Meeks I rejected the

district court’s narrow interpretation of § 656 that read into the

statute the extra essential element that the defendant must have

occupied a position of trust or control with the Bank.                 Meeks I

also held that persons in Meeks’ and Hogue’s circumstances are not

immune from    prosecution    under      §   656   simply   because   they    are

employees of an independent contractor and not direct employees or

contractors of the Bank.

     Meeks I does not hold, however, that as a matter of law the

employee of an independent contractor providing locksmith services

for the bank’s safety deposit boxes, regardless of the particular

circumstances of each case, is a person “connected in any capacity

with” the bank within the meaning of 18 U.S.C. § 656.                 The plain

words of the opinion do not purport to add extra words to the

statute   or   to   read   into   its    coverage     specialized     types   of

connections.    On the contrary, the Meeks I court admonished that

the words of the statute must be given their common, ordinary

meaning; and that an appellate court’s discussion of factors that

impacted its decision that a particular defendant is amenable to

prosecution under § 656 “does not mean that each of those factors

becomes, from that day forward, a necessary attribute of a person

whose conduct is reached by the statute.”             Id. at 744-45.

     Additionally, we decline to adopt the Government’s reading of


                                        11
Meeks I because it would be tantamount to having this court do what

we and the Supreme Court have held that due process prohibits a

trial   court   from    doing,   i.e.,    directing   a   verdict   for   the

Government on, or otherwise withdrawing from the trier of the facts

the function of finding beyond a reasonable doubt, an essential

element of the crime charged.       See Winship, 397 U.S. at 361, 363;

Gaudin, 515 U.S. at 522-23; Sullivan, 508 U.S. at 277-78; Johnson,

718 F.2d at 1321.      That the trier of facts in this case was a judge

and not a jury “is of no constitutional significance.”                    See

Jackson, 443 U.S. at 317 n.8.

                                 CONCLUSION

     Accordingly, the judgment of the district court is VACATED,

and the case is REMANDED WITH INSTRUCTIONS.




ENDRECORD




                                     12
DeMOSS, Circuit Judge, specially concurring:



     I   concur   fully   in   the   reasoning   and   disposition   of   the

foregoing opinion.    I write separately to identify another problem

which the district court should address on remand.

     At the time of the criminal conduct made the subject of this

prosecution, the criminal statute in question expressly provided

that what was embezzled or wilfully misapplied must be "the monies,

funds or credits of such bank or any money, funds or credits

intrusted to the custody or care of such bank."            18 U.S.C. § 656

(1988), (current version at 18 U.S.C.A. § 656 (West Supp. 1997)).

There is absolutely nothing in the stipulation of facts filed by

the parties in this case which would indicate that the Krugerrands

in the safety deposit boxes leased by First RepublicBank Dallas,

N.A. (the "Bank") to Mrs. Roberdo or her company, La Madrid Corp.,

N.V., were the property of any person or entity other than Mrs.

Roberdo and her corporation.           Consequently, absent some other

direct proof, it would seem clear to me that the Krugerrands were

not "the money, funds or credits ... of such bank."              Likewise,

there is nothing in the stipulation of facts which would indicate

that the Krugerrands in the safety deposit box had been "intrusted

to the custody or care of such bank."        To the contrary, the safety

deposit lease agreement appended as Exhibit A to the Stipulations

expressly exempts the Bank from any liability "for the safekeeping

of the contents of the safe or for any loss, damage, or expense
which results from or is caused by, in whole or in part, any of the

following: ... (iii) loss, disappearance ... theft, burglary,

embezzlement or other criminal act ...."     Consequently, unless

there is other documentary evidence establishing an agreement on

the part of the Bank to be responsible for the Krugerrands in the

safety deposit box, it would appear to me that the Krugerrands were

never "intrusted to the custody or care of such bank."   Therefore,

I think there is a serious question as to whether the statutory

requirements as to the Bank’s ownership or care and custody of the

Krugerrands have been established in this case; and the district

court should undertake to resolve this question upon remand.




                                14
