United States of America, Plaintiff-appellant, v. Gertrude King Black and Bill Black, Defendants-appellees, 651 F.2d 392 (5th Cir. 1981)

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US Court of Appeals for the Fifth Circuit - 651 F.2d 392 (5th Cir. 1981) July 23, 1981

Morris W. Reed, Robert J. Boitmann, Asst. U. S. Attys., John P. Volz, U. S. Atty., New Orleans, La., for the U. S.

Matthew H. Greenbaum, Michael S. Fawer, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.


(Opinion May 4, 1981, 5 Cir., 1981, 644 F.2d 445)

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.


In her petition for rehearing, the appellant, Gertrude King Black, contends that we failed to enunciate the correct standard of proof of intent as it relates to Counts One, Two and Three of the indictment. Our prior opinion, 644 F.2d 445, should not be construed to imply that we entertained doubt as to the sufficiency of the evidence concerning these counts. However, so that there is no misunderstanding of our true meaning, we modify the last paragraph styled under the subheading "Counts Four, Six and Seven" to read as follows:

Having reviewed the evidence relating to the three embezzlement counts, we once again observe that the jury could have reasonably concluded that Mrs. Black did not faithfully adhere to the strictures of her contract with HUD; that she, as well as her husband, was less than meticulous in recording financial transactions; and that she failed to exercise adequate supervision and control over the affairs of Villa D'Ames. However, the government's proof was insufficient to allow a reasonable jury to conclude beyond a reasonable doubt that the Blacks converted to their own use money to which they were not entitled, much less that they did so knowingly and wilfully. The evidence of criminal intent is simply too meager. Hence, we affirm the judgment of acquittal as to these counts.

The petition for rehearing is DENIED.