The comptroller of the currency's report cleaning budget director Bert Lance of any criminal behavior in his personal financial dealings is likely to be used by the defense in a North Carolina trial dealing with bank overdrafts.
The case involves a bank chairman who has been indicted for allegedly misapplying his bank's funds through personal overdrafts totaling $257,000.
On Aug. 12, a grand jury in Greensboro, N.C., returned a six-count criminal indictment against Edwin Duncan Jr., the former chairman of the Northwestern Bank of Wilkesboro, the fourth largest bank in North Carolina.
After the release of the comptroller's report, H. M. Michaux, U.S. attorney for the Middle District of North Carolina, reportedly conferred with Justice Department officials in Washington on how to respond to questions about why this prosecution is going forward when an overdraft case against Lance, involving similarly large sums, was dropped similarly large sums, was dropped just before he was named budget director.
"I will admit to you I've had some problems with this," Michaux told a reporter for the Greensboro Daily News this week, while claiming that "there doesn't appear to be that much of a parallel" between the two cases.
Reached by telephoned yesterday, Michaux reiterated more strongly that "there are no parallels we see but I can't discuss it because it goes to the merits of the case." The Justice Department declined to make any comment.
But attorneys for Duncan have asked for a copy of the Lance report and have indicated they will use it as part of their defense.
One of the subjects covered extensively in the comptroller's report involved hundreds of thousands of dollars in overdrafts by Lance, his wife, LaBelle, his 1974 gubernatorial campaign committee, relatives and friends when he was the head of the Calhoun First National Bank in Georgia. The report dealt separately with the personal and the politically related overdrafts.
The personal overdrafts "constituted unsafe and unsound report, and certain of them "amounted to extensions of credit to executive officers (including Mr. Lance) in excess of the amounts permissible" under federal law. But it concluded that the practices were corrected by the bank in 1976 in accordance with an administrative agreement reached with the comptroller's office.
But on the political overdrafts, besides an administrative remedy, the comptroller's office concluded that "a criminal referral" was "appropriate" and the matter was forwarded to the Justice Department in late 1975. The case was fropped on Dec. 1, 1976, two days before Lance was named budget director.
"There had been insufficient criminal potential to go toward with the suit." Richard Thornbugh, the former head of the Justice Department's Criminal Division, said recently as to why it was closed. he said the case was not "prosecutable."
In the case of North Carolina banker Duncan, the indictment charges he developed "a scheme with intent to injure and defraud" the bank he headed, using a code number to inform the bank's computer when his checks came in for payment to kick them aside. Meanwhile, according to the indictment, somebody in the bookkepping department would hold them for a period, and then he would eventually make good on them. This process was repeated several times, with the largest amount of money he was overdrawn at one time totaling $76,700, the indictment charges.
Duncan was charged under a section of federal law covering both misapplication of bank funds and embezzlement. He has separately been charged with illegally monitoring Internal Revenue Service agents who were looking into his bank's affairs.
Duncan is currently free on $500,000 bond.