U.S. v. Ayewoh, Criminal No. 07-00467 (GAG).

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Writing for the Court: Gustavo A. Gelp&#237
• Citation: 587 F.Supp.2d 378
• Parties: UNITED STATES of America, Plaintiff, v. Ohifuemeh Peter AYEWOH, Defendant.
• Docket Number: Criminal No. 07-00467 (GAG).
• Decision Date: 20 November 2008

587 F.Supp.2d 378 UNITED STATES of America, Plaintiff,
v.
Ohifuemeh Peter AYEWOH, Defendant. Criminal No. 07-00467 (GAG). United States District Court, D. Puerto Rico. November 20, 2008.

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Charles R. Walsh, Ernesto G. Lopez-Soltero, Myriam Y. Fernandez-Gonzalez, United States Attorney's Office, San Juan, PR, for Plaintiff.

Joannie Plaza-Martinez, Joseph C. Laws, Victor J. Gonzalez-Bothwell, Federal Public Defender Office, San Juan PR, for Defendant.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

On November 6, 2007, a grand jury returned an indictment charging Ohifuemeh Peter Ayewoh (hereinafter "Defendant") with two counts. Count One charged Defendant with knowingly executing a scheme to defraud a federally insured financial institution, Banco Popular de Puerto Rico ("BPPR"), in violation of 18 U.S.C. § 1344. The indictment alleged that in March and April of 2006, Defendant defrauded BPPR by executing charges to

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credit card accounts using the point of sale terminal provided to OIPA, Inc., of which Defendant was owner and authorized signature, without the authorization of the account holders. Count Two sought forfeiture under 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(2). On October 17, 2008, the jury returned a verdict of guilty on both counts.

Presently before the court is Defendant's motion (Docket No. 83) seeking dismissal of the indictment for the Government's failure to prove a jurisdictional prerequisite, as well as an element of the substantive crime; specifically, that the defrauded bank was insured by the Federal Deposit Insurance Corporation ("FDIC") during the time frame alleged in the indictment, as required by 18 U.S.C. § 1344. After reviewing the applicable law, the court DENIES the aforementioned motion (Docket No. 83).

I. Standard of Review

Although Defendant presented his motion for acquittal as a motion to dismiss, the applicable standard of review is that of a motion under Fed.R.Crim.P. 29. Defendant's motion is based on a challenge to the sufficiency of the prosecution's evidence to prove a jurisdictional prerequisite, as well as an element of the substantive crime. Therefore, the issue raised is not lack of jurisdiction as a matter of law, as would be the case if Defendant alleged that a particular statute excluded Puerto Rico from FDIC coverage, for example. The FDIC, in effect, does insure banks in Puerto Rico and this is not contested. What Defendant alleges is that the Government did not present sufficient evidence to prove, beyond a reasonable doubt, that the deposits of the bank were insured by the FDIC at the time that Defendant defrauded the bank. Where a motion to dismiss the indictment challenges the sufficiency of the evidence, the proper motion should be for judgment of acquittal. United States v. Ambers, 416 F.2d 942, 943 (5th Cir.1969); United States v. Salman, 378 F.3d 1266, 1268 (11th Cir.2004) ("A motion for acquittal under Rule 29 is the proper avenue for contesting the sufficiency of the evidence in criminal cases ..."); United States v. Caceres-Prado, 601 F.Supp. 468 (D.P.R.1984) (citing Ambers, 416 F.2d at 943); see also United States v. Key, 76 F.3d 350, 353 (11th Cir.1996) (citing United States v. Schultz, 17 F.3d 723, 725 (5th Cir.1994) ("Whether the government proved the jurisdictional element is measured as a challenge to the sufficiency of the evidence.")). This court can, and does in this case, disregard the mislabeling of Defendant's motion and treat it as if it had been properly labeled. Ambers, 416 F.2d at 943.

In evaluating a motion for judgment of acquittal based on a claim that the evidence was insufficient to support the jury's verdict, the court must review the evidence as a whole, together with all reasonable inferences therefrom, in a light most favorable to the government. United States v. Donnat, 311 F.3d 99, 103 (1st Cir.2002); United States v. Lara, 181 F.3d 183, 200 (1st Cir.1999) (citing United States v. Valle, 72 F.3d 210, 216-217 (1st Cir.1995); United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995)). Accordingly, "[the court] must resolve all evidentiary conflicts and credibility questions in the prosecution's favor; and, moreover, as among competing inferences, two or more of which are plausible, the [court] must choose the inference that best fits the prosecution's theory of guilt." Olbres, 61 F.3d at 970 (1st Cir.1995); see also United States v. Gifford, 17 F.3d 462, 467 (1st Cir.1994) (if the aggregate evidence justifies a judgment of conviction, "[the court] need not rule out other hypotheses more congenial to a finding of innocence"). The court must affirm Defendant's conviction if it concludes that after viewing the evidence

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in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Blasini-Lluberas, 169 F.3d 57, 62 (1st Cir.1999) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in the original)).

II. Discussion

Defendant argues that the FDIC certificate of insurance issued to BPPR on January 2, 1999, and admitted into evidence without objection, see Testimony of Tanya Pérez, Docket No. 80 at 7, failed to establish that BPPR was federally insured during March and April of 2006, the time frame alleged in the indictment. Defendant avers that no evidence was presented by the prosecution to show that the certificate, which antedates the offense, was active on March and/or April of 2006. In its response in opposition (Docket No. 95), the Government argues that Defendant's contention fails to credit the testimony of records custodian for BPPR, Tanya Pérez (hereinafter "Pérez"), wherein she confirmed that the certificate issued in 1999 was the certificate at BPPR at the time of trial. The defense replies (Docket No. 96) that Pérez's testimony, given in the present tense at trial, does not directly support the inference that BPPR had continued coverage at the time of the offense.

The defense further argues that there is no foundation on the record as to Pérez's knowledge of the FDIC certification procedure, the applicability of the FDIC certificate, or the rules and regulations of the FDIC, for which reason, she could not testify as to the applicability of the FDIC certificate at the time of the offense.

A. Proof of Federally-Insured Status

To prove bank fraud under 18 U.S.C. § 1344, the prosecution must show beyond...