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

• Decision Date: 20 November 2008
• Docket Number: Criminal No. 07-00467 (GAG).
• Citation: 587 F.Supp.2d 378
• Parties: UNITED STATES of America, Plaintiff, v. Ohifuemeh Peter AYEWOH, Defendant.
• Court: U.S. District Court — District of Puerto Rico

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.

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 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 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 a reasonable doubt that the defendant (1) engaged in a scheme or artifice to defraud, or made false statements or misrepresentations to obtain money from; (2) a federally insured financial institution; (3) and did so knowingly. United States v. Brandon, 17 F.3d 409, 424 (1st Cir.1994); see also United States v. Kenrick, 221 F.3d 19, 30 (1st Cir.2000). Proof that the defrauded bank was insured by the FDIC during the time frame alleged in the indictment is also a jurisdictional prerequisite under 18 U.S.C. § 1344. See United States v. Ali, 266 F.3d 1242, 1243 (9th Cir.2001) (the requirement is jurisdictional under 18 U.S.C. §§ 1344 and 1014); United States v. Key, 76 F.3d 350, 353 (11th Cir.1996) (citing United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir. 1979)). Decisions analyzing other statutes embodying this same jurisdictional element are directly relevant. United States v. Trice, 823 F.2d 80, 86 (5th Cir.1987).

Several appellate courts, have addressed the quantum of proof acceptable to prove the federally-insured status of a bank, and have held insufficient proof based solely on a certificate of federal insurance antedating the offense. See United States v. Chapel, 41 F.3d 1338, 1340 (9th Cir.1994); Trice, 823 F.2d 80, 86 (5th Cir.1987) (citing United States v. Platenburg, 657 F.2d 797, 799-800 (5th Cir.1981)); United States v. Darrell, 828 F.2d 644, 648 (10th Cir.1987) (citing United States v. Shively, 715 F.2d 260, 265 (7th Cir.1983) and Platenburg, 657 F.2d at 799-800). However, other holdings of the appellate courts, including the First Circuit, sustain convictions for bank fraud where proof of insured status predating the offense, coupled with proof of insured status at the time of trial, permits the inference that coverage had continued uninterrupted through the time of the offense. See, e.g., United States v. Fitzpatrick, 581 F.2d 1221, 1223 (5th Cir.1978) (a jury can reasonably infer insured status on the date of robbery from certificate of insurance antedating the offense and testimony of comptroller that the institution was insured at time of trial); United States v. Rowan, 518 F.2d 685, 692-93 (6th Cir.1975), (certificate of insurance predating robbery and statement by bank manager that branch was insured on date of trial found sufficient, even though manager admitted he had no personal knowledge of whether FDIC premiums were paid during time of robbery); Gorman v. United States, 380 F.2d 158 (1st Cir.1967) (evidence of insured status before the offense and at time of trial, along with testimony that period reports were filed in the interim, permitted inference of insured status at time of offensive conduct). Thus, even in the absence of conclusive evidence that the bank in question was FDIC insured at the time of the offense, the appellate courts have found sufficient a variety of other evidence that allows the jury to reasonably infer the required insured status.¹

In the case before this court, the prosecution presented as proof of federally insured status a certificate of insurance issued to BPPR by the FDIC in 1999; while the offensive conduct alleged in the indictment occurred between March and April of 2006. Because the certificate predates the offense, if it had been the sole piece of evidence proffered by the prosecution, a finding of insufficiency might proceed. However, the Government also presented as evidence the unobjected testimony of BPPR's record custodian who testified in the present tense at trial that the...