U.S. v. James

• Decision Date: 01 February 1993
• Docket Number: No. 92-10043,92-10043
• Citation: 987 F.2d 648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Cornelius JAMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 648

987 F.2d 648

UNITED STATES of America, Plaintiff-Appellee, v. Charles Cornelius JAMES, Defendant-Appellant.

No. 92-10043.

United States Court of Appeals Ninth Circuit.

Submitted Feb. 1, 1993. ^*

Decided March 8, 1993.

J. Frank McCabe, Goorjian & McCabe, San Francisco, CA, for defendant-appellant.

Rodolfo M. Orjales, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: ALARCON, RYMER, and T.G. NELSON, Circuit Judges.

RYMER, Circuit Judge:

The government neglected to introduce evidence that banks it accused Charles Cornelius James of robbing were insured by the Federal Deposit Insurance Corporation. Even though proof of FDIC insurance is an element of the federal crime of bank robbery, 18 U.S.C. § 2113(a), James was convicted. He appeals on the ground of insufficiency of the evidence. ¹ We have to decide whether a stipulation about "the FDIC aspect of the case," made outside the presence of the jury, and the assertion by James's counsel in opening statement and closing argument that the only issue was identification, suffice to uphold the verdict. We think not, and therefore reverse.

I

James was convicted of robbing American Savings Bank, Home Federal Savings, and Bank of the West during August and September, 1990 in violation of 18 U.S.C. § 2113(a). At trial, the government rested without presenting any evidence that these banks were insured by the FDIC. After the defense rested but before the close of evidence, the Assistant United States Attorney advised the court outside the presence of the jury that "I still have to draw a stipulation as to FDIC." The next day the government successfully moved, over objection, to reopen to introduce the birth certificate of James's son. Again outside the presence of the jury, the following exchange took place:

GOVERNMENT: Also I showed counsel an outline of a stipulation which I would like to read orally to the jury. It has to do with the FDIC aspect of the case.

COURT: FDIC?

DEFENSE COUNSEL: FDIC, Federal Deposit Insurance Corporation.

COURT: That is a stipulation between counsel, right?

DEFENSE COUNSEL: Yes.

COURT: When do you propose to read that stipulation?

GOVERNMENT: As soon as the jury comes out.

COURT: Fine.

But it was not read.

The court gave a boilerplate instruction on the effect of stipulations, and instructed, properly, that the government had the burden of proving beyond a reasonable doubt each element of the offense, including that the banks were insured by the FDIC.

During opening statement, James's counsel stated: "This case is indeed a very simple case. And it really is one issue. The one issue that you are going to be called upon to decide at the conclusion of the case is whether or not Charles Cornelius James ... is ... responsible for the robbery of the four banks." In closing argument, the AUSA told the jury that:

normally, the Government has to prove a bunch of elements: that someone robbed a bank; that someone used force; that money was taken; that the funds were federally insured. And normally the Government is required ... to show every element of that offense to show the defendant's guilt....

And if you recall, [defense counsel] said there is only one issue.

And in his argument, James's counsel stated:

When I started off talking to you ... I said to you this was a one issue case. I think [the prosecutor] said the same thing, there is only one issue here. The issue is did Charles Cornelius James rob a bank.

The jury thought so, and convicted James on all three counts.

II

James argues that the evidence is insufficient to support his conviction since the government failed to introduce any evidence of whether the banks were insured by the FDIC. We will reverse a conviction for insufficient evidence if " 'reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

A

We have repeatedly held that to support a conviction of armed robbery under 18 U.S.C. § 2113(a), the government has to prove that the money taken was from a bank insured by the FDIC. See, e.g., United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.) (there is no question that a proper showing of FDIC insurance is an essential element of the crime), cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). Here there was no evidence before the jury at all on whether the banks were insured by the FDIC. The bank employees who testified did not testify as to the FDIC status of the banks, cf. Campbell, 616 F.2d at 1153 (uncontradicted testimony of bank employees sufficient to show that money taken was FDIC insured), and the stipulation concerning the "FDIC aspect" of the case was not read to the jury or received into evidence. Without any evidence on the FDIC status of the bank, no rational jury could have found beyond a reasonable doubt that the banks were insured by the FDIC.

B

The government, relying on United States v. Mauro, 501 F.2d 45, 48 (2d Cir.), cert. denied, 419 U.S. 969, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974), argues that the names of the banks and the bank employees' testimony indicated that the banks were large, prominent institutions, and from this the jury could have inferred that the banks were insured by the FDIC. Mauro, however, is distinguishable.

In Mauro, the government at trial established that the banks were FDIC insured and the defendant did not contest this evidence. Rather, the defendant argued that he could not be convicted of a conspiracy relating to stolen cashiers' checks since he did not know the bank was insured by the FDIC. Before discussing this issue, the court determined that the indictment was sufficient even though it did not allege that the bank was FDIC insured since the bank had the word "National" in its title. In so holding, the court took judicial notice that only banks organized under the laws of the United States could use the word "National." Id. at 49. The court also held that the prosecutor did not have to prove that the banks were "National" banks since their titles implied this much. Finally, the court held that even if there were an intent requirement, it was satisfied. As the court wrote, "even assuming that the national character of the bank is an element of intent rather than simply a jurisdictional fact, we are satisfied that it was established here." Id. at 50.

Mauro is thus distinguishable because evidence was introduced in that case concerning the FDIC status of the banks; the banks in this case do not have the word "National" in their title; Mauro concerned an intent requirement and a challenge to the indictment, not sufficiency of the evidence; and there is no question that in this circuit the FDIC status of a bank is an essential element of the crime.

The government, relying on United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976) and United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986), cert. denied, 479 U.S. 1104, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987), also argues that because James stipulated that the banks were insured by the FDIC, no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. This argument is misplaced for two reasons. First, the contents of the "stipulation" are speculative in this case. The record only indicates that the parties had a stipulation to "the FDIC aspect of the case" which the AUSA intended to read orally to the jury. From this, we cannot be certain what the government would have read orally, nor can we determine that the "stipulation" included evidence sufficient to establish that the banks were in fact FDIC insured. Cf. United States v. Platenburg, 657 F.2d 797, 800 (5th Cir.1981) (finding seven year old certificate of insurance from FDIC insufficient evidence of FDIC status). More significantly, even if the stipulation that was supposed to be read orally to the jury were crystal clear, unlike Houston and Gwaltney, the stipulation was never entered into evidence or read to the jury. Cf. Houston, 547 F.2d at 107 (defendant complained that stipulation was based on mistake of law and therefore should not have been submitted to the jury); Gwaltney, 790 F.2d at 1386 (evidence that Gwaltney challenged on appeal had been admitted upon a stipulation). There was, therefore, no fact in evidence that the jury could take as proved, conclusively or not.

The government also argues that the district court could have taken judicial notice of the FDIC status of the bank. We need not decide whether it could have or could not have, as it was not asked to take judicial notice of the FDIC status of the bank and did not do so. Nor was any judicially noticed fact presented to the jury.

Finally, the government argues that James invited error by failing to raise an objection when the stipulation was not read to the jury. The defense has no obligation to remind the government of its obligation to prove each element of a crime. It is axiomatic that the government has the ultimate burden of proof. James should not be penalized for failing to make sure the government proves its case.

C

We cannot agree with our colleague in dissent that there was a judicial admission as to the FDIC status of the bank, which James cannot now challenge. The record does not reflect that an admission was made. While James's counsel did say in his opening statement, and argue in closing, that there was one issue in the case, we cannot conclude that by focusing his comments on the issue of identification, James's counsel thereby admitted all other...