U.S. v. Maner, 78-5785

• Decision Date: 04 February 1980
• Docket Number: No. 78-5785,78-5785
• Citation: 611 F.2d 107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grady James MANER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 107

611 F.2d 107

UNITED STATES of America, Plaintiff-Appellee, v. Grady James MANER, Defendant-Appellant.

No. 78-5785.

United States Court of Appeals Fifth Circuit.

Feb. 4, 1980.

Donald F. Walton, Atlanta, Ga. (Court-appointed), for defendant-appellant.

C. Michael Abbott, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before BROWN, HILL and RANDALL, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Appellant Grady James Maner was convicted by a jury of bank robbery under 18 U.S.C.A. § 2113. There is no question that Maner robbed the bank. The only issue on appeal is whether the Government met its burden of proof on one element of the offense that the bank was insured by the Federal Deposit Insurance Corporation (FDIC) on the date of the robbery. We hold the Government has met its burden albeit a better job could surely have been done and affirm.

The Proof

On May 9, 1978, Maner robbed the Hiram, Georgia branch of the Citizens Bank of Dallas, Georgia. He was subsequently indicted under § 2113.

To establish federal jurisdiction and to prove a violation of § 2113, the Government must show that the bank was insured by the FDIC at the time of the robbery. United States v. Murrah, 478 F.2d 762, 764 (5th Cir. 1973); Hewitt v. United States, 110 F.2d 1, 5 (8th Cir. 1940). The Government's proof consisted of oral testimony of two witnesses and a certificate of insurance issued by the FDIC five years before the robbery. Howell C. Ellsberry, branch manager of the Hiram Bank, attempted to testify that the bank was insured on the date of the robbery. Counsel for Maner objected to this statement. During voir dire Ellsberry admitted that he was not privy to communications between the FDIC and the bank, that he had no knowledge of whether the FDIC premiums had been paid, nor had he any knowledge of whether the bank was insured on the date of the robbery. Since Ellsberry had no personal knowledge of whether the bank was insured, the Trial Judge sustained Maner's objection to this portion of Ellsberry's testimony. However, the Trial Judge did allow Ellsberry to testify that he had seen a certificate of insurance issued by the FDIC in the bank vault, Charter Number 1872D, dated March 15, 1963. Moreover, Ellsberry testified that copies of the certificate were posted on each teller window for public view.

Richard G. Clark, a security officer, assistant vice president and custodian of the bank records, also testified, identifying a certificate of insurance from the FDIC, Charter Number 18720-8, dated September 15, 1973. He stated that the certificate was a record maintained under his supervision in the bank's regular course of business. And the certificate which Clark described was introduced into evidence.

At the close of the Government's case, Maner moved for a judgment of acquittal on the ground that the Government failed to establish that the bank was insured by the FDIC on the date of the robbery. The District Court denied the motion, reasoning that the introduction and admission of the September 15, 1973 certificate of insurance was sufficient to allow the case to go to the jury. The jury convicted Maner and he appeals.

The Cases

Our standard of review on a motion for judgment of acquittal is whether viewing the evidence most favorably to the Government, a reasonable-minded jury could find the admissible evidence sufficient to support the jury's verdict of guilty. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Brown, 587 F.2d 187, 190 (5th Cir. 1979); United States v. Kohlmann, 491 F.2d 1250, 1253 (5th Cir. 1974). Moreover, all reasonable inferences and credibility choices must be made in favor of the jury verdict. United States v. Wieschenberg, 604 F.2d 326, 330 (5th Cir. 1979); United States v. Black, 497 F.2d 1039, 1041 (5th Cir. 1974).

This Court has frequently considered the sufficiency of the evidence of insurance under § 2113. In each case thus far we have found the evidence sufficient.

In Cook v. United States, 320 F.2d 258 (5th Cir. 1963), we set a low threshold of proof of insurance for appellate review. Admittedly, Cook involved a standard of plain error, different than the one we face here, since no objection, motion for judgment of acquittal, or motion for a new trial was lodged below. However, our analysis in Cook is nonetheless illuminating. In Cook, the evidence consisted entirely of proof of insurance at the time of trial. We applied an evidentiary principle derived from Wigmore that proof of a condition the condition of being insured permits an inference that the condition existed earlier in time at the time of the robbery. While we cautioned against excessive use of such evidentiary extrapolation, we also observed that banks were insured almost without exception and concluded that a reasonable inference of insurance at the time of the robbery was permissible.

In at least three cases subsequent to Cook the issue of insufficiency has been raised to the Fifth Circuit. In Ahlstedt v. United States, 325 F.2d 257 (5th Cir. 1963), Cert. denied, 377 U.S. 968, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964) a bank officer testified that the bank was insured at the date of the robbery and identified the FDIC certificate of insurance. We held this evidence was sufficient. United States v. Thompson, 421 F.2d 373 (5th Cir.), Vacated on other grounds, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17 (1970), involved similar testimony by a bank officer and the certificate itself was entered into evidence. We expressed some dismay at the minimal proof offered by the Government "we are at a loss to understand why the Government did not offer better proof" but still deemed the Government's evidence sufficient. 421 F.2d at 379. Then, in United States v. Murrah, 478 F.2d 762 (5th Cir. 1973), only the officer's testimony of insurance was put in evidence. While the Court was primarily concerned with the admissibility of the evidence rather than its sufficiency, the case is still illustrative of the kinds of proof we have seen on the insurance issue.

Only recently we again faced challenges of insufficient insurance evidence. In United States v. Fitzpatrick, 581 F.2d 1221 (5th Cir. 1978) (reversing conviction on other grounds), a certificate of insurance denoting insurance ten years before the robbery was introduced into evidence. In addition, the bank comptroller testified that the bank was insured at the date of the trial. Thus, there was evidence of insurance both before and after the robbery. Once more the Government's proof was sparse "the government obviously could have done a much better job of proving the bank's insured status at the date of the crime," 581 F.2d at 1223 but sufficient for a reasonable inference by the jury that the bank was insured at the time of the robbery.

Then in United States v. Williams, 592 F.2d 1277 (5th Cir. 1979) (also reversing conviction on other grounds), we faced what we described as evidence of insurance "probably close to the minimum we could allow . . . ." 592 F.2d at 1282. In Williams one bank officer testified that a parent bank was insured and the robbed bank was a branch of the parent bank. However, on cross examination, the officer revealed that he had never seen the insurance contract and did not know whether the insurance premiums had been paid. Another bank officer testified that he was responsible for paying the insurance premiums for the parent bank, that the parent bank was insured, that all branch offices were similarly insured, but that a separate certificate did not exist for the branch office. On cross examination, he conceded that he did not even know if the parent bank's insurance contract specifically covered the branch bank. Thus, there was no direct testimony or conclusive evidence that the robbed branch bank was insured. Nonetheless, we concluded that the evidence was sufficient to permit a reasonable jury to infer that the branch bank was insured at the time of the robbery.

The Sufficiency

In our case, Clark, a bank officer and custodian of bank records, properly identified the certificate of insurance by its Charter Number and its date of issuance. An insurance certificate with this very same number and date was introduced in evidence. Maner does not challenge the admission of this evidence. Thus, given this proof, it is clear that a reasonable jury could infer beyond a reasonable doubt that the bank was insured Before the time of the robbery.

Maner argues, however, that there must also be evidence that the insurance was still in effect on the date of the robbery. He urges such evidence is lacking here. Maner argues that Ellsberry, the bank manager, had no personal knowledge of whether or not the bank was insured. Hence, says Maner, Ellsberry was completely incompetent to testify as to any matter regarding the insurance.

F.R.Evid. 602 provides that a witness may testify only as to those matters on which he has personal knowledge. However, Maner fails to distinguish testimony of which Ellsberry actually did not have personal knowledge and testimony of which he did. Ellsberry's own testimony demonstrates this distinction.

On the one hand, Ellsberry conceded on voir dire that he lacked access to communications between the FDIC and the bank, as well as knowledge of whether the FDIC premiums were paid and knowledge of whether the bank was insured at the time of the robbery. Thus, Ellsberry lacked personal knowledge of whether the bank was in fact insured on the date of the robbery. Accordingly, the Trial Judge properly sustained Maner's objection to Ellsberry's attempt to testify as to any conclusion that the bank was so insured.

On the other hand, Ellsberry's own testimony also demonstrated that he Did have personal knowledge concerning the rest of his testimony he continued to testify only as to matters which he perceived...