U.S. v. Ratigan

• Decision Date: 11 December 2003
• Docket Number: No. 01-35972.,01-35972.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward RATIGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.3d 957

UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward RATIGAN, Defendant-Appellant.

No. 01-35972.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2003 — Seattle, Washington.

Filed December 11, 2003.

COPYRIGHT MATERIAL OMITTED

Chris A. Bugbee, Spokane, Washington, for the Defendant-Appellant.

Thomas O. Rice, Assistant United States Attorney, Spokane, Washington, for the Plaintiff-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Wm.; Fremming Nielsen, Chief Judge, Presiding. D.C. Nos. CV-00-00430-WFN, CR-97-00066-WFN.

Before: Stephen S. TROTT, Raymond C. FISHER, and Ronald M. GOULD, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Brian Edward Ratigan ("Ratigan") appeals the denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence for, inter alia, the armed robbery of the U.S. Bank in Spokane, Washington on July 12, 1996 and the use and carrying of a firearm during and in relation to the bank robbery.¹

Ratigan contends that there was insufficient evidence to sustain his convictions for the bank robbery and weapons charge because the government failed to prove the jurisdictional element of the bank's FDIC insurance at the time of the robbery. Ratigan failed to raise this claim at trial or on direct appeal. Consequently, his claim would normally be subject to procedural default, which would bar Ratigan from relief unless he could show cause and prejudice or actual innocence. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Ratigan argues, however, that the government's failure to prove the crime's jurisdictional element deprived the district court of subject-matter jurisdiction, and that challenges to a judgment that are based on subject-matter jurisdiction are not barred by procedural default. We reject this argument because we conclude that the insufficiency of proof of a jurisdictional fact cannot undermine a district court's subject-matter jurisdiction. We hold, therefore, that Ratigan has procedurally defaulted on his claim. We conclude that he cannot show cause and prejudice or actual innocence and affirm the district court's dismissal of his § 2255 motion.

I. BACKGROUND

On April 1, 1996, masked men bombed the Spokesman-Review office building and robbed the U.S. Bank on East Sprague Avenue in Spokane, Washington and then blew up the bank with a pipe bomb. On July 12, 1996, masked men bombed the Planned Parenthood office building and robbed the same U.S. Bank on East Sprague Avenue. In September, 1997, a jury convicted Ratigan of the Destruction of a Planned Parenthood clinic in violation of 18 U.S.C. § 844(i); Use and Carrying of a Firearm in relation to the Destruction of the Planned Parenthood Clinic in violation of 18 U.S.C. § 924(c)(1); the July 12, 1996 armed robbery of U.S. Bank in violation of 18 U.S.C. § 2114(a) and (d); Use and Carrying of a Firearm in Relation to the Bank Robbery in violation of 18 U.S.C. § 924(c)(1); and Conspiracy in violation of 18 U.S.C. § 371. Ratigan was sentenced to 55 years and 3 months of incarceration and over $100,000 in restitution.

The indictment charging Ratigan with these crimes alleged that U.S. Bank was insured by the FDIC on July 12, 1996. At trial, the government presented unchallenged evidence relevant to the federally-insured status of U.S. Bank as alleged in the indictment. This evidence included testimony by Mr. Beyl, the Vice-President and Regional Security Manager of U.S. Bank, explaining that U.S. Bank "is insured" by the FDIC, including the U.S. Bank branches in Washington. The government introduced also as evidence two FDIC certificates, which were identified by Mr. Beyl as the type of certificate that hung on the wall of each branch of U.S. Bank. The certificate for the U.S. Bank of Washington was dated February 8, 1988; the certificate for the U.S. Bank of Oregon was dated June 13, 1996.

FDIC insurance was not a contested issue during Ratigan's trial. In closing argument, the prosecutor said, "There is no question that the deposits of the U.S. Bank were insured at the time by FDIC, you saw a certificate in evidence and Mr. Beyl from the bank testified in that regard." In response, the defense stated that "[the prosecutor] told you that certain facts are undisputed and that is certainly correct." There is no dispute that the bank was robbed on April 1st and July 12th.... "[the issue is] what evidence is there that implicates Brian Ratigan in the crimes that Brian Ratigan is charged with?"

The jury found Ratigan guilty of the crime of bank robbery. That finding necessarily means the jury found that the bank was insured by the FDIC on the date of the robbery, July 12, 1996.

Along with his co-defendants, Ratigan appealed to this court, which affirmed his conviction on May 21, 1999. See United States v. Merrell, 182 F.3d 929, 1999 WL 386651 (9th Cir. May 21, 1999) (unpublished disposition). Ratigan's Petition for Rehearing was denied on July, 7, 1999, and his suggestion for rehearing en banc was rejected by the Ninth Circuit. On November 15, 1999, the Supreme Court of the United States denied Mr. Ratigan's Petition for Certiorari. During this process, he made no mention of the FDIC insurance issue he now advances.

On November 20, 2000, Ratigan filed a motion to vacate his sentence under 28 U.S.C. § 2255, asserting eleven grounds for relief. On July 31, 2001, the district court dismissed the § 2255 motion on all grounds and refused to grant a certificate of appealability. Ratigan appealed to this court, which granted a certificate of appealability as to the issue of whether the government had presented "sufficient evidence regarding the jurisdictional element of the Bank's FDIC insurance status" on July 12, 1996.

II. ANALYSIS

A. Standard of Review

A district court's denial of a § 2255 motion is reviewed de novo. United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir.1998). Determinations of whether there has been a procedural default are also reviewed de novo. Manning v. Foster, 224 F.3d 1129 (9th Cir.2000).

B. Jurisdictional Defects and Procedural Default

Ratigan was convicted of armed bank robbery pursuant to 18 U.S.C. § 2113(a) and (d). An element of that crime as alleged in the indictment requires proof that the bank in question was a federally-insured financial institution at the time of the relevant conduct. See 18 U.S.C. § 2113(f) ("[T]he term `bank' means any member bank of the Federal Reserve System... and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.").

Ratigan asserts as the foundation of his argument that the government failed to provide sufficient evidence to prove the essential element of the bank's FDIC insurance. See United States v. Ali, 266 F.3d 1242, 1244 (9th Cir.2001) ("Testimony is insufficient ... when stated only in the present tense at trial, years after the relevant time period."); United States v. Allen, 88 F.3d 765, 769 (9th Cir.1996) (vacating convictions for making false statements to federally insured financial institutions because government failed to provide sufficient proof of FDIC status). It follows, he contends, that the district court had no "power" to hear the case, or, in other words, that the court had no subject-matter jurisdiction as to the bank robbery charge.

In Allen, as in Ali, this court found that present tense testimony that the bank in question is insured by the FDIC is not sufficient as evidence to prove that the financial institution was insured at the time of the defendants' alleged conduct. Allen, 88 F.3d at 769. The court found that such testimony "falls short of the quantum of evidence necessary to prove an element of a crime." Id. Ratigan asserts that the government presented similarly insufficient evidence at trial in his case.

The government's evidence at trial included testimony by Richard Beyl, Vice President and Regional Manager for U.S. Bank who stated that the bank was insured at the time of trial. He also identified certificates of insurance for dates other than the date of the robbery. Ratigan asserts that because the government failed to show that the bank was insured on the date of the robbery, the government failed to meet its burden as established by Allen and Ali.

The government responds that Ratigan cannot now challenge the sufficiency of the government's proof because Ratigan has procedurally defaulted on this claim by not raising the issue either at trial or on direct appeal. A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); see also Medrano v. United States, 315 F.2d 361, 361-62 (9th Cir.1963) (finding petitioner's challenge of evidentiary sufficiency for jurisdictional fact of drug possession in federal narcotics conviction was procedurally defaulted). Ratigan does not dispute that he failed to raise the issue of the sufficiency of the government's evidence of the federally-insured status of U.S. Bank at trial or on direct appeal. Instead, Ratigan attempts to avoid procedural default by asserting that his claim now raises the court's subject-matter jurisdiction.

In every federal criminal prosecution, subject-matter jurisdiction is conferred by 18 U.S.C. § 3231. That section provides that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the States, of all offenses against the laws of the United States." Id. The bank robbery crime of which Ratigan stands convicted is unquestionably such an offense. Ratigan argues, however, that in a federal bank robbery case, subject-matter jurisdiction is lacking when the government fails to present sufficient evidence that the bank was FDIC insured. Specifically, he contends that...