U.S. v. Slovacek, 87-2713

• Decision Date: 01 March 1989
• Docket Number: No. 87-2713,87-2713
• Citation: 867 F.2d 842
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne SLOVACEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 842

867 F.2d 842

UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne SLOVACEK, Defendant-Appellant.

No. 87-2713.

United States Court of Appeals, Fifth Circuit.

March 1, 1989.

Ron Barroso, Corpus Christi, Tex., (court-appointed), for Slovacek.

Mervyn Hamburg, Atty. Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Houston, Tex., for U.S.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, TIMBERS ^* and RUBIN, Circuit Judges.

TIMBERS, Circuit Judge:

Steven Wayne Slovacek ("appellant") appeals from a judgment entered May 27, 1987 in the Southern District of Texas, Corpus Christi Division, Hayden W. Head, Jr., District Judge, upon a jury verdict convicting him of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) (1982). ¹ The jury acquitted appellant of a second armed bank robbery charge.

On appeal appellant argues that (1) the court erred in denying his motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(a) on the ground that the government failed to prove an essential element of the offense charged, namely, that the bank which was robbed was insured by the Federal Deposit Insurance Corporation ("FDIC"); (2) the court's charge concerning this element was prejudicial and constituted plain error, because it was inadequate and because it constructively amended the indictment; and (3) the $52,000 fine imposed on appellant exceeded the statutory maximum.

Although the evidence concerning the bank's insured status was barely adequate and the court's charge was not a model one, we hold that there was no reversible error. We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellant, a police officer, was convicted of participating with a second man in the robbery of $52,000 ("the first robbery") from four employees of the First State Bank & Trust Company of Port Lavaca, Texas ("the bank"). The robbery occurred on August 15, 1986 when the four employees, one of whom was a security guard, arrived at the site of an automatic bank teller machine ("ATM") to replenish its money supply. The ATM was some distance from the bank. Before the four employees could get out of their car, two masked men drove up behind them, leaped out of the car and confronted them with guns. The four were ordered to get out of their car and leave the money and keys inside. The robbers then entered the employees' car and drove off. A second somewhat similar robbery ("the second robbery") took place on October 27, 1986 when two men robbed an employee of another bank when he arrived to replenish that bank's ATM.

Appellant and his co-defendant, John Acye McNeil ("McNeil"), a fellow police officer, were indicted on two counts of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) (1982). Appellant and McNeil were tried separately. At appellant's trial the government produced several witnesses who linked him to the first robbery. These witnesses included David Anthony Hamilton ("Hamilton"), the security guard present at the first robbery. Hamilton testified that appellant and McNeil had approached him two days prior to the first robbery and told him of their plans. He also testified that they told him that no one would be hurt if he cooperated during the robbery. They threatened to harm him, however, if he revealed their plans. Hamilton cooperated before and during the first robbery. Later he told the police of his conversation with appellant and McNeil.

The government also adduced testimony of other witnesses who linked appellant to the crime. Ronald Klare ("Klare"), a friend of appellant, testified that appellant showed him large amounts of cash immediately after the first robbery but attributed the cash to the proceeds of an investment. Klare also testified that appellant remarked to him after the first robbery that it would be easy for a police officer to rob bank employees of money to be used for replenishing an ATM. Ernest Garcia ("Garcia"), with whom appellant was confined in the county jail while awaiting trial, testified that appellant admitted to him that he had "robbed Port Lavaca" and that appellant made several other statements to Garcia linking appellant to the crime. Garcia also testified that appellant threatened him when appellant discovered that Garcia would testify against him. The government also adduced evidence that appellant made a $10,000 cash down payment on a new truck three days after the first robbery.

The jury convicted appellant of the first robbery but acquitted him of the second robbery. ² The court sentenced appellant to 20 years imprisonment, fined him $52,000, ordered him to make $52,000 restitution to the bank and ordered him to pay the $50 special assessment. Appellant and McNeil both dismissed their original appeals, but appellant later successfully moved to reinstate his appeal. McNeil apparently did not move to reinstate his appeal.

II.

At the time of the robbery, the controlling statutory provisions were as follows:

"(a) Whoever, by force or violence, or by intimidation, takes ... from the person or presence of another any property or money ... belonging to, or in the care, custody, control, management, or possession of, any bank ...

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

* * *

(f) As used in this section the term 'bank' means any member bank of the Federal Reserve System, and any bank ... organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation."

18 U.S.C. Secs. 2113(a), 2113(f) (1982) (emphasis added). Proof that the institution meets this definition of "bank" at the time of the robbery is an essential element of the offense that must be proven beyond a reasonable doubt to establish federal jurisdiction. E.g., United States v. Rangel, 728 F.2d 675, 675-76 (5th Cir.), cert. denied, 467 U.S. 1230 (1984); United States v. Maner, 611 F.2d 107, 108 (5th Cir.1980); United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979). Since the bank in the instant case was state chartered and not a member of the Federal Reserve System, the government was required to prove this element by showing that the bank's deposits were insured by the FDIC at the time of the robbery.

At trial the government's sole evidence as to this element was the testimony by a vice-president of the bank that it had been insured by the FDIC on the day of the robbery and that he had been a vice-president of the bank on that day. Appellant's attorney did not cross-examine the witness on this point. At the close of the government's evidence, appellant made a general motion for a judgment of acquittal under Fed.R.Crim.P. 29(a) on several grounds, including the assertion that the government had presented insufficient evidence of appellant's guilt beyond a reasonable doubt. The motion was denied.

On appeal appellant argues that the denial of his motion was error because the evidence was insufficient to prove beyond a reasonable doubt that the bank was insured by the FDIC at the time of the first robbery. The standard of review with respect to such a claim is whether in " 'viewing the evidence presented most favorable to the Government, a reasonable-minded jury could accept the relevant and admissible evidence as [adequate] and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt' ". United States v. Brown, 587 F.2d 187, 190 (5th Cir.1979) (quoting United States v. Kohlmann, 491 F.2d 1250, 1253 (5th Cir.1974)).

Appellant argues that the evidence of the status of the bank's FDIC insurance simply was insufficient under that standard of review to support the conviction. ³ The Fifth Circuit cases on this issue demonstrate that the evidence adduced here was close to the minimum permitted. An excellent survey of the status of both Fifth Circuit and national case law as of 1980 is set forth in Judge Brown's opinion in Maner, supra, 611 F.2d at 108-112 & n. 1. There the evidence as to the financial institution's insured status consisted of the testimony of two bank officials and a five year old FDIC insurance certificate. One official identified the FDIC certificate "as a record maintained under his supervision in the bank's regular course of business". Id. at 108. The other official described a second older FDIC insurance certificate he had once seen and testified that a copy of the certificate was posted at each teller window. Id. The Court described this evidence as "[j]ust barely" meeting the required quantum of proof of insured status. Id. at 112. The Court appeared to establish a minimum level of acceptable proof below which reversal would be warranted. United States v. Platenburg, 657 F.2d 797, 800 (5th Cir. Unit A Oct.1981) ("In Maner we reached the nadir of the acceptable level of proof".). Appellant argues that the evidence in the instant case falls below that level.

The Maner standard of sufficiency, however, might be said to have been undermined by Rangel, supra. There the sole evidence of a credit union's federally insured status was the testimony of the credit union's assistant vice-president that the credit union was federally insured at the time of trial. Rangel, supra, 728 F.2d at 676. We stated that this evidence, when not challenged on cross-examination, was sufficient. Id. Rangel arguably might appear to control the instant case, because in both cases the sole evidence of insured status was the testimony of an official unchallenged on cross-examination. See also Cook v. United States, 320 F.2d 258, 259-60 (5th Cir.1963). Indeed, the evidence here might be said to be slightly stronger because the testimony went to the insured status on the day of the robbery rather than at the time of trial.

Although there are two cases...