U.S. v. Wood, 85-1079

• Decision Date: 06 January 1986
• Docket Number: No. 85-1079,85-1079
• Citation: 780 F.2d 555
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Charles WOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 555

780 F.2d 555

UNITED STATES of America, Plaintiff-Appellee, v. James Charles WOOD, Defendant-Appellant.

No. 85-1079.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 6, 1985.

Decided Jan. 6, 1986.

Robert E. Bourne (argued), Midland, Mich., for defendant-appellant.

Michael J. Hluchaniuk (argued), Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.

Before MARTIN, JONES and WELLFORD, Circuit Judges.

PER CURIAM.

Defendant James Charles Wood appeals from his conviction under 18 U.S.C. Sec. 2113 of two counts of robbery of an FDIC-insured bank. Wood was found guilty of twice robbing the Twining, Michigan, branch of the State Bank of Standish (Bank), on February 22, 1984, and again on June 18, 1984. The defendant claims on appeal that the evidence offered by the government to establish the FDIC-insured status of the Bank was insufficient to establish that element of the crime charged, and that he was denied due process by the presentation of witnesses to rebut defendant's alibi without advance notice as required by Fed.R.Crim.P. 12.1. We affirm the judgment of the district court.

I.

One of the elements of the offense defined by 18 U.S.C. Sec. 2113, with which defendant was charged, is that the deposits of the financial institution robbed must have been insured by the FDIC at the time of the robbery. 18 U.S.C. Sec. 2113(f). As its first witness, the government called Robert Garry, an assistant vice president with the State Bank of Standish. Garry had been employed in that position for 14 years and served as a commercial loan officer and the bank security officer. Garry testified as follows:

Q. Do you know if the bank is insured by the Federal Deposit Insurance Corporation?

A. Yes, it is.

Q. How long has the bank been insured through that entity?

A. The oldest certificate we have on file is 1969, and I'm sure we were insured before that point.

THE COURT: Correct me though, the bank is not insured, but it's the deposits that are insured?

A. Yes, we pay a premium on our total outstanding deposits.

THE COURT: But it's the deposits that are insured, the individual depositors who are insured and not the bank.

A. That's true. But we pay a premium for that protection.

Q. (Mr. Hluchaniuk continuing): You've paid that premium since at least 1969?

A. Yes.

J/A 24-25. No further evidence was presented as to this element of the crime. The defendant argues that this evidence is insufficient to establish the FDIC-insured status of the Bank at the times the Bank was robbed, and that the district court thus erred in denying the defendant's motion for judgment of acquittal.

In determining the sufficiency of evidence on appeal, this court must determine whether viewing the evidence and all reasonable inferences in the light most favorable to the government, a reasonable trier of fact could find evidence establishing each element of the crime beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

In United States v. Rowan, 518 F.2d 685, 692-93 (6th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975), this court held that a 1969 certificate of insurance and a statement by the branch manager that the branch was FDIC-insured at the time of trial in 1974 was sufficient evidence to support a reasonable inference that the bank was insured at the time of the robbery in 1974. Here, the Bank officer's testimony that the Bank had on file a 1969 certificate of insurance and that the FDIC insurance premiums had been paid since 1969 similarly supports a reasonable inference of FDIC-insured status in February and June 1984. We note also that this testimony went uncontradicted at trial and that the Bank officer was not cross-examined on this point. At the same time, we recognize that it is the government's responsibility to prove every necessary element of the offenses charged.

Although we are troubled by the failure of the government to have introduced stronger proof of the FDIC-insured status of the bank at the time of the robberies ¹ we find that the testimony offered was sufficient, even if it was not as strong and conclusive as it could have been, to permit a rational trier of fact to find FDIC-insured status established beyond a reasonable doubt.

II.

Defendant next contends that the government violated its duty under Fed.R.Crim.P. 12.1 to disclose the identities of two alibi rebuttal witnesses, Charlotte Ziembo and Lawrence Vorwerck, and that the district court thus erred in admitting their testimony.

The evidence at trial indicated that at about 10:00 a.m. on February 22, 1984, a lone male entered the Twining Branch of the State Bank of Standish. He pulled out a handgun and pointed it at the two tellers who were there at the time. He produced a pillow case, into which the tellers put approximately $29,000, and left the bank a few minutes later. The money was in various denominations including about $8,000 in twenty dollar bills and about $100 in two dollar bills.

Earlier in the morning the defendant had called his former wife in the Pontiac, Michigan, area and asked her to come and get him at a place just north of Twining. She met the defendant at approximately 10:30 that morning and drove him back to the Pontiac area. Later that day the defendant purchased a truck and paid for it entirely with twenty dollar bills. Defendant also spent a substantial amount of money on other items within the next several days. Defendant had been evicted from the place he was living earlier in February since the rent had not been paid.

At about noon on June 18, 1984, a lone male entered the same bank with a handgun. He also produced a pillow case into which three tellers (two of whom were present at the first robbery) put about $5,000.00. He left a few minutes later. During the first robbery the bank surveillance camera was not operating. During the second robbery, however, it was functioning and pictures of the robber were taken.

The two tellers who were present during both robberies testified that the defendant was the robber on both occasions and the third teller identified the defendant as the robber in June. A customer who had entered the bank during the course of the second robbery also identified the defendant as the robber.

A search warrant was executed on defendant's residence in July of 1984. Seized in the search was a bag containing, among other things, a wig and a pair of gloves. Also seized was a briefcase containing two handguns, a piece of paper with the defendant's fingerprint on it, and a list containing the location of several banks in semi-rural areas of Michigan as well as their proximity to police stations and the number of employees. One of the tellers stated that it appeared that the robber in June wore a wig. The two handguns found in the briefcase were similar to the ones used in the robberies.

On October 18, 1984, the government filed a "Demand For Notice of Alibi Defense." On November 1, 1984, defendant filed a "Notice of Alibi Defense" with respect to the June robbery. On November 2, 1984, defendant filed a second such notice for the February robbery indicating that "Deborah Hofmann of Bay City" would be an alibi witness. On November 14, 1984, a supplemental notice was filed giving Hofmann's specific address and listing three other people as possible alibi witnesses for the February robbery.

The government completed its proof at trial on November 28, 1984. The next day defendant began presenting his proof, completing it December 3. Deborah Hofmann testified on November 29 and 30, 1984. ² Hofmann testified that on February 20, 1984, she saw someone she thought was her stepdaughter (whom she had not seen since the summer of 1983) in a mall in Bay City and later she decided to go "north" and look for her. She said her car wouldn't start, and she met someone named "Billy" who helped her fix her car and decided to ride along with her. Later that evening the two of them stopped at a bar in Whittemore, Michigan, for a drink and ultimately met the defendant. Hofmann and Billy dropped the defendant off at a trailer later that evening and returned to Bay City. Hofmann described the route to the trailer and the trailer itself in some detail. In response to the defendant's request for help with his car, Hofmann and Billy agreed to return the following day to the trailer. Early the next morning Hofmann and Billy returned to where they had left the defendant and then took him to where his car had broken down. They worked on the car until about 9:30 a.m. and then dropped the defendant off at the trailer at about 10:00 a.m., which was the approximate time of the robbery 9.5 miles away. Hofmann had even made a diary, recording the events to which she testified. During the government's cross-examination of Hofmann on November 29 and 30, 1984, the government's attorney carefully wrote on a board in the courtroom the specifics as to which Hofmann testified.

The defendant testified on his own behalf consistently with Hofmann's version of his whereabouts at the time of the first robbery. He denied on cross-examination that he had ever attempted to get anyone to lie on his behalf.

In response to the proofs of the defendant, the government offered 10 rebuttal witnesses. Finally, on December 4, 1984, the government called witnesses Vorwerck and Ziembo, to rebut the defendant's alibi as to the February charge. Vorwerck, with the Sheriff's Department, established that both Hofmann and Ziembo had visited defendant while he was in jail awaiting trial. Another rebuttal witness authenticated phone records showing numerous phone calls between Hofmann's residence and a phone near defendant's cell.

Charlotte Ziembo, a rebuttal witness, testified that she had met defendant on October 24, 1984, at her friend's request. ³ She said defendant had asked her to testify at his trial that she had been with him the night before the robbery and on the morning of...