United States v. Munksgard, 16-17654

• Decision Date: 30 January 2019
• Docket Number: No. 16-17654,16-17654
• Citation: 913 F.3d 1327
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Matthew G. MUNKSGARD, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

913 F.3d 1327

UNITED STATES of America, Plaintiff - Appellee,

v.Matthew G. MUNKSGARD, Defendant - Appellant.

No. 16-17654

United States Court of Appeals, Eleventh Circuit.

January 30, 2019

Andrew Jabus Grogan, Christopher P. Canova, Herbert Stanley Lindsey, U.S. Attorney's Office, Tallahassee, FL, Robert G. Davies, U.S. Attorney's Office, PENSACOLA, FL, for Plaintiff-Appellee.

Stephen N. Bernstein, Stephen N. Bernstein, PA, Gainesville, FL, for Defendant-Appellant.

Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.

NEWSOM, Circuit Judge:

This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, "overwhelming" isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank , 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

Now, the statutory-interpretation issue: Federal law makes it a crime for any person to "use[ ], without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The jury here found that Munksgard violated this statute when, in an effort to obtain financing to support his land-surveying business, he forged another person’s name to a surveying contract that he submitted to a bank in support of his loan application. The question before us is whether Munksgard’s conduct qualifies as a prohibited "use[ ]" within the meaning of § 1028A(a)(1). Munksgard insists that we should cabin the meaning of "use[ ]" to crimes in which the accused attempted to impersonate, or act "on behalf of," someone else. We disagree. Plain meaning, statutory context, and existing precedent all show that Munksgard "use[d]" his victim’s means of identification when he employed that person’s signature to obtain the loan and thereby converted the signature to his own service.

I

Matthew Munksgard began banking with Drummond Community Bank in the late 1990s. Drummond is a relatively small bank; at the time of trial, it operated in only a few counties in west central Florida. Munksgard obtained his first drawdown line of credit from Drummond in 2010 to fund his work as a land surveyor. After repaying that loan without incident, in 2012 Munksgard obtained two more drawdown lines. He also repaid those loans, albeit once from a different source of funds than he had indicated in his loan application.

That’s when the real trouble started. The next year, Munksgard applied for yet another line of credit from Drummond, this time supported by a surveying contract with a company called Cal-Maine Foods. That contract showed the signature of Cal-Maine employee Kyle Morris. Munksgard now admits that the contract was fraudulent and that he signed Morris’s name to it without Morris’s knowledge or permission.

Munksgard obtained three more lines of credit from Drummond over the next two years. He supported a 2013 credit application with a contract with Maxwell Plum Creek signed, on Plum Creek’s behalf, by an "S. Riggins." Plum Creek had no knowledge of the contract, and "S. Riggins" didn’t exist. Munksgard’s third and fourth credit applications, both in 2014, followed a similar pattern. To support them, Munksgard submitted contracts with St. Johns River Water Management and Triple Bell Farms. Both contracts were fraudulent, and both were signed by fictional employees—"Ross Rawlings" for St. Johns River and "Jason Hanold" for Triple Bell.

Three years and four unpaid loans in, Drummond started asking questions and ultimately contacted the FBI. A grand jury later indicted Munksgard on four counts of knowingly making a false statement in order to obtain a loan from an FDIC-insured bank, in violation of 18 U.S.C. § 1014, and one count of aggravated identity theft for his placement of Kyle Morris’s signature on the Cal-Maine Foods contract, in violation of 18 U.S.C. § 1028A.

At trial, the government presented three pieces of evidence to prove that Drummond was FDIC-insured when Munksgard submitted the fraudulent materials: (1) a certification indicating that the bank’s deposits were insured when it was initially chartered in 1990; (2) testimony from a veteran bank employee, David Claussen, that Drummond was currently (i.e. , in 2016) FDIC-insured; and (3) Claussen’s further testimony that the bank isn’t required to "renew[ ]" its FDIC certificate "every so often."

The jury convicted Munksgard on all five counts. The district court sentenced Munksgard to six months in prison for the fraudulent credit applications and to a consecutive 24 months for aggravated identity theft.

II

We begin with Munksgard’s bank-fraud conviction under 18 U.S.C. § 1014. Section 1014 prescribes stiff penalties for anyone who "knowingly makes any false statement ... for the purpose of influencing in any way the action of any institution the accounts of which are insured by the Federal Deposit Insurance Corporation." 18 U.S.C. § 1014. For purposes of appeal, all agree that Munksgard (1) knowingly (2) made false statements (3) in order to obtain financing from Drummond Community Bank. That gets the government three-quarters of the way home. Munksgard contends, though, that the government didn’t quite finish the job—in particular, he says, it failed to present sufficient evidence to prove beyond a reasonable doubt that Drummond was FDIC-insured at the time he submitted the fraudulent loan applications.

We’ve seen this play before—part comedy, part tragedy. For reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally "indispensable," element of FDIC insurance. See United States v. Platenburg , 657 F.2d 797, 799 (5th Cir. Unit A 1981). In our Circuit alone, the problem stretches back more than half a century. For the good of all involved, we’ll pick up the story in 1978, when we (then part of the old Fifth) considered a bank-robbery case in which the government had presented evidence indicating that the institution at issue had been insured (1) ten years before the crime and (2) at the time of the trial. Citing our own precedent, as well cases from the Sixth, Seventh, and Eighth Circuits confronting the same question, we observed that "a jury can reasonably infer that an institution was federally insured on the date of a robbery if it is presented with evidence showing that the institution was insured both prior to that date and recently thereafter." United States v. Fitzpatrick , 581 F.2d 1221, 1223 (5th Cir. 1978) (citations omitted). We hastened to add, however—the proverbial shot across the bow—that "the government obviously could have done a much better job of proving the bank’s insured status at the date of the crime." Id .

Two years later, in what would later be described as the "nadir of the acceptable level of proof," Platenburg , 657 F.2d at 800, we found—"[j]ust barely"—that a reasonable jury could conclude that the target bank was insured at the time of the offense based on evidence that it had FDIC insurance five years earlier. United States v. Maner , 611 F.2d 107, 110–112 (5th Cir. 1980). We deemed it "at least arguable" that the jury could indulge "the universal presumption ... that all banks are federally insured"—and further "that a reasonable jury could infer beyond a reasonable doubt that proof of the condition of insurance before the robbery, absent evidence to the contrary, suggests the continuation of that insurance." Id. at 110.

Once again—this time more vigorously—we expressed our annoyance. We emphasized our "difficulty comprehending why the Government repeatedly fails to prove this element more carefully since the Government’s burden is so simple and straightforward," and we warned that "the Government had tread[ed] perilously close to reversal in th[at] case, and may soon find itself crossing the line from sufficiency to insufficiency." Id. at 112. Underscoring what we described as a "plague infecting United States Attorneys throughout the land," our opinion included a 760-word "digest" of cases in which appellate courts had considered whether the government had failed to shoulder its proof-of-insurance burden. More generously, we even offered suggestions for how the government could prove this "simple but indispensable fact"—a certificate of FDIC coverage spanning the date of the crime, an insurance contract, a cancelled check, etc. Id. at 112 n.2.

Our warnings went unheeded. In Platenburg , the government presented only a certificate of FDIC insurance that predated the offense by seven years—nothing more. Enough had finally become enough: "The day ha[d] come; the line from sufficiency to insufficiency ha[d] been crossed." 657 F.2d at 799.

So then,...