United States v. Iverson
Opinion of the Court
Defendant Marvin Iverson was convicted after a jury trial of engaging in a scheme to defraud JPMorgan Chase ánd Big Horn Federal Savings. See 18 U.S.C. § 1344. The statute requires that the victims be “financial institutions.” Id. To establish that element of the offense, tjhe government offered the testimony of an FBI agent to try to prove that JPMorgan and Big Horn were insured by the Federal Deposit Insurance Corporation (FDIC). See id. § 20(1) (defining financial institution to include “an insured depository institution (as defined in [12 U.S.C. § 1813(c)(2)])”); 12 U.S.C. § 1813(c)(2) (“The term ‘insured depository institution’ means any bank or savings association the deposits of which are insured by the [FDIC] pursuant to this chapter.”).
On. appeal Defendant argues that the agent’s testimony was. inadmissible hearsay and violated the best-evidence rule. He also argues that even if the evidence was admissible, it was insufficient to prove that JPMorgan and Big Horn had FDIC insurance at the time of the offense. Despite the government’s concession to the contrary, we hold that the agent’s testimony was not inadmissible hearsay; it was either not hearsay or fell within a hearsay exception. As for the best-evidence rule, Defendant' did not raise the issue below and he has not shown plain error. Finally, because there was sufficient evidence that JPMorgan - had FDIC insurance at the time of the offense, we reject Defendant’s sufficiency-of-'the-evidence challenge.
I. BACKGROUND
Defendant has been a member of the “sovereign citizens” group called “Wyoming Free State.” Among other practices, such groups instruct' their members on various debt-elimination schemes. The scheme here was called the electronic-funds-transfers (EFT) scheme. A member writes a check on a closed account to pay off a debt, with the hope, that an unaware financial institution will release title or a lien before the check bounces.
Defendant used the EFT scheme to try to eliminate debts owed to JPMorgan and
Not for deposit EFT ONLY For discharge of debt Marvin Leslie Iverson Authorized representative Without Recourse
R., Vol. 2 at 28 (internal quotation marks omitted). Despite this notation, the checks were processed by Big Horn, and the vehicle lien and mortgage were released. After being notified that the checks were drawn on a closed account, the bank demanded that Defendant pay the debt. Defendant refused until he was arrested for this offense. Second, on August 18, 2012, Defendant wrote a check from his closed First Interstate account to JPMorgan in the amount of $369,300 to pay off his daughter’s mortgage. The check had the same EFT notation as before. JPMorgan did not process the check or release the mortgage.
Defendant was charged with scheming to defraud the financial institutions in a one-count indictment filed in the United States District Court for the District of Wyoming. The case went to trial on July 28, 2014. Defendant represented himself with the aid of standby counsel.
Defendant’s issues on appeal focus on the prosecutor’s afterthought questioning of FBI Special Agent Kent Smith:
[PROSECUTOR]: I don’t have any oth- • er questions. Thank you.
[DEFENDANT]: No questions.
THE COURT: You may step down.
[PROSECUTOR]: Your Honor, I neglected to ask one question.
THE COURT: Very well.
Q. Agent, did you do any research to determine whether or not JPMorgan Chase and Black — or Big Horn Federal Savings were FDIC insured or federally insured institutions?
A. Yes, and both First Interstate — you said Big Horn? ,
Q. Big Horn.
A. Yes, Big Horn Federal Savings is. I received the F—
[DEFENDANT]: Objection. Foundation.
THE COURT: Sustained.
Q. What research did you do?
A. Different for different banks. On JPMorgan Chase I pulled up the FDIC website and found their information and their certificate number. For Big Horn Federal Savings Bank, having been to that actual bank, I requested a copy of their FDIC certificate which included their number.
Q. All right. I ask again. Can you— when you, when you looked at the website—
[DEFENDANT]: Objection.
[Standby Defense Counsel]: Hearsay.
Q. —is that a normal course of business to check to see if a bank is FDIC insured—
[DEFENDANT]: Hearsay.
Q. —in your normal course of business as an FBI agent?
A. To determine if they’re FDIC insured?
Q. Yes.
A. Yes, it is.
Q. And do you rely on those records to be accurate to determine if a bank is FDIC insured?
A. Yes, we do.
*1019 Q. And I’d ask again. Do you know if the banks of Big Horn Federal Savings and—
[DEFENDANT]: Objection.
Q. —JPMorgan Chase are federally insured?
[DEFENDANT]: Hearsay again.
THE COURT: Overruled.
A. Yes, in my research both Big Horn Federal Savings Bank and JPMorgan Chase bank are federally insured.
R., Vol. 3 at 84-86.
II. DISCUSSION
A. Admissibility of the Evidence
Defendant raises two challenges to the admissibility of the testimony that the victim institutions were FDIC insured. He claims (1) that Agent Smith’s testimony about FDIC insurance coverage was hearsay and (2) the testimony violated the best-evidence rule, which required introduction into evidence of the FDIC certificates of coverage. Both the hearsay rule and the best-evidence rule are exceptions to the general rule that a witness can testify to what the witness saw or heard. The hearsay rule ordinarily excludes testimony about what someone wrote or said out of court when “offer[ed] in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). And the best-evidence rule ordinarily excludes testimony about what appeared in a document when offered to prove “its content.” Fed. R.Evid. 1002.
We review a district court’s eviden-tiary decisions for abuse of discretion. See United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir. 1998). The government confesses error on Defendant’s hearsay issues, but we are not bound by this concession. See United States v. Resendi?-Patino, 420 F.3d 1177, 1182-83 (10th Cir. 2005). We first address hearsay and then the best-evidence rule.
1. Hearsay
Agent Smith’s testimony about Big Horn’s FDIC-insured status was based solely upon his review of the bank’s FDIC certificate. In essence he was reporting on what the certificate said. His testimony about JPMorgan was based on his review of the FDIC website. There are two possible assertions in this testimony. One is Agent Smith’s assertion that he is accurately reporting what he saw concerning the certificate and the website. The other is what the certificate and website said was true — that the banks were insured by the FDIC. The first assertion presents no hearsay problem because the assertion is made by the witness at trial. See Fed. R.Evid. 801(c)(1) (hearsay is limited to “a statement that ... the declarant does not make while testifying at the current trial or. hearing”). Agent Smith could be carefully cross-examined about the accuracy of his perception and memory of what he saw. .(The probability of witness error in reporting the content of a document is, however, a concern of the best-evidence rule, which we address in the next section.)
a. Big Horn’s FDIC Certificate
Although this circuit has not yet considered a hearsay challenge to the admission into evidence of the content of an FDIC insurance certificate, several of our sister circuits have. Each has rejected the hearsay objection, albeit for differing reasons. The First Circuit affirmed the admission of an FDIC certificate to prove insurance coverage under Fed.R.Evid. 803(6), the business-records exception. See United States v. Albert, 773 F.2d 386, 388-89 (1st Cir. 1985), The Sixth Circuit has likewise held that an FDIC certificate qualifies as a business record, see United States v. Riley, 435 F.2d 725, 726 (6th Cir. 1970), but it also has held one admissible as a public record under Fed.R.Evid. 803(8), see United States v. Arthur, 822 F.2d 60, at *3 (6th Cir. 1987) (unpublished). And the Ninth Circuit has held that the certificate is not hearsay because it is a “verbal act.” See United States v. Bellucci, 995 F.2d 157, 160-61 (9th Cir. 1993). The parties have not cited nor have we found any case holding that FDIC certificates are inadmissible hearsay. For the following reasons, we reject Defendant’s contention that they are.
The Ninth Circuit may well be correct that the assertion of insurance coverage in an FDIC certificate is not hearsay. The rule against heársay does not apply to “verbal acts ... in which the. statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.” Fed.R.Evid. 801 advisory committee’s note to 1972 proposed rules, subdivision (c) (internal quotation marks omitted); see id. (“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”). The issue is whether evidence that the statement was made is in-itself relevant to a material issue in the case. For example, the statement may be the predicate for a defamation claim; -.if so, the statement is not being offered for its truth (it is actionable because it is false) and is not hearsay. Or a promise to do something may be offered into evidence to prove the existence of a contract even if the promisor was insincere in making the promise. The promise is not offered into evidence to prove the “truth” of the promisor’s statement. The promise itself has independent legal significance, so there is no hearsay issue. Cf. Creaghe v. Iowa Home Mut. Cas. Co., 323 F.2d 981, 984 (10th Cir. 1963) (“The hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement. The presence or absence of such words and statements of themselves are part of the issues in the case.”). In both circumstances, the evidence of the statement is not being used to prove the truth of some assertion but “merely to show that it was actually made.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 801.11[3] (Mark S. Brodin ed., 2d ed. 2015). Apparently on that basis the Ninth Circuit wrote, “Like a written contract that memorializes the fact of a legal agreement,.the [FDIC] certificate memorializes the fact of the legal relationship of insurer and insured.” Bellueci, 995 F.2d at 161. If the certificate has independent legal significance — say, a bank’s deposits are insured if and only if the certificate is issued (regardless of whether the premium was paid or the coverage was approved by the , proper official) — then we could comfortably conclude that the statement of coverage on the certificate is not hearsay. The statement would hot be evidence of coverage; it would be what effectuates coverage.
b. The FDIC Website
Agent Smith’s testimony regarding JPMorgan’s insurance status was based solely on his review’ of the FDIC website. He testified that he looked up JPMorgan on the website, “found their information and their certificate number,” and determined that it “[is] federally insured,” R., Vol. 3 at 85, What the website reports amounts to an assertion that JPMorgan has an FDIC. certificate with a: particular certificate number and that the insurance remains active. The government was.attempting to prove the truth of that assertion. .There is no argument that .the web.site. itself affects an institution’s legal rights (as perhaps may be true of a Certificate), so we agree
Again, however, the public-records exception applies. The website information is “a record or. statement of [the FDIC].” Fed.R.Evid.’ 803(8), And the website reports which banks are insured by the FDIC, thereby “setfting] out ... the office’s activities” related to deposit insurance. . Id. Several courts have ruled that government websites fall within the exception for public records. See, e.g., Williams v. Long, 585 F.Supp.2d 679, 689-91 (D.Md. 2008) (judicial record of pending lawsuits against defendant); Chapmany. S.F. Newspaper Agency, No. C 01-02305 CRB, 20Q2 WL 31119944, at *2 (N.D.Cal. Sept. 20, 2002) (printout of delivery confirmation from United States Postal Service “Track & Confirm” webpage); EEOC v. E.I., DuPont de Nemours & Co., No. CIV.A. 03-1605, 2004 WL-2347559, at *1 (E.D.La. Oct. 18, 2004) (“table of information compiled by the United States Census Bureau” printed from Census Bureau website). Government records, statements, and reports are continually being-placed on the-internet to allow easy access to-the
We recognize that the government did not argue that Agent Smith’s testimony about FDIC insurance coverage was admissible under the Rule 803(8) exception to the hearsay rule. But we see no unfairness to Defendant in affirming the district court’s decision to overrule Defendant’s hearsay objection on that ground. The legal- issue is clear. And it is not dependent on any disputable factual foundation. (The dissent objects that Agent Smith did not'bring to court the documents he reported about — the Big Horn FDIC certificate and, apparently, a printout from -the FDIC website content on JPMorgan. But Defendant did not object to Smith’s testimony on that ground. And the trial court could properly credit his testimony about what he saw. Further, we can take judicial notice of the facts necessary to establish the foundation for the admission of the testimony. See Fed.R.Evid. 104(a) (preliminary questions of admissibility of evidence are decided by court).)
Therefore, our rejection of the hearsay argument comes within our general rule that we may affirm on an unpre-served ground if doing so is fair to appellant. See United States v. Harrison, 296 F.3d 994, 1001 (10th Cir. 2002). We cannot express the point better than Judge Brorby did in Hernandez v. Starbuck, 69 F.3d 1089, 1093-94 (10th Cir. 1995):
[The Appellant’s] argument misconceives the roles played by the appellant, the appellee, and the court of appeals when a district court judgment - is appealed. - While the appellant challenges the district court’s ruling, the appellee is only interested in maintaining the status quo, ie., an affirmance. Because the appellant comes to the court of appeals as the challenger, he bears the burden of demonstrating the alleged error and the precise relief sought. A court of appeals is not required to manufacture an appellant’s argument on appeal when it has failed in its burden to draw our attention to the error below.- In the event of such a failure, the court will ordinarily consider the appellant’s point waived. -Appellees bear no such burden. Though Fed.R.App.P. 28(b) requires the appellee’s brief to contain arguments.addressing the issues raised by the appellant, we have never characterized the appellee’s obligation in terms of a categorical imperative. The distinction between appellant’s and appellees’ obligations under Rule 28 grows out of the ..court of appeals’ freedom-to affirm a .district court .decision on any grounds for which there is a record sufficient to*1023 permit conclusions of law, even grounds not relied upon by the district court. This broad power to affirm extends beyond the counter-arguments raised by the appellee; it includes any ground for which there is record to support conclusions of law. Once the appellant alleges the district court erred, we have a duty to assess the validity of the appellant’s allegations. This duty arises in part out of our relationship with the district court, and ive may not neglect it simply because an appellee fails to defend adequately the district court’s decision. To do so would open the door to a perverse jurisprudence by which properly decided district court decisions could be reversed.
(brackets, citations, footnote, and internal quotation marks omitted) (emphasis added). We also repeat his caution to appel-lees: “We admonish appellees not to take our language as a license not to address appellant’s arguments. The appellee’s brief plays a vital function in informing the court of the weaknesses in the appellant’s arguments. By failing to address a ground for relief raised by the appellant, the appellee greatly increases the chances the court of appeals will be persuaded by the appellant’s position.” Id. at 1094 n. 3.
2. Best-Evidence Rule
Defendant also challenges the introduction of Agent Smith’s testimony as a violation of the best-evidence rule. Because Defendant failed to raise this objection in the district court, we review only for plain error. See United States v. Frost, 684 F.3d 963, 971 (10th Cir. 2012). We will grant relief under the plain-error standard only if (1) the district court committed an error, (2) the error is clear at the time of the appeal, (3) the error “affects substantial rights,” and (4) the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). An error is clear “when it is contrary to well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000), It affects substantial rights only “when it is prejudicial, meaning that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.”, United States v. Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008) (internal quotation marks omitted).
Fed.R.Evid. 1002’ provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.” See Allen v. W.H.O. Alfalfa Milling Co., 272 F.2d 98, 99 (10th Cir. 1959) (“[Cjourts exclude testimony when the knowledge from which the witness testifies is derived from the writing.”). Defendant argues that Agent Smith’s testimony plainly violated this rule because “[t]he original writings at issue here are the FDIC certificates,” and there-foré “[substituting Agent Smith’s testimony for the actual certificates” was not permissible absent an exception to the best-evidence rule. Aplt. Br. at 15.
We need not decide if the testimony violated the best-evidence rule, because even if there was error, it was not clear. The best-evidence rule does not apply to testimony relating to the existence of a document, as opposed to its contents. See Fed.R.Evid. 1002 (an original is.required “to prove its content” (emphasis added)). For example, in United States v. Beebe, 467 F.2d 222, 225 10th Cir. 1972), we held that the best-evidence rule did not prevent witnesses from testifying “that their bush nesses were ‘licensed dealers’ in firearms rather than producing documents evidencing their actual licensing.” We noted that because the government “was not attempting to establish the terms of [the licenses,] ,■ no useful reason would have been
At least.one circuit has applied this reasoning to testimony about FDIC-insured status. In United States v. Sliker, 751 F.2d 477, 483. (2d Cir. 1984), the Second Circuit affirmed the admission of testimony “that the.bank’s deposits ‘are’ FDIC insured” against the objection “that the best evidence rule required the Government to produce a certified, copy of the insurance policy itself.” The court ruled that the evidence should not be excluded under Fed.R.Evid. 1002 because “the proof required was proof of the fact of insurance and not of the contents of a writing.” Sliker, 751 F.2d at 483. This decision also raises doubt that the best-evidence" rule required exclusion of Agent Smith’s testimony.
Because the admission of similar testimony has been affirmed against a best-evidence-rule objection in our sister circuit and'follows our precedent in an analogous context, we cannot say any error is clear. See United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) (“If neither the Supreme Court nor the Tenth Circuit has ruled on the subject, we cannot find plain error if the authority in'other circuits is split.”); United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003) (“In general, -for an error to be contrary to well-settled law, either- the Supreme Court or this court must have addressed the issue.”); United States v. Rickett, 535 F. App’x 668, 677 (10th Cir. 2013) (“[T]o render an alleged error ‘clear’ or ‘obvious,’ Mr. Rickett needs controlling Supreme Court or Tenth Circuit precedent, or a hefty weight "of controlling authority from other circüits’.” (emphasis omitted)). We therefore reject Defendant’s best-evidence-rule argument., '
B. Sufficiency of the Evidencé
Even though Agent Smith’s testimony was admissible, we must still decide whether the evidence was. sufficient to sustain the jury’s verdict that JPMorgan and Big-Horn were FDIC insured when Defendant committed the charged acts. Viewing the evidence in the light most favorable to the government, United States v. Cooper, 375 F.3d 1041, 1044 (10th Cir. 2004), we hold that the evidence was sufficient to find that JPMorgan was FDIC insured on the relevant date. Because that is,enough to sustain the conviction, we affirm.
At the outset we note that a bank’s status as an FDIC-insured institution on the date of the crime is an element of federal bank fraud that must be proved to the jury beyond a reasonable doubt. See United States v. Rackley, 986 F.2d 1357, 1360-61 (10th Cir. 1993) (“In order to convict the defendant of bank fraud under 18 U.S.C. § 1344, the government was required to prove ... that the-financial institution was then insured by the [FDIC].”). Despite the importance of this element, this case is just one of many in which the government has treated proof of FDIC-insured status as an afterthought. We continue to be “troubled by the government’s casual treatment of this element.” United States v. Bindley, 157 F.3d 1235, 1239 (10th Cir. 1998). Proof is not difficult. The FDIC could not make it easier. Its website states that it can “assist prosecutors who need to prove’ an institution’s
To be sure, the evidence in this case was not as strong as the. website procedure would have yielded. But viewed in the light most favorable to the government, it was sufficient. Regarding JPMorgan, Agent Smith testified that “in [his] research ... JPMorgan Chase bank [is] federally insured.” R., Vol. 3 at 86. He described that research as “pullfing] up the FDIC website and [finding] their information and their certificate number.” Id. at 85.
In this case the jury could draw a reasonable inference that Agent Smith checked the FDIC website within á few months of the offense. Defendant’s offense agairfst JPMorgan occurred in August 2012. Smith investigated the matter and arrested Defendant in October, al
Moreover, our examination of the trial exhibits reveals two mortgage-loan statements — dated July 30, 2012, and August 31, 2012 — which both include the notation “JPMorgan Chase Bank, N.A. Member FDIC.” United States v. Iverson, No, 12-CR-245-j, Trial Ex. 500 at 9-10, 13-14 (D.Wyo. 2012). These documents, admitted without objection as business records of the bank, are strong corroboration that JPMorgan was FDIC insured both immediately before and immediately after the offense occurred. See United States v. Pascarella, 84 F.3d 61, 71 (2d Cir. 1996) (finding sufficient evidence of bank’s FDIC insurance in part based on Defendant’s “bank statements staffing] that the bank was so insured”). In all, we are satisfied that the evidence regarding JPMorgan’s FDIC status was sufficient to support a jury finding that JPMorgan was FDIC insured on the date of the offense.
Because there was sufficient evidence that JPMorgan was FDIC insured on the date of the offense, we need not address Defendant’s argument that there was insufficient evidence of Big Horn’s coverage. Defendant’s offense, a violation of 18 U.S.C. § 1344, requires defrauding only one financial institution, not two. We recognize that the indictment charged Defendant with defrauding both institutions. But indictments typically charge alternative means of committing an offense in the conjunctive. Doing so establishes that the grand jury found that the defendant probably committed the offense via all the alternative means. See United States v. Daily, 921 F.2d 994, 1001 (10th Cir. 1990) (“fl]t is generally accepted procedure to use ‘and’ in an indictment where a statute uses the word ‘or.! This assures that defendants are not convicted on information not considered by the grand jury.”), overruled on other grounds by United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). This leaves to the petit jury to determine whether the government can prove any of the means. The jury instructions at trial typically describe the means of committing the offense in the alternative and allow the jury to convict if it finds any of the means beyond a reasonable doubt. See United States v. Earls, 42 F.3d 1321, 1327 (10th Cir. 1994) (“fl]t is entirely proper for the district court to instruct the jury in the disjunctive, though the indictment is worded in the conjunctive.” (internal quotation marks omitted)); United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976) (“It is hornbook law that a crime denounced in the statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive.”). If after conviction it is determined that there was insufficient evidence of guilt with respect to one of the alternative means, we presume that the jury did not base its verdict on that means and we will affirm if there was sufficient evidence of any of the other means. See Griffin v. United States, 502 U.S. 46, 56, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (“Petitioner cites no ease, and we are aware of
On occasion, as here, the jury instructions unnecessarily set forth the means of committing the offense in the conjunctive (just as in the indictment), stating that the jury must find that the defendant committed the offense through all the alleged means.
Ill, CONCLUSION
We AFFIRM the judgment below.
. The dissent argues that the essential hearsay problem at trial was the prosecution’s failure to bring the certificate (or printout of the FDIC website) to the.courtroom. But if that is a hearsay problem, rather than a best-evidence problem, what would happen if a fire destroyed the certificate or a power failure obliterated the website? Un.der the best-evidence rule, a witness could then testify about the contents of the lost records. See Fed. R.Evid. 1004(a). Would the dissent nevertheless bar the testimony as hearsay? (The dissent agrees that Defendant has forfeited the best-evidence argument.)
. There may even be easier ways to proven bank’s FDIC-insured status using the FDIC website. Given how simple the FDIC hás made it for a prosecutor to prove coverage, we do not expect to see another case like this in this circuit. If we cannot rely on the assistant TJnited States attorneys with their law degrees to obtain this evidence, perhaps we can at least rely on the FBI to deposit it in the prosecutor’s lap.
. The FDIC website provides a “BankFind” tool by which anyone can research the FDIC status of an . individual bank. See FDIC, BankFind, https://research.fdic.gov/bankfind/ (last visited Feb. 5, 2016). This tool permits searching for FDIC-insured banking institutions by bank name, FDIC number, or location. See id. Once a bank is selected, the website provides various information about the bank, including FDIC status (active or inactive), FDIC certificate number, when the bank was established, and when it was first insured. See FDIC, BankFind: JPMorgan Chase Bank, National Association (FDIC #: 628), https://research.fdic.gov/bankfind/detail. html?bank= 628&name=JPMorgan% 20Chase%-20Bank,% 20National% 20Associa-tion (last visited Feb. 5, 2015). Links are also available that display the bank’s, locations, history, and financial data. See id.
. The jury was instructed that it must find that Defendant schemed to defraud "Big Horn Federal Savings Bank and JPMorgan Chase Bank” and .that "Big Horn Federal Savings Bank and .JPMorgan Chase Bank were insured by the [FDIC.].” R., Vol. 1 at 115 (emphasis added). Jury Instruction No. 18 told the jury:
To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: the defendant, Marvin Iverson, knowingly executed a scheme or artifice to obtain money or property from Big Horn Federal Savings Bank and JPMorgan Chase Bank by means of false or fraudulent pretenses, representations, or promises;
Second; Big Horn Federal Savings Bank and JPMorgan Chase Bank are financial institutions within the meaning of the law; in this case, that means the government must prove that Big Horn Federal Savings Bank and JPMorgan Chase Bank were insured by the Federal Deposit Insurance Corporation;
. Third: the false or fraudulent pretenses, representations, or promises that the defendant made were material, meaning they would naturally tend to influence, or were capable of influencing the decision of the Big Horn Federal Savings Bank and the JPMorgan Chase Bank.
Id. at 115.
. The Court noted, however, that ",[w]hen an appellate court reviews a matter on which a party failed to object below, its review may well be constrained by other doctrines such as
. https://research.fdic.gov/banlcfind (last visited Feb. 25, 2016).
Concurring Opinion
concurring.
Of one thing there can be no doubt, or at least no reasonable doubt: the deposits in both Big Horn Federal Savings Bank (BHFSB) and JPMorgan Chase Bank (JPM) are now federally insured and were federally insured when Iverson committed these banking crimes.. One can be sure of such things by going to the FDIC’s official internet site. It directs inquiries about FDIC-insured institutions' to its web pages: “FDIC BankFind allows you to locate ' FDIC-insured • banking institutions.”
I join Judge Hartz’s carefully crafted and compelling opinion. I write separately only to suggest an alternative basis for affirming. We can and should take judicial notice of the banks’ federally insured status during the relevant events. Doing so elevates substance over form and eliminates the need to wrestle with arcane evi-dentiary issues.
I. Judicial Notice in General
A judge or court may notice facts “not subject to reasonable dispute” because either .they are “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from spurces whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Such notice may be taken upon motion or sua sponte, and at any .stage of the proceedings, even on . appeal. Fed.R.Evid. 201(c),(d) & advisory committee’s note (1972 Proposed Rules). It can be taken in both civil and criminal cases. But there is
On that score the legislative history of Rule 201(f) is revealing: the civil/criminal divide came from Congress. United States v. Jones, 580 F.2d 219, 223 (6th Cir. 1978); see also 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 2:10 (4th ed. 2013). As the rule was originally proposed by the Supreme Court both civil and criminal juries would be instructed to accept judicially noticed facts as conclusive. Id. Congress rejected the proposal in favor of the current rule. Id. It was concerned that requiring a jury in a criminal case to accept as conclusive any judicially noticed fact would be “ ‘inappropriate’ as ‘contrary to the spirit of the Sixth Amendment right to a jury trial.’ ” Jones, 580 F.2d at 223 (quoting H. Rep. No. 93-650, 93rd Cong., 1st Sess. 6-7 (1973)). In doing so, it “intended to preserve the' jury’s traditional prerogative to ignore even uncontroverted facts in reaching a verdict” and to prevent a court from “effectively permitting a partial directed verdict as to facts in a criminal case.”
II. Adjudicative Facts v. Legislative Facts
The rule applies only to “adjudicative” facts, not “legislative” facts. Fed.R.Evid. 201(a). We have described adjudicative facts as “simply the facts of the particular case” and legislative facts as those having “relevance to legal reasoning and the lawmaking process; they are established truths, facts or pronouncements that do not change from case to case but apply universally.” United States v. Wolny, 133 F.3d 758, 764 (10th Cir. 1998) (citations and quotation marks omitted). The Eighth Circuit has expounded on their differences:
When a court finds facts concerning the immediate parties who did what, where, when, how, and with what motive or intent the court is performing an adjudicative function, and the facts are conveniently called adjudicative facts.
Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.
Legislative facts, on the other hand, do not relate Specifically to the activities or characteristics of the litigants. A court generally relies upon legislative facts when it purports to develop a particular law or policy and thus considers material wholly unrelated to the activities of the parties.
Legislative facts are ordinarily general and do not concern the immediate parties. In the great mass of cases decided by courts, the legislative element is either absent or unimportant or interstitial, because in most cases the applicable law and policy have been previously established. But whenever a tribunal engages in the creation of law or of policy, it may need to resort to legislative facts, whether or not those facts have been developed on the record.
United States v. Gould, 536 F.2d 216, 219-20 (8th Cir. 1976) (citations and quotation marks omitted); see also Mueller & Kirkpatrick, supra, § 2:2 (“[Ajdjudicative facts are the ‘who, what, where, and when’ of a lawsuit.... ”).
III. Applying the Distinction
■ In Gould, the defendants were charged with importing a Schedule II controlled substance (cocaine). 536 F.2d at 217. The statute defined a Schedule II controlled substance as, among other things, those substances containing coca leaves. Id. at 218. The evidence at trial included expert testimony that the substance imported contained cocaine hydrochloride but there was no direct evidence of cocaine hydrochloride being a derivative of coca leaves. Id. The trial court, however, took judicial notice of cocaine hydrochloride’s status as a Schedule II controlled substance and instructed the jury: “If you find the substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is a schedule II controlled substance under the laws of the United States.” Id. (quotation marks omitted). The Eighth Circuit concluded the trial court had not erred in taking judicial notice: “The fact that cocaine hydrochloride is derived from coca leaves is, if not common knowledge, at least a matter which is capable of certain, easily accessible and indisputably accurate verification.” Id. at 219. It also decided no error occurred in the trial court’s judicial notice instruction, which required the jury to accept the noticed fact as conclu
It does not relate to who did what, where, when, how, and with what motive or intent, nor is it a fact which would traditionally go to the jury. The fact that cocaine hydrochloride is a derivative of coca leaves is a universal fact that is unrelated to the activities of the parties to this litigation.
Id. at 220-21 (citation and quotation marks omitted). Importantly, the court concluded the jury’s role in determining adjudicative facts was not preempted because it was required to determine what substance was seized. Id. at 220-21; see also United States v. Coffman, 688 F.2d 192, 194 (10th Cir. 1980) (following the reasoning in Gould and finding no error in the trial court’s instruction to the jury that LSD was. a Schedule I controlled substance).
More to the point here is United States v. Davis, 726 F.3d 357 (2d Cir. 2013). Davis assaulted another inmate while imprisoned at the Metropolitan Detention Center (MDC), a federal prison located in New York. He was charged with federal assault under 18 U.S.C. § 113(a)(6). Id. One of the elements of the crime — the so-called “jurisdictional” element — required the assault to occur “within the special maritime and territorial jurisdiction of the United States.” Id. At trial, the testimony of MDC employees identified MDC as a federal prison located on federal land. Id. at 360-61. Davis claimed the evidence was insufficient to establish an assault occurring within the special maritime and territorial jurisdiction of the United States. Id. at 362. The Second Circuit agreed. Id. at 364-65. Nevertheless, it took judicial notice of MDC’s status as an' institution within the special maritime and territorial jurisdiction of the United States. Id. at 367. In doing so it parted company with the trial judge, who had expressly refused “to take judicial notice of anything.” Id. at 366 (quotation marks omitted). Taking judicial , notice of a fact for the first time on appeal in a criminal case is noteworthy. The Second Circuit’s reason for doing so was well grounded; Rule 201 (f)’s proscription against taking conclusive judicial notice in á criminal case does not apply to legislative facts. Id. at 367. Similar to the Eighth Circuit’s approach in Gould, it reasoned: “[Wjhether a particular plot of land falls within the special maritime and territorial jurisdiction of the United States is a ‘legislative fact’ that may be judicially noticed without being subject to the strictures of Rule 201.” Id. It cited to other cases in which appellate courts noticed federal jurisdiction over particular lands even, where the prosecution had failed to present direct evidence on the issue; - “appellate courts take judicial notice of legislative facts under appropriate circumstances, especially where they relate to straightforward questions, such as geography and jurisdiction.” Id. (quotation marks omitted). Finally, and significantly, it expressed agreement with other circuits which have concluded that a defendant’s Sixth Amendment right to a jury trial, is not violated by taking judicial notice of legislative facts as they relate to the “jurisdictional” status of‘a particular piece of land. Id. at 369. It explained:
[T]o determine whether a crime took place within the special maritime and territorial "jurisdiction of the United States requires two separate inquiries: one to determine the ‘locus of the crime’ and one to determine the existence vel non of federal jurisdiction. While the former is plainly a factual question for the jury to decide, the latter — turning on a fixed legal status that does not change from case to case and involving consideration of source materials (such as deeds, statutes, and treaties) that judges are better suited to evaluate than*1032 juries — has always been treated in this Circuit as a legal- question that a court may decide on its own.
Id. (citation omitted); see also United States v. Behmanshah, 49 Fed.Appx. 372, 376 n. 2 (3d Cir. 2002) (concluding evidence was sufficient to satisfy interstate commerce element of money laundering offense based on, inter alia, the use of an FDIC-insured institution; appelláte court the first, to notice the FDIC-insured status of subject bank) (unpublished).
. These cases are highly persuasive, particularly Davis. .1 see no daylight between a federal prison’s status as being “within the special -maritime and territorial jurisdiction of the United States” and a bank’s status as being federally insured. Particularly when all national banks are required to have FDIC insurance
IY. Noticing the Obvious Does Not Infringe. Upon Iverson’s Rights
Noticing the FDIC-insured status of the financial institutions involved here does not interfere with Iverson’s right to a jury trial.
Most of Iverson’s arguments are little more than background noise intended to distract us from the core issue, his nearly palpable guilt. After all, a properly instructed jury convicted him. It did so after being instructed that no conviction could lie if it entertained a reasonable doubt as to whether “[BHFSB] and [JPM] are financial institutions within the meaning of the law; in this case that-means the government must prove that [BHFSB] and [JPM] were insured by the [FDIC].” (R. Vol. 1 at 113.) At bottom, the question is whether a jury., could, so find on the -evidence presented after crediting all permitted inferences and the individual jurors’ common sense and life experiences.
Taking judicial notice of legislative facts is efficient; it is also appropriate when, as here, no substantial rights of the defendant are put at risk by doing so.
. https://research.fdic.gov/bankfind/detail. html?bank=29637&name=Big% 20Hom% • 20Federal%- 20Savings% 20Bank&sear-chName=BIG% 20HORN% 20FEDERAL% 20SAVINGS% 20BANK&search - =■ Fdic=&city=&'state=WY&zip=&ad- ■
.- https://research.fdic.gov/banlcfind/detail. html?bank=29637&name=Big% 20Horn% 20Federal% 20Savings% 20Bank&sear-chName=BIG% 20HORN% 20FEDERAL% 20SAVINGS% 20BANK&sear chFdic'= &city= &state=WY&zip=&address=&searchWithin=&activeFlag=&ta-bld=2 (last visited Feb. 25, 2016).
. JPM was also FDIC-insured on the date of the crime but because wé need only one, see Musacchio v. United States, — U.S. -, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016), for simplicity I will only refer to BHFSB.
. See also Mueller & Kirkpatrick, supra, § 2:10 ("Rule 201(f) as finally enacted is consistent' with the well-established principle that a court cannot - direct a verdict of guilty against a criminal defendant, in whole or in part, by instructing the jury to consider as proved a particular point or an element in a charge, no matter how conclusive the evidence. These limits on judicial control over juries in criminal cases have the effect of empowering juries to ‘nullify’ even the most strongly supported charges, and to acquit a defendant despitó overwhelming or indisputable evidence of guilt.”).
. Other concerns restrain an appellate court from taking judicial notice for the first time on appeal, whether in a civil or criminal case. Fact-finding is a trial court function. Routine-taking pf judicial notice on appeal would interfere with the trial courts’ role as fact-finders. Mueller & Kirkpatrick, supra, § 2:8. It would also effectively relieve a party from its duty to present facts in a timely fashion at trial. Id.; see also Gamer v. Louisiana, 368 U.S. 157, 173, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961) (refusing to take judicial notice for first time on appeal of facial relations existing in South as proof that defendants’ sit-in would "foreseeably disturb or alarm the public,” an element of the charge; "[t]o extend the doctrine of judicial notice to the length pressed by the respondent would require us to allow the prosecution to do through argument to this Court what it is required by due process to-do at the trial; and would be to turn the doctrine into a pretext for dispensing with the trial”).
These are valid concerns, but only as to judicial notice of adjudicative facts, not legislative ones. As Mueller and Kirkpatrick explain:
[JJudicial notice of adjudicative facts that help prove charges or defeat defenses on the merits is improper on appeal ... even though failure of proof, on the part of the prosecution generally bars retrial of the defendant, It is less clear [whether this proposition] should apply to post-trial judicial notice of facts relating to matters of subject matter jurisdiction or venue, as opposed to matters relating to culpability____It is one .thing to say that defendants in criminal cases are entitled to jury determinations, and to the protection provided by the standard of proof beyond a reasonable doubt, on elements relating to culpability. It is another thing to argue that defendants are entitled to such protections on points relating to the division of legislative responsibility between Congress and the states....
-Perhaps.with these points in the back of their minds, courts have in fact taken post-trial judicial notice of points relating to jurisdiction and venue, and there seems to be a growing trend toward making judges rather than juries responsible for deciding ■these points. Sound modern authority has concluded more generally that judicial -no*1030 tice in such settings lies beyond the reach of Rule 201. Mueller & Kirkpatrick, supra, § 2:10.
.While there is contrary authority, it uniformly fails to properly distinguish between legislative and adjudicative facts as courts have come to understand the distinction. In Jemes, -supra, the defendant was convicted of illegally intercepting telephone conversations. 580 F.2d at 221. One of the elements of the charge is that the telephone company which furnished and installed the tapped telephone be a “common carrier.” Id. at 221-22. The only evidence on this element at trial was that the tapped telephone was furnished and installed by South Central Bell Telephone Company. Id. The government, seeking .to save the conviction, requested the Sixth Circuit to take .judicial notice of the fact that South Central Bell is a "common carrier.” Id. at 222. While it acknowledged that Rule 201 . allowed judicial notice to be taken at any time, even on appeal, the court decided judicial notice was inappropriate. Id. at 223-24. It relied on Rule 201's requirement for a criminal jury to be instructed that it may, but is not required to, accept as conclusive a judicially-noticed fact. Id. at 223, According to the Sixth Circuit, this rule “plainly contemplates that the jury in a criminál cáse shall pass upon facts which are judicially noticed. This it could not do if this notice were taken for the first time after it had been discharged and the case was on appeal.” Id. at 224.
Jones failed to distinguish between adjudicative facts, covered by Rule 201, and legislative facts, not within the scope of Rule 201. The common carrier element, involved in Jones is a legislative fact for the same reasons the status of the drugs in Gould, the status of ■the property in Davis, and (as I discuss) BHFSB’s FDIC-insured status are all legislative facts.
Similarly, in United States v. Bliss, we refused to take judicial notice of the fact First National Bank of Green River was a member of the Federal Reserve System as required by the crime of conviction (falsifying bank records) because no request had been made by the government. 642 F.2d 390, 391-392 & n. 2 (10th Cir. 1981). In any event, relying on ■Jones, we questioned the propriety of doing so. Id. at 392 n. 2. But, even assuming it was proper, "we decline[d] to exercise our discretion and judicially notice these facts.” Id. Given that holding, our reliance on Jones in our Bliss opinion was dicta.
Finally, Garner, supra, is not to the contrary. Whether defendants’ actions would “foreseeably disturb or alarm the public,” 368 U.S. at 165, 82 S.Ct. 248, is an adjudicative fact, not a legislative one. Taking judicial 'notice of such adjudicative fact for the first time on appeal would have been improper -under Rule 201.
. . See http://www.helpwithmybank.gov/get-answers/other-topics/fdic-insurance/faq-other-topics-fdic-insurance-04.html (last visited'Feb. 25, 2016),
. Wyo. Stat. Ann. § 13-2-103 (“All banks .shall obtain insurance of their deposits by the United States and shall subscribe for insur- ’ anee of deposit accounts by the federal deposit insurance corporation (FDIC).”).
. See, supra, discussion at 1030-32.
. See United States v. Truong, 425 F.3d 1282, 1288 (10th Cir. 2005) ("We review claims of insufficient evidence de novo, but view the evidence, as well as the reasonable inferences that could be drawn from it, in the light most favorable to the government, An inference is reasonable if the conclusion flows from logical and probabilistic reasoning.’’) (citation and quotation marks omitted); Webb v. United States, 347 F.2d 363, 364 (10th Cir. 1965) ("[T]he jury’s function [in a criminal case]' is broad enough to allow it to make common sense inferences from proven facts....”); see also United States v. Durham, 211 F.3d 437, 441 (7th Cir. 2000) ("[I]t is well established that juries are allowed to draw upon their own experience in life as well as their common sense in reaching their verdict. While common sense is no substitute for evidence, -common sense should be used to evaluate what reasonably may be inferred -from circumstantial evidence.”) - (quotation marks omitted).
. The government apparently forgot to present proof of the banks’ FDIC-insured status, creating a last-minute scramble to recover. Iverson recognized its oversight as a possible "gotcha” moment, not one .requiring substantive evidence or argument, but only a technical objection. The government’s feeble attempts to recover from its self-inflicted "gotcha” are "puzzling. With the technological tools available in a modern federal courtroom one would expect the government to have presented the juty with a real time look at the FDIC website. All it takes is a computer connected to the internet and a monitor enabling jurors to view the available information. Doing so would have saved the government and us considerable angst.
Dissenting Opinion
dissenting:
I respectfully dissent. Because I believe that the district court erred in admitting hearsay testimony from FBI Agent Kent Smith to establish that Big Horn Federal Savings Bank (Big Horn Bank) and JPMorgan Chase Bank were FDIC insured, I would reverse and remand for a new trial.
The government’s case ended on, a strange and abrupt note. After appearing to have finished examining its final witness, Agent Smith, the government realized that it had overlooked an element of Iverson’s bank-fraud offense charged under 18 U.S.C. § 1344 — proof that the two banks were FDIC insured.. As Agent Smith prepared to step down from the witness stand, the government obtained the court’s permission to continue his direct examination. What followed was a short but critical evidentiary skirmish— with the government trying to establish the FDIC-insurance element through Agent Smith, and Iverson and his standby counsel objecting each step of the way.
1. Hearsay
After recognizing the urgent need to establish the FDIC-insurance element, the government resumed its questioning of Agent Smith by asking whether he had done “any research” to determine the FDIC-insurance status of Big Horn Bank and JPMorgan Chase. R. vol. Ill at 85. The agent answered yes, adding that Big Horn Bank was so insured. To this volunteered testimony, Iverson’s standby counsel successfully objected on foundation grounds. The government then circled back, asking what research Agent Smith had done. This time, Agent Smith answered that for JPMorgan Chase he had “pulled up the FDIC website and found their information and their certificate number,” and that for Big Horn Bank he had “been to that actual bank [and] requested a copy of their FDIC certificate which included their number.”
The government then asked — interspersed with hearsay objections — whether looking at the FDIC website was “a normal course of business to check to see if a bank is FDIC insured ... in your normal course of business as an FBI agent ...” Id. at 85-86. Although Iverson objected oh hearsay grounds, the government pressed forward without waiting for a ruling. After verifying that FBI agents “rely on those records to be accurate to determine if a bank is FDIC insured,” the government asked its key question: “Do you know if the banks of Big Horn Federal Savings and ... JPMorgan Chase are federally insured?” Id. at 86. This sparked another hearsay objection, which the district court overruled.
On appeal, Iverson contends that the district court abused its discretion by admitting Agent Smith’s FDIC-insurance
On appeal, the government confesses the hearsay error. In doing so, it explains its reasoning well:
[I]f a witness’s knowledge about a fact óf consequence is based only on the witness’s personal knowledge of an out-of-court statement offered to prove the truth of the fact asserted in that statement, then [the witness’s] testimony must comply with the hearsay rule; i.e., it must be allowed by a statute, an exception to the rules of evidence, or by a Supreme Court rule.
Appellee’s Br. at 9 (citing United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014) (citing Fed.R.Evid. 602 advisory committee’s notes (1972))).
Along this same line, the government notes that “[i]n light of the foregoing rules, there can be little doubt that Special Agent Smith’s testimony about the insured status of the two banks was hearsay.” Id. at 10. First, the government says that Agent Smith relied on the FDIC certificate for Big Horn Bank — “clearly an ‘óut-of-court statement’ that ‘asserted’ the fact that Big Horn was insured.”
In my view, the government correctly concedes Iverson’s hearsay argument. Agent Smith based his FDIC-insurance testimony on out-of-court statements contained in records that the government never admitted at trial. The out-of-court statements Agent Smith relied on are hearsay — they are out-of-court statements “offer[ed] in evidence to prove the truth of the matter asserted in the statements].” Fed.R.Evid. 801(c). I see no reason for the government to elicit this testimony from Agent Smith other than to prove the FDIC-insurance element. ■ And without Agent Smith’s hearsay testimony, I see no other government proof that would even begin to prove this required element of the charged offense. .
So in my view, the majority errs by refusing the government’s concession of error. In doing so, it blesses an impermis
As support for this remarkable course, the majority falls back on strings of cases standing for propositions undisputed here — first, that if the government proceeds correctly it can introduce FDIC certificates under hearsay-exceptions found in Fed.R.Evid. 803(6) and 803(8), Maj. Op. at 1019-20; second, that parties in civil suits may introduce certain public records such as county tax assessments, U.S. patent certificates, and drivers’ licenses under Fed.R.Evid. 803(8), Maj. Op. at 1020-21; third, that parties in civil suits can introduce as public records webpages from public agencies, id. at 1021-22; and, fourth, that courts may take judicial notice of webpages of public agencies, id. at 1021-22.
My chief criticism of the majority is that it ignores the key point that the parties emphasizéd — the government failed to admit into evidence either of the two records.
The government doesn’t need us to ease its evidentiary burdens. Nothing- in the rules blocks the government’s clear path to admitting FDIC certificates to prove that financial institutions aré FDIC insured. See Cooper, 375 F.3d at 1048 (outlining ways the government can ádmit an FDIC certificate to satisfy the FDIC-insurance element). The government, might well succeed by, simply bringing an FDIC certificate to court together with a knowledgeable witness who could testify about the bank’s FDIC-insurance status. See United States v. Brunson, 907 F.2d 117, 119 (10th Cir. 1990) (concluding that a bank manager’s testimony — along with the FDIC certificate — sufficiently proved the FDIC-insurance element). Rule 803(8) is a blinking neon sign promising hospitality to litigators seeking admission of public records. But the rules of evidence afford a party opposing the admission of public records — such as the FDIC certificate and FDIC webpage here — the opportunity to challenge relevancy, trustworthiness,' and authenticity of the proffered record. Fed.R.Evid. 803(8), 902. Our task here is a modest one — to enforce the rules.
In my view, the majority’s judicial-shortcut approach awards a forfeit win to the government contrary to the Federal Rules of Evidence. In effect, the majority has created its own exception to the Rule 803(8) hearsay exception. Under its approach a witness — like Agent Smith — need no longer produce and admit into evidence at trial hearsay records, but instead can wing it by testifying from memory about the critical contents of the hearsay records. That alone is a startling development, but doubly so when the witness’s testimony is offered to prove a required element of a criminal offense.
Byrolling out this red carpet, the majority essentially invites the government to forgo, any hassles arising from pesky criminal defendants examining and challenging the content, trustworthiness, and authenticity of records containing hearsay — even
2. Best-Evidence Rule
On appeal, but not at trial, Iverson argues that Agent’s Smith’s testimony about the FDIC-insurance element also violated the best-evidence rule, Fed.R.Evid. 1002. Appellant’s Opening Br. at 14. Thus, Iverson must show (1) “an error,” (2) that is plain, and that (3) “affect[s] the [defendant’s] substantial rights.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If Iverson establishes all three prongs, an appellate court may exercise its discretion to correct the error only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
. For the-first prong, I agree with Iverson that Agent Smith’s testimony violated the best-evidence rule (since the government didn’t admit into evidence originals or copies of the two public records). Fed.R.Evid. 1002, 1005. Unquestionably, Agent Smith based his FDIC-insurance testimony on the contents of the two public records. And, obviously, the government did not try to excuse its failure to produce copies of these two public records based on their being unobtainable despite reasonable diligence. See Fed.R.Evid. 1005. Thus, the government could prove the content of the records only by producing them, establishing their admissibility, and ensuring that the copies of the public records were “certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared [them] with the original[s].”
3. Sufficiency of the Evidence
I agree with the majority that sufficient evidence would support Iverson’s conviction if Agent Smith’s FDIC testimony had been admissible. But because I believe the hearsay rule should have disallowed this testimony, I cannot vote to affirm Iverson’s conviction.
In this circumstance, the government directs us to Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). There, the Supreme Court reviewed a case in which a jury convicted a defendant (Lockhart) of being a habitual criminal after finding that he had four previous felony convictions. Id. at 36, 109 S.Ct. 285. In a federal habeas proceeding, Lockhart showed that he had previously obtained a pardon for one of the convictions. Id. at 37, 109 S.Ct. 285. Throughout his prosecution, the government mistakenly contended that Lockhart had not been pardoned, but that his sentence had merely been commuted. Id. at 36, 109 S.Ct. 285. In contending that the Double Jeopardy Clause barred a resentencing at which the government could offer proof of an unrelated, additional felony conviction, Lockhart relied on Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), which disallows reprosecution when a conviction is reversed for insufficiency of evidence. While recognizing the rule of Burks, the Lockhart Court created an exception to that rule, holding “that in cases such as this, where the evidence offered by the State and admitted by the trial court— whether erroneously or not — would have been sufficient to sustain - a guilty verdict, the Double Jeopardy Clause does not preclude retrial”. Id. at 34, 109 S.Ct. 285.
I agree with the government that a retrial is the proper remedy here since the government’s total evidence — including the erroneously admitted hearsay testimony of Agent Smith — would have sufficed to sustain Iverson’s guilty verdict.
APPENDIX
Federal Deposit Insurance Corporation
Bank Information
Big Horn Federal Savings Bank - Active (FDIC # 29637) Insured Since February 28,1936 Data as of: February 21,2016
Big Horn Federal Savings Bank is an active bank
FDIC Certificate#: Headquarters:
Locations:
Established:
Insured:
Effils.Sftffi&iJSissss
Regulated By:
Corporate Website: http://www.blghornfederal.com ConsumejrtoBtetanoe: http://www.helpwlthmybank.gov
Contact the FDIC about:
Big Horn Federal Savings Bank
29S37
33 North 6th Street Graybull, WY 82428 Big Horn County
6 domestic In 1 states,
0 In territories, and 0 In foreign locations January 1,1935
February 20,1936 Savings Association
'Office of the Comptroller of the Currency
Showing 1 to 4 of 4 entries Showjldfy] entries
Date
Event
1/1/1935 9/19/1980 ¡9/19/1991) 7/21/2011
Institution established: Original nameéig Horn Federal'Savings and Loan Association (29637) j Changed name to Big Horn Federal Savings Bank (29837) j
Changed organization type to MUTUAL SAVINGS BANK i
Changed primary regulatory agency from OFFICE OF THRIFT SUPERVISION to I
COMPTROLLER OF THE CURRENCY ¡
. Notably, although certainly implying it, Agent Smith never in fact testified that he saw the certificate, raising the possibility that his testimony was based on a hearsay statement from someone at Big Horn Bank about the hearsay statement contained in the certificate,
. Nowhere did the government ever respond to Iverson’s hearsay objection.
. Indeed, as mentioned, Agent Smith premised his testimony that both banks were FDIC insured by saying .that "in my-research both Big Horn Federal Savings Bank and JPMor-gan Chase are federally insured.” R. vol. III at 86 (emphasis added).
. But these cases do not support the majority’s shortcut approach. Under the rules of evidence, a hearsay statement in a public rec7 ord cannot be admitted into evidence apart from the public- record — thé hearsay state-» ment can’t travel alone. The majority’s cited cases follow this rule.. They allow the hearsay statements if the proponent, admits into evidence the record containing the hearsay. See, e.g., United States v. Arthur, 822 F.2d 60, at *3 (6th Cir. 1987) (unpublished table decision) (holding that the certificate was properly admitted under Fed.R.Evid. 803(8)); United States v. Albert, 773 F.2d 386, 389 (1st Cir. 1985) (holding that the,district court properly admitted the certificate under the business-records exception, Fed.R.Evid. 803(6)). The rules disallow what the majority approves— witnesses being rewarded for leaving the public records elsewhere for no reason and opting for an empty-handed, “Trust me, here’s what they say.” The rules are not so trusting. See 5 C. Mueller and L. Kirkpatrick, Federal Evidence § 10:32, (4th ed. 2013) (providing thát ”[i]n its preferential aspect, Rule 1005 bars ‘other evidence’ of the content of a public document, or a document filed or recorded in public office, if a copy may be had.” (citing Amoco Prod. Co. v. United States, 619 F.2d 1383, 1390 n. 6 (10th Cir. 1980))).
. In Stearns v. Paccar, Inc., 986 F.2d 1429, at *5 (10th Cir. 1993) (unpublished table decision), we disallowed as inadmissible hearsay a plaintiff’s testimony about what salaries he had seen on W-2 forms of other employees. We required that “to admit evidence regarding the W-2 forms of other ... employees, Plaintiffs were required to submit the W-2 forms to the district court through [the company’s] records custodian," Id.
. Nor do I think taking judicial notice of the FDIC’s webpage would solve the problem. See Maj. Op. at 1021-22; Concurrence at 1028-29, 1032-34. For starters, I believe the FDIC-insurance element concerns an adjudicative fact, not a legislative one. See Fed. R.Evid. 201. Either the banks here had the FDIC insurance or they didn’t — this inquiry is one about "simply the facts of the case." Id. advisory committee’s notes. The FDIC-insurance question is a "fact[] that normally go[es] to the jury in a jury case." Id. I don’t see how the presence of FDIC insurance involves legislative facts — “those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body." Id. I don’t see FDIC insurance as similar to the primary example of legislative facts given in the advisory notes — the fact determinations underlying the policy of the spousal privilege. Id.
. Even though the government itself doesn’t think it fairly convicted Iverson, the majority overrides the government’s concession and declares otherwise. If the government’s proof here truly satisfies its burden to prove the charged offense, I’m unsure why the majority provides alternative means of proof or chastises the government for its method of proof. Maj. Op. at 1024-25, 1025 n. 2. By lowering the bar, the majority invites the government to do no more next time or any other time.
. Although Rule 1005 is located within Article X of the Federal Rules of Evidence, "Contents of Writings, Recordings, and Photographs,” and concerns "best evidence,” it regulates testimonial hearsay, too. We need look no further than the effect of the rule in our case — because the government didn’t admit a copy of the FDIC public records, Rule 1005 bars hearsay testimony like Agent Smith’s (as "other evidence”). Thus, I’d conclude that Iverson's general hearsay objection was sufficient to reach Rule 1005's testimonial-hearsay bar.
.The majority concludes that any error would not be plain, saying that ”[t]he best-evidence rule does not apply to testimony relating to the existence of a document, as opposed to its contents.” Maj. Op. at 1023 (emphasis in original). To illustrate its point, the majority cites United States v. Beebe, 467 F.2d 222, 225 (10th Cir. 1972), where "we held thát the best-evidence rule did not prevent witnesses from testifying 'that their businesses were "licensed. dealers” in firearms rather than producing documents evidencing their actual licensing.' ” Maj. Op. at 1023. On the same point, the majority also cites United States v. Suker, 751 F.2d 477, 483 (2d Cir. 1984), where the Second Circuit upheld, over a best-evidence challenge, testimony that a bank was FDIC insured. Maj. Op. at 1023-24. What the majority misses is the context of the testimony in those cases — neither involved witnesses testifying about the contents of the federal-firearms license or FDIC-insurance certificates. Had those two cases involved that sort of testimony — as Agent Smith’s testimony surely did — the best-evidence rule would have barred the testimony as it would here.
. In his reply brief, Iverson doesn't cite Lockhart. He does cite a case that in turn cites Lockhart — United States v. Medina-Copete, 757 F.3d 1092 (10th Cir. 2014)—but that case dealt with an entirely different situation; that is, one in which sufficient evidence supported the jury's guilty verdict, but we still worried that inadmissible evidence may have contributed to the verdict. Id. at 1107-08. In addition, Iverson cites United States v. Wheeler, 776 F.3d 736 (10th Cir. 2015), a case in which we found sufficient evidence to convict because we couldn’t "say that no rational juror could find Mr. Wheeler’s statements to be true threats.” Id. at 746. In short, Iverson hasn't really addressed the government’s Lockhart argument,
. And, for the same reason as the majority gives, I would conclude that the government’s failure to tie its FDIC-insurance proof to the exact dates of Iverson's charged conduct does not defeat the evidence’s sufficiency. See United States v. Tukes, 442 Fed.Appx. 373, 374 (10th Cir. 2011) (unpublished) (upholding a conviction when the bank’s manager said that the bank “is” federally insured after agreeing with "our sister circuits [that] have held that analogous present-tense testimony can be understood to mean that a bank was insured at the time of the offense”).
Reference
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- UNITED STATES of America, Plaintiff-Appellee, v. Marvin IVERSON, Defendant-Appellant
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