Judicial.notice.fdic FALSE ARREST Lacking jurisdiction

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT Buczek v. U.S.A., DocketNumber(s)~ 10-4768 and 11-2216 _______ _,C,.,ap~t!!<io"'-n-'-'[u,.,s:.::.e_,sh,.,o<!.rt,_,t:!!it!!<le"-1 ~An,.....""t"""h..,.o,.,_n"-~y'--"B..,ru.......,c""'e.....,_, __,..et • a:

Motion for: Supporting Motion Requesting Mandatory Judicial Notice FRey 201 (d)

Set forth below precise, complete statement of relief sought:

That the court take mandatory judicial notice that the I'

record c"loes not contain sufficient evid€1nce to sustain

Appellant's conviction. establish that HSBC nor Best Buy

is a "financial institution" nor maintain the court • s subject-matter jurisdiction

MOVINGPARTY: Shane-Christopher: Buczek OPPOSINGPARTY: USA, Anthony Bruce, et. al. lXI Plaintiff 0 Defendant Solvent ~ Appellant/Petitioner_ 0 Appellee/Respondent

MOVING ATTORNEY: Executor of the Estate OPPOSING ATTORNEY: Joseph J • Karaszewski for the Trust [name of attorney, with fmn, address, phone number and e-mail]

c/o 7335 Derby Road 138 Deleware Avenue, Federal Centre Derby New York [near 14047] Buffalo, New vork 14202 Non-Domestic without the u.s.

Court-Judge/Agency appealed from: William Skretny, WDNY

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:

Has movant notified opposing counsel (required by Local Rule 27.1): IJ Yes 0 No (explain): ___________ _

Has request for relief been made below? Has this relief been previously sought in this Court?

DYes 0No []Yes D No

Requested return date and explanation of emergency: _______ _

Opposing counsel's position on motion: [] Unopposed 00pposed II! Don't Know

.. ~- --Does opposing counsehntend to file a response:

DYes 0-.N~ IX!Don't Know ,.,. ·''''

Is oral argument on motion requested?

Has argument date of appeal been set?

N X:

-" f.L. , .. n::

i1Yes Q No (requests for ,oral argument will not necessarily be granted) I

QYes Ill No If yes, enter date: _____________________ ~

Has service been effected? 1!j Yes [] No [Attach proof of service]

ORDER

IT IS ~REBV ORDERED THAT the motion is GRANTED DENIED. I'~. co 0 ......, ' -;;e UJ 0:::: _3c FOR THE COURT: 0::: ~ RfZ CATHERINE O'HAGAN WOLFE, Clerk of Court

"'-'tf) C\.1 I . - (.'')

Date: _____ ~~-·~·-------------------------

Form T-1080

By:

Case: 10-4753 Document: 222 Page: 1 04/06/2012 574363 46

................ ------------------------~ Appeal No. @-4753)

10-4768 11-2216

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SHANE C. BUCZEK, Pro Se, Petitioner-Appellant

v.

UNITED STATES OF AMERICA, Anthony Bruce, et. al., Respondents-Appellee~

SUPPORTING MOTION REQUESTING MANDATORY JUDICIAL NOTICE PURSUANT TO

FEDERAL RULES OF EVIDENCE, RULE 20l(d)

TO THE HONORABLE COURT:

HERE COMES NOW, Shane-Christopher: Buczek, Pro Se, Sui Juris, In Propria

Persona, Executor of the Estate in the above entitled matter of SHANE

CHRISTOPHER BUCZEK, a U.S. Trust, Petitioner-Appellant (hereinafter

"Appellant"), to very respectfully move and request from this Honorable Court

Mandatory Judicial Notice, pursuant to Federal Rules of Evidence, Rule

20l(d), of the following:

l. Appellant respectfully requests that, because He is unlearned at Law

and proceeding Pro Se, that He not be held to the strict standards as an

attorney would be and to please afford Him the leeway mandated by Haines v.

Kerner, 404 US 519, 520 (1972); and

2. That in case 10-4799, document 176, filed on January 18, 2012, in part

[2] of the opinion rendered by the Second Circuit Court of Appeals, before r·

the Honorable Dennis Jacobs, Chief Judge, Richard c. Wesley and Susan L.

Carney, Circuit Judges, the Court stated that "[T]he testimony that HSBC

"owned" Buczek • s credit account and is FDIC insured was sufficient for the


jury to infer an adverse effect on a federally insured financial

institution," does not establish the requisite factual evidence that HSBC nor

Best Buy was FDIC insured. This is an essential element of the crime and goes

(directly to the subject-matter jurisdiction of the court to entertain the I

prosecution in the first instance. The FDIC certificate, 'coupled with

testimony that the certificate of insurance was current at the time of the

criminal offense, is the essential requisite proof that establishes factual

evidence that HSBC and/or Best Buy is in truth and in1

fact a "financial

institution."

3. "The federal courts are under an independent obligation to examine

their own jurisdiction, and standing" "is perhaps the most important of [the

jurisdictional] doctrines." "It is a long-settled principle of law that

standing cannot be "inferred argumentatively from averments in the

pleadings," but rather "must affirmatively appear in the record" " ••• (facts

supporting Article III jurisdiction must appea[r] affirmatively from the

record") and it is the burden of the "party who seeks the exercise of

jurisdiction in his favor" ••• "clearly to allege facts demonstrating that he

is a proper party to invoke judicial resolution of the dispute." FW/PBS, Inc.

v. Dallas, 493 US 215, 231 (1990). See Exhibit A.

"[T]he presumption is that a cause is without its jurisdiction unless the

contrary affirmatively appears;" and that "it is not sufficient that

jurisdiction may be inferred argumentatively from averments in the pleadings,

but the averments should be positive." "[E]ssential facts averred must show,

not by inference or argumentatively, but clearly and distinctly." Hanford v.

' Davis, 163 US 273, 279 (1896). See Exibit B.

4. In Ruhrgas AG v. Marathon Oil Co., 526 US 574, 577, 163 LEd2d 1097,

126 SCt 1235 (2006), Justice Ginsburg delivered an opinion for the Supreme

(2)


Court stating that "[A] federal court may not hypothesize subject-matter

jurisdiction for the purpose of deciding the merits," and that "'Ihe

requirement that jurisdiction be established as a threshold matter ••. is

inflexible and without exception," for "[j]urisdiction is power to declare

the law" and "[w]ithout jurisdiction the court cannot proceed at all in any

cause." See Exhibit c.

5. See also Arbaugh v. Y&H Corp., 546 US 500, 514, 163 LEd2d 1097, 126

set 1235 (2006) "[S]ubject-matter jurisdiction, because it involves a court's

power to hear a case, can never be forfeited or waived." "Moreover, courts,

including this Court, have an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence of a challenge from

any party." "[W]hen a federal court concludes that it lacks subject-matter

jurisdiction, the court must dismiss the complaint in its entirety." See

Exhibit D.

6. It is impossible for the parent company HSBC to own the assets of its

subsidiary, Best Buy. It is impossible to fraud HSBC without the Best Buy

assets. Take away the Best Buy assets and you could make payments all day

long to HSBC and they would simply dishonor them. An indictment would never

issue for this activity. It is apparent that if Best Buy were federally

insured then it would carry the status of a "financial institution" for

purposes of the bank fraud statute. However, Best Buy is not a financial

institution and the evidence in the record is insufficient to establish this

essential element of the crime.

It is clear in the Best Buy credit card application that HSBC Nevada,

N.A. issued the "Best Buy credit card." In truth and in fact it is a "Best

Buy" credit card and not an HSBC credit card. See Property List, Category

{3)


lBl, number E4236019, "BEST BUY CREDIT CARD #7001062124486055", attached

hereto. Even if the Appellant intended to fraud Best Buy, which He did not,

it is clear that whatever effects were felt by the parent company are

irrelevant. See United States v. Bennett, 621 F3d 1131 (9th Cir. 2010). Even

though payments were made to HSBC in CU'}~ attempt to pay down the Best Buy -)

balance, and indeed the Best Buy balance was shown to be credited, upon

confirmation that the funds were insufficient, HSBC immediately withdrew the

credit to the Best Buy account, consequently showing a debt to Best Buy and

not HSBC.

HSBC's assets, i.e. their "funds", were never in jeopardy because it was

not the HSBC assets that were used to pay down the Best Buy Account. In truth

and in fact it was Appellant's account information that was used to pay down,

i.e. credit, His Best Buy account. In truth and in fact, Appellant's TRW

credit report lists the debt as owing to Best Buy and~ HSBC. It is obvious

that this is because HSBC' s assets were never used and also because it is

impossible for HSBC to report a financial loss for assets owned by its

subsidiary Best Buy.

When a Citizen opens a new bank account, the bank issues a credit/debit

card to the account holder under his account number. If a payment is

submitted to the bank and it is discovered that the negotiable instrument

tendered, or information provided, is insufficient, and consequently

dishonored as a result of the insufficiency, after the bank has credited the

account, the bank immediately withdraws the credit from the account and the

account holder must bare the burden of the insufficient negotiable

instrument, or other information provided, as well as a penalty for the

dishonored instrument or information. The Best Buy credit accounts work

exactly the same way. When a customer applies for a Best Buy credit card

(4)


account, HSBC bank issues the card to the new customers account under the

Best Buy bank account. As such, the evidence in the record, presented by the

government, is insufficient to sustain Appellant 1 s criminal conviction or a

loss to a 11 financial institution .. for purposes of the bank fraud statute. An

examination of the record shows that no certificate of insurance was entered

into evidence by the government, even though Appellant stated in the record

that He did not believe the testimony was sufficient to show that HSBC was

FDIC insured. See Docket #10-4799, Document 118, Appendix Volume III of IV,

A680, Page 172 of 189, Trial Transcripts dated March 4, 2010:

MR. BUCZEK: I 1 m [sic] got a thousand motions to diqmiss. [sic] 1.. don 1 t believe there has been sufficient testimony as to whatever the--whether the deposits in question have, specifically the deposits of HSBC were insured by the FDIC. I 1 ll stop right there.

7. Best Buy is not a 11 financial insti tution11 for purposes of the bank

fraud statute 18 u.s.c. § 1344. The fact that HSBC may have extended the

credit line of their subsidiary for a new Best Buy account is irrelevant. A

fraud has been perpetrated on the Appellant and the lower court by the

government by naming HSBC as the 11 Victim, 11 when they are not now nor ever

were, and now continues to perpetrate that fraud upon this Honorable Court.

It is obvious that the government had to name HSBC as the victim for purposes

of indictment and conviction even though HSBC was, in truth and in fact, .!!£!:_

the victim as alleged. It is irrelevant that HSBC is involved in the first

instance since it is impossible for a parent company to own the assets of its

subsidiary, which is the valuables in controversy, their (HSBC) assets were

never used nor put in jeopardy and more importantly, they are not the victim.

8. The term financial institution is defined at 18 u.s.c. § 20, which

states that 11 As used in this title, the term 11 Financial Institution .. means

(l) an insured depository institution (as defined in section 3(c)(2) of the

Federal Deposit Insurance Act [12 USCS l8l3(c)(2)]. 11 See Exhibit E.

(5)


9. In United States v. Mirza Ali, 266 F3d 1242, 1243 (9th Cir.

200l)(conviction reversed) the court stated that "Proof of federally-insured

status of the affected institution is, for ••• 1344 a jurisdictional

prerequisite as well as an element of the substantive crime." Also note that

the certificate of insurance was entered as "Exhibit 48. " The court further

stated at 1244 that "[T]estimony of insured status at the time of trial does

£2i offer the government any assistance." Quoting United States v. Key, 76

F3d 350, 353 (11th Cir. 1996).

In United States v. Cornelius James, 987 F2d 648, 649 (9th Cir. 1993) the

court stated that "The government neglected to introduce evidence that banks

it accused Charles Cornelius James of robbing were insured by the Federal

Deposit Insurance Corporation." and citing "United States v. Phillips, 427

F2d 1035, 1037 (9th Cir.)(there is no question that a proper showing of FDIC

insurance is an essential element of the crime), cert. denied, 400 US 867, 27

LEd2d 106, 91 set lOB (1970)."

10. "Twenty years ago, the fifth circuit forcefully put the government on

notice that "despite the fact that FDIC-insured status is an express

requirement of the applicable statutes, an essential part of a valid

indictment, and an indispensable i tern of proof of the offense. Proof of

federal insurance is not merely an element of the offense ••• it is essential

to establish federal jurisdiction. Although the threshold quantum of proof

for this element may be easily satisfied, it is constitutionally required."

See United States v. Mirza, supra at 1245; Exhibit F.

11. Under the Freedom of Information Act ( FOIA) , Best Buy credit card

service shows there was E£ drain on Federal Deposit Insurance Corporation

Account 7001062124486055. A certificate from the FDIC was never entered into

evidence nor presented to the jury in case l:09cr00121.001 WDNY. Because the

( 6)


government failed to present and prove an essential element of the crime

pursuant to 18 u.s.c. § 1344, the court concluded that the evidence in the

record was insufficient to support the conviction. See United States v.

James, supra.

12. The double jeopardy clause of the Fifth Amendment precludes a second

trial when conviction in a prior trial is reversed by the reviewing court

solely for lack of sufficient evidence to sustain the jury's verdict, even

though a defendant has sought a new trial as one of his remedies, or even as

the sole remedy; the only "just" remedy available under 28 uses § 2106 for a

federal appellate court in such a case is the direction of a judgment of

acquittal. The double jeopardy clause of the Fifth Amendment forbids a second I

trial for the purpose of affording the prosecution another opportunity to /

supply evidence which it failed to muster in the first proceeding. See Burks

v. United States, 437 US 1, 57 LEd2d 1, 98 SCt 2141 (1978).

Conclusion

WHEREFORE, based on all the aforementioned reasons, and in the interests

of justice, Appellant is praying this Honorable Court take mandatory judicial

notice that the evidence submitted by the government is insufficient to

establish that HSBC nor Best Buy is a "financial institution," an essential (

element of the crime, nor is the evidence in the record sufficient to sustain

a conviction nor the district court's subject-matter jurisdiction to

entertain the criminal prosecution of the Appellant as, absent the

aforementioned requisite proof has been established in the record, no offense

against the "United States" occurred.

(7)


VERIFICATION

I, Shane-Christopher: Buczek, Pro Se, Sui Juris, hereby verify under

penalty of perjury, under the laws of the United States of America, without

the "United States" (federal government), that the above statements of facts

and laws are true and correct, to the best of My current information,

knowledge, and belief, and not meant to mislead, so help Me God, pursuant to

28 u.s.c. § 1746(1).

Dated this 3rd day of April, 2012.

Respectfully submitted,

--/~s~/'-. ...;.~h ... an~e ... -:-C~h~r ... i"':-s-:_o .... ~p""~h ..... ~e ....... ::=-~ t)'!"'~u'F'c""z~ek::;...l..., -~":-r-"!J""'. ): d £,,~~'~ Shane-Christopher: Buczek, Pro Se, Sui Juris, In Propria Persona Citizen of New York state Executor of the Estate of SHANE C. BUCZEK, a U.S. Trust Grantor/Settler/Beneficiary All Rights Reserved without Prejudice u.c.c. 1-308

PROOF OF SERVICE

I, Shane-Christopher: Buczek, Pro Se, Sui Juris, hereby certify, under

penalty of perjury, under the laws of the United States of America, without

the "United States" (federal government), that I am at least 18 years of age,

a Citizen of ONE OF the United States of America, expressly not a citizen of

the "United States" (federal citizen), and that I personally served the

following document(s):

SUPPORTING MOTION REQUESTING MANDATORY JUDICIAL NOTICE PURSUANT TO

FEDERAL RULES OF EVIDENCE, RULE 20l(d)

by placing one true and correct original of said document(s) in first class

United States Mail with postage prepaid and addressed to the following:


Frank Perez, Deputy Clerk Clerk•s Office United States Court of Appeals for the Second Circuit 40 Foley SQ New York, 10007 NEW YORK, USA

William Hochul, Jr., U.S. Attorney 138 Deleware Ave. Buffalo, 14202 NEW YORK, USA

Dated this 3rd day of April, 2012.

Respectfully submitted, /s/ Shane-Christopher: Bucze

0 ' 0

Shane-Christopher: Buczek, Sui Juris, In Propria Persona Citizen of New York state Executor of the Estate of SHANE C. BUCZEK, a U.S. Trust Grantor/Settler/Beneficiary All Rights Reserved without Prejudice u.c.c. 1-308


Case: 10-4799 Document: 176-1 Page: 1 01/18/2012

10-4799 United States v. Buczek

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

500013 6

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT, CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1 1 2007 1 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 3 2 • 1 AND THIS COURT' S LOCAL RULE 3 2 • 1 • 1 • WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT 1 A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") • A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 . At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 18th day of January, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY,

10 11

Circuit Judges.

12 - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 15 16 17 18

Appellee,

-v.-

19 SHANE C. BUCZEK, 20 21 22 23 24 25 26 27 28

Defendant-Appellant.

- - - - - - - - - - - - - - - - - -X

FOR APPELLANT: Peter J. Tomao Garden City, NY

1

10-4799


1 2 3 4 5 6 7

Case: 10-4799 Document: 176-1 Page: 2 01/18/2012 500013 6

FOR APPELLEE: Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney, Western District of New York, Buffalo, NY

8 Appeal from a judgment of the United States District· 9 Court for the Western District of New York (Skretny, C.J.).

10 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that the district court's judgment is AFFIRMED. 13 14 Shane Buczek appeals from a judgment entered in the 15 United States District Court for the Western District of New 16 York convicting him of one count of bank fraud and one count 17 of committing an offense while on pretrial release. We 18 assume the parties' familiarity with the underlying facts, 19 the procedural history, and the issues presented for review. 20 21 [1] Buczek argues that the evidence adduced at trial was 22 insufficient to establish that he acted knowingly and with 23 the intent to defraud a financial institution. We review a 24 sufficiency challenge de novo. United States v. Yannotti, 25 541 F. 3d 112, 120 (2d Cir. 2008). A defendant challenging 26. his conviction on sufficiency grounds "bears a heavy burden 27 because a reviewing court must consider the evidence 'in the 28 light most favorable to the prosecution' and uphold the 29 conviction if 'any rational trier of fact could have .found 30 the essential elements of the crime beyond a reasonable 31 doubt.'" United States v. Aguilar, 585 F.3d 652, 656 (2d 32 Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 33 (1979)). "The government's proof need not exclude every 34 possible hypothesis of innocence, and where there are 35 conflicts in the testimony, we defer to the jury's 36 determination of the weight of the evidence and the 37 credibility of the witnesses, and to the jury's choice of 38 the competing inferences that can be drawn from the 39 evidence." United States v. Best, 219 F.3d 192, 200 (2d 40 Cir. 2000) (internal citations and quotation marks omitted). 41 42 At issue is whether the evidence sufficed to show that, 43 when he attempted to transfer funds to HSBC, Buczek knew 44 that he did not actually have an account at the Depository

2

\


Case: 10-4799 Document: 176-1 Page: 3 01/18/2012 500013 6

1 Trust and Clearing Corporation ( "DTCC") and thus intended to 2 defraud HSBC. According to Buczek, the evidence showed that 3 he legitimately believed he had a "secret account" at DTCC 4 funded by the United States Treasury Department. 5 6 The evidence of Buczek's knowledge was sufficient to 7 support a jury finding that he had the requisite intent to 8 defraud HSBC. First, the Government introduced evidence 9 that the DTCC did not offer any individual accounts; so the

10 jury could logically infer that Buczek had never deposited 11 any money in his supposed DTCC account, had never withdrawn 12 any money from that account, and had never checked the 13 balance of that account--since the account did not in fact 14 exist. Under those circumstances, the natural consequence 15 of providing a creditor information for such an account is 16 that there will be no funds in that account to remit to the 17 creditor. 18 19 Second, the Government introduced evidence that Buczek 20 repeatedly purchased goods at Best Buy very shortly after 21 purporting to make direct check payments on his credit card 22 account. The jury could reasonably infer that this timing 23 reflected his awareness that he had a small interval of time 24 · to incur additional credit card charges before his checks 25 bounced. 26 27 28 29

Third, FBI agent Falkowski testified that Buczek denied using a DTCC routing number to make payments on his credit card. If Buczek genuinely believed his DTCC account was

30 real, he would have had no reason to lie to authorities 31 ~ut having attempted to make payments from that account. 32 e · (l-CA -@ of: f:'. 0· !·C. :J;I\)SuOeAfle.. 33 Buczek also argues t a e ev1 ence was 1nsu 1c1ent 34 show that his conduct placed a financial institution at 35 risk of loss, or that the financial institution in question 36 37 38 39 40· 41 42 43 44 45

was federally insured. But the evidence established that Buczek never paid more than $8,000 that he charged on his HSBC credit card. This plainly constituted a loss to HSBC, which financed Buczek's Best Buy purchases. Buczek contends the Government failed to show that "HSBC Bank Nevada" (the entity that administered his credit card account) was FDIC insured. However the testimon that HSBC "owned" Buczek's credit account and is FDIC 1nsure was suff1c1ent for the jury to infer an adverse effect on a federally insured financial institution. \

BesT BUj 'owJJs'' }he. Ste.91cpta~J \it;1~ 0bvetl\h'Y\Mt v,t;)fjfe(. A ssth tt..;d h"'ci/J e CIJ.tir"'l 3 ~v\.(. '3 a. '2... ~) rc l f I 'fl\\{'1"\ ~~d t,\.1~~

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2/17/09 4:34:07

Cat/Nun

~ . . ollected Items for a Case

Case ID: 266S-BF-39552 Collected Item Type: All

Category Type: 1B

Acquired/ Charged Out To/

@ ICMIPROS

PAGE 1

\ ""'''""'''' Barcode Office and Storage .location Type Chrged Out Reason \II Description J;/ · ·---------- ------------------------------------ ---------- ------------------------- -------~--------------------------------- ----------------

181 BF VALU VS1 DR1 V 01/16/2009 SHANE C. BUCZEK · . . E4236019 } ~EST BUY CREDIT CARD #7001062124486055

182 BF ECR CAB7 DR1 G 01/16/2009 ---t SHANE CHRISTOPHER r

E4236032 ::s-' RECEIPTS/DOCUMENTATION AND 2 MEMORY CARDS 183 SF ECR CAB7 DR1 G 01/16/2.009 -· SHANE CHRISTOPHER BUCZEK

E4236033 184 BF ECR CAB7 DR1 G 01/16/2009

E4236034 185 Bf ECR CAB10 SH3 G 01/16/2009

E4236035 186 SF ECR CAB7 DR1 G 01/16/2009

E4236036

187 BF ECR CAB7 DR1 G 01!16/2009 E4236037

188 SF ECR CAB7 DR1 G 01/16/2J09 E4236038

189 BF ECR CAB10 SH3 G 01/16/2009 E4236039

1B10 BF ECR CAB13 SH2 G 01/16/2009 E4236040

1811 BF ECR CAB13 SH2 G 01/16/2009 E4236041

1812 BF ECR CAB7 DR1 G 01/16/2009 E4236042

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DOCUMENTATION/RECEIPTS SHANE CHRISTOPHER BUCZEK 1 APPLE IPOD MODEL A128S SN: 5U8392W3QS SHANE CHRISTOPHER BUCZEK 1 PLANTRONICS-VOYAGER 520 ~IRELESS HEADSET ~/CHARGER SHANE CHRISTOPHER BUCZEK (1) BONDED PROMISORY NOTE- TO GE MONEY FOR $42,000.00 BY SHANE BUCZEK SHANE CHRISTbPHER BUCZEK 1.0. FOLDER-DIPL~TIC AMBASSADOR ID SHANE CHRISTOPHER BUCZEK WORLD PASSPORT #339286

SHANE CHRISTOPHER BUCZEK MAGELLAN MAESTRO 4250 GPS SHANE CHRISTOPHER BUCZEK 10 BLU RAY DVD'S: DAY AFTER TOMO~; PATRIOT; IROHMAH; I AM LEGEND; TERMINATOR Z; ULTIMATE MATRIX COLLECTION 5 DISK SET SHANE CHRISTOPHER BUCZEK KODAK CAMERA/CARRY CASE/RECEIPTS SHANE CHRISTOPHER BUCZEK ·fiLE FOLDER LABELED 11DTC CHECK RECESSION" WITH FilES LABELED

11DTC ACCOUNT", 11MOHEY0 , 11PAYED CHECKS"

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LED2

107 LED2D 603/493 US 215 t~W/PBS, INC. v DALLAS

FW/PBS, INC., dba PARIS ADULT BOOKSTORE IT, et al., Petitioners vs.

CITY OF DALLAS et al. (No. 87-2012)

M. J. R., INC., et al., Petitioners vs.


CALVIN BERRY, Ill, et al., Petitioners vs.


493 US 215, 107 LEd 2d 603, 110 S Ct 596

[Nos. 87-2012, 87-2051, and 88-49]

Argued October 4, 1989.

Decided January 9, 1990.

1

© 2012 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to the

restrictions and tem1s and conditions of the Matthew Bender Master Agreement.


[E]very federal appellate court ha~ a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the loweJ; <*pg. 622> courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v Maurer, 293 US 237, 244 [79 LEd 338, 55 S Ct 162] (1934). See Juidice v Vail, 430 US 327, 331-332 [51 LEd 2d 376, 97 S Ct 1211] (1977) (standing). 'And ifthe record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it.' " Bender v ' Williamsport Area School Dist. 475 US 534, 541, 89 LEd 2d 501, 106 S Ct 1326 (1986).

[11) It is a long-settled principle that standing cannot be "inferred argumentatively from averments in the pleadings," Grace v American Central Ins. Co. 109 US 278, 284, 27 LEd 932, 3 S Ct 207 (1883), but rather "must affirmatively appear in the record." Mansfield C. & L. M. R. Co. v Swan, Ill US 379, 382, 28 LEd 462, 4 S Ct 510 (1884). See King Bridge Co. v Otoe County, 120 US 225, 226, 30 L Ed 623, 7 S Ct 552 (1887) (facts supporting Article III jurisdiction must "appea[r] affirmatively from the record"). And it is the burden of the "party who seeks the exercise of jurisdiction in his favor," McNutt v General Motors Acceptance Corp 298 US 178, 189, 80 LEd 1135, 56 S Ct 780 (1936), "clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Warth v Seldin, 422 US 490, 518, 45 LEd 2d 343, 95 S Ct 2197 (1975). Thus, petitioners in this case must "allege ... facts essential to

,show jurisdiction. If [they] fai[l] to make the necessary allegations, [they have] no standing." McNutt, supra, at 189, 80 L Ed 1135, 56 S Ct 780.

The ordinance challenged here prohibits the issuance of a license to an applicant who has resided with an individual whose license application has been denied or revoked within

[493 us 232]

LED2 1


restrictions and terms and conditions of the Matthew Bender Master Agreement.


LED

41 LED 157, 163 US 273 Hanford v. Davies.

FRANK HANFORD, Appt., vs.

GRIFFITH DAVIES and Isabella Davies, His Wife, et al.

[41 LEd 157] (SeeS. C. Reporter's ed. 273-280.)

[No. 260.]

Argued and Submitted April 29, 30, 1896. Decided May 18, 1896.

1

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[163 us 279]

further assumed that the constitutional provision in question applied to the legislative . enactments of a territory, the court below was without jurisdiction, so far as it depended upon the application of the clause of the Constitution protecting the obligation of contracts against impairment by state laws.

But it is contended that the proceedings in the probate court did not constitute due process of law, and for that reason this suit is one arising under the Constitution of the United States. No such thought was intended to be expressed in the bill, and it is apparent that no such proposition was presented to the circuit court when it determined the question of jurisdiction. The suggestion of the want of due process oflaw in the proceedings in the probate court first distinctly appears in the assignment of errors filed in the court below long after the final decree was entered.

It is true the bill alleges that the probate court in all of its proceedings acted "entirely without jurisdiction and without color of authority save as the agent and organ of said territory." But this allegation of want of jurisdiction in the probate court is too general and indefinite to show that its proceedings were wanting in due process of law. If the purpose was to present a case under the clause of the Constitution relating to due process of 1&»', the grounds upon which the Federal court could take cognizance of a suit of that character between citizens of the same state shoulclf have been clearly and distinctly stated in the bill. It is well settled that, as the jurisdiction of a circuit court of the United States is limited in the sense that it has no other jurisdiction than that

\ 1 conferred by the Constitution and laws of the United States, the presumption is that a cause iV, ~without its jurisdiction unless the contraa affirmatively appears; and that it is no.t sufficient that

jurisdiction may be inferred argumentatively from averments in the pleadings, but the averments 11 should be positive. Brown v. Keene, 33 U. S. 8 Pet. 112 [8: 885]; Grace v. American Cent. Ins.

/ Co. 109 U. S. 278, 283 [27: 932, 935], and authorities cited. These principles have been applied in cases where the jurisdiction of the circuit court was invoked upon the ground

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143 LED2D 760,526 US 574 RUHRGAS AG v MARATHON OIL CO.

RUHRGAS AG, Petitioner vs.

MARATHON OIL COMPANY, et al.

526 US 574, 143 LEd 2d 760, 119 S Ct 1563

[No. 98-470]

Argued March 22, 1999.

Decided May 17, 1999.

DECISION

Federal District Court held not to have abused discretion in addressing question of personal jurisdiction in removed case without first addressing question of subject matter jurisdiction.

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suit (sub'ect-matter 'urisdiction and authorit over the arties ersonal 'urisdiction so that the court's decision will bind them. n Steel Co. v Citizens for Better Environment, 523 US 83, 140 L Ed 2d 210, 118 S Ct 1003 (1998), this Court adhered to the rule that a .. federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections "where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." Id., at 93, 140 L Ed 2d 210, 118 S Ct 1003. <*pg. 7()7> Recalling "a long and venerable line of our cases," id., at 94, 140 L Ed 2d 210, 118 S Ct 1003, Steel Co. reiterated: "The requirement that jurisdiction be established as a threshold matter . . . is 'inflexible and without exception,' II id., at 94-95, 140 LEd 2d 210, 118 s Ct 1003 (quoting Mansfield, C. & L. M. R. Co. v Swan, 111 US 379, 382, 28 L Ed 462,-4 S Ct 510 (1884)); for '!UJurisdiction is POWer tO declare the laW, 11 and II '[w]ithOUt jurisdictiOn the COurt CannOt proceed atall in any cause,' II 523 us. at 94, 140 LEd 2d 210, 118 s Ct 1003 (quoting Ex parte McCardle, 7 Wall 506, 514, 19 LEd 264 (1869)). The Court, in Steel Co., acknowledged that "the absolute purity" 1

of the jurisdiction-first rule had been diluted in a few extraordinary cases, 523 US, at 101, 140 L Ed 2d 210, 118 S Ct 1003, and Justice O'Connor, joined by Justice Kennedy, joined the majority on the understanding that the Court's opinion did not catalog "an exhaustive list of circumstances" in which exceptions to the solid rule were appropriate, id., at 110, 140 L Ed 2d 210, 118 S Ct 1003.

Steel Co. is the backdrop for the issue now before us: If, as Steel Co. held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question

[526 us 578)

of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks "[w]hether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction." Pet. for Cert. i.

[lb][3a) We hold that in cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction

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140 LED2D 210, 523 US 83 STEEL CO. v CITIZENS FOR BETTER ENV.

STEEL COMPANY, aka CHICAGO STEEL AND PICKLING COMPANY, Petitioner vs.

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CITIZENS FOR A BETTER ENVIRONMENT

523 US 83, 140 LEd 2d 210, 118 S Ct 1003

[No. 96-643]

Argued October 6, 1997.

(Decided March 4, 199i)

1




[9b][l0][11a][12) We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of

\

separation of powers. This conclusion should come as no surprise, since it is reflected in a long • and venerable line of our cases. "Without jurisdiction the court cannot proceed at all in any ca~se.

·lurisdiction is power to declare the law, and when it ceases to exist, the only function remaining J:o the court is that of announcitig the .fact and dismissing the cause." Ex parte McCardle, 7 Wall 506, 514, 19 LEd 264 (1869). non every writ of error or appeal, the frrst and fundamental question is that of jurisdiction, first, of this court, and then of the C<?Urt from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Great Southern Fire Proof Hotel Co. v Jones, supra, at 453, 44 L Ed 842, 20 S Ct 690. The requirement that jurisdiction be established as a threshold matter "springs] from the nature and limits of

J523 us 95)

the judicial power of the United States" and is "inflexible and without exception." Mansfield, C. & L. M. R. Co. v Swan, 111 US 379, 382,28 LEd 462,4 S Ct 510 (1884).

[llb][l3] This Court's insistence that proper jurisdiction appear begins at least as early as 1804, when we set aside a judgment for the defendant at the instance of the losing plaintiff who had himself failed to allege the basis for federal jurisdiction. Capron v Van Noorden, 2 Cranch 126, 2 L Ed 229 (1804). Just last Term, we restated this principle in the clearest fashion, unanimously setting aside the Ninth Circuit's merits decision in a case that had lost the elements of a justiciable controversy:

~ " 'J;E]very federal appellate court has a special obligation to 'satis:f:Y itself not only of its own :urisdiction but also that of the lower courts in a cause un er review ' even thou h the arties are

re ared to concede it. itchell v Maurer 293 US 237 244 79 LEd 338, 55 S Ct 162 (1934). See Juidice v Vail, 430 US 327, 331-332, 51 LEd 2d 376, 97 S Ct 1211 (1977) (standing). 'And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it.. [When the lower federal court]

)ack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United States v Corrick, 298 US 435, 440, 80 LEd 1263, 56 S Ct 829 (1936) (footnotes omitted).'" Arizonans for Official English v Arizona, 520 US 43, 73, 137 LEd 2d 170, 117 S Ct 1055 (1997), quoting Bender v Williamsport Area School Dist., 475 US 534, 541, 89 LEd 2d 501, 106 S Ct 1326 (1986) (brackets in original). <*pg. 228>

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. BRANDNER CORP., Plaintiff, v. V-FORMATION, INC., RICHARD STELNICK, Defendants-Appellants, JEANNETTE BRANDNER, Defendant-Appellee, HOWARD FRITZ, DOMINIC

SANTILLO, LASER SKATE CO., V-LINE, INC., BRUCE KAUFMAN, MARK KAURMAN AEROFLEX INTERNATIONAL, INC., GEORGE SMITH and ROBERT CORLISS, Defendants.

Notice:

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 75 Fed. Appx. 830; 2003 U.S. App. LEXIS 19652

No. 02-9503 September 22, 2003, Decided

RULES OF THE SECOND CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

Editorial Information: Subsequent History

On remand at, Findings of fact/conclusions of law at Brandner Corp. v. V-Formation, Inc., 2004 U.S. Dist. LEXIS 27848 (S.D.N.Y., Mar. 2, 2004}

Editorial Information: Prior History

Brandner Corp. v. V-Formation, Inc., 2002 U.S. Dist. LEXIS 13269 (S.D. N.Y., July 22, 2002)

Disposition: Remanded for supplementation of record on issue of jurisdiction.

Counsel For Appellant: RICHARD W. HANES, Hanes & Schultz, P.C., Colorado Springs, CO (Louis J. Muggeo, Louis J. Muggeo & Associates, Salem, MA, on the brief}.

For Appellee: IAN WALLACH, Luce, Forward, Hamilton & Scripps LLP (Kimball Ann Lane on the brief), New York, NY.

Judges:. PRESENT: HON. DENNIS JACOBS, HON. SONIA SOTOMAYOR, *Circuit Judges.

CASE SUMMARY

PROCEDURAL POSTURE: Appellee individual sought enforcement of a licensing agreement she entered into with appellants, a corporation and an individual, as part of a full settlement of their cross-claims in an action. The United States District Court for the Southern District of New York granted judgment in favor of appellee. Appellants filed an appeal. Where question remained concerning whether district court had jurisdiction to enforce a licensing agreement, which settled cross-claims that it had dismissed, when it purported to reserve jurisdiction as part of a second agreement, case was remanded.

OVERVIEW: After the parties executed the licensing agreement, the district court dismissed in full their respective cross-claims with prejudice. The dismissal order did not include or reference the parties' agreement. After a settlement conference, the district court entered a second order dismissing all claims against all parties, and providing that pursuant to the parties' agreement the district court retained exclusive jurisdiction to enforce the agreements and to resolve any disputes that could have arose under the agreements or under the settlement agreement as to the cross-claims. The instant court found that the district court's rationale and legal basis for 'its ex post facto assertion of jurisdiction was unclear. Given that the cross-claims had been settled and dismissed with prejudice, it was not clear how appellee

A02CASES 1

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was still a party to the lawsuit. Nor did the second order explain why it was necessary or permissible for the district court to have asserted jurisdiction over claims that had been dismissed or whether the second agreement should have been viewed as the district court exercising its capacity to withdraw the first order of dismissal, reinstating the cross-claims.

OUTCOME: The case was remanded to the district court in order for it to supplement the record wi~h further findings and conclusions concerning its basis for asserting jurisdiction over the previously pismissed claims in conjunction with the settlement.

LexisNexis Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > General Overview Civil Procedure > Jurisdiction > Jurisdictional Sources > General Overview

Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.

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~ S' ec.o.rd (i((cuiT Cout~T of A-fp~Al? ~ {75 Fed. Appx. 832} agreement unless it does so pursuant to the explicit terms of the agreement itself or the agreement is incorporated into its order of dismissal. Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 381-82, 128 L. Ed. 2d 391, 114 S. Ct. 1673 (1994). Moreover, it is well-established that federal courts' limited power of jurisdiction over cases "authorized by Constitution and statute" is "not to be expanded by judicial decree," Kokkonen, ~1y U.S. at 377, and that "lack of federal jurisdiction cannot be waived or be overcome by ant:::"

/'

a reement of the arties." · er U.S , 79 L. Ed. 338, 55 S. Ct. 162 (1934); see a/so FDIC v. Hiflcres ssocs., . , ir. 1995) {noting that a lack Qf subject matter jurisdiction "cannot be cured by waiver"). /'t' Because enforcement jurisdiction was not originally preserved in the district court's dismissal of the ~ross-claims. under Kokkonen there would be no basjs for the district court to have rendered its decision concerning the licensing agreement. On May 28, 1998, however, after a settlement conference initiated by appellants - at which both parties to this appeal were present and represented by counsel - and conducted largely off the record, the district court entered a second order dismissing "all claims against all parties" to the lawsuit in light of a settlement agreement reached during the conference, and providing that "pursuant to the parties' agreement given on May 26, 1998, the Court will retain exclusive jurisdiction to enforce the [May 1998] agreements and to resolve any disputes that may arise under these agreements or under the settlement agreement as to the cross-claims previously entered into by various of the defendants as" reflected in the previously entered Partial Stipulation of Dismissal dated December 22, 1997." (R. on Appeal, Doc. 115)

The district court's rationale and legal basis for its ex post facto .assertion of jurisdiction is unclear. Appellee suggests that both she and appellants' continuing interest in the "global" settlement provided a basis for the district court's assertion of jurisdiction by noting that she was still a party to the overall action at the time the settlement conference took place. (Letteffrom lan M. Wallach to this Court of 08/14/03) Nevertheless, given that the cross-claims had been settled and dismissed with prejudice, it is not clear how appellee was still a party to the lawsuit at that.time. Nor does the May 28, 1998 order explain why, if at all, it was necessary or permissible for the district court to have asserted jurisdiction over claims that had been dismissed or whether the agreement settling the extant claims before the court at that time should be viewed, as appellee suggests, as the district court exercising its "capacity to withdraw the December 22, 2002 [sic] order of dismissal,jeinstating the cross-claims." /d. · 1t. pursyant to the Procedure outlined jn United States 11, Jacobson. 15 F,3d 19. 22 (2d Cir. 1994). we .remand this case to the district court to supplement the record with further fjndings and conclusions -by holding a hearing if necess51rv - concerning its basis for asserting jyri5diction over the previously dismissed claims in conjunction with the May 28. 1998 settlement.

For the foregoing reasons, we REMAND the case to the district court for further finding,s. After the district court has made the findings required by this order, jurisdiction will automatically be restored to this Court without the need for an additional notice of appeal; the returned appeal will be assigned to this panel.

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does not exist and no other ground of federal jurisdiction is shown.

[6)[7)[8]Third. Unlike an objection to venue, lack offederal jurisdiction cannot be waived or be overcome by an agreement of the parties, An a,m>ellate federal court must satisfy itself not .... only of its own jurisdiction. but also of that of the lower courts in a cause under reyjew. 4

Mansfield, C. & L. M. R. Co. y. Swan. 111 U. S. 379. 382, 28 L. ed. 462, 463. 4 S. Ct. 510. Hence, the failure of the Insurance Commissioner to claim, in his petition for certiorari, that the order of the District Court was void for lack of federal jurisdiction of the suit, and his failure otherwise to call to the attention of this Court the lack of diversity of citizenship are immaterial. The Court of Appeals pointed out that under Judicial Code. § 274c, U. S. C. title 28, § 399, where "jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought ... though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose." But, in the case at bar, the admitted facts preclude such an amendment. Diversity of citizenship confessedly did not exist.

The judgment is reversed; and the cause is remanded to the District Court with directions to dismiss the bill for want of federal jurisdiction.

Reversed.

- a

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"'.

'\

163 LED2D 1097,546 U.S. 500 ARBAUGH v Y & H CORP.

JENIFER ARBAUGH, Petitioner vs.

Y & H CORPORATION, dba THE MOONLIGHT CAFE

546 US 500, 126 S Ct 1235, 163 LEd 2d 1097

[No. 04-944]

Argued January 11, 2006.

Decided February 22, 2006.

1



/)l'


[546 u.s. 514] AAJv t4~r'

of subject-matter jurisdiction, rather than an element of Arbaugh's claim for relief. \')

~ [1b][3][4] First "sub'ect-matter 'urisdiction because it involves a court's owe to hear a fase, can never be forfeited or waived." United States y. Cotton. 535U.S. 625. 63 , 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). Moreover. courts. including this Court. have an independent obligation to determine whether subject-matter jurisdiction exists, even in· the absence of a challenge from any party. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S. Ct. 1563, 143 L. Ed. 2d 760 (1999). Nothing in the text of Title VII indicates that Congress intended courts, on their own motion, to assure that the employee-numerosity requirement is met.

[5] Second, in some instances, if subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on her own. See 5B C. Wright & A. Miller, Federal Practice and Procedure§ 1350, pp 243-249 (3d ed. 2004); 2 Moore § 12.30[3], pp 12-37 to 12-38. If satisfaction of an essential element of a claim for relief is at issue, however, the jury is the proper trier of contested facts. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).

[6][7] Third, when a federal court <*pg. 1110> concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety. See 16 Moore § 106.66[1], pp 106-88 to I 06-89. Thus in the instant case, the trial court dismissed, along with the Title VII claim, pendent state-law claims, see supra, at 506, 163 L. Ed. 2d, at 1104, fully tried by a jury and determined on the merits, see App. to Pet. for Cert. 23, 47. In contrast, when a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-law claims. See 16 Moore§ 106.66[1], pp 106-86 to 106:-89.

[lc] Of course, Congress could make the employee-numerosity requirement "jurisdictional," just as it has made an amount-in-controversy threshold an ingredient of subject-matter jurisdiction

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')

rrvrlf4eJ S-l-Ab v. Loi!J [535 us 630)

Court.l See generally United States v Sanges, 144 US 310, 319-322, 36 L<*pg. 867> Ed 445, 12 S Ct 609 (1892); L. Orfield, Criminal Appeals in America 244-246 (1939). The Court's authority to issue a writ of habeas corpus was limited to cases in which the convicting "court had no jurisdiction to· render the judgment which it gave." Bain, supra, at 3, 30 LEd 849, 7 S Ct 781; see also Preiser v Rodriguez, 411 US 475, 485, 36 LEd 2d 439, 93 S Ct 1827 (1973). In 1887, therefore, this Court could examine constitutional errors in a criminal trial only on a writ of habeas corpus, and only then if it deemed the error "jurisdictional." The Court's desire to correct obvious constitutional violations led to a "somewhat expansive notion of'jurisdiction,"' Custis y United States, 511 US 485,494, 128 LEd 2d 517, 114 S Ct 1732 (1994), which was "more a fiction than anything else," Wainwright v Sykes, 433 US 72, 79, 53 LEd 2d 594, 97 S Ct 2497 (1977).

[2b][3) Bain's elastic concept of jurisdiction is not what the term "jurisdiction" means today, i.e., "the courts' statutory or constitutional power to adjudicate the case." Steel Co. v Citizens for' Better Environment 523 US 83 89 140 LEd 2d 210, 118 S Ct 1003 (1998). This latter concept of subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court. See, e.g., Louisville & Nashville R. Co. v Mottley, 211 US 149, 53 LEd 126, 29 S Ct 42 (1908). In contrast, the grand jury right can be waived. See Fed. Rule Crim. Proc. 7(b); Smith v United States, 360 US 1, 6, 3 LEd 2d 1041, 79 S Ct 991 (1959).

[2c) Post-Bain cases confirm that defects in an indictment do not deprive a court of its power to adjudicate a case. In Lamar v United States, 240 US 60, 60 LEd 526, 36 S Ct 255 (1916}, the Court rejected the claim that "the court had no jurisdiction because the indictment does not charge a crime against the United States." Id., at 64, 60 LEd 526, 36 S Ct 255. Justice Holmes explained that a district

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§ 20. Financial institution defined t ~

As used in this title, the term "financial institution" means-- ~ (1) an insured depository institution (as defined in section 3(c)(2) ofthe Federal Deposit ~nsurance Act [12 USCS § 1813( c )(2)]); ,. (2) a credit union with accounts insured by the National Credit Union Share Insurance Fund; (3) a Federal home loan bank or a member, as defined in section 2 of the Federal Home Loan Bank Act (12 U.S.C. 1422), of the Federal home loan bank system; (4) a System institution ofthe Farm Credit System, as defined in section 5.35(3) of the Farm Credit Act of 1971 [12 USCS § 2271(3)]; (5) a small business investment company; as defined in section 103 ofthe Small Business Investment Act of 1958 (15 U.S.C. 662); (6) a depository institution holding company (as defined in section 3(w)(l) of the Federal Deposit Insurance Act [12 USCS § 1813(w)(l)]; (7) a Federal Reserve bank or a member bank of the Federal Reserve System; (8) an organization operating under section 25 or section 25(a) [25A] of the Federal Reserve Act [12 USCS §§ 601 et seq. or 611 et seq.]; (9) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) ofthe International Banking Act of 1978 [12 USCS § 3101]); or (10) a mortgage lending business (as defined in section 27 ofthis title [18 uses§ 27]) or any person or entity that makes in whole or in part a federally related mortgage loan as defined in section 3 ofthe Real Estate Settlement Procedures Act of 1974 [12 USCS § 2602].

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIRZA ALl, aka Zulflqar Eqbal, aka Henry Stone, Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 266 F.3d 1242; 2001 U.S. App. LEXIS 21268; 2001 Cal. Dally Op. Service 8580; 2001 Daily Journal

DAR 10641 No. 00·1 0216

May 14, 2001, Argued and Submitted, San Francisco, California October 2, 2001, Filed


Appeal from the United States District Court for the Northern District of California. D.C. No. CR-98-40159-CW. Claudia Wilken, District Judge, Presiding.

Counsel John D. Lyons, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

-christopher J. Cannon, San Francisco, California, for the defendant-appellant.

Judges: Before: Diarmuid F. O'Scannlain, A. Wallace Tashima, and Sidney R. Thomas, Circuit Judges. Opinion by Judge Tashima.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed his convictions for bank fraud and making a false statement to obtain a bank loan under ~8 U.S.C.S. §§ 1344, 1014. He appealed from the United States District Court for the Northern District of California arguing the government failed to prove beyond a reasonable doubt that the bank in question was federally insured. Testimony that a bank was federally insured at the time of trial, and a certificate of insurance dated ten years before the alleged loan application, were insufficient to support a federal conviction of bank fraud.

OVERVIEW: The court noted that under 18 U.S.C.S. §§ 1344, 1014, federally-insured status was a. jurisdictional prerequisite and an element of the crime. At trial, the bank's loan officer testified as to the bank being insured, but not as to its status at the time of the alleged loan application in 1997. The only certificate in insurance was dated 1985. Neither the certificate nor the testimony alone sufficiently established that the bank was federally insured at the time of the offenses. The certificate antedated the offense by more than a decade. The testimony was provided solely in the present tense at trial, well over two years after the time of the alleged offense. Neither directly supported the inference that the bank was in fact federally insured in May 1997. There was no evidence establishing uninterrupted coverage through the date of the offense. Testimony of insured status at the time of trial did not offer the government any assistance. The evjdence fell short of the minimum level of acceptable proof to establish federally-insured status at the time of the loan application; nothing directly supported the inference of such insurance on the date of the offense.

OUTCOME: The conviction was reversed.

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LexlsNexls Headnotes

Banking Law > Criminal Offenses > Schemes to Defraud> General Overview Criminal Law & Procedure > Jurisdiction & Venue > Venue Banking Law> Criminal Offenses > Schemes to Defraud> Elements

In the context of bank fraud and making a false statement to obtain a bank loan, proof of federally-insured status of the affected institution is, for both 18 U.S.C.S. §§ 1344, 1014, a jurisdictional prerequisite as well as an element of the substantive crime.

Banking Law> Criminal Offenses> Schemes to Defraud> General Overview Evidence> Procedural Considerations> Circumstantial & Direct Evidence

Under 18 U.S.C.S. §§ 1344, 1014, the evidence that is required to establish that a bank was federally insured at the time of the offenses is minimal. Indeed, a bank employee's uncontradicted testimony of a bank's insured status can sufficiently support the jury's conclusion that this element was proven beyond a reasonable doubt. Testimony is insufficient, however, when stated only in the present tense at trial, years after the relevant time period, because it cannot establish that the bank was insured on the date of the alleged offense. But a bank official's testimony is not required; instead, a certificate of insurance may be admitted as circumstantial evidence. A certificate of insurance that antedates the offense, however, is not sufficient to establish that the bank was insured on the date of the relevant conduct.

Banking Law> Criminal Offenses > Schemes to Defraud> General Overview

.. Under 18 U.S.C.S. §§ 1344. 1014, testimony of the bank's jnsured status at the time of trial does not offer the government any assistance; ·

Banking Law> Criminal Offenses> Schemes to Defraud> General Overview

Under 18 U.S.C.S. §§ 1344, 1014, there are many types of admissible evidence which would be sufficient to establish that an antedated certificate of insurance remained valid at the time of the alleged offense. The common thread that runs through all of the examples is that the evidence directly supported the inference of insurance coverage on the particular date of the offense.

Banking Law > Criminal Offenses > Schemes to Defraud> General Overview

.F.ederal Deposit Insurance Corporation-insured status is an express requirement of 18 U.S.C.S. §§ 1344, 1014, an essential part of a valid indictment. and an indispensable item of proof of an offense.

Banking Law> Criminal Offenses > Schemes to Defraud> General Overview

Proof of federal insurance is not merely an element of the offenses under 18 U.S.C.S. §§ 1344,1014; it is essential to establish federal jurisdiction. Although the threshold quantum of proof for this element may be easily satisfied, it is constitutionally reguired.

1' Opinion

Opinion by: A. Wallace Tashima

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Opinion

{266 F.3d 1243} TASHIMA, Circuit Judge:

Appellant Mirza Ali ("Ali") was convicted of one count of bank fraud, in violation of 18 U.S.C. § 1344(1), and one count of making a false statement to obtain a bank loan, in violation of 18 U.S.C. § 1014. He was sentenced to 30 months' imprisonment, four years of supervised release, and was ordered to pay restitution to the victim bank. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the conviction. 1

Both the bank fraud count and the false statement count pertain to a loan Ali obtained from the Cupertino National Bank ("CNB" or the "bank") in May 1997. Both counts alleged that CNB was a federally insured financial institution at the time of the relevant conduct. Wroof of federally-insured status of the affected institution is. for both section 1344 and section 1014, a jurisdictional · prerequisite as well as an element of the substantive crime." United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996). See 18 U.S.C. §§ 1014, 1344; see also 18 U.S.C. § 20 (defining "financial institution"). Ali contends that the evidence introduced at trial is insufficient to prove this element beyond a reasonable doubt. We agree.

There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). There is no dispute here that the only evidence adduced on this point was a certificate of insuranc~ from 1985 and the testimony of CNB loan officer Geraldine Felix. The extent of her testimony about the federally-insured status of the bank was the following exchange:

~\ Q. Now, do you know whethe*,r not the Cupertino National Bank is insured by the Federal

\

• :\\' Deposit Insurance Corporation? A. Yes. We're insured by the FDIC, and we're regulated by the ~~ ~ OCC. T. C).AII right. Have ou ever s en the actual certificate of instirance?A. It's jn the lobby of ~ \X'O the bank~; .. Q. Lookin ·at xhib1t 48 is this a fair and accur te hoto ra hie co of the· ..

"- v\ certificate of insurance tha 1s m e abby of the Cupertino National Bank?A: J_ooks like it to ;;? .... me.We hold that this evidence is insufficient as a matter of law to establish beyond a reasonable

· doubt that the bank was federally insured at the time of the offenses. 2

{266 F.3d 1244} t ~)Ch,h,1 LfB The evidence that is required to establish this element is minimal. Indeed, "[a] bank employee's'uncontradicted testimony of a bank's insured status can sufficiently support the jury's conclusion t a thi e e a sonabl oubt .~" Uni ed Sates v Hicks 17 F.3d 1038. 1045 (9th Cir. 2000) (quoting Unjted States v. Corbin. 972 F.2d 271. 272 (9th Cir. 199 )). Testimony is insufficient, however, when stated only in the present tense at trial, years after the relevant time period, because it cannot establish that the bank was insured on the date of the alleged offense. See United States v. Allen. 88 F.3d 765. 768-69 (9th Cir. 1996).,But'a bank official's testimony is not required, see United States v. Chapel, 41 F .3d 1338, 1340 .(~th Cir. 1994 ); instead, a certificate of insurance may be admitted as circumstantial evidence, see Uhit'ed States v. Bellucci, 995 F .2d 157, 160-61 (9th Cir. 1993). 'A certificate of insurance that antedates the offense. however,

., is, not sufflcientto establish that the bank was insured on the date of the relevant conduct. See Chapel. 41 F.3d at 1340-41 (holding that any suggestion to the contrary in Bellucci was merely dictum).

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Under our precedent, then, it is clear that neither the certificate nor Felix's testimony alone is sufficient to establish that the bank was federally insured at the time of the relevant offense conduct here-- namely, Ali's submission of his loan application in 1997. The certificate of insurance from 1985 antedated the offense by more than a decade. Felix's testimony was provided solely in the present tense at trial, well over two years after the time of the alleged offense. Neither directly supports the inference that CNB was in fact federally insured in May 1997. The government contends, nonetheless, that the jury could have inferred that the federal insurance continued in force uninterrupted from 1985 until the date of trial from such circumstantial evidence. Our precedent, however, is to the contrary. ·

~ In Cha el this court found sufficient a certificate that antedated the offense and a declaration from an FDIC official "which gave the chronology of. the Bank's insured status an sta e a , a er a diligent search of the records of the FDIC, no record was found terminating the BanK's insurance. " /d. at 1340. We found that the declaration was adequate as"[the] additional evidence [that] is required to establish the certificate of insurance was valid on the date of the crime ... because it ·proved the Bank's certificate of insurance remained valid even though it antedated the crime by two years." /d. at 1341 (emphasis added}. No such evidence to establish similar uninterrupted coverage through the date of the offense was presented at trial here; and, as we noted in Allen, testimony of insured status at the time of trial does not "offer the government any assistance." 88 F.3d at 769. 3

Yet, we also recognized in Chapel that "there are many other types of admissible evidence which would also be sufficient" to establish that an antedated certificate of insurance remained valid at the time of the alleged offense. Chapel, 41 F.3d at 1341. In so doing, we relied upon a Tenth Circuit decision listing other evidence which could satisfy the proof requirement. See United States v. Darrell, 828 F.2d 644, 648 (10th Cir. 1987). Examining Darrell, a common thread runs through all of the listed examples-- {266 F.3d 1245} such as a check paying the insurance premium for the period including the date of the crime, or a certificate of insurance with testimony of a cashier that the bank was operating under that certificate -- which is that the evidence directly supported the inference of insurance coverage on the particular date of the offense. There is no such evidence in this case that directly supports such an inference.

Moreover, in United States v. Washburn, 758 F.2d 1339 (9th Cir. 1985), we explicitly adopted the reasoning of the Fifth Circuit in United States v. Platenburg, 657 F.2d 797 (5th Cir. 1981), where that court "approved [of an earlier decision] as setting the minimum level of acceptable proof. " Washburn, 758 F.2d at 1340. We described the evidence presented in that earlier decision as follows:

an FDIC certificate showing the bank was insured five years before the robbery, coupled with the testimony of bank officials that they had seen a fifteen year old original certificate in the bank's vault, that the certificate was maintained in the regular course of business, and that the copies of the certificate were posted in the bank at the time of the robbery./d. The evidence in this case falls short of that "minimum level of acceptable proof" needed to establish that CNB was federally-insured at the time of the loan application because there is nothing directly to support the inference of such insurance on the date of the alleged offense.

Twenty years ago. the Fifth Circuit forcefully put the government on notice that "despite the fact that FPIC-josured status js an express requirement of the applicable statutes, an essential part of a valid indictment; and an indispensable item of proof of an offense, prosecutors have been extremely lax in the treatment accorded this element. This attitude is not unique to this circuit; we find examples occurring across the nation." Platenburg, 657 F.2d at 799. Today we reiterate that sentiment. Proof', ·of federal insurance is not merely an element of the offenses for which Ali was convicted; 2

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.. essential to establish federal ·urisdiction,.Aithough the threshold quantum of proof for this element may e eas1 y satisfied, it is constitutionally required. Because here the government presented insufficient evidence as a matter of law for a rational trier of fact to find this essential element beyond a reasonable doubt, we must reverse Ali's convictions for the bank-related offenses in violation of 18 U.S.C. §§ 1014 and 1344. 4

For the foregoing reasons, Ali's convictions on both the bank fraud count and the false statement count are!fREYERSED.

1' Footnotes

1

Ali also appeals from his conviction on other charges in a separate case. We dispose of that appeal in a separate, unpublished memorandum disposition filed concurrently herewith. 2

Ali does not raise and we therefore do not examine whether Felix as a "loan officer" had first-hand knowledge or was otherwise competent to testify to CNB's federally-insured status. We thus accept her testimony at face value. 3 [a.J).nfl·k t.(IJ

i The government relies on the Second Circuit's decision in United States v. Sliker, 751 F.2d 477 (2d Cir. 1984). To the extent that Sliker holds that testimony at the time of trial as to a bank's current insured status may be sufficient to support an inference of prior coverage, it stands in direct conflict with a decision of this court, which, of course, is controlling. SeeA'flen, 88 F.3d at 768-69. 4

Accordingly, we need not address Ali's other arguments as they relate to his conviction on these counts. Nor do we reach his challenge to the restitution awarded to CNB.

3~C~1(~) sw~~P ~F ODJ"ole.. Jeo()AQfJ{Of {)X !lmendMefll-j - g;:::w

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES CORNELIUS JAMES, Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 987 F.2d 648; 1993 U.S. App. LEXIS 4138; 93 Cal. Daily Op. Service 1675; 93 Dally Journal DAR

3047 No. 92-10043

February 1, 1993 *,Submitted, San Francisco, California *

March 8, 1993, Flied


Appeal from the United States District Court for the Northern District of California. D.C. No. CR-90-00533-TEH. Thelton E. Henderson, District Judge, Presiding.

Counsel J. Frank McCabe, Goorjian & McCabe, San Francisco, California, for the defendant-appellant.

Rodolfo M. Orjales, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

Judges: Before: Arthur L. Alarcon. Pamela Ann Rymer, and Thomas G. Nelson. Circuit Judges. Opinion by Judge Rymer; Dissent by Judge Alarcon.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant inmate challenged a judgment of the United States District Court for the Northern District of California, which convicted appellant for bank robbery under 18 U.S.C.S. § 2113(a}. Appellant claimed that there was insufficient evidence to support a conviction.An inmate was improperly convicted for bank robbery, because the prosecution failed to establish that the bank was insured by the Federal Deposit Insurance Corporation, an essential element of the crime.

OVERVIEW: Appellant was convicted for bank robbery under 18 U.S.C.S. § 2113(a}. He challenged his conviction, claiming that the evidence was insufficient to support a conviction. The court agreed and reversed the judgment, reasoning that the prosecution had failed to establish an essential element of the crime beyond a reasonable doubt. Specifically, the facts indicated that the prosecution did not establish 'hat the bank was insured by the Federal Deposit Insurance Corporation (FDIC). The court also found that it was irrelevant that the parties had agreed to stipulate to the bank being insured by the FDIC. because the stipulation was not entered onto the record.

OUTCOME: The judgment convicting appellant for bank robbery was reversed, because there was jnsufficient evidence to support a conviction where the prosecution failed to establish an essential element of the crime, namely that the victimized bank had been insured by the Federal Deposit Insurance Corporation.

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{987 F.2d 649} OPINION

RYMER. Circuit Judge:

The government neglected to introduce evidence that banks it accused Charles Cornelius Jam~s of robbing were insured by the Federal Deposit Insurance Corporation. Even thoyqh proof of FDIC insurance is an element of the federal crjme of bank robbery, 18 U.S.C. § 2113(a), James was convicted. He appeals on the ground of insufficiency of the evidenc~. 1 We have to decide whether a stipulation about "the FDIC aspect of the case," made outside the presence of the jury, and the assertion by James's counsel in opening statement and closing argument that the only issue was identification, suffice to uphold the verdict. We think not, and therefore reverse.

I

James was convicted of robbing American Savings Bank, Home Federal Savings, and Bank of the West during August and September, 1990 in violation of 18 U.S.C. § 2113(a). At trial, the government rested without presenting any evjdence that these banks were insured by the FDIC. After the defense rested but before the close of evidence, the Assistant United States Attorney advised the court outside the presence of the jury that "I still have to draw a stipulation as to FDIC." The next day the government successfully moved, over objection, to reopen to introduce the birth certificate of James's son. Again outside the presence of the jury, the following exchange took place:

GOVERNMENT: Also I showed counsel an outline of a stipulation which I would like to read orally to the jury. It has to do with the FDIC aspect of the case.

COURT: FDIC?

DEFENSE COUNSEL:.fDIC. Federal Deposit Insurance Corporation.

COURT: That is a stipulation between counsel, right?

DEFENSE COUNSEL: Yes.

COURT: When do you propose to read that stipulation?

GOVERNMENT: As soon as the jury comes out.

COURT: Fine.

®But it was not read.

The court gave a boilerplate instruction on the effect of stipulations, and instructed, properly, that the government had the burden of proving beyond a reasonable doubt each element of the offense, including that the banks were insured by the FDIC. ·

During opening statement, James's counsel stated: "This case is indeed a very simple case. And it really is one issue. The one issue that you are going to be called upon to decide at the conclusion of the case is whether or not Charles Cornelius James ... is ... responsible for the robbery of the four banks." In closing argument, the AUSA told the jury that:

normally, the Government has to prove a bunch of elements: that someone robbed a bank; that someone used force; that money was taken; that the funds were federally insured. And normally the Government is required ... to show every element of that offense to show the defendant's guilt. ...

And if you recall, [defense counsel] said there is only one issue.

And in his argument, James's counsel stated:

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When I started off talking to you ... I said to you this was a one issue case. I think [the prosecutor] said the same thing, there is only one issue here. The issue is did Charles Cornelius James rob a bank.

The jury thought so, and convicted James on all three counts.

II

James argues that the evidence is insufficient to support his conviction since the government failed to introduce any evidence of whether the banks were insured {987 F.2d 650} by the FDIC. We will reverse a conviction for insufficient evidence if "'reviewing the eyidence jn the light most favorable to the prosecution. [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' United States v. Bishop. 959 F.2d 820. 829 (9th Cir. 1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)).

A

We have repeatedly held that to support a conviction of armed robbery under 18 U.S.C. § 2113 (a), the government has to prove that the money taken was from a bank insured by the FDIC. See, e.g., United States v. Campbell, 616 F.2d 1151, 11~3 (9th Cir.), cert. denied, 447 U.S. 910, 64 L. Ed. 2d· 861, 100 S. Ct. 2998 (1980); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.) (there is no q'!~.~~ion that a proper showing of FDIC insurance is an essential element of the crime), cert. denied, 400 U.S. 867, 27 L. Ed. 2d 106, 91 S. Ct. 108 (1970). Here there was no evidence before the jury at .all on whether the banks were insured by the FDIC. The bank ~mployees who testified did not testify as to the FDIC status of the banks, cf. Campbell, 616 F.2d at 1153 (uncontradicted testimony of bank employees sufficient to show that money taken was FDIC insured), and the stipulation concerning the "FDIC aspect" of the case was not read to the jury or received into evidence. Without any evidence on the FDIC status of the bank, no rational jurv could have found beyond a reasonable doubt that the banks were insured by the FDIC.

8

The government, relying on United States v. Mauro, 501 F.2d 45, 48 (2d Cir.), cert. denied, 419 U.S. 969, 42 L. Ed. 2d 186, 95 S. Ct. 235 (1974), argues that the names of the banks and the bank employees' testimony indicated that the banks were large, prominent institutions, and from this the jury could have inferred that the banks were insured by the FDIC. Mauro, however, is distinguishable.

In Mauro, the government at trial established that the banks were FDIC insured and the defendant did not contest this evidence. Rather, the defendant argued that he could not be convicted of a conspiracy relating to stolen cashiers' checks since he did not know the bank was insured by the FDIC. Before discussing this issue, the court determined that the indictment was sufficient even though it did not allege that the bank was FDIC insured since the bank had the word "National" in its title. In so holding, the court took judicial notice that only banks organized under the Jaws of the United States could use the word "National." /d. at 49. The court also held that the prosecutor did not have to P.rove that the banks were "National" banks since their titles implied this much. Finally, the court held that even if there were an intent requirement, it was satisfied. As the court wrote, "even assuming that the national character of the bank is an element of intent rather than simply a jurisdictional fact, we are satisfied that it was established here." ld. at 50.

·Mauro is thus distinguishable because evidence was introduced in that case concerning the FDIC status of the banks; the banks in this case do not have the word "National" in their title; Mauro concerned an intent requirement and a challenge to the indictment, not sufficiency of the evidence;

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.and there is no question that in this circuit the FDIC status of a bank is an essential element of the

~ The government, relying on United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) and United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986}, cert. denied, 479 U.S. 1104, 94 L. Ed. 2d 187, 107 S. Ct. 1337 (1987}, also argues that because James stipulated that the banks were insured by the FDIC, no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. This argument is misplaced for two reasons. First, the contents of the "stipulation" are speculative in this case. The record only indicates that the parties had a stipulation to "the FDIC aspect of the case" which the AUSA intended to read {987 F.2d 651} orally to the jury. From this, we cannot be certain what the government would have read orally, nor can we determine that the "stipulation" included evidence sufficient to establish that the banks were in fact FDIC insured. Cf. United States v. Platenburg, 657 F.2d 797,800 (5th Cir. 1981} (finding seven year old certificate of insurance from FDIC insufficient evidence of FDIC status). More significantly, even if the stipulation that was supposed to be read orally to the jury were crystal clear, unlike Houston and Gwaltney, the stjpulation was never entered into evidence or read to the jury. Cf. Houston, 547 F.2d at 107 (defendant complained that stipulation was based on mistake of law and therefore should not have been submitted to the jury); Gwaltney, 790 F.2d at 1386 (evidence that Gwaltney challenged on appeal had been admitted upon a stipulation). There was, therefore, no fact in evidence that the jury could take as proved, conclusively or not.

·The government also argues that the district court could have taken judicial notice of the FDIC status of the bank. We need not decide whether it could have or could not have, as it was not asked to take judjcjal notice of the FDIC status ofthe bank and did not do so. Nor was any judicially noticed fact presented to the jury.

Finally, the government argues that James invited error by failing to raise an objection when the stipulation was not read to the jury. The defense has no obligation to remind the government of its obligation to prove each element of a crjme. It js axjomatjc that the government has the ultimate burden of proof. James shoyld not be penalized for faj!jng to make sure the government proves its case.

c We cannot agree with our colleague in dissent that there was a judicial admission as to the FDIC status of the bank, which James cannot now challenge. The record does not reflect that an admission was made. While James's counsel did say in his opening statement, and argue in closing, that there was one issue in the case, we cannot conclude that by focusing his comments on the issue of identification, James's counsel thereby admitted all other elements of the crime.

This case is unlike United States v. Bentson, 947 F.2d 1353 (9th Cir. 1991), cert. denied, 119 L. Ed. 2d 230, 112 S. Ct. 2310 (1992), where the defendant, who was charged with failing to file tax returns, contended that the government failed to proye that protest tax forms were not filed. Defense counsel argued that "the defense is not suggesting that returns were filed ... [but] rather that the government's evidence fails to show that protest documents were not filed." /d. at 1356 (emphasis added). Bentson is inapposite since the defendant implicitly conceded that tax returns were not filed. Here, James's counsel's closing argument said nothing at all about whether the banks were FDIC insured.

Nor do we agree that James's failure to object to the government's closing argument, which seemed to narrow the case to one issue, waives the defendant's right to insist that the government prove each element of the crime. Otherwise, whenever the government has failed to present evidence on

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an element of a crime it would only have to make light of it in closing argument, thereby lulling the defense into failing to make a big deal of the omission. Realizing that the government had failed to

. introduce any evidence of FDIC insurance, James may have made a strategic decjsjpn not to object so as not to remind the government of its failure to introduce the stipulation, perhaps fearing that the government would be able to reopen the case again over his objection. Or, like the AUSA, James's counsel may simply have forgotten that the stipulation was not introduced. Either way, James should not be held accountable for the government's failure to prove its case.

Finally, we do not believe that either United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied, 417 U.S. 968, 41 L. Ed. 2d 1139, 94 S. Ct. 3171 (1974) or United States v. Orena, 811 F. Supp. 819, 1992 WL 365753 (E.D.N.Y. 1992), sheds light on this case. {987 F.2d 652} In Gil/, the defendants argued that the court improperly removed an issue from the jury by not instructing on the definition of interstate "commerce," which was an element of the crime. The defendant had, however, unequivocally stipulated at trial that the goods were from out of state, and the court instructed the jury on this stipulation. Here, by contrast, the court instructed the jury that it had to find that the banks were insured b the D C o evidence bearin on the oint. In Crena, the defendant unequivocally stipulate to one element of the cnme - that he was a convicted felon - but objected when the government sought to introduce the stipulation. The defendant argued that the stipulation was not admissible as other crimes evidence, and that its prejudice outweighed its probative value. The court agreed and did not read the stipulation to the jury, effectively removing the element from the jury. Orena does not apply to this case because there is nothing about FDIC insurance that implicates Fed. R. Evid. 403 or 404.

Ill

Because the government has failed to present any evidence on an essential element of the crime, we can only conclude that there was insufficient evidence to support the conviction. 2 REVERSED.

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{76 F.3d 352} PER CURIAM

Michael Key appeals his conviction on charges of bank fraud under 18 U.S.C. § 1344 and making false statements on a loan application under 18 U.S.C. § 1014. He contends that there was insufficient evidence to convict him, that the government improperly introduced evidence of earlier bad acts, that the district court abused its discretion by denying a continuance, and that his sentences for bank fraud and making false statements are multiplicitous. 1 We see no error and affirm the convictions.

I.

Key visited the Trust Company Bank ("Trust Company" or the "bank") in 1990 seeking a residential loan. Trust Company is federally insured, as indicated by several signs posted inside the bank. Key met with an officer of the bank for a loan application. Later, Key filled out the loan application but used the name of his deceased brother. He indicated on the application that the applicant had no outstanding civil judgments against him, when in fact Michael Key had several. The Trust Company Bank name and logo appeared in large print on the loan application. No other financial institution was named on the application.

The record is vague on the events that transpired thereafter, but the facts appear to be as follows. The loan application was sent by Trust Company to SunTrust Mortgage, Inc., a non-federally insured institution. Sun Trust had responsibility for processing the loan application and verifying the information contained in it, but final approval of the loan was made after involvement by officers at both entities. The check presented to Key's attorney at the closing named Trust Company Bank as the drawee bank. Some time after the loan proceeds were disbursed {76 F.3d 353} to Key, SunTrust sold the mortgage to Trust Company, in accordance with a standing arrangement between the· · institutions.

After his arrest, Key was tried before a jury in the Northern District of Georgia and convicted of the \. counts named above. j ~II. ft.

Key asserts that his convictions for bank fraud and making false statements cannot stand because the government failed to prove he intended to yjctjmjze a federally-jnsured fjnancjal jnstitytjon, Proof of federally-insured status of the affected institution js, for both section 1344 and section 1014. a f\ jurisdictional prerequisite as well as an element of the substantive crime. E.g., United States v. ' \

:1( Williams, 592 F.2d 1277, 1281-82 (5th Cir. 1979). Whether the defendant knew of the victim / institution's insured status is not important. That the defendant knowingly directed his conduct at a

· bankthat the government can prove was insured is enough. See United States v. Bowman, 783 F.2d 1192, 1198 (5th Cir. 1986) (citing United States v. Lentz, 524 F.2d 69 (5th Cir. 1975)). 2 Key challenges the sufficiency of the evidence only insofar as the insured status of the victim bank is concerned; he does not otherwise question that his conduct does come within section 1344 and section 1014. 3

Whether the government proved the jurisdictional element is measured as a challenge to the sufficiency of the evidence. United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994). For appellants, that standard, "though more lenient than the plain error standard, is still quite formidable."

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UNITED STATES of America, Plaintiff-Appellee, v. Jake P. PLATENBURG, Defendant-Appellant. UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT.*

* 657 F.2d 797; 1981 U.S. App. LEXIS 17204

No. 80-3977 October 1, 1981


Appeal from the United States District Court for the Eastern District of Louisiana.

Counsel Robert N. Habans, Jr. (Court-appointed), New Orleans, La., for defendant-appellant.

Fredericka L. Hom berg, Michael Schatzow, W. Glenn Burns, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Judges: Before THORNBERRY, REAVLEY and POLITZ, Circuit Judges.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant challenged his conviction by a jury in the United States District Court for the Eastern District of Louisiana, for conspiring to make and making false statements to a bank insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C.S. §§ 1014, 371 & 372.Government's evidence was insufficient to prove that bank was insured by Federal Deposit Insurance Corporation, an essential element of the crime charged, where it consisted only of a certificate of insurance, which predated offense charged.

OVERVIEW: Appellant was convicted of conspiring to make and making false statements to a bank insured by the Federal Deposit Insurance Corporation (FDIC), in violation of 18 U.S.C.S. §§ 1014, 371 & 372. On appeal, the court reversed. Appellant contended that the government had not proven, as the indictment charged, that the bank was a bank insured by the FDIC. The court found that proof of this status was an essential element of the offense charged and federal jurisdiction depended on this status. In the instant case, the only evidence presented was a copy of a 1972 certificate of insurance, which antedated the charged events by seven years. The court held this was insufficient proof of insurance.

OUTCOME: The court reversed appellant's conviction by a jury in the district court of conspiring to make false statements to a bank insured by the Federal Deposit lpsurance Corporation CFQIC) because FDIC status was an indispensable item of proof of the offense. which had not been shown here.

LexlsNexls Headnotes 1' Banking Law > Criminal Offenses > False Statements In Credit Applications Criminal Law & Procedure > Criminal Offenses > Fraud> Fraud Against the Government> Conspiracy to Defraud > General Overview

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371 & 372, an essential part of a valid indictment, and an indispensable item of proof of the offense.

Opinion

Opinion by: POLITZ

Opinion

{657 F.2d 798} Jake P. Platenburg appeals his conviction by a jury of conspiring to make and making false statements to a bank insured by the Federal Deposit Insurance Corporation (FDIC) in violation of 18 U.S.C. §§ 1014, 371 & 2. Platenburg assigns several errors, only one of which we need consider whether the government adduced sufficient evidence to establish that the bank was insured by the FDIC at the time of the events in question. Finding that the government failed to prove this essential element, we reverse the conviction and dismiss the indictment. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141,57 L. Ed. 2d 1 (1978).

In late 1979, appellant and his girlfriend, Carol Davis, sought a loan from the Liberty Bank and Trust Company in New Orleans to purchase an automobile. All of the pertinent documents were signed by Davis but the evidence reflects that Platenburg materially assisted her in making false statements on the loan application and in fraudulently verifying her employment and salary status.

At the close of the overnment's case P tenbur moved for 'ud ment of ac uittal, contending the overnme t had not raven as the indi ar ed that the Libert Bank was "a bank insured b

the Federal Deposit Insurance Corporation." The district judge denied the motion and allowed the government to reopen its case to offer further proof. The government then introduced a 1972 certificate of FDIC insurance. 1 At the close of the evidence Platenburg unsuccessfully renewed his motion {657 F.2d 799} for judgment of acquittal. The jury returned a verdict of guilty on both counts. The district court subsequently rejected Platenburg's motions for judgment of acquittal n. o. v. and for a new trial, both of which raised the FDIC coverage issue.

We again address the question of the quantum of evidence required to establish, in a criminal case, that the financial institution involved is insured by the FDIC. Proof of thjs status js not a mere , / f rmalit · it is an essenti I lement of the federal offense char ed in the case be ore u . ~ fe era JUrisdiction depends on this status. United States v. Murrah, 478 F.2d 762 (5th Cir. 1973). The government must prove beyond a reasonable doubt that the Liberty Bank and Trust Company wasjpsured by the FDIC in 1979 when the charged criminal acts occyrred.

Despite the fact that FDIC insured status js an express requirement of the applicable statutes. an ~ essentjal part of a valid indictment. and an jndispensible item of proof of an offense. prosecutors

.. haye been extremely lax in the treatment accorded thjs e!emegt. This attitude is not unique to this circuit; we find examples occurring across the nation. As we observed in United States v. Maner, 611 F.2d 107, 112 (5th Cir. 1980t "this is a nationwide plague infecting United States Attorneys throughout the land." In Maner. we even went so far as to suggest a verv simple and easy method of proving this element. Our suggestion appears to have gone unheeded.

Although we have issued cautions, such as our observation that the evidence of FDIC status was "close to the minimum we could allow," United States v. Williams, 592 F.2d 1277, 1282 (5th Cir. 1979) (conviction reversed on other grounds}, we have never reversed a conviction for insufficient proof of this fact. Nor are we aware of any circuit having previously done so. However, in Maner we

BOS llCS - 2



moved from cautionary statements to a clarion call that the day would come when our reluctance to reyerse on the issue of FDIC proof would be overcome:

Certainly we recognize the possibility that we or our sister Courts may some day be faced with an insufficiency of the evidence of insurance ... which would warrant reversal. Indeed, we have difficulty comprehending why the Government repeatedly fails to prove this element more carefully since the Government's burden is so simple and straightforward. As in the other cases we have discussed. the Government treads perilously close to reversal in this case. and may soon find itself crossing the line from sufficiency to insufficiency. 611 F.2d at 111-12. The day has comej 'the line from sufficiency to insufficiency has been crossed.

In our prior decisions upholding the adequacy of the evidence, the measure of proof substantially exceeded that now before us. In those cases a certificate of insurance was usually introduced. along wjth the testimony of bank officials. 2 Although the certificates were not always current and in some cases the testimony of the bank officer was less than conclusive as to the insured status {657 F.2d 800} at the time of the illegal acts, we concluded that under the facts of each case the evidence was sufficient to permit a reasonable jury to infer that the bank was insured. 3

In Maner we reached the nadir of the acceptable level of proof. The government introduced a copy of the jnsurance certificate issued five years before the offense. buttressed by the testimony of a pank officer that the certificate was a record maintained under hjs supervjsjon jn the bank's regylar course of business. Another employee who had no personal knowledge of the current insured status was permitted to testify that he had seen, in the bank vault a certificate issued by the FDIC about 15 ears rior to the offense and that co ies of the certificate were osted in ublic view on ea

WID ow. A ter a t oroug review of the precedent in this and all other circuits, we held that the government's proof of insurance "just barely" was sufficient. 611 F.2d at 112. 4

In the case before us the only evidence introduced by the government was a copy of a 1972 certificate of insurance, a certificate which antedates the charged events by seven years. There was nothing more.

The verdict and judgment of the district court is: REVERSED.~ Footnotes

* 1

The government suggests that counsel stipulated to FDIC coverage, an assertion vigorously rejected by defense counsel who insists he stipulated only to the authenticity of the copy of the certificate. Our review of the record convinces us that there was no stipulation as to the FDIC status. The following exchange is the only record reference concerning proof of FDIC insurance at the time of the offense.

THE COURT: I appreciate everybody making it for this more or less early hour. Pursuant to an order which I entered at the end of discussions on motions after the Jury had left, the Government has the right to reopen for purpose of calling one witness.

(Government Counsel): The Defense and Government has agreed we will not recall any witness; what we will do is offer, fjle and introduce into evidence the Federal Deposit and Insurance Corporation Certificate for the Liberty Bank & Trust Company.

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(Defense Counsel}: We stipulate that's an accurate Xerox copy.

THE COURT: Let Government Exhibit 15 be admitted in accordance.

Government Exhibit 15 is a copy of the certificate of insurance issued by the FDIC to Liberty Bank and Trust Company on November 16, 1972. 2

In Ahlstedt v. United States, 325 F.2d 257 (5th Cir. 1963}, cert. denied, 377 U.S. 968, 84 S. Ct. 1650, 12 L. Ed. 2d 738 (1964), United States v. Thompson, 421 F.2d 373 (5th Cir.}, vacated on other grounds, 400 U.S. 17, 91 S. Ct. 122, 27 L. Ed. 2d 17 (1970), and United States v. Fitzpatrick, 581 F.2d 1221 (5th Cir. 1978) (reversing conviction on other grounds) the government introduced both a 9ertificate of insurance and the t"timony,pf one or more bank officers. In United States v. Murrah, 478 F.2d 762 (5th Cir. 1973), an United States V. Williams, 592 F.2d 1277 (5th Cir. 1979) (reversing conviction on other grounds), the government only introduced testimony of bank officers. 3 I

The minimum level of evidence which we accepted prior to Maner was in Cook v. United States, 320 F.2d 258 (5th Cir. 1963). The entire evidence in Cook consisted ofproof of insurance at time of trial. We applied an evidentiary principle that proof of an insured condition at time of trial permits an e inference that the condjtjon exjsted at an eadjer tjme. In addition to the inapplicability of that presumption here, Cook is also not applicable because it involved a different standard of appellate review. Unlike the present case, in Cook there was no objection, motion for new trial, or motion for judgment of acquittal. As a result, the court was restricted to the plain error standard of review, a restriction which does not apply in the case at bar. 4

Following Maner, in United States v. Brown, 616 F.2d 844, 848 (5th Cir. 1980), we found evidence consisting of a 1963 telegram stating the effective date of the FDIC insurance and the testimony of the bank officer who was custodian of the bank's -business records that the current insurance premiums had been paid to be "sparse," but sufficient.

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Executor o{ •. ·- ----.-.; Federal Correction Institution P.o. Box 1000 Loretto, PA 15940

United States Of' /.\"'el'tLA

11~· Fran!< Perez Deputy Clerk 4o Foley so NEW YORK, NY 10007 .·

· ·.United States


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