United States Court of Appeals
For the First Circuit
No. 09-1585
UNITED STATES OF AMERICA,
Appellee,
v.
OHIFUEMEH PETER AYEWOH,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Thompson, Selya, and Dyk,* Circuit Judges.
Victor J. Gonzalez-Bothwell, Assistant Federal Public
Defender, with whom Joseph C. Laws, Jr., Federal Public Defender,
Patricia A. Garrity, Assistant Federal Public Defender, and Thomas
J. Trebilcock-Horan, Research and Writing Specialist, were on
brief, for appellant.
Charles R. Walsh, Jr., Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Luke Cass,
Assistant United States Attorney, were on brief, for appellee.
December 13, 2010
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Appellant Ohifuemeh Peter Ayewoh
("Ayewoh") was convicted of bank fraud in the United States
District Court for the District of Puerto Rico. On appeal Ayewoh
contends that the government provided insufficient evidence that
the defrauded bank, Banco Popular de Puerto Rico ("BPPR"), was
insured by the Federal Deposit Insurance Corporation ("FDIC") at
the time of the crimes; that Ayewoh knowingly defrauded BPPR; or
that Ayewoh made misrepresentations to BPPR. Ayewoh further
contends that the prosecutor violated his Fifth Amendment rights by
referring to his decision not to testify. We reject these
contentions and affirm Ayewoh's conviction and sentence.
I.
In 2005, Ayewoh established OIPA, Inc., as a for profit
corporation in Puerto Rico to provide inspection services at public
housing projects for the U.S. Department of Housing and Urban
Development ("HUD"). Ayewoh was the President of the corporation,
and his wife was the Secretary. In OIPA's name, Ayewoh acquired a
credit card point-of-sale device ("POS device") and a merchant's
account at BPPR. A POS device allows a merchant to accept credit
card payments either electronically (by swiping a card's magnetic
strip through the device) or manually (by entering a card's number
with a keypad).1 HUD's method of payment for OIPA's inspection
1
Ayewoh himself notes that,
[i]n a manual transaction the card is not present.
The merchant will key in an account number that a person
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services included providing Ayewoh with a credit card number and
authorizing him to perform manual transactions. However, the
government presented evidence at trial that Ayewoh used the POS
device to execute numerous unauthorized manual transactions using
other credit card numbers, many of which belonged to cards issued
by foreign banks. The defense's theory was that Ayewoh innocently
believed that the credit card charges made to the POS device were
authorized by the cardholders as legitimate investments in a new
real estate venture. In order to understand the respective
theories, some understanding of industry practice and Ayewoh's own
activities is required.
When a credit card transaction executed on a POS device
is accepted by the bank that issued the card ("issuing bank"), the
payment is deposited directly into the merchant's bank account (at
the "acquiring bank"). In the event that a cardholder disputes a
transaction, contractual agreements with credit card providers such
as Visa and MasterCard permit the issuing bank to initiate a
"chargeback" whereby the acquiring bank is liable to the issuing
bank for the full amount of the disputed charge. The acquiring
bank, in turn, looks to the merchant for reimbursement.
has given him and the transaction will be deposited in
the merchant's account. It is considered a high risk
transaction, as there is no magnetic strip reading such
as occurs when a plastic card is swiped or a signature.
Appellant's Br. 9 n.1.
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Ayewoh was the only person with access to OIPA's POS
device. For several months, Ayewoh, using the POS device,
processed relatively small charges, with monthly totals ranging
from $1,045 in February 2006, to $9,135 in March 2006. However, in
April 2006, OIPA's account received $113,070 in payments from at
least sixteen different credit cards. BPPR's records showed
numerous instances in which OIPA's POS device attempted to run a
large transaction, which was declined, and then it immediately
attempted several additional transactions with the same credit card
for progressively smaller amounts. Upon detecting this suspicious
activity, BPPR froze OIPA's account and sent investigators to
question Ayewoh. When asked how he obtained the credit card
numbers at issue, Ayewoh claimed he received a list of numbers from
a "friend of a friend" in Europe who wanted to invest in a new
housing development project Ayewoh had planned for OIPA. Though
repeatedly asked, Ayewoh declined to provide information about the
project and stated that he did not know the identity of the alleged
investor.
Soon thereafter the banks that issued the credit cards in
question began notifying BPPR that Ayewoh's March and April charges
were unauthorized. BPPR subsequently returned $122,104 in
chargebacks to the issuing banks. Of this $122,104, BPPR was only
able to recover about $100,000 from Ayewoh, who had withdrawn large
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amounts before his account was frozen. BPPR suffered a net loss of
$19,644.
Ayewoh was indicted by a grand jury in November 2007 on
one count of bank fraud, charging a violation of 18 U.S.C. § 1344,
and one forfeiture count, charging a violation of 18 U.S.C. §§
981(a)(1)(C) and 982(a)(2). After a jury trial in October 2008,
Ayewoh was convicted and sentenced to thirty months in prison to be
followed by five years of supervised release. He was further
ordered to pay restitution to BPPR in the amount of its losses.
Ayewoh timely appealed.
II.
Ayewoh does not dispute that the evidence established
that he made unauthorized charges to the credit cards at issue.
However, Ayewoh contends on appeal that the government failed to
prove all of the essential elements of the bank fraud offense. See
18 U.S.C. § 1344. Specifically, he claims that the government
failed to present sufficient evidence to permit a rational jury to
find beyond a reasonable doubt (1) that BPPR was insured by the
FDIC at the time of his crimes; (2) that Ayewoh had the requisite
knowledge that he was defrauding BPPR (as opposed to the individual
credit card owners); or (3) that he made misrepresentations to
BPPR. We review sufficiency claims de novo, "affirm[ing] the
conviction if, after assaying all the evidence in the light most
amiable to the government, and taking all reasonable inferences in
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its favor, a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the elements of the
crime." United States v. Wilder, 526 F.3d 1, 7-8 (1st Cir. 2008)
(quoting United States v. Connolly, 341 F.3d 16, 22 (1st Cir.
2003)). We address each claim in turn.
A.
Ayewoh first contends that the government failed to
present sufficient evidence at trial to establish that BPPR was
insured by the FDIC at the time of his crimes. The bank fraud
statute at issue punishes the
knowing[] execut[ion] . . . [of] a scheme or artifice--
(1) to defraud a financial institution; or (2) to obtain
any of the moneys . . . owned by, or under the custody or
control of, a financial institution, by means of false or
fraudulent pretenses, representations, or promises.
18 U.S.C. § 1344. The term "financial institution" as used in
Title 18 is defined in relevant part as "an insured depository
institution (as defined in section 3(c)(2) of the Federal Deposit
Insurance Act)." 18 U.S.C. § 20. Section 3(c)(2) in turn defines
"insured depository institution" as "any bank or savings
association the deposits of which are insured by the [FDIC]
pursuant to [the Federal Deposit Insurance Act]." 12 U.S.C. §
1813(c)(2). Thus, under § 1344, the defrauded financial
institution's federally-insured status is "a jurisdictional
prerequisite as well as a substantive element of the crime," and as
such must be proven by the prosecution beyond a reasonable doubt.
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United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996); see United
States v. Brandon, 17 F.3d 409, 424 (1st Cir. 1994).
The government presented two items of evidence at trial
to establish BPPR's federally-insured status: (1) a certificate of
FDIC insurance issued to BPPR on January 2, 1999; and (2) testimony
by BPPR’s record custodian regarding the certificate. The record
custodian's testimony was as follows:
Q I would like to show you government’s
identification number 1. . . . Without discussing
the substance, do you recognize that document?
A Yes, I do.
Q What do you recognize that to be?
A This is the Federal Deposit Insurance Corporation
certificate issued to Banco Popular Puerto Rico on
January 1999.
Q How do you know it is the same one at Banco
Popular?
A My initials are on the back.
Appellant's App. 131-32 (emphasis added).
Ayewoh did not object to admission of the certificate or
to the record custodian’s testimony, and he did not cross examine
the witness. Nonetheless, Ayewoh questioned in closing arguments
whether the evidence was sufficient to establish that BPPR was
federally insured during March and April of 2006, the time frame of
his criminal acts, and he subsequently moved for dismissal on these
grounds. The district court treated Ayewoh's argument as a motion
for acquittal under Fed. R. Crim. P. 29 and denied the motion. The
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court concluded that, while an FDIC certificate issued in 1999
might by itself be insufficient to permit the jury to find that
BPPR was federally insured in 2006, the addition of the record
custodian's unobjected "present tense" testimony that the
certificate "is" BPPR's FDIC certificate rendered the evidence
sufficient. United States v. Ayewoh, 587 F. Supp. 2d 378, 381
(D.P.R. 2008). That is, the court interpreted the record
custodian's statement as "oral testimony that the bank was insured
at the time of trial," which, when coupled with an FDIC certificate
that predated the offense, could permit a rational jury to infer
that BPPR was insured at the time of Ayewoh's crimes. Id.
The FDIC certificate presented in this case, which
predated Ayewoh's offenses by seven years, states: "[FDIC]
Washington, D.C., Hereby certifies that the deposits of each
depositor in Banco Popular de Puerto Rico . . . are insured to the
maximum amount provided by the Federal Deposit Insurance Act." It
further includes the official seal of the FDIC, signatures from
both the FDIC's Executive Secretary and Chairman of the Board,
BPPR's unique FDIC certificate number, and the date of January 2,
1999. No expiration date is listed because FDIC insurance never
expires, but rather continues indefinitely until terminated
voluntarily or involuntarily under 12 U.S.C. § 1818(a) [hereinafter
Section 8(a)].
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Voluntary termination is not permissible for most banks.
12 U.S.C. § 1818(a)(1). Even involuntary termination for failure
to pay the annual assessments (premiums) required by 12 U.S.C. §
1817(b), or for any other reason, is not automatic; it requires
notice to the bank and a pre-termination hearing. 12 U.S.C. §
1818(a)(2)(B), (a)(3). Furthermore, for any termination under
Section 8(a)–-whether voluntary or involuntary–-banks are required
to give individual notice to each of their depositors, 12 U.S.C. §
1818(a)(6), 12 C.F.R. § 307.3(a), and all deposits on the date of
termination will continue to be insured for at least six months and
up to two years, 12 U.S.C. § 1818(a)(7). In 2006, the year of
Ayewoh's crimes, there were 8,755 banks insured by the FDIC. In
the ten years from 1997 through the end of 2006, only two banks had
their FDIC insurance terminated under Section 8(a)--one voluntarily
and one involuntarily.2 Clearly, termination of FDIC insurance is
an exceedingly rare event in the banking industry.
Nevertheless, there is a serious question as to whether
an FDIC certificate that predates the offense by seven years is
alone sufficient evidence of federal insurance. The Fifth and
Seventh Circuits have overturned convictions where the only
2
See 2006 FDIC Ann. Rep 117, 126 (showing statistics for
2004-2006, with one voluntary termination under Section 8(a) in
2006); 2004 FDIC Ann. Rep. 117 (showing no Section 8(a)
terminations from 2002-2004); 2002 FDIC Ann. Rep. 121 (showing
statistics for 2000-2002, with one involuntary termination under
Section 8(a) in 2000); 1999 FDIC Ann. Rep. 23 (showing no Section
8(a) terminations from 1997-1999).
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evidence of federal insurance was a single FDIC certificate which
predated the offense, see United States v. Platenburg, 657 F.2d
797, 799 (5th Cir. 1981) (overturning conviction where only
evidence of federal insurance was an FDIC certificate predating the
offense by seven years); United States v. Shively, 715 F.2d 260,
265 (7th Cir. 1983) (where only evidence was an FDIC certificate
which predated the offense by nine years), and the Ninth and Tenth
circuits have indicated their support for this view, see United
States v. Chapel, 41 F.3d 1338, 1340-41 (9th Cir. 1994); United
States v. Darrell, 828 F.2d 644, 648 (10th Cir. 1987).
We need not decide in this case whether the FDIC
certificate would alone be sufficient proof of federal insurance,
for here there was also the testimony of BPPR's record custodian
who testified that the certificate offered into evidence "is the
[FDIC] certificate issued to [BPPR] on January 1999." Appellant's
App. 132. Here, the time between the alleged offenses and this
trial testimony was approximately two and a half years.
Generally, courts have found that testimony that a bank
is insured at the time of trial can alone permit a reasonable jury
to infer that the bank was insured at the time of the crime. For
example, when presented with a bank vice president's testimony that
the bank's deposits "'are' FDIC-insured," the Second Circuit held
that where . . . the evidence is oral testimony that the
bank is insured, and the interval between the crime and
the trial is not great, it is reasonable to conclude that
"viewed in context, the jury could draw the inference
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that the bank was insured at the time of the [crime],"–-
in other words, that th[e] jury could take "is" to mean
"is and has been."
United States v. Sliker, 751 F.2d 477, 484-85 (2d Cir. 1984)
(internal citation omitted). This approach is widely accepted by
the circuits. See, e.g., United States v. Ware, 416 F.3d 1118,
1121-23 (9th Cir. 2005); United States v. Lewis, 260 F.3d 855, 855-
56 (8th Cir. 2001); United States v. Knop, 701 F.2d 670, 672-73
(7th Cir. 1983); United States v. Safley, 408 F.2d 603, 605 (4th
Cir. 1969); United States v. Cook, 320 F.2d 258, 259 (5th Cir.
1963). But see United States v. Ali, 266 F.3d 1242, 1244 n.3 (9th
Cir. 2001) (finding testimony insufficient where time between trial
and crime was too lengthy). Furthermore, courts have tended to
accept any bank employee's testimony as sufficient, regardless of
whether that employee was in a managerial position. See, e.g.,
United States v. Bindley, 157 F.3d 1235, 1239 (10th Cir. 1998).
However, Ayewoh contends in this case that the district
court erred in interpreting the testimony of BPPR's record
custodian as "oral testimony that the bank was insured at the time
of trial." Ayewoh, 587 F. Supp. 2d at 381. Rather, Ayewoh argues
that the custodian's testimony that the certificate offered by the
government "is the [FDIC] certificate issued to [BPPR] on January
1999" should be construed as nothing more than merely attesting to
the document's authenticity.
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We conclude that the bank employee's testimony is
ambiguous and that reasonable minds could differ as to its
interpretation. On one hand, the testimony could be read as
meaning "This is the [current FDIC] certificate [which was] issued
to [BPPR] on January 1999." Alternately, as Ayewoh contends, the
statement could reasonably be interpreted as mere authentication
testimony–-that is, to mean "This is the [FDIC] certificate [which
was] issued to [BPPR] on January 1999."
This Court has previously stated that, "[i]n reviewing a
sufficiency-of-the-evidence claim, the Court must view the facts in
the light most favorable to the Government, deferring to the jury's
verdict if the evidence can support varying interpretations, at
least one of which is consistent with the defendant’s guilt."
United States v. Neal, 36 F.3d 1190, 1203 (1st Cir. 1994) (emphasis
added).3 This analysis "does not require a court to ask itself
whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt," but rather whether "any rational
trier of fact could have found the essential elements of the crime
3
See also United States v. Wilder, 526 F.3d 1, 8 (1st Cir.
2008) ("[I]t is not the appellate court’s function to weigh the
evidence or make credibility judgments. Rather, it is for the jury
to choose between varying interpretations of the evidence."
(quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992))
(emphasis added)); United States v. Martinez, 922 F.2d 914, 923
(1st Cir. 1991) ("The evidence need not exclude every reasonable
hypothesis inconsistent with guilt, and the jury is entitled to
choose among varying interpretations of the evidence so long as the
interpretation it chooses is a reasonable one." (emphasis added)).
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beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,
318-19 (1979) (internal citations and quotation marks omitted).
Therefore, we "ought not to disturb, on the ground of insufficient
evidence, a jury verdict that is supported by a plausible rendition
of the record." Wilder, 526 F.3d at 8 (quoting Ortiz, 966 F.2d at
711) (emphasis added).
Thus, when reviewing evidence for sufficiency and
considering ambiguous testimony that is susceptible to more than
one reasonable interpretation, we must construe the testimony in
the light most favorable to the prosecution.4 We must therefore
presume that the jury interpreted the record custodian’s testimony
as a statement that the FDIC certificate offered into evidence
indicated BPPR's presently-insured status as of the date of trial.
As such, the ultimate question with respect to
sufficiency in this case is whether a rational jury could have
4
See United States v. Lazzerini, 611 F.2d 940, 941-42 (1st
Cir. 1979) (finding that, in a juror corruption case where it was
ambiguous as to whether appellant's single-word statement "Don't"
was evidence that the defendant had urged the attempted influence
be stopped, the jury could have construed the statement in the
prosecution's favor); see also United States v. Barnhart, 979 F.2d
647, 650 (8th Cir. 1992) ("On appellate review, we must construe
all evidence--including the admittedly vague testimony . . . --in
favor of the government."); United States v. Taylor, 972 F.2d 1247,
1251-52 (11th Cir. 1992) (reversing judgment of acquittal because,
though the allegedly threatening statement in greeting card was
arguably ambiguous, the court was required to resolve the ambiguity
in the prosecution's favor when this was a reasonable
interpretation); United States v. Horn, 946 F.2d 738, 743 (10th
Cir. 1991) (finding that a rational jury could interpret in the
government's favor ambiguous testimony regarding defendant's sale
of crack).
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found beyond a reasonable doubt that BPPR was federally-insured
during March and April of 2006 (the time frame of Ayewoh's crimes),
given the evidence of: (1) an FDIC insurance certificate issued to
BPPR in 1999; and (2) testimony by BPPR's record custodian which,
interpreted in the light most favorable to the government, asserted
that the certificate remained a valid symbol of BPPR's federally-
insured status at the time of trial. We join the vast majority of
circuits in holding that such evidence is sufficient proof of FDIC
insurance. That is, with evidence of FDIC insurance both at a time
predating the offense and at the time of trial, a reasonable jury
could infer that, absent evidence to the contrary, the bank was
insured on the date of the crime.5
Consequently, we reject Ayewoh's contention that the
government failed to offer sufficient proof of FDIC insurance.
This is not to say that we endorse the prosecutor's handling of the
case. The prosecutor assuredly could–-and should--have done
better. Federally insured status is easily proved in a garden-
5
See, e.g., United States v. Maner, 611 F.2d 107, 110-11 (5th
Cir. 1980) (FDIC certificate which predated the offense and bank
manager's testimony that FDIC stickers were posted on teller
windows at time of trial was sufficient); United States v. Rowan,
518 F.2d 685, 693 (6th Cir. 1975) (FDIC certificate dated 1969 and
statement by branch manager that bank was FDIC-insured in 1974 on
day of trial was sufficient); United States v. Jackson, 430 F.2d
1113, 1115-16 (9th Cir. 1970) (FDIC certificate identified by bank
auditor and testimony insurance continued until cancelled was
sufficient); United States v. Skiba, 271 F.2d 644, 644-45 (7th Cir.
1959) (FDIC certificate and testimony by bank cashier that bank was
operating at time of trial as an FDIC-insured organization was
sufficient).
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variety bank fraud case, and it is not too much to expect that the
government will take the need to do so seriously. That said,
however, we find the proof in this case adequate, if barely, as to
that element of the offense.
B.
Ayewoh next contends that he lacked the requisite mens
rea for the crime charged. Under the bank fraud statute, the
alleged scheme or artifice to defraud a financial institution must
have been undertaken knowingly by the defendant. 18 U.S.C. § 1344;
see also Brandon, 17 F.3d at 424. Ayewoh argues that the
government presented insufficient evidence to prove he had
knowledge that his actions would defraud BPPR itself, as opposed to
the individual credit card holders. We disagree that the evidence
was insufficient.
When interpreting § 1344 in this circuit, "[i]t has been
established that the government does not have to show the alleged
scheme was directed solely toward a particular institution; it is
sufficient to show that [the] defendant knowingly . . . exposed a
. . . bank to a risk of loss." Brandon, 17 F.3d at 426 (emphasis
added); see also United States v. Moran, 312 F.3d 480, 489 (1st
Cir. 2002). "'Intent to harm' [a bank] is not required," United
States v. Kenrick, 221 F.3d 19, 29 (1st Cir. 2000) (en banc), so
"[e]ven proof of an extremely remote risk will suffice." United
States v. Barakett, 994 F.2d 1107, 1111 n.15 (5th Cir. 1993).
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Moreover, it is unnecessary that a defendant know "which particular
bank will be victimized by his fraud,” so long as he "knows that a
[bank] will be defrauded"--even a bank that is not federally
insured. Brandon, 17 F.3d at 426. As this Court stated in
Brandon,
Congress intended to criminalize bank frauds that harm
federally insured banks, not just bank frauds directed
specifically toward federally insured banks. As other
courts have noted, the legislative history supports a
broad construction of the statutory language of the bank
fraud statute.
Defendants [cannot] . . . sanitize their fraud by
interposing an intermediary or an additional victim
between their fraud and the federally insured bank....
The fact that it should turn out that [a] financial
institution actually defrauded was federally insured is
a fortuitous stroke of bad luck for the defendants but
does not make it any less of a federal crime.
Id. (internal citations and quotation marks omitted). Thus, if a
defendant merely knows that his fraudulent actions will expose some
bank (whether or not federally insured) to a risk of loss, the mens
rea requirement of § 1344 is satisfied.
Ayewoh claims he "had no way of knowing that [BPPR] would
be held responsible to the issuing banks for chargebacks" resulting
from his unauthorized credit card transactions. Appellant's Br.
27. "[T]he target of the scheme was not [BPPR]," he contends, "but
[was] rather the credit card holders . . . ." Appellant's Br. 22.
This argument lacks merit. Whether Ayewoh specifically knew BPPR
would be liable to the issuing banks for chargebacks is irrelevant,
for all § 1344 requires is knowledge that his fraudulent actions
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would expose some bank to a risk of loss. It is common knowledge
that cardholders may generally disavow unauthorized charges on
their credit card statements and avoid personal losses from fraud,
thereby placing the risk of loss on a bank. A reasonable jury
therefore could have concluded that Ayewoh knew his fraudulent
actions would expose at least some bank--whether BPPR or even the
foreign issuing banks--to a risk of loss. For mens rea, § 1344
requires nothing more. Thus, there was sufficient evidence to find
that Ayewoh defrauded BPPR while possessing the requisite mental
state under the bank fraud statute.
C.
Ayewoh urges that there was not sufficient evidence for
the jury to conclude that he violated § 1344 by knowingly executing
a scheme to obtain money from the custody of BPPR "by means of
false or fraudulent pretenses, representations, or promises." 18
U.S.C. § 1344. Ayewoh contends that the act of entering a credit
card number into a POS device is not a "representation" of
anything. We disagree. The majority of our sister circuits have
broadly held that the misrepresentation element of § 1344 is
fulfilled by any intentional act or statement by an individual that
falsely indicates, explicitly or implicitly, that he has authority
to withdraw money from a bank.6 We find that, by running credit
6
See United States v. Jenkins, 210 F.3d 884, 886 (8th Cir.
2000) (deposit of credit card slips constituted representation that
sales had actually taken place); United States v. Miller, 70 F.3d
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card numbers through his POS device, Ayewoh at least implicitly
represented to BPPR that he had the cardholders’ authorization to
make the charges. Here, as in other contexts, we are reluctant to
adopt a construction of the statute that would exclude "new
financial instruments." United States v. Agne, 214 F.3d 47, 54
(1st Cir. 2000). Moreover, it makes no difference that the agent
of the bank defrauded by Ayewoh's deceit was a computer as opposed
to a human teller. Without the implied representation that he was
authorized to charge the credit cards at issue, BPPR assuredly
would not have paid money into OIPA's account. Consequently, there
was sufficient evidence for the jury to conclude that Ayewoh
acquired funds from BPPR through fraudulent misrepresentations.
III.
We turn finally to Ayewoh's contention that the
prosecutor violated his Fifth Amendment rights by referring during
closing arguments to Ayewoh's decision not to testify. The closing
1353, 1355-56 (D.C. Cir. 1995) (use of victim's ATM card and PIN
constituted fraudulent misrepresentation that defendant had
authority to withdraw funds); United States v. Briggs, 965 F.2d 10,
12 (5th Cir. 1992) (making a wire transfer by falsely holding
oneself out to have such authority constituted fraudulent
misrepresentation); United States v. Falcone, 934 F.2d 1528, 1542
(11th Cir. 1991) (deposit of fraudulent check constituted
misrepresentation), vacated, reh'g en banc granted, 939 F.2d 1455
(11th Cir. 1991), panel opinion reinstated in relevant part, 960
F.2d 988, 990 n.6 (11th Cir. 1992) (en banc); United States v.
Worthington, 822 F.2d 315, 318 (2nd Cir. 1987) (deposit of check
from fictitious bank was misrepresentation because it constituted
a false "averment that an obligor exists"); United States v. Price,
763 F.2d 640, 643 (4th Cir. 1985) (deposit of false credit card
slips constituted misrepresentation "akin to forgery").
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argument is "an especially delicate point in the trial process,"
and we scrutinize the prosecutor's comments accordingly. United
States v. Glover, 558 F.3d 71, 77 (1st Cir. 2009) (quoting United
States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995)). In Griffin v.
California, 380 U.S. 609, 614 (1965), the Supreme Court held that
"comment on the [defendant's] refusal to testify" burdens the
constitutional privilege against compelled self-incrimination and
is therefore prohibited. To decide whether Ayewoh is entitled to
relief, we engage in a two-pronged analysis: First, we conduct a de
novo review to determine whether the prosecutor's comments offended
the Fifth Amendment by improperly insinuating that Ayewoh's failure
to testify constituted evidence of guilt. Gomes v. Brady, 564 F.3d
532, 537 (1st Cir. 2009). To that end, "we consider 'whether, in
the circumstances of the particular case, the language used was
manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure of
the accused to testify.'" Id. at 538 (quoting United States v.
Glantz, 810 F.2d 316, 322 (1st Cir. 1987)). Second, if we
determine the comments were improper and the objection was
preserved, we review for harmless error. Glover, 558 F.3d at 76.
At trial, Ayewoh's counsel urged that Ayewoh did not
knowingly defraud anyone because he believed at the time that he
had obtained the credit cards legitimately from a "friend of a
friend" who sought to invest in his company OIPA, Inc. Under this
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theory, the unidentified "friend of a friend" was the real criminal
who defrauded innocent Ayewoh by purporting to be a legitimate
investor. Though Ayewoh did not testify at trial, he proffered
this defense through the testimony of his wife. BPPR's
investigator Mr. Ponce also testified that Ayewoh stated during an
interview that he had received the credit cards from a "friend of
a friend" who was an investor in Europe and that the transaction
had been done entirely through his friend. Appellant's App. 211.
Finally, in closing arguments, Ayewoh’s counsel repeatedly asserted
that the purported "friend of a friend" was entirely to blame and
that Ayewoh was himself an innocent victim of fraud. For context,
we quote the relevant portions of defense counsel’s closing
argument:
[T]he money was invested in OIPA, Inc., by this friend of
a friend.
Mr. Ayewoh committed a mistake, but that mistake was
not defrauding anybody. That mistake was trying to grow
and seeing an opportunity and grabbing it without looking
at what was behind it, because somebody who knew that he
was in need offered him his dream, I’ll give you the
money, here, start charging here. And he did.
Trial Tr., Oct. 14, 2008, ECF No. 84, at 28 (emphasis added).
[Ayewoh] got somebody to invest in his company, the
company that he, with his wife, was developing so that he
could make a better living for himself and also pay back
his investors.
But he was defrauded.... And you’ll say, but look at
all those things that the government showed . . . .
. . . .
The government doesn’t know if [Ayewoh] called his
friend to find out, hey, these [credit cards] are being
rejected, what’s going on[?] And his friend told him, Oh,
I gave you the wrong number. Oh, I need to deposit. Oh,
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I need to do something.
We don’t know that. The government doesn’t know
that.
Trial Tr., ECF No. 84, at 29 (emphasis added).
Ladies and gentlemen, the mistake Mr. Ayewoh made
was that he believed the friend of a friend.
Trial Tr., ECF No. 84, at 35 (emphasis added).
It is a pity that [Ayewoh] didn’t have a contract
with this gentleman that lent him the money. If he had
sought his attorney’s advice at the moment, he would have
had one.
Trial Tr., ECF No. 84, at 38.
Everything that surrounds this case shows that somebody
tried to defraud the bank. . . .
But that somebody is not Mr. Ayewoh. That somebody
is the person, the friend of the friend that gave him the
credit card numbers. We don’t know who he is.
Trial Tr., ECF No. 84, at 40 (emphasis added).
Seeking to cast doubt on Ayewoh's defense theory, the
government made several comments in closing regarding the lack of
a known identity for Ayewoh’s purported "friend of a friend."
Specifically, Ayewoh contends that the following three comments
made during the government's rebuttal argument violated his Fifth
Amendment rights by improperly commenting on his failure to testify
as to the alleged investor's identity:
[1] Okay. Let's say the defendant says it is a mistake.
Well, you have an instruction on willful blindness. Was
he willfully blind that these credit cards were, in fact,
stolen[?]
Well, let's look at the defendant's statement.
A friend of a friend. To this day, to this day, you
have heard from government witnesses, you have even heard
from the defendant’s spouse. We still don’t know who
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this friend of a friend is. . . .
You are going to have, you know, an individual make
over $100,000 worth of investments in your company and
then not know who the person is. Not do an investment
contract?
Trial Tr., ECF No. 84, at 46-47 (emphasis added).
[2] It makes absolutely no sense that this defendant got
these numbers from a friend of a friend, over 16 credit
cards, start[ed] essentially doing the manual POS
transactions, multiple times, and not know who that
individual is.
We still don't know who that individual is.
Gentleman who lent the money, we have no idea. We have
no name.
Trial Tr., ECF No. 84, at 47-48 (emphasis added).
[3] But here, in looking at all the evidence--and, you
know, the defendant has argued that, now, this was a
mistake, that he believed a friend of a friend. That it
was a mistake, in believing a friend of a friend, that
what he wanted to do was to get a good life.
Well, this is not believable. Use your common
sense. Okay. Common sense doesn't--it doesn’t make
sense. It is not a mistake that you get 17 credit card
numbers from a person that you don't know, have no idea
and then do multiple transactions over a short period of
time in order to figure out what the credit limits of the
credit cards are. You just don't do that.
Because if you have a friend of a friend who is
actually giving you these numbers and you know who that
friend is, you call that friend and you tell the friend,
"Listen, the credit card isn't working, what's happening,
[is it] being declined for insufficient funds?" But you
haven't heard evidence of that.
Trial Tr., ECF No. 84, at 51-52 (emphasis added).
Ayewoh's counsel timely objected to the first of these
remarks by requesting to approach the bench, but the court denied
the request. Ayewoh subsequently moved for a mistrial "based on
the comments made by the prosecution as to the defendant's
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silence," but the court denied the motion as well. Ayewoh now
contends on appeal that the prosecutor's comments were improper
because only Ayewoh could have provided the identity of the "friend
of a friend," so references to the lack of such evidence
necessarily pointed to his failure to testify. We disagree.
First, contrary to Ayewoh's contention that only he could
provide the identity of the "friend of a friend," Ayewoh himself
was not the only person who could identify the alleged investor if
he existed. For example, the "friend" who purportedly acted as an
intermediary between Ayewoh and the mysterious "friend of a friend"
might have testified as to the investor's identity and to their
business arrangement. Moreover, in his interview with the bank
representative, Ayewoh reportedly stated that he never knew the
identity of the "friend of a friend" because the deal was all done
through an immediate friend. Appellant's App. at 211. Thus, this
case is distinguishable from cases in which "[n]o one but [the]
appellant . . . could have [testified]" regarding the issue, see
Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965),
because here it was "apparent on the record that there was someone
other than himself whom the defendant could have called." Id. As
such, the prosecutor's comments regarding the lack of such evidence
in the record did not "naturally and necessarily" point to Ayewoh's
failure to testify. Gomes, 564 F.3d at 538 (quoting Glantz, 810
F.2d at 322); see also United States v. Wilkerson, 411 F.3d 1, 8-9
-23-
(1st Cir. 2005) (prosecutor’s comments that "there’s no real
evidence" and "pretty much nothing" to support defendant’s theory
did not "naturally and necessarily" comment on his failure to
testify because they likely "referred to [defendant’s] failure to
produce other evidence supporting his theory," or were at most
ambiguous).
Second, even if the prosecutor's remarks could be read as
commenting on Ayewoh's failure to testify, the comments were a
"fair response" to claims by the defendant. In United States v.
Robinson, 485 U.S. 25, 34 (1988), the Supreme Court carved out an
exception to Griffin for prosecutors who refer to a defendant’s
failure to testify while "fairly responding to an argument of the
defendant." In that case, the defense counsel asserted in closing
arguments that the government had not given the defendant a chance
to tell his side of the story. Id. at 27. On rebuttal, the
prosecutor responded by informing the jury that the defendant
"could have taken the stand and explained it to you." Id. at 28.
Finding no Fifth Amendment violation, the Supreme Court reasoned
that, "[w]here the prosecutor on his own initiative asks the jury
to draw an adverse inference from a defendant's silence, Griffin
holds that the privilege against compulsory self-incrimination is
violated," but where the prosecutor's reference to the defendant's
failure to testify is a "fair response to a claim made by defendant
or his counsel," the Fifth Amendment is not offended. Id. at 31-
-24-
32. The Court further explained that "the Fifth Amendment should
[not] be converted into a sword that cuts back on the area of
legitimate comment by the prosecutor on the weaknesses in the
defense['s] case." Id. (quoting United States v. Hasting, 461 U.S.
499, 515 (1974) (Stevens, J., concurring)).
Following the Supreme Court's decision in Robinson, this
Court has applied the "fair response" doctrine in numerous cases.7
7
See United States v. Stroman, 500 F.3d 61, 64-66 (1st Cir.
2007) (finding that the prosecutor's reference to defendant's
confession as being "not contradicted" was a fair response to the
defendant's defense theory that challenged the confession's
reliability); United States v. Mangual-Garcia, 505 F.3d 1, 13 (1st
Cir. 2007) (applying the "invited reply doctrine" to find no Fifth
Amendment violation where, after defense counsel argued in closing
that the prosecution failed to produce evidence such as a utility
bill to prove the defendant's location, the prosecution responded
by stating that the defendant could have produced his own utility
bills if they were exculpatory); United States v. Henderson, 320
F.3d 92, 107 (1st Cir. 2003) (where defense counsel argued in
closing that the government did an insufficient job tracking down
a specific eyewitness, the prosecution fairly responded by stating:
"Where is [the eyewitness], both counsel ask you? Well, that's a
good question. Why don't they tell us?"); United States v. Adams,
305 F.3d 30, 37-38 (1st Cir. 2002) (where defense counsel argued in
closing that the government failed to call a particular informant,
the prosecution did not impermissibly shift the burden of proof by
fairly responding that defense counsel "could have called [him] if
he wanted him"); Amirault v. Fair, 968 F.2d 1404, 1406 (1st Cir.
1992) (where defense counsel suggested the prosecution was biased
against the defendant because no one ever asked him his side of the
story, the prosecution fairly responded by informing the jury that,
while the law forbids the state from approaching a defendant after
his arrest, "the law does not prevent [a defendant] from
affirmatively telling his side" of the story); United States v.
Rouleau, 894 F.2d 13, 15-16 (1st Cir. 1990) (where defense counsel
argued in closing that the government had not found the money
relating to an alleged drug transaction, prosecutor fairly
responded by stating that "[o]nly [the defendant] knows where that
[money] is now").
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Likewise, our sister circuits have invoked the "fair response"
doctrine to reject Fifth Amendment claims on similar facts.8
We find that Robinson controls in this case and that,
viewed in context, the prosecutor's challenged comments were part
of a "fair response" to the arguments made by Ayewoh's counsel.
The first two challenged comments, which emphasized the lack of
evidence regarding the identity of the purported "friend of a
friend," were permissible attacks on the plausibility of Ayewoh's
defense theory. "Having put forth a theory in [his] defense,"
Ayewoh "[could not] expect the government to refrain from
commenting on its deficiencies" and the lack of evidentiary support
8
See, e.g., United States v. Ivory, 532 F.3d 1095, 1100-03
(10th Cir. 2008) (where defense counsel argued that the government
had presented no evidence as to the meaning of a certain code word,
prosecution fairly responded by insinuating that only the defendant
could have supplied that information); Cook v. Schriro, 538 F.3d
1000, 1018-20 (9th Cir. 2008) (where witness vaguely testified that
defendant had an alibi, prosecution fairly responded by attacking
the alibi's credibility on grounds that defendant had never
actually told the witness where he was at the time of the crime);
United States v. Isaac, 134 F.3d 199, 206-07 (3d Cir. 1998) (where
defense counsel attacked the credibility of defendant's accomplices
who testified against him, it was a fair response for the
prosecution to note that, while the witnesses were not "paragons of
virtue," nobody other than the defendant and the witness-
accomplices could have testified to the events at issue); Howard v.
Moore, 131 F.3d 399, 421 (4th Cir. 1997) (where defense counsel
asserted that the defendant was remorseful for his actions,
prosecution fairly responded by arguing that none of the
defendant's actions or statements indicated remorse); United States
v. Smith, 41 F.3d 1565, 1569 (D.C. Cir. 1994) (finding that
prosecutor's indirect reference to defendant's failure to testify
was not a Fifth Amendment violation because his comments were
merely a "fair response" that challenged the plausibility of the
defendant's innocent bystander defense).
-26-
for his theory--namely, that the record did not even include the
identity of the mysterious person whom Ayewoh claimed he mistakenly
believed "invested" over $122,000 in his company. The prosecution
was permitted to highlight such a glaring weakness in the defense's
case.
Similarly, it is clear that the prosecutor's third
challenged comment, viewed in context, was a "fair response"
specifically to the defense counsels comment that "[t]he government
doesn't know if [Ayewoh] called his friend to find out" why some of
the credit cards weren't working. Trial Tr., ECF No. 84, at 29.
On rebuttal, the prosecutor's third comment fairly responded to the
defense counsel's statement by informing the jury that "you haven't
heard evidence" that Ayewoh placed any such calls to his friend.
Trial Tr., ECF No. 84, at 52.
Thus, because all of the prosecutor's challenged comments
were made in "fair response" to claims by the defense, Ayewoh's
Fifth Amendment rights were not violated.
IV.
For the foregoing reasons, we affirm Ayewoh's conviction
and sentence on the bank fraud and forfeiture counts.
Affirmed.
-Dissenting Opinion Follows-
-27-
THOMPSON, Circuit Judge, dissenting. I am happy to join
my colleagues' opinion except as to Section II.A. I cannot agree
with their characterization of the evidence offered to show that
BPPR was insured by the FDIC when Ayewoh defrauded BPPR – a central
element of the conviction. The record, containing only a seven-
year-old FDIC certificate and its authenticating testimony, is too
flimsy to support the interpretation that the majority constructs
upon it. Where, as here, the government has failed to prove every
element of the crime of which the defendant was charged beyond a
reasonable doubt, his conviction cannot stand.
For more than thirty years now, prosecutors have been on
notice that they must be as diligent in proving the FDIC insurance
element of crimes like bank fraud as they are in proving any other
element. In 1980, the Fifth Circuit expressed "difficulty
comprehending why the [g]overnment repeatedly fails to prove this
element more carefully since [its] burden is so simple and
straightforward," and warned the government that it "treads
perilously close to reversal." United States v. Maner, 611 F.2d
107, 112 (5th Cir. 1980). With increasing exasperation, our sister
circuits have since continuously issued warnings to the government,
imploring it to take this requirement more seriously.9 Eventually,
9
See, e.g., United States v. Rusan, 460 F.3d 989, 994-95 (8th
Cir. 2006); United States v. Bindley, 157 F.3d 1235, 1239 & n.3
(10th Cir. 1998); United States v. Slovacek, 867 F.2d 842, 846 (5th
Cir. 1989); United States v. Sliker, 751 F.2d 477, 484 (2d Cir.
1984); United States v. Knop, 701 F.2d 670, 674 (7th Cir. 1983);
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they began reversing convictions where the government's measly
evidentiary proffer could not have persuaded a jury beyond a
reasonable doubt that the financial institution at issue was FDIC-
insured as of the offense date.10
Though the line between sufficiency and insufficiency is
by no means bright, its broad contours are readily discernible. On
one side is a single FDIC certificate pre-dating the offense, which
our sister circuits have uniformly rejected as insufficient. Maj.
Op. at 9-10 (collecting cases). On the other side is the testimony
of a bank employee to the effect that the bank is insured at the
time of the trial, which is usually adequate. Maj. Op. at 10-11
(collecting cases). The central question, then, is this: did the
government introduce enough evidence in this case to push the proof
of insurance across that line? It is here that I depart from my
colleagues' analysis.
The majority parses the evidence of insurance into two
separate pieces: the FDIC certificate and the testimony of BPPR's
record-keeper. The certificate itself, as in Shively and
Platenburg, was issued about seven years before Ayewoh's fraud.
id. at 676-77 (Posner, J., dissenting).
10
See, e.g., United States v. Sandles, 469 F.3d 508, 512-17
(6th Cir. 2006); United States v. Ali, 266 F.3d 1242, 1243-45 (9th
Cir. 2001); United States v. Dennis, 237 F.3d 1295, 1303-05 (11th
Cir. 2001); United States v. Lindsay, 184 F.3d 1138, 1142 (10th
Cir. 1999); United States v. Shively, 715 F.2d 260, 265, 269 (7th
Cir. 1983) (Posner, J.); United States v. Platenburg, 657 F.2d 797,
799-800 (5th Cir. 1981).
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Because a jury cannot reasonably conclude, without something more,
that the bank's insurance status has remained in force throughout
the intervening years, see Shively, 715 F.2d at 265, the
certificate is insufficient. That leaves the record-keeper's
testimony, which the majority insists provides enough proof of
insurance that, when combined with the certificate, it pushes the
quantum of evidence across the line.
As my colleagues recognize, the jury's verdict must be
"supported by a plausible rendition of the record," United States
v. Wilder, 526 F.3d 1, 8 (1st Cir. 2008) (internal quotations
omitted), and although "the jury is entitled to choose among
varying interpretations of the evidence[,] . . . the interpretation
it chooses [must be] a reasonable one," United States v. Martinez,
922 F.2d 914, 923 (1st Cir. 1991). The factfinder does not have
unfettered discretion to rely on any conceivable interpretation of
the evidence. True, appellate courts must "view the facts in the
light most favorable to the [g]overnment," United States v. Neal,
36 F.3d 1190, 1203 (1st Cir. 1994), but the touchstones are
plausibility and reasonableness.
Here is the entirety of the record-keeper's testimony:
Q: I would like to show you government's identification
number 1. Let the record reflect that it has been shown
to the defendant[.]
Q: Without discussing the substance, do you recognize
that document?
A: Yes, I do.
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Q: What do you recognize that to be?
A: This is the Federal Deposit Insurance Corporation
certificate issued to Banco Popular [de] Puerto Rico on
January 1999.
Q: How do you know it is the same one at Banco Popular?
A: My initials are on the back.
[Q:] Your Honor, we ask that government's exhibit 1 be
admitted into evidence.
The majority asserts that this exchange is amenable to multiple
reasonable interpretations, including one that relates to BPPR's
insurance status at the time of trial. Maj. Op. at 12. I
disagree. Rather, the record-keeper's testimony merely
authenticated the paper she was shown as the 1999 certificate.
Once the government succeeded in entering the certificate into the
record, it elicited no further testimony explaining the
significance of the certificate.11 The testimonial context
reinforces that this is the only plausible interpretation. The
record-keeper gave the key statement relied upon by the majority
after being asked to identify the document "[w]ithout discussing
[its] substance . . . ." Moreover, immediately after the key
11
Moreover, contrary to the majority's implication, Maj. Op.
at 7, Ayewoh did not have any reason to "object to admission of the
certificate or to the record custodian's testimony" or to "cross
examine the witness." An objection to evidence that was clearly
foundational and properly framed would have been unnecessary if not
inappropriate. And Ayewoh had no duty to cross-examine the record-
keeper, especially when the exercise could only have assisted the
prosecution. Instead, counsel properly adhered to cross-
examination expert Irving Younger's well-regarded advice by leaving
insufficient testimony alone – not asking one question too many –
and holding the prosecution to its burden of proof.
-31-
statement, the government asked how she knew the document before
her was the same one on file at BPPR, and she responded, "My
initials are on the back." The colloquy thus dealt only with the
witness's personal knowledge of the physical certificate and
explicitly stopped short of discussing its content, legal effect,
or – most importantly – continuing validity.
The majority disagrees, suggesting that the key passage
in the colloquy above could be interpreted by a rational juror to
mean, "This is the [current FDIC] certificate [which was] issued to
[BPPR] on January 1999." Maj. Op. at 12 (alterations in original).
But this interpretation imports meaning that the testimony itself
does not support: the word "current" cannot be inferred from or
found anywhere in either the statement or its testimonial context.
Indeed, the statement conveys no information other than that the
certificate is authentic and was issued in 1999.12
The majority also discusses the relative infrequency with
which FDIC certificates are revoked. Maj. Op. at 8-9. While this
information, in concert with other evidence, might buttress a
jury's conclusion that a certificate remains valid, it is
irrelevant here because it is nowhere in the record. When
12
While no analogy is perfect, the following might serve to
illuminate this point. Imagine that a prosecutor, pointing to a
defendant, asked a witness, "Without saying anything substantive
about him, do you recognize that man?" If the witness responded,
"Yes I do, that is John Doe," it would be unreasonable for a jury
(or a court) to interpret that statement as "Yes I do, that is
[murderer] John Doe." Adding a single word can make a world of
difference.
-32-
considering sufficiency claims, we consider only the evidence
available to the factfinder, cf. United States v. DeCologero, 530
F.3d 36, 65 (1st Cir. 2008), because it is ultimately the jury that
must find the defendant guilty beyond a reasonable doubt, not a
reviewing court. Of course, juries may rely upon their common
sense and upon any fact in common knowledge in reaching a verdict.
See, e.g., Maroules v. Jumbo, Inc., 452 F.3d 639, 644-45 (7th Cir.
2006). But because the jury in this case was not made aware of the
procedural and statistical details relating to the revocation of
FDIC certificates, they should not inform our consideration of the
sufficiency the government's proof. Unlike the majority's
reasonable suggestion that "[i]t is common knowledge that
cardholders may generally disavow unauthorized charges on their
credit card statements," Maj. Op. at 17, for example, it is hardly
common knowledge that FDIC certificates are rarely revoked. Since
we cannot assume that the intricacies of FDIC insurance are widely
known, we cannot say that there was sufficient evidence to support
the proposition that BPPR was insured when Ayewoh carried out his
schemes.
The government's failure to prove an indispensable
element of the charged offense appears against a backdrop of both
decades of warnings urging it to be more careful and notice after
trial of the possibility of reversal.13 In situations such as
13
Both Ayewoh and the district court alerted the government
to the infirmity of the evidence it adduced to prove the insurance
-33-
these, as Judge Posner explained, "either the government proved
every element of the offense beyond a reasonable doubt or it did
not. If it did not, we must reverse; if it did, it is no business
of ours that it could have put on an even stronger case." Knop,
701 F.2d at 677 (Posner, J., dissenting). Here, the government's
deliberate oversight compels the reversal of Ayewoh's conviction
and sentence.
I do not come to this conclusion lightly. Ayewoh admits
to intending to defraud innocent credit card owners. He stole more
than one hundred thousand dollars, some tens of thousands of which
were either never recovered by BPPR or borne unreported by the
victimized cardholders. Nevertheless, we should not allow the
centuries-old proposition that all elements of a crime must be
proven beyond a reasonable doubt, see In re Winship, 397 U.S. 358,
361 (1970), to be eroded slowly for expediency's sake.
element. When Ayewoh filed his motion for acquittal, he pointed
out the numerous exhortations from the courts of appeals not to
treat cavalierly the necessity of providing such proof. At that
point, had the government simply moved to reopen the case and
provided any one of a myriad of other pieces of evidence to
substantiate its claim, Ayewoh's conviction would be unassailable.
See United States v. Mojica-Baez, 229 F.3d 292, 299-300 (1st Cir.
2000) (approving that practice). For example, the government could
have asked the record-keeper whether she had searched for any
documents that superseded or rescinded the certificate. See Neal,
36 F.3d at 1207 n.22. It could have called BPPR's manager to ask
whether the company was insured. See United States v. Vachon, 869
F.2d 653, 657 (1st Cir. 1989). It could even have introduced into
evidence "the cancelled check for the [insurance premium for the]
period of time covering" the offense. Maner, 611 F.2d at 112 n.2.
Instead, it stubbornly insisted on the sufficiency of the paltry
evidence it had already produced.
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I respectfully dissent.
-35-