Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

No. 89-16282.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, NOONAN, Circuit Judge, and HARRY L. HUPP, District Judge.^** 

MEMORANDUM^*** 

Brian Patrick Spencer Perceval, a federal prisoner, appeals pro se the district court's denial of his petition for writ of error coram nobis. We affirm.

Perceval was convicted by a jury for conspiracy and bank larceny in violation of 18 U.S.C. 371, 2113(b), for stealing money from the Nevada National Bank. While serving his sentence, Perceval filed a petition for writ of error coram nobis contending, among other grounds, that the Nevada National Bank's central vault was not a "bank" within the meaning of 18 U.S.C. 2113(f), and that the monies stolen from the central vault were not "deposits."

The writ of coram nobis allows a court to vacate its judgment in a criminal case "for errors of fact ... in those cases where the errors [are] of the most fundamental character, that is, such as rendering the proceeding itself invalid." United States v. Mayer, 235 U.S. 55, 69 (1914). See also Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Perceval fails to prove sufficient error of fact to warrant a writ coram nobis.

Perceval contends that the Nevada National Bank's central vault was not a "bank" within the meaning of 18 U.S.C. 2113(f). This statute provides in relevant part:

As used in this section the term "bank" means ... any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.

18 U.S.C. 2113(f). Perceval concedes that the Nevada National Bank is a member of the Federal Deposit Insurance Corporation (FDIC) and that the bank's membership was never in dispute at his trial. He argues instead that the central vault, from which he stole the monies is not a "bank." In King v. United States, 426 F.2d 278, 279 (9th Cir. 1970), we held that to support a conviction under 18 U.S.C. 2113(b) the specific bank branch that is burglarized must be a "bank" within the meaning of 18 U.S.C. 2113(f). The central vault in question, however, is not a bank branch. Rather, it holds money for distribution to the bank's branches. The central vault is an integral part of the Nevada National Bank and we see no reason to require that a bank's central vault be a member of the FDIC where the bank itself is a member.

Perceval also contends that the monies stolen were not "deposits of which are insured by the" FDIC. 18 U.S.C. § 2113(f). The government established at trial that the central vault received monies from its own branches and the Federal Reserve System and distributes that money to its various branches. This evidence is sufficient to meet the definition of "deposit" provided in 12 U.S.C. 1813(1) (1). Moreover, because the stolen monies are deposits in an insured bank, they are "insured deposits" within the meaning of 12 U.S.C. 1813(1) (5) (B) (1). That section states that " 'insured deposit' means net amount due to any depositor ... for deposits in an insured depository institution". Perceval's claim that our decision in United States v. Campbell, 616 F.2d 1151 (9th Cir. 1980), requires the government to prove that the stolen monies were insured by the FDIC and not that the bank was insured is meritless. In fact, Campbell holds the opposite: "Evidence that the bank was federally insured was sufficient for a jury to reasonably conclude that the bank's deposits were also federally insured." Id. at 1153.

Perceval therefore failed to prove sufficient error of fact to warrant the granting of a petition for writ of coram nobis. The district court's denial of the writ is AFFIRMED.¹