Unpublished Disposition, 878 F.2d 387 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1987)

No. 88-1220.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and THOMAS ZILLY, District Judge.* 

MEMORANDUM** 

Appellant Donald Ray Morse was convicted after a jury trial of bank robbery in violation of 18 U.S.C. § 2113(a). Morse appeals the denial of his motion for a judgment of acquittal based on the insufficiency of the government's evidence. He also challenges the constitutionality of the Sentencing Reform Act.

In reviewing the sufficiency of the evidence on appeal, the court will set aside a jury verdict only if, viewing the evidence in the light most favorable to the government, no 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 (1979); United States v. Harden, 846 F.2d 1229, 1232 (9th Cir. 1988).

Morse challenges the sufficiency of the evidence only on one element of the charged crime: whether the bank was federally insured. The only evidence presented at trial on this point consisted of the following testimony of bank officer Quinlan:

Prosecutor: Miss Quinlan, in your capacity as an assistant manager, do you know whether the bank was insured by the FDIC on December 22, 1987?

Quinlan: Yes.

Prosecutor: And do you know the date and charter number?

The Court: Doesn't make any difference if they were insured on that date.

Prosecutor: Thank you, your honor.

The district court was incorrect in asserting that it doesn't make any difference whether the bank was insured by the Federal Deposit Insurance Corporation on the date of the robbery. That fact is an essential element of the crime. United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir. 1980). We must determine whether that element was established in evidence despite the judge's comment.

Morse argues that the bank officer's answer "yes" to the question whether the bank was federally insured does not indicate that the bank was in fact insured. It is true that the officer's answer is susceptible to more than one interpretation. This court is obliged to adopt the interpretation most favorable to the government. Jackson, supra. Under this view, we understand the bank officer's "yes" to be a response to the implied question "Was the bank federally insured?" Alternatively, we view her answer as an anticipatory affirmative response to that question. The testimony was therefore sufficient to establish the element of coverage by the FDIC beyond a reasonable doubt.

The record also reflects than on at least 24 occasions during the bank officer's testimony, she similarly answered the underlying inquiry implicit in the question. For example, when asked "Do you know the address of [your] branch?" She responded with the address. The jury had the opportunity to observe the bank officer's demeanor, inflection and habit of responding permitting the jury to conclude that she responded affirmatively to the question implicit in the questions to whether the bank was in fact insured. The jurors could properly apply their common experience in recognizing that lay witnesses often answer the underlying questions under similar circumstances. See for example, United States v. Sliker, 751 F.2d 477 (2d Cir. 1984, cert. denied, 470 U.S. 1058 (1985) (court holds "without enthusiasm" that bank officer testimony that the bank was insured at the time of trial supported an inference that the bank was insured at the time of the robbery).

It seems clear that the trial judge, in commenting that it "Doesn't make any difference if they were insured on that date" had also formed an opinion that the witness had responded to the underlying question. Like the court in Sliker, and the plethora of cases cited therein where Courts of Appeals have been obligated to consider the adequacy of proof of FDIC insured status, we find it incredible that this issue must be addressed in the context of this appeal. It would seem that prosecutors could ask a simple and direct question that would avoid what should be a non-issue not to mention the risk of reversal.

The jury was instructed that the FDIC element must be proven in order to establish the offense of bank robbery. The prosecutor also reminded the jury in closing argument that one issue in the case was the bank's status as a federally insured bank. Implicit in the verdict is the jury's conclusion that this element of the crime had been established. This is further supported by the fact that this issue was never raised by the appellant's attorney in a motion for acquittal at any time during the trial. This issue which has only been raised in this appeal must be rejected.

Morse's contention regarding the unconstitutionality of the Sentencing Reform Act has been resolved adversely to Morse by the United States Supreme Court. United States v. Mistretta, 109 S. Ct. 647 (1989).

AFFIRMED.

 *

Honorable Thomas Zilly, United States District Judge for the Western District of Washington, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3