United States v. Burk ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
February 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 09-3088 & 09-3175
v. (D.C. No. 2:08-CR-20128-KHV-1)
(D. Kan.)
RICHARD D. BURK,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR and EBEL, Circuit Judges.
On December 2, 2008, Richard D. Burk conditionally pled guilty to one
felony count of bank robbery in violation of 18 U.S.C. § 2113(a). He received a
sentence of 189 months. Mr. Burk now brings two appeals, which we have
consolidated for purposes of disposition. The first is a counseled direct appeal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
from his conviction and sentence (“09-3088 appeal”); the second is a pro se
appeal from the district court’s denial of Mr. Burk’s pro se motion to dismiss the
indictment (“09-3751 appeal”). Mr. Burk’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), advising us that he discerns no
colorable basis for the 09-3088 appeal and seeking leave to withdraw. After
careful review and for the reasons we describe below, we grant counsel’s motion
to withdraw and dismiss the appeal in 09-3088. Given that Mr. Burk’s pro se
appeal in 09-3751 from the district court’s refusal to dismiss the indictment is
based on the same issues that we address in the main appeal, we dismiss that
appeal as moot.
The district court sentenced Mr. Burk on March 31, 2009. He immediately
filed a pro se motion to dismiss the indictment pursuant to Fed. R. Civ. P. 12(b),
contending the district court did not possess jurisdiction over the criminal charge
against him because the Federal Deposit Insurance Corporation (“FDIC”) does not
provide insurance where, as here, the monies are taken from a cash register, and
arguing that the indictment was deficient. Mr. Burk’s counsel filed the 09-3088
appeal on April 6, 2009, raising claims identical to those raised in Mr. Burk’s
motion to dismiss the indictment. 1 The district court overruled the Fed. R. Civ. P.
1
At the request of Mr. Burk, counsel orally argued to the district court just
prior to the scheduled trial that the court lacked subject matter jurisdiction and
that the indictment was deficient. When the court denied the motion, Mr. Burk
pled guilty on the condition that he could appeal these issues.
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12(b) motion on June 3, 2009, on the basis that Mr. Burk filed the motion to
dismiss pro se while represented by counsel, and also that “defendant’s motion
lacks substantive merit.” See rec., vol. I at 71 (June 3, 2009 Order, at 1). Mr.
Burk filed pro se the notice of appeal in 09-3175. 2
The 09-3088 appeal
Under Anders, when counsel appointed to represent an indigent defendant
on direct appeal determines a case to be wholly frivolous:
He should so advise the court and request permission to withdraw.
That request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the appeal. A copy
of counsel’s brief should be furnished the indigent and time allowed
him to raise any points that he chooses; the court – not counsel –
then proceeds, after a full examination of all the proceedings, to
decide whether the case is wholly frivolous.
386 U.S. at 744. Consistent with Anders’s instruction directing counsel to submit
a brief referring any support for the appeal, Mr. Burk’s counsel submitted the
following challenges:
The District Court’s failure to dismiss the indictment for want
of subject matter jurisdiction, its failure to dismiss the
indictment for insufficiency, and the Court’s refusal to
consider the defendant’s mental state at the time of the offense
require a reversal of the convictions and dismissal with
prejudice or, in the alternative, resentencing.
2
We deny the government’s motion to dismiss Mr. Burk’s pro se appeal.
While his initial notice of appeal was premature, we abated it pending the district
court’s denial of the pro se motion to dismiss the indictment. Mr. Burk filed
another notice of appeal after the district court ruled.
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Aplt. Br., No. 09-3088, at 5. Mr. Burk filed a supplemental pro se brief in
response to notice of the Anders brief, raising the first two issues and asserting
the additional reasons set forth in his pro se sentencing memorandum to overturn
the district court’s denial of the variance he requested.
Mr. Burk’s primary claim, echoed in his appeal in 09-3175, is that the
district court did not possess jurisdiction over his alleged violation of 18 U.S.C. §
2113(a). He points out that FDIC insurance coverage is required to establish
federal jurisdiction over controversies arising under § 2113. See Aplt. Br., No.
09-3088, at 6, 7 (citing United States. v. Murrah, 478 F.2d 762 (5th Cir. 1973)).
He argues that the FDIC insurance covers “deposits” and does not cover the
bank’s money in a teller’s drawer/register, and thus no federal jurisdiction
attaches to his bank robbery of cash from such registers. See id. at 7. In his pro
se supplemental briefs, Mr. Burk contends there is no jurisdiction because the
United States was not injured. 3
3
In his reply brief, Mr. Burk asserts specifically that there is no subject
matter jurisdiction because:
1. FDIC is not a party to the crime
2. United States is not a victim
3. §2113(f) is a “Definitional paragraph not a “Jurisdictional
paragraph”
4. If §2113(f) is a jurisdictional paragraph, law forbids a
jurisdictional element to define a crime
5. FDIC is not part of the United States
6. First State Bank is the injured party
Aplt’s Reply at 4.
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We review the district court’s determination of jurisdiction de novo. Olcott
v. Del. Flood Co., 327 F.3d 1115, 1121 (10th Cir. 2003), and we agree that Mr.
Burk’s contention lacks merit. As the court held in United States v. Dunham, 995
F.2d 45, 456 (5th Cir. 1993), the “argument that the federal courts are without
jurisdiction to conduct proceedings regarding the robbery of a federally insured
state bank has no arguable basis in law or in fact and is thus frivolous.”
Mr. Burk’s second claim challenges the sufficiency of the indictment
charging him with robbing an FDIC-insured bank. He contends the indictment
charged him with taking “[d]eposits of which were then insured by the Federal
Deposit Insurance Corportation[,]” but that FDIC coverage does not extend to
cash in teller’s registers or drawers because the disputed funds do not constitute
“insured deposits.” Aplt. Br., No. 09-3088, at 9. An indictment is sufficient if “it
contains the elements of the offense charged, putting the defendant on fair notice
of the charge against which he must defend, and if it enables a defendant to assert
a double jeopardy defense. United States v. Doe, 572 F.3d 1162, 1173 (10th Cir.
2009). Mr. Burk cites nothing in support of his teller register/drawer exception to
federal jurisdiction over robberies of FDIC-insured banks, nor have we located
any such case. Our review of the indictment reveals clear notice of the offense
charged, including its elements, sufficient to enable Mr. Burk to assert a double
jeopardy defense. See Aple. Br., No. 90-3088, at 5-8.
Third, Mr. Burk disputes the district court’s failure to grant him a
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sentencing departure or a variance. We review the district court’s factual findings
for clear error and its legal conclusions de novo. United States v. Kristl, 437 F.3d
1050, 1053 (10th Cir. 2006). Having reviewed the record, we are not persuaded
by counsel’s argument that the district court erred in determining Mr. Burk failed
to establish a diminished capacity at the time of the offense. With respect to the
argument Mr. Burk made in his sentencing memorandum, we review a district
court’s decision to deny a request for a variance under a deferential abuse of
discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.
2008). Applying the presumption of reasonableness to Mr. Burk’s
within-guidelines sentence, we conclude that the district court’s denial of the
request for a variance based on Mr. Burk’s life circumstances did not constitute
an abuse of discretion.
For these reasons, we agree with counsel’s assessment that no nonfrivolous
issue exists in the 09-3088 appeal. We therefore DISMISS that appeal and
GRANT counsel’s motion for leave to withdraw. Because Mr. Burk’s 09-3751
appeal from the denial of his motion to dismiss the indictment is based on the
same arguments we have addressed infra, we DISMISS that appeal as moot. We
deny as moot Mr. Burk’s motion to strike the government’s motion to dismiss.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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