United States v. Hampton, Nikita ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3591
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NIKITA HAMPTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 983-1—Harry D. Leinenweber, Judge.
____________
ARGUED MAY 30, 2006—DECIDED SEPTEMBER 20, 2006
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Before POSNER, KANNE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. A jury convicted the defendant
of ten robberies of federally insured banks plus one at-
tempted robbery (which we needn’t discuss separately) of
such a bank, and of related crimes involving firearms. The
judge sentenced him to a total of 444 months in prison. The
only issue on appeal is whether the banks were in fact
federally insured. Photocopies that purport to be the
certificates of insurance that the Federal Deposit Insurance
Corporation had issued to the banks (but no originals) were
introduced into evidence, and an employee of each bank,
typically a teller, testified that an identical photo-
2 No. 05-3591
copy hanging on the wall of his bank was a true copy of
the bank’s certificate. Several of the banks are branches of
huge banks like Bank One and Citibank, but others bear
more obscure names, such as Chicago Community Bank or
North Community Bank.
The government’s practice in cases in which federally
insured status is an element of the crime is to ask the
defendant’s lawyer to stipulate that the institution in
question was federally insured at the time of the offense.
But if the defendant’s lawyer was asked for such a stipula-
tion in this case, which we haven’t been told, he refused,
thus putting the government to its proof.
All the copies placed in evidence bear dates of issuance of
the copied certificate before the robberies. So far, so good.
But even if the copies are accurate copies of valid certificates
of insurance issued by the FDIC, the insurance may have
expired or been cancelled or may have been issued to
predecessors of these banks and somehow lapsed when the
banks were acquired by their present owners. The bank
employees who testified about their banks’ insured status
testified that the banks were currently insured, and the jury
was entitled to believe their testimony. United States v.
Higgans, 507 F.2d 808, 813 (7th Cir. 1974); United States v. De
Tienne, 468 F.2d 151, 158-59 (7th Cir. 1972); United States v.
Williams, 592 F.2d 1277, 1281-82 (5th Cir. 1979). It would
have been better had they been asked not whether the banks
were currently insured (that is, at the time of trial), but
whether they had been insured on the date of the robberies,
five months earlier. But the likelihood that insurance had
lapsed and been reinstated was too slight to undermine the
testimony seriously. See United States v. Guerrero, 169 F.3d
933, 944-45 (5th Cir. 1999).
No. 05-3591 3
The defendant’s only possibly meritorious argument is
that the copies that were placed in evidence are inadmissi-
ble under the Federal Rules of Evidence. It is not so clear
that without the copies the jurors would have believed the
tellers that we can conclude that the admission of the copies,
if it was an error, was a harmless one. Usually when the
government relies on testimony to establish a bank’s
insured status, it is testimony by a bank officer, as in the
three cases we cited, rather than by a lowly teller. See also
United States v. Phillips, 606 F.2d 884, 887 (9th Cir. 1979)
(emphasis added) (“the rule, as stated in this circuit and
elsewhere, is that uncontradicted testimony of a ranking
official of the institution is sufficient to establish that the
institution is federally insured”); United States v. Ross, 77
F.3d 1525, 1547-48 (7th Cir. 1996); United States v. Harris, 914
F.2d 927, 933-34 (7th Cir. 1990); United States v. Taylor, 728
F.2d 930, 933 (7th Cir. 1984); United States v. Knop, 701 F.2d
670, 672-73 (7th Cir. 1983); United States v. McIntosh, 463 F.2d
250 (3d Cir. 1972). This is not to say that testimony by a
teller is insufficient as a matter of law to establish insured
status, United States v. Ware, 416 F.3d 1118, 1121, 1123 (9th
Cir. 2005); United States v. Bindley, 157 F.3d 1235, 1238-39
(10th Cir. 1998), but only that it is not so compelling that an
error in admitting other evidence of insured status must be
harmless. The argument in the government’s brief that even
a teller who had been employed for only a few hours would
know his bank’s insured status might fall quite flat with a
jury.
The district judge admitted the photocopies under Rule
902(1) of the Federal Rules of Evidence, which provides that
documents bearing a seal of the United States or one of its
officials, agencies, etc., plus a signature purporting to attest
or execute the document, is “self-authenticating.” This
means that the document is admissible in evidence without
4 No. 05-3591
any need for a witness to testify that it is authentic, that is,
that it is what it purports to be (an official document stating
what it states). United States v. Mateo-Mendez, 215 F.3d 1039,
1041, 1043-44 (9th Cir. 2000); United States v. Moore, 555 F.2d
658, 661 (8th Cir. 1977). But seals are used to attest the
authenticity of the document on which the seal is stamped,
and no seal was stamped on the copies. The copies were
copies of sealed documents rather than sealed documents
themselves. The rationale of Rule 902(1), according to the
Committee Notes, is that a seal is difficult to forge. See also
United States v. Wexler, 657 F. Supp. 966, 971 (E.D. Pa. 1987).
But that is not true of a copy of a seal—or at least the
government has made no effort to show that the authentic-
ity of the seal can be inferred with confidence from its copy.
See 5 Stephen A. Saltzburg & Michael M. Martin, Federal
Rules of Evidence Manual 902-7 (8th ed. 2002). So the govern-
ment’s argument fails. See Mathis v. State, 930 S.W.2d 203,
205 (Tex. App. 1996); 31 Charles A. Wright & Victor J. Gold,
Federal Practice and Procedure § 7135 (2000).
Another federal rule of evidence, however, Rule 1005,
provides that copies of public records are admissible if
either a witness testifies that he compared the copy with the
original and determined the copy to be accurate, or, in
accordance with Rule 902(4), either the custodian of the
original record, or someone else authorized to certify the
accuracy of copies of it, certifies that it is an accurate copy.
Seese v. Volkswagenwerk A.G., 648 F.2d 833, 845 n. 19 (3d Cir.
1981); United States v. Rodriguez, 524 F.2d 485, 487, 488 n. 6
(5th Cir. 1975); 31 Wright & Gold, supra, §§ 8032, 8034. Some
though not all of the bank employees testified that the
photocopy the prosecutor showed them during their direct
examination at trial was a copy of the certificate hanging on
the wall of the bank, but there is no indication that that
certificate was not itself a copy. One of these witnesses
testified that the certificate was posted throughout his bank.
No. 05-3591 5
Were those all originals? Does the FDIC issue multiple
certificates for each branch office of an insured bank? There
is no evidence bearing on the issue, and the government
does not ask us to take judicial notice of the Corporation’s
practice.
Nevertheless we think the copies were admissible to
establish the insured status of the banks as of the dates
shown on the copies. The parties have managed to overlook
provisions of the Federal Rules of Evidence which show that
Rules 902(1), (4), and 1005 are not intended as straitjackets.
Article IX of the rules deals with authentication and there
we read that “the requirement of authentication or identifi-
cation as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter
in question is what the proponent claims.” Fed. R. Evid.
901(a). And in Article X, which deals with the admissibility
of the contents of documents, we read that “a duplicate is
admissible to the same extent as an original unless (1) a
genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.” Fed. R. Evid.
1003. And a photocopy (or equivalent chemical or electronic
copy) is a “duplicate” within the meaning of the rule. Fed.
R. Evid. 1001(4); United States v. Gerhart, 538 F.2d 807, 810 n.
4 (8th Cir. 1976); 31 Wright & Gold, supra, § 7135. These
rules make clear that the principle enunciated in an 1807
case cited to us by the defendant that “authentication must
not rest upon probability,” United States v. Burr, 25 Fed.
Cases 27, 28 (Cir. Ct. D. Va. 1807), is no longer the law, even
if it was said by Chief Justice Marshall in the treason trial of
Aaron Burr.
The bank employees may conceivably have been mistaken
about the insured status of their banks. But they all testified
that they recognized the copies shown them by the prosecu-
6 No. 05-3591
tor as copies of the certificates possessed by or posted in
their banks, which is pretty compelling evidence that the
copies were not forgeries prepared by or for, or somehow
obtained by, the government. As between the parties’ rival
hypotheses—that the copies are genuine, as the government
contends, and that they are forgeries, as the defendant
contends—the defendant’s hypothesis is so improbable that
without some evidence to support the hypothesis no
reasonable person would accept it. Abbott Laboratories v.
TorPharm, Inc., 309 F. Supp. 2d 1043, 1052 (N.D. Ill. 2004)
(and references cited there). No such evidence was offered.
So we think the copies were admissible, and this kills the
appeal. But the government would be wise in future cases to
prove insured status more directly and conclusively than
was done in this case, either by getting an affidavit from the
FDIC confirming the insured status of the robbed bank, as
in United States v. Darrell, 828 F.2d 644, 648-49 (10th Cir.
1987), or by offering testimony by the bank employee who
is the actual authorized custodian of the bank’s FDIC
certificate, as in United States v. Cooper, 375 F.3d 1041, 1047-
48 (10th Cir. 2004). The government was sloppy in this case,
as in many others in which federally insured status is an
element of the crime, e.g., United States v. Bindley, supra, 157
F.3d at 1238-39; United States v. Brunson, 907 F.2d 117, 119-20
(10th Cir. 1990); United States v. Slovacek, 867 F.2d 842, 846
(5th Cir. 1989), probably because the matter is usually
stipulated. But sloppiness is not a ground for reversal of a
judgment.
AFFIRMED.
No. 05-3591 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-20-06