United States v. Ware

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-15609
Plaintiff-Appellee, D.C. Nos.
v.
 CV-98-01710-LDG
CR-95-00311-1-
JON RAYMOND WARE,
Defendant-Appellant. LDG
 OPINION
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted
February 18, 2005—San Francisco, California
Filed August 5, 2005
Before: Sidney R. Thomas, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
10127
UNITED STATES v. WARE 10129
COUNSEL
Osvaldo E. Fumo, Las Vegas, Nevada, for the defen-
dant-appellant.
Daniel G. Bogden, United States Attorney, and Robert A.
Bork, Assistant United States Attorney, Las Vegas, Nevada,
for the plaintiff-appellee.
OPINION
CALLAHAN, Circuit Judge:
After his conviction in district court for two counts of bank
robbery, the petitioner filed a motion to vacate his sentence
10130 UNITED STATES v. WARE
under 28 U.S.C. § 2255, claiming that the government had
presented insufficient evidence of the banks’ federally-insured
status at the time of the robberies. The district court denied
the petition and the petitioner appealed. Considering the total-
ity of the trial evidence, including the short period of time that
elapsed between the robberies and the petitioner’s trial, we
conclude that there was sufficient evidence to support the
petitioner’s conviction. We therefore affirm the district
court’s denial of habeas relief.
I
A. Factual Background
The parties do not dispute the relevant facts of the underly-
ing conviction. In October 1995, the petitioner robbed two
Las Vegas branches of First Interstate Bank. Less than five
months later, on March 18, 1996, a two-day jury trial com-
menced in the United States District Court for the District of
Nevada. The government elicited the following testimony
from a bank teller who was working at the first bank branch
at the time of its robbery:
Q: Okay. Now on October the 17th, 1995, where
were you working?
A: First Interstate Bank.
Q: Were you — and was that located at 4595 West
Charleston Avenue, Las Vegas, Nevada?
A: Yes, it was.
Q: And is that particular bank in the state and fed-
eral jurisdiction of Nevada?
A: Yes, it is.
UNITED STATES v. WARE 10131
Q: And is it insured by the Federal Deposit Insur-
ance Corporation?
A: Yes, it is.
Q: And how do you know that?
A: The signs are posted but it’s also — all banks
are federally insured.
The government also elicited the following testimony from a
teller who was working at the second bank branch at the time
of its robbery:
Q: All right. Directing your attention . . . to Octo-
ber the 30th, 1995, on that date, were you work-
ing at the First Interstate Bank at 2100 West
Charleston Boulevard, Las Vegas, Nevada?
A: Yes.
Q: And that bank in that area where that is, that’s
in the state and federal district of Nevada, is
that correct?
A: Yes.
Q: All right. Now, . . . is the — your bank . . .
insured by the Federal Deposit Insurance Cor-
poration?
A: Yes.
Q: How do you know that?
A: It’s listed in the bank. It’s posted.
10132 UNITED STATES v. WARE
B. Procedural Background
On March 19, 1996, the jury returned its verdict, finding
the petitioner guilty on both counts of bank robbery, in viola-
tion of 18 U.S.C. § 2113(a). That finding necessarily means
that the jury found the bank insured by the Federal Deposit
Insurance Corporation (“FDIC”) on the dates of the robberies.
On July 11, 1996, the district court sentenced the petitioner
to a prison term followed by a period of supervised release,
and ordered him to pay $7,390 in restitution to First Interstate
Bank.
On July 17, 1996, the petitioner filed his notice of appeal.
In that appeal, he argued that the district court violated his
Sixth Amendment right to confront a key government wit-
ness. Finding “no Confrontation Clause violation,” a different
panel of this court affirmed the petitioner’s conviction in an
unpublished disposition. On January 26, 1998, the Supreme
Court denied his petition for a writ of certiorari. Ware v.
United States, 522 U.S. 1097 (1998).
In early December 1998, the petitioner filed a motion to
vacate his sentence under 28 U.S.C. § 2255, arguing for the
first time that the government failed to establish at trial the
element of the offense that the bank deposits were insured by
FDIC at the time of the robberies. The petitioner specifically
contended that the only evidence that the banks were federally
insured came from the bank tellers’ testimony offered in the
present tense, indicating FDIC status at the time of trial rather
than at the time of the robberies.
On March 6, 2003, the district court entered its order deny-
ing the petitioner’s motion.1 In rejecting the petitioner’s argu-
ment, the district court articulated its reasoning as follows:
1
The judge deciding the section 2255 motion is the same judge who pre-
sided over the petitioner’s trial. See Rule 4(a), Rules Governing Section
2255 Proceedings for the United Stated District Courts (requiring a section
2255 motion to be forwarded to the judge who conducted the trial and
imposed sentence).
UNITED STATES v. WARE 10133
While the government failed to offer direct evidence
of First Interstate Bank’[s] FDIC status at the end of
October 1995, sufficient circumstantial evidence was
presented to permit a jury to infer the insured status.
...
[L]ess than five months elapsed between the com-
mission of the bank robberies at the end of October
and the trial in March. In addition, the name of the
bank — First Interstate Bank — suggests that the
bank was a federally insured bank. Further, one teller
testified that all banks are federally insured. The
government also elicited testimony from both tellers
that they were working at the respective branches of
First Interstate on the date of the robberies. The tell-
ers further testified that they knew the banks were
federally insured because of the notice posted in the
bank. Given the relatively short time between the
robbery and the trial, the source of the teller’s
knowledge would further suggest that First Interstate
Bank was federally insured in October. While the
evidence, taken in isolation, might be insufficient to
permit a jury to infer that First Interstate Bank was
federally insured five months before the trial, on
dates to which the tellers were employed, taken in
combination and viewed in the light most favorable
to the prosecution, the court concludes that a rational
trier of fact could have found beyond a reasonable
doubt that First Interstate Bank was federally insured
at the time of the robberies.
On March 17, 2003, the petitioner filed a timely notice of
appeal.
II
This court reviews a district court’s decision to deny a sec-
tion 2255 motion de novo. United States v. Ratigan, 351 F.3d
10134 UNITED STATES v. WARE
957, 961 (9th Cir. 2003). We review the district court’s fac-
tual findings for clear error. United States v. Alaimalo, 313
F.3d 1188, 1191 (9th Cir. 2002). “There is sufficient evidence
to support a conviction if, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Ali, 266 F.3d 1242, 1243
(9th Cir. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
A. Procedural Default
[1] The government would have us conclude that the peti-
tioner is procedurally barred from challenging the sufficiency
of the trial evidence because he failed to raise the issue on
direct appeal. While it may be true that, under normal circum-
stances, a habeas petitioner’s failure to raise his claim on
direct appeal would subject the claim to procedural default,
Ratigan, 351 F.3d at 962-64, that is not the case here. It is
undisputed that the government failed to assert procedural
default in the district court’s section 2255 proceedings. Thus,
absent any extraordinary circumstances which suggest that
justice would be better served by overlooking the govern-
ment’s omission, the government has waived its procedural-
default defense. United States v. Barron, 172 F.3d 1153,
1156-57 (9th Cir. 1999); Gonzalez v. United States, 33 F.3d
1047, 1049 (9th Cir. 1994). Accordingly, we proceed to
address the petitioner’s claim on its merits.
B. Sufficiency of the Evidence
The petitioner claims that the government provided insuffi-
cient evidence to establish that the two bank branches were
federally insured at the time of the offenses. There is no ques-
tion that both bank tellers testified in the present tense con-
cerning the federally-insured status of their respective bank
branches.2 We resolve the petitioner’s claim by considering
2
The petitioner also contends that the district court erred in allowing the
bank tellers’ testimony on the subject of FDIC insurance because they did
UNITED STATES v. WARE 10135
the totality of the trial evidence, including the period of time
that elapsed between the robberies and the trial.
[2] This court has held that present-tense trial testimony
regarding a bank’s federally-insured status may be insuffi-
cient evidence to prove that the bank was federally insured at
the time of the offense. Ali, 266 F.3d at 1244 (holding that
“[t]estimony is insufficient . . . when stated only in the present
tense at trial, years after the relevant time period, because it
cannot establish that the bank was insured on the date of the
alleged offense”); United States v. Allen, 88 F.3d 765, 769
(9th Cir. 1996) (holding that present-tense testimony given in
1994 “does not establish that the credit union was insured” at
the time of the crime in 1988-89). The petitioner argues that
in light of Ali and Allen, the government failed to prove the
federally-insured status of the bank branches, a necessary ele-
ment for conviction under the bank-robbery statute, 18 U.S.C.
§ 2113(a), (f) (West 1996).
The present case, however, is distinguishable from Ali and
Allen. Ali involved a bank officer’s testimony that “[w]e’re
insured by the FDIC” more than two years after the offense.
Ali, 266 F.3d at 1243. Timing played an important role in the
Ali court’s decision, as evidenced by its reasoning that
neither the certificate nor [the bank officer’s] testi-
mony alone is sufficient to establish that the bank
not have personal knowledge of that fact. The petitioner failed to present
this argument in his section 2255 motion. The district court, therefore, did
not have an opportunity to address it, and it is not properly before this
court. See United States v. Beierle, 77 F.3d 1199, 1201 (9th Cir. 1996)
(noting that claims not presented to the district court in a section 2255
motion cannot be raised for the first time on appeal). Moreover, the peti-
tioner’s argument lacks merit. The law is clear that the uncontradicted tes-
timony of a bank employee on the issue of FDIC insurance is sufficient
to support a jury’s finding of that element. United States v. Hicks, 217
F.3d 1038, 1045 (9th Cir. 2000); United States v. Corbin, 972 F.2d 271,
272 (9th Cir. 1992); United States v. Campbell, 616 F.2d 1151, 1153 (9th
Cir. 1980).
10136 UNITED STATES v. WARE
was federally insured at the time of the relevant
offense conduct here . . . in 1997. The certificate of
insurance from 1985 antedated the offense by more
than a decade. [The bank officer’s] testimony was
provided solely in the present tense at trial, well over
two years after the time of the alleged offense. Nei-
ther directly supports the inference that [the bank]
was in fact federally insured in May 1997.
Id. at 1244 (emphasis added).
This same time-frame differential also distinguishes Allen.
There, the government elicited present-tense testimony of fed-
eral insurance approximately five years after the date of the
offense. Allen, 88 F.3d at 768-69. Similar to Ali, the Allen
court emphasized,
The problem with this testimony is that it took place
during trial in January, 1994. [The witness]
answered the prosecutor’s questions in the present
tense. Thus, while her testimony may establish the
credit union’s insurance status in 1994, it does not
establish that the credit union was insured when
Allen made his fraudulent statements in 1988-89.
...
[These] present-tense answers simply do not support
the inference that Southern Credit Union was feder-
ally insured at the time of the offenses, some four
and a half years earlier.
Id. at 769 (emphasis added).
[3] We read Ali and Allen as holding that the passage of a
substantial period of time may prohibit the trier of fact from
inferring the existence of past insurance coverage from testi-
mony of present insurance coverage. They do not, however,
UNITED STATES v. WARE 10137
prohibit the jury from properly making such an inference
where, as here, the trial is held within six months of the rob-
beries, and the inference is supported by other circumstantial
evidence.3
Here, the testimony at the petitioner’s trial in March of
1996 occurred less than five months after the robberies in
October of 1995. Ali and Allen, on the other hand, involved
testimony that occurred years after the subject offense. Due
to the principled distinction between this case, Ali, and Allen,
justice does not demand that we treat these cases alike. Cf.
United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004)
(opining that “justice demands that we treat like cases alike”
when there is “no principled distinction” between cases).
Thus, we are not persuaded by the petitioner’s theory that the
bank tellers’ present-tense testimony had no evidentiary value
in proving the federally-insured status of the bank branches.
The importance of the totality of trial evidence is reflected
in the language of both Ali and Allen. In Ali, aside from the
present-tense testimony, the only evidence admitted to show
that the bank was federally insured at the time of the offense
was a 1985 certificate of insurance. Ali, 266 F.3d at 1243. As
3
Other circuits agree that, absent the passage of a substantial period of
time, an inference of coverage may be drawn from evidence of contempo-
rary coverage. In United States v. Mitchell, the Eighth Circuit approved
present-tense trial testimony of the federally-insured status of the robbed
bank, where only seven months had passed from the time of the robbery.
136 F.3d 1192, 1193 (8th Cir. 1998). Similarly, in United States v. Sliker,
the Second Circuit held that it is permissible to infer a condition was pres-
ent in the past from its existence in the present because “the subsequent
existence of a condition is some evidence of its prior existence, at least
when the time span is not too great and there is no suggestion of an inter-
vening circumstance that might call its previous existence into question.”
751 F.2d 477, 484 (2d Cir. 1984) (Friendly, J.) (citing 2 Wigmore, Evi-
dence § 437(1) at 513-19 (Chadbourn Rev. 1979)); accord United States
v. Miller, 71 F. Supp. 2d 1113, 1115-16 (D. Kan. 1999) (contrasting
Allen on the basis of a ten-month period between the trial testimony and
the robbery).
10138 UNITED STATES v. WARE
we observed, “neither [the testimony nor the certificate]
directly supports the inference that [the bank] was in fact fed-
erally insured in May 1997.” Id. at 1244.
The outcome in Ali might have been different if the prose-
cution had presented some additional evidence on which the
court could have relied. Allen makes this point clear.
Although Allen held that present-tense testimony alone was
insufficient, we found that the government proved “by a thin
margin” the insurance status of a bank, where two undated
documents related to the bank contained the words “Member
FDIC.” Allen, 88 F.3d at 769. In considering one of the docu-
ments, we disregarded the fact that it did “not contain a year
date,” stating that “one can infer from the information con-
tained therein that the form was completed in 1989 [on the
year of the offense].” Id. Viewing the evidence in the light
most favorable to the prosecution, we “conclude[d] that a
rational trier of fact could have found beyond a reasonable
doubt that [the b]ank was federally insured at the time of” the
subject offense. Id.
[4] In the petitioner’s case, there was sufficient additional
evidence to support the inference that the bank was federally
insured at the time of the robberies. The bank tellers’ testi-
mony provided more information than the testimony at issue
in both Ali and Allen. Present-tense testimony aside, one teller
testified that all banks are federally insured. Both tellers testi-
fied that they were working at the respective branches of First
Interstate Bank on the date of the robberies. The tellers further
testified that they knew the banks were federally insured
because of posted notices. Thus, when viewed in the light
most favorable to the prosecution, this testimony allowed the
jury to find beyond a reasonable doubt that First Interstate
Bank was federally insured at the time of the robberies.4 See
4
Additionally, the government asserts that the jury could have inferred
the federally-insured status of First Interstate Bank by taking notice of the
fact that the only law-enforcement officers to testify about the bank rob-
UNITED STATES v. WARE 10139
Jackson, 443 U.S. at 319; see also United States v. Guerrero,
169 F.3d 933, 944-45 (5th Cir. 1999) (determining that, in
light of bank official’s complete testimony, jury could find
beyond a reasonable doubt that bank was federally insured at
time of robbery when official testified “bank is federally
insured”).5
III
[5] For all of the foregoing reasons, we hold that the district
court correctly denied habeas relief to the petitioner. Because
the petitioner’s trial was held shortly after the subject rob-
beries, the tellers’ testimony that the bank was federally
insured at the time of trial, when combined with other circum-
stantial evidence, was sufficient to allow the jury to find that
element of the crime beyond a reasonable doubt. Accordingly,
the judgment of the district court is
AFFIRMED.
beries were federal agents. Both agents detailed their investigations of the
petitioner and confirmed that the bank robberies fell within their federal
province. Based on our determination that FDIC status was sufficiently
proven by the short interval of time between the robberies and trial along
with the totality of the tellers’ testimony, we need not determine the extent
to which the federal agents’ testimony supported the inference that the
bank was federally insured.
5
Other circuits have held that the evidence was sufficient where the tes-
timony of federally-insured status, while ostensibly only pertinent to the
time of trial, was supported by some additional evidence, however scant.
E.g., United States v. Harris, 914 F.2d 927, 933-34 (7th Cir. 1990) (intro-
duction of a 34-year-old certificate of insurance and testimony from the
bank president that the premiums had been paid); United States v. Fitzpat-
rick, 581 F.2d 1221, 1223 (5th Cir. 1978) (bank comptroller’s testimony
that bank was insured at time of trial plus certificate indicating insurance
10 years prior to the robbery); see also United States v. Higgans, 507 F.2d
808, 813 (7th Cir. 1974) (bank vice president’s testimony that all banks
have FDIC insurance coupled with a certificate of insurance dated 16
months after the date of the robbery).