Appeal from the United States District Court for the Northern District of California. D.C. No. CR-90-00533-TEH. Thelton E. Henderson, District Judge, Presiding.
Before: Arthur L. Alarcon, Pamela Ann Rymer, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Rymer; Dissent by Judge Alarcon.
The government neglected to introduce evidence that banks it accused Charles Cornelius James of robbing were insured by the Federal Deposit Insurance Corporation. Even though proof of FDIC insurance is an element of the federal crime of bank robbery, 18 U.S.C. § 2113(a), James was convicted. He appeals on the ground of insufficiency of the evidence.*fn1 We have to decide whether a stipulation about "the FDIC aspect of the case," made outside the presence of the jury, and the assertion by James's counsel in opening statement and closing argument that the only issue was identification, suffice to uphold the verdict. We think not, and therefore reverse.
James was convicted of robbing American Savings Bank, Home Federal Savings, and Bank of the West during August and September, 1990 in violation of 18 U.S.C. § 2113(a). At trial, the government rested without presenting any evidence that these banks were insured by the FDIC. After the defense rested but before the close of evidence, the Assistant United States Attorney advised the court outside the presence of the jury that "I still have to draw a stipulation as to FDIC." The next day the government successfully moved, over objection, to reopen to introduce the birth certificate of James's son. Again outside the presence of the jury, the following exchange took place:
GOVERNMENT: Also I showed counsel an outline of a stipulation which I would like to read orally to the jury. It has to do with the FDIC aspect of the case.
DEFENSE COUNSEL: FDIC, Federal Deposit Insurance Corporation.
COURT: That is a stipulation between counsel, right?
COURT: When do you propose to read that stipulation?
GOVERNMENT: As soon as the jury comes out.
The court gave a boilerplate instruction on the effect of stipulations, and instructed, properly, that the government had the burden of proving beyond a reasonable doubt each element of the offense, including that the banks were insured by the FDIC.
During opening statement, James's counsel stated: "This case is indeed a very simple case. And it really is one issue. The one issue that you are going to be called upon to decide at the Conclusion of the case is whether or not Charles Cornelius James . . . is . . . responsible for the robbery of the four banks." In closing argument, the AUSA told the jury that:
normally, the Government has to prove a bunch of elements: that someone robbed a bank; that someone used force; that money was taken; that the funds were federally insured. And normally the Government is required . . . to show every element of that offense to show the defendant's guilt. . . .
And if you recall, [defense counsel] said there is only one issue.
And in his argument, James's counsel stated:
When I started off talking to you . . . I said to you this was a one issue case. I think [the prosecutor] said the same thing, there is only one issue here. The issue is did Charles Cornelius James rob a bank.
The jury thought so, and convicted James on all three counts.
James argues that the evidence is insufficient to support his conviction since the government failed to introduce any evidence of whether the banks were insured by the FDIC. We will reverse a conviction for insufficient evidence if "'reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Bishop, 959 F.2d 820, 829 (9th Cir. 1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)).
We have repeatedly held that to support a conviction of armed robbery under 18 U.S.C. § 2113 (a), the government has to prove that the money taken was from a bank insured by the FDIC. See, e.g., United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 64 L. Ed. 2d 861, 100 S. Ct. 2998 (1980); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.) (there is no question that a proper showing of FDIC insurance is an essential element of the crime), cert. denied, 400 U.S. 867, 27 L. Ed. 2d 106, 91 S. Ct. 108 (1970). Here there was no evidence before the jury at all on whether the banks were insured by the FDIC. The bank employees who testified did not testify as to the FDIC status of the banks, cf. Campbell, 616 F.2d at 1153 (uncontradicted testimony of bank employees sufficient to show that money taken was FDIC insured), and the stipulation concerning the ...