United States v. Iverson
818 F.3d 1015
10th Cir.2016Background
- Defendant Marvin Iverson (self-represented with standby counsel) was convicted after a jury trial of bank fraud under 18 U.S.C. § 1344 for attempting to use bogus checks to discharge debts at Big Horn Federal Savings and JPMorgan Chase.
- An element of § 1344 is that the victim is a "financial institution," defined to include an FDIC‑insured depository institution; the government therefore needed proof the banks were FDIC insured at the time of the offense.
- At the close of testimony, the prosecutor asked FBI Agent Kent Smith if he had researched FDIC insurance; Smith said he had reviewed an FDIC certificate for Big Horn and the FDIC website for JPMorgan and testified both banks were federally insured. The government did not introduce the underlying FDIC certificate or a website printout into evidence.
- Defense counsel objected on hearsay and foundation grounds; the district court overruled hearsay objections and allowed Smith to testify. Defense did not preserve a best‑evidence objection at trial (raised only on appeal).
- On appeal the government conceded hearsay error, but the Tenth Circuit majority affirmed: it held Smith’s testimony was either not hearsay or admissible under the public‑records exception (Fed. R. Evid. 803(8)), declined to find plain error on the best‑evidence rule, and found sufficient evidence that JPMorgan was FDIC insured to sustain the conviction.
Issues
| Issue | Plaintiff's Argument (Gov’t) | Defendant's Argument (Iverson) | Held |
|---|---|---|---|
| Admissibility / Hearsay of Agent testimony about FDIC records | Agent testimony admissible — records are public records; testimony reports FDIC records and qualifies under public‑records exception | Testimony was hearsay because it reported contents of out‑of‑court FDIC certificate and website printout that were never admitted | Majority: testimony was either not hearsay (witness recounting what he personally saw) or admissible under Fed. R. Evid. 803(8); overruled hearsay objections and affirmed |
| Best‑evidence rule (Fed. R. Evid. 1002/1005) | No clear plain error; rule does not clearly bar testimony proving existence of insurance (not document contents) | Testimony violated best‑evidence rule because originals/certified copies of FDIC records were not produced | Majority: review for plain error; cannot say error was clear given circuit authority — no plain‑error relief granted |
| Sufficiency of evidence of FDIC insured status | Agent’s website review + business records (bank statements showing “Member FDIC”) suffice to prove JPMorgan insured at time of offense | Insufficient proof because underlying FDIC records were not in evidence | Held: evidence was sufficient as to JPMorgan (short time lapse, corroborating bank statements); conviction sustained (need prove only one insured institution) |
| Judicial notice / alternative basis (concurring view) | Judicial notice of FDIC BankFind pages appropriate as legislative facts and would establish insured status | (Defense did not press judicial‑notice argument; core argument was admission rules) | Concurrence: would affirm also by judicially noticing FDIC website data as facts not subject to reasonable dispute |
Key Cases Cited
- United States v. Trujillo, 136 F.3d 1388 (10th Cir. 1998) (standard of review for evidentiary rulings)
- United States v. Resendiz‑Patino, 420 F.3d 1177 (10th Cir. 2005) (appellate court not bound by parties’ concession)
- United States v. Albert, 773 F.2d 386 (1st Cir. 1985) (FDIC certificate admissible under business‑records exception)
- United States v. Bellucci, 995 F.2d 157 (9th Cir. 1993) (FDIC certificate viewed as a "verbal act")
- United States v. Sliker, 751 F.2d 477 (2d Cir. 1984) (testimony that bank "is" FDIC insured can sustain element; best‑evidence objection rejected in that context)
- United States v. Cooper, 375 F.3d 1041 (10th Cir. 2004) (discusses ways to prove FDIC insurance; sufficiency standard)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (sufficiency challenges assessed against the elements of the charged crime, not against an erroneously heightened jury instruction)