UNITED STATES of America, Appellee, v. Ohifuemeh Peter AYEWOH, Defendant-Appellant.
No. 09-1585.
United States Court of Appeals, First Circuit.
Heard July 28, 2010. Decided Dec. 13, 2010.
627 F.3d 914
Charles R. Walsh, Jr., Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United
Before THOMPSON, SELYA, and DYK,* Circuit Judges.
DYK, Circuit Judge.
Appellant Ohifuemeh Peter Ayewoh (“Ayewoh“) was convicted of bank fraud in the United States District Court for the District of Puerto Rico. On appeal Ayewoh contends that the government provided insufficient evidence that the defrauded bank, Banco Popular de Puerto Rico (“BPPR“), was insured by the Federal Deposit Insurance Corporation (“FDIC“) at the time of the crimes; that Ayewoh knowingly defrauded BPPR; or that Ayewoh madе misrepresentations to BPPR. Ayewoh further contends that the prosecutor violated his Fifth Amendment rights by referring to his decision not to testify. We reject these contentions and affirm Ayewoh‘s conviction and sentence.
I.
In 2005, Ayewoh established OIPA, Inc., as a for profit corporation in Puerto Rico to provide inspection services at public housing projects for the U.S. Department of Housing and Urban Development (“HUD“). Ayewoh was the President of the corporation, and his wife was the Secretary. In OIPA‘s name, Ayewoh acquired a credit card point-of-sale device (“POS device“) and a merchant‘s account at BPPR. A POS device allows a merchant to accept credit card payments either electronically (by swiping a card‘s magnetic strip through the device) or manually (by entering a card‘s number with a keypad).1 HUD‘s method of payment for
When a credit card transaction executed on a POS device is accepted by the bank that issued the card (“issuing bank“), the payment is deposited directly into the merchant‘s bank account (at the “acquiring bank“). In the event that a cardholder disputes a transaction, contractual agreements with credit card providers such as Visa and MasterCard permit the issuing bank to initiate a “chargeback” whereby the acquiring bank is liable to the issuing bank for the full amount of the disputed charge. The acquiring bank, in turn, looks to the merchant for reimbursement.
Ayewoh was the only person with access to OIPA‘s POS device. For several months, Ayewoh, using the POS device, processed relatively small charges, with monthly totals ranging from $1,045 in February 2006, to $9,135 in March 2006. However, in April 2006, OIPA‘s account received $113,070 in payments from at least sixteen different credit cards. BPPR‘s records showed numerous instances in which OIPA‘s POS device attempted to run a large transaction, which was declined, and then it immediately attempted several additional transactions with the same credit card for progressively smaller amounts. Upon detecting this suspicious activity, BPPR froze OIPA‘s account and sent investigators to question Ayewoh. When asked how he obtained the credit card numbers at issue, Ayewoh claimed he received a list of numbеrs from a “friend of a friend” in Europe who wanted to invest in a new housing development project Ayewoh had planned for OIPA. Though repeatedly asked, Ayewoh declined to provide information about the project and stated that he did not know the identity of the alleged investor.
Soon thereafter the banks that issued the credit cards in question began notifying BPPR that Ayewoh‘s March and April charges were unauthorized. BPPR subsequently returned $122,104 in chargebacks to the issuing banks. Of this $122,104, BPPR was only able to recover about $100,000 from Ayewoh, who had withdrawn large amounts before his account was frozen. BPPR suffered a net loss of $19,644.
Ayewoh was indicted by a grand jury in November 2007 on one count of bank fraud, charging a violation of
Ayewoh does not dispute that the evidence established that he made unauthorized charges to the credit cards at issue. However, Ayewoh contends on appeal that the government failed to prove all of the essential elements of the bank fraud offense. See
A.
Ayewoh first contends that the government failed to present sufficient evidence at trial to establish that BPPR was insured by the FDIC at the time of his crimes. The bank fraud statute at issue punishes the
knowing[] execut[ion] [of] a scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of the moneys owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.
The government presented two items of evidence at trial to establish BPPR‘s federally-insured status: (1) a certificate of FDIC insurance issued to BPPR on January 2, 1999; and (2) testimony by BPPR‘s record custodian regarding the certificate. The record custodian‘s testimony was as follows:
Q I would like to show you government‘s identification number 1.... Without discussing the substance, do you recognize that document?
A Yes, I do.
Q What do you recognize that to be?
A This is the Federal Deposit Insurance Corporation certificate issued to Banco Popular Puerto Rico on January 1999.
Q How do you know it is the same one at Banco Popular?
A My initials are on the back.
Appellant‘s App. 131-32 (emphasis added).
Ayewoh did not object to admission of the certificate or to the record custodian‘s testimony, and he did not cross examine the witness. Nonetheless, Ayewoh ques-
The FDIC certificate presented in this case, which predated Ayewoh‘s offenses by seven years, states: “[FDIC] Washington, D.C., Hereby certifies that the deposits of each depositor in Banco Popular de Puerto Rico ... are insured to the maximum amount provided by the Federal Deposit Insurance Act.” It further includes the official seal of the FDIC, signatures from both the FDIC‘s Executive Secretary and Chairman of the Board, BPPR‘s unique FDIC certificate number, and the date of January 2, 1999. No expiration date is listed because FDIC insurance never expires, but rather continues indefinitely until terminated voluntarily or involuntarily under
Voluntary termination is not permissible for most banks.
Nevertheless, there is a serious question as to whether an FDIC certificate that predates the offense by seven years is alone sufficient evidence of federal insurance. The Fifth and Seventh Circuits have overturned convictions where the only evidence of federal insurance was a single FDIC certificate which predated the offense, see United States v. Platenburg, 657 F.2d 797, 799 (5th Cir.1981) (overturning conviction where only evidence of federal insurance was an FDIC certificate predating the offense by seven years); United States v. Shively, 715 F.2d 260, 265 (7th Cir.1983) (where only evidence was an FDIC certificate which predated the offense by nine years), and the Ninth and Tenth circuits have indicated their support for this view, see United States v. Chapel, 41 F.3d 1338, 1340-41 (9th Cir.1994); United States v. Darrell, 828 F.2d 644, 648 (10th Cir.1987).
We need not decide in this case whether the FDIC certificate would alone be sufficient proof of federal insurance, for here there was also the testimony of BPPR‘s record custodian who testified that the certificate offered into evidence “is the [FDIC] certificate issued to [BPPR] on January 1999.” Appellant‘s App. 132. Here, the time between the alleged offenses and this trial testimony was approximately two and a half years.
Generally, courts have found that testimony that a bank is insured at the time of trial can alone permit a reasonable jury to infer that the bank was insured at the time of the crime. For example, when presented with a bank vice president‘s testimony that the bank‘s deposits “‘are’ FDIC-insured,” the Second Circuit held
that where ... the evidence is oral testimony that the bank is insured, and the interval between the crime and the trial is not great, it is reasonable to conclude that “viewed in context, the jury could draw the inference that the bank was insured at the time of the [crime],“-in other words, that th[e] jury could take “is” to mean “is and has been.”
United States v. Sliker, 751 F.2d 477, 484-85 (2d Cir.1984) (intеrnal citation omitted). This approach is widely accepted by the circuits. See, e.g., United States v. Ware, 416 F.3d 1118, 1121-23 (9th Cir.2005); United States v. Lewis, 260 F.3d 855, 855-56 (8th Cir.2001); United States v. Knop, 701 F.2d 670, 672-73 (7th Cir.1983); United States v. Safley, 408 F.2d 603, 605 (4th Cir.1969); Cook v. United States, 320 F.2d 258, 259 (5th Cir.1963). But see United States v. Ali, 266 F.3d 1242, 1244 n. 3 (9th Cir.2001) (finding testimony insufficient where time between trial and crime was too lengthy). Furthermore, courts have tended to accept any bank employee‘s testimony as sufficient, regardless of whether that employee was in a managerial position. See, e.g., United States v. Bindley, 157 F.3d 1235, 1239 (10th Cir.1998).
However, Ayewoh contends in this case that the district court erred in interpreting the testimony of BPPR‘s record custodian as “oral testimony that the bank was insured at the time of trial.” Ayewoh, 587 F.Supp.2d at 381. Rather, Ayewoh argues that the custodian‘s testimony that the certificate offered by the government “is the [FDIC] certificate issued to [BPPR] on January 1999” should be construed as nothing more than merely attesting to the document‘s authenticity.
We conclude that the bank employee‘s testimony is ambiguous and that reasonable minds could differ as to its interpretation. On one hand, the testimony could be read as meaning “This is the [сurrent FDIC] certificate [which was] issued to [BPPR] on January 1999.” Alternately, as Ayewoh contends, the statement could reasonably be interpreted as mere authentication testimony—that is, to mean “This is the [FDIC] certificate [which was] issued to [BPPR] on January 1999.”
This Court has previously stated that, “[i]n reviewing a sufficiency-of-the-evidence claim, the Court must view the facts in the light most favorable to the Government, deferring to the jury‘s verdict if the evidence can support varying interpretations, at least one of which is consistent with the defendant‘s guilt.” United States v. Neal, 36 F.3d 1190, 1203 (1st Cir.1994)
Thus, when reviewing evidence for sufficiency and considering ambiguous testimony that is susceptible to more than one reasonable interpretation, we must construe the testimony in the light most favorable to the prosecution.4 We must therefore presume that the jury interpreted the record custodian‘s testimony as a statement that the FDIC certificate of-
As such, the ultimate question with respect to sufficiency in this case is whether a rational jury could have found beyond a reasonable doubt that BPPR was federally-insured during March and April of 2006 (the time frame of Ayewoh‘s crimes), given the evidence of: (1) an FDIC insurance certificate issued to BPPR in 1999; and (2) testimony by BPPR‘s record custodian which, interpreted in the light most favorable to the government, asserted that the certificate remained a valid symbol of BPPR‘s fеderally-insured status at the time of trial. We join the vast majority of circuits in holding that such evidence is sufficient proof of FDIC insurance. That is, with evidence of FDIC insurance both at a time predating the offense and at the time of trial, a reasonable jury could infer that, absent evidence to the contrary, the bank was insured on the date of the crime.5
Consequently, we reject Ayewoh‘s contention that the government failed to offer sufficient proof of FDIC insurance. This is not to say that we endorse the prosecutor‘s handling of the case. The prosecutor assuredly could—and should—have done better. Federally insured status is easily proved in a garden-variety bank fraud case, and it is not too much to expect that the government will take the need to do so seriously. That said, however, we find the proof in this case adequate, if barely, as to that element of the offense.
B.
Ayewoh next contends that he lacked thе requisite mens rea for the crime charged. Under the bank fraud statute, the alleged scheme or artifice to defraud a financial institution must have been undertaken knowingly by the defendant.
When interpreting
Congress intended to criminalize bank frauds that harm federally insured banks, not just bank frauds directed specifically toward federally insured banks. As other courts have noted, the legislative history supports a broad construction of the statutory language of the bank fraud statute.
Defendants [cannot] ... sanitize their fraud by interposing an intermediary or an additional victim between their fraud and the federally insured bank.... The fact that it should turn out that [a] financial institution actually defrauded was federally insured is a fortuitous stroke of bad luck for the defendants but does not make it any less of a federal crime.
Id. (internal citations and quotation marks omitted). Thus, if a defendant merely knows that his fraudulent actions will expose some bank (whether or not federally insured) to a risk of loss, the mens rea requirement of
Ayewoh claims he “had no way of knowing that [BPPR] would be held responsible to the issuing banks for chargebacks” resulting from his unauthorized credit card transactions. Appellant‘s Br. 27. “[T]he target of the scheme wаs not [BPPR],” he contends, “but [was] rather the credit card holders....” Appellant‘s Br. 22. This argument lacks merit. Whether Ayewoh specifically knew BPPR would be liable to the issuing banks for chargebacks is irrelevant, for all
C.
Ayewoh urges that there was not sufficient evidence for the jury to conclude that he violated
III.
We turn finally to Ayewoh‘s contention that the prosecutor violated his Fifth Amendment rights by referring during closing arguments to Ayewoh‘s decision not to testify. The closing argument is “an especially delicate point in the trial process,” and we scrutinize the prosecutor‘s comments accordingly. United States v. Glover, 558 F.3d 71, 77 (1st Cir.2009) (quoting United States v. Taylor, 54 F.3d 967, 977 (1st Cir.1995)). In Griffin v. California, 380 U.S. 609, 614 (1965), the Supreme Court held that “comment on the [defendant‘s] refusal to testify” burdens the constitutional privilege against compelled self-incrimination and is therefore prohibited. To decide whether Ayewoh is entitled to relief, we engage in a two-pronged analysis: First, we conduct a de novo review to determine whether the prosecutor‘s comments offended the Fifth Amendment by improperly insinuating that Ayewoh‘s failure to testify constituted evidence of guilt. Gomes v. Brady, 564 F.3d 532, 537 (1st Cir.2009). To that end, “we consider ‘whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.‘” Id. at 538 (quoting United States v. Glantz, 810 F.2d 316, 322 (1st Cir.1987)). Second, if we determine the comments were improper and the objection was preserved, we review for harmless error. Glover, 558 F.3d at 76.
At trial, Ayewoh‘s counsel urged that Ayewoh did not knowingly defraud anyone because he believed at the time that he had obtained the credit cards legitimately from a “friend of a friend” who sought to invest in his company OIPA, Inc. Under this theory, the unidentified “friend of a friend” was the real criminal who defrauded innocent Ayewoh by purporting to be a legitimate investor. Though Ayewoh did not testify at trial, he proffered this defense thrоugh the testimony of his wife. BPPR‘s investigator Mr. Ponce also testified that Ayewoh stated during an interview that he had received the credit cards from a “friend of a friend” who was an investor in Europe and that the transaction had been done entirely through his friend. Appellant‘s App. 211. Finally, in closing arguments, Ayewoh‘s counsel repeatedly asserted that the purported “friend of a friend” was entirely to blame and that Ayewoh was himself an innocent victim of fraud. For context, we quote the relevant portions of defense counsel‘s closing argument:
[T]he money was invested in OIPA, Inc., by this friend of a friend.
Mr. Ayewoh committed a mistake, but that mistake was not defrauding anybody. That mistake was trying to grow and seeing an opportunity and grabbing it without looking at what was behind it, because somebody who knew that he was in need offered him his dream, I‘ll give you the money, here, start charging here. And he did.
Trial Tr., Oct. 14, 2008, ECF No. 84, at 28 (emphasis added).
[Ayewoh] got somebody to invest in his company, the company that he, with his wife, was developing so that he could make a better living for himself and also pay back his investors.
But he was defrauded.... And you‘ll say, but look at all those things that the government showed....
The government doesn‘t know if [Ayewoh] called his friend to find out, hey, these [credit cards] are being rejected, what‘s going on[?] And his friend told him, Oh, I gave you the wrong number. Oh, I need to deposit. Oh, I need to do something.
We don‘t know that. The government doesn‘t know that.
Trial Tr., ECF No. 84, at 29 (emphasis added).
Ladies and gentlemen, the mistake Mr. Ayewoh made was that he believed the friend of a friend.
Trial Tr., ECF No. 84, at 35 (emphasis added). It is a pity that [Ayewoh] didn‘t have a contract with this gentleman that lent him the money. If he had sought his attorney‘s advice at the moment, he would have had one.
Trial Tr., ECF No. 84, at 38.
Everything that surrounds this case shows that somebody tried to defraud the bank....
But that somebody is not Mr. Ayewoh. That somebody is the person, the friend of the friend that gave him the credit card numbers. We don‘t know who he is.
Trial Tr., ECF No. 84, at 40 (emphasis added).
Seeking to cast doubt on Ayewoh‘s defense theory, the government made several comments in closing regarding the lack of a known identity for Ayewoh‘s purported “friend of a friend.” Specifically, Ayewoh contends that the following three comments made during the government‘s rebuttal argument violated his Fifth Amendment rights by improperly commenting on his failure to testify as to the alleged investor‘s identity:
[1] Okay. Let‘s say the defendant says it is a mistake. Well, you have an instruction on willful blindness. Was he willfully blind that these credit cards were, in fact, stolen[?]
Well, let‘s look at the defendant‘s statement.
A friend of a friend. To this day, to this day, you have heard from government witnesses, you have even heard from the defendant‘s spouse. We still don‘t know who this friend of a friend is....
You are going to have, you know, an individual make over $100,000 worth of investments in your company and then not know who the person is. Not do an investment contract?
Trial Tr., ECF No. 84, at 46-47 (emphasis added).
[2] It makes absolutely no sense that this defendant got these numbers from a friend of a friend, over 16 credit cards, start[ed] essentially doing the manual POS transactions, multiple times, and not know who that individual is.
We still don‘t know who that individual is. Gentleman who lent the money, we have no idea. We have no name.
Trial Tr., ECF No. 84, at 47-48 (emphasis added).
[3] But here, in looking at all the evidence—and, you know, the defendant has argued that, now, this was a mistake, that he believed a friend of a friend. That it was a mistake, in believing a friend of a friend, that what he wanted to do was to get a good life.
Well, this is not believable. Use your common sense. Okay. Common sense doesn‘t—it doesn‘t make sense. It is not a mistake that you get 17 credit card numbers from a person that you don‘t know, have no idea and then do multiple transactions over a short period of time in order to figure out what the credit limits of the credit cards are. You just don‘t do that.
Because if you have a friend of a friend who is actually giving you these numbers and you know who that friend is, you call that friend and you tell the friend, “Listen, the credit card isn‘t working, what‘s happening, [is it] being declined for insufficient funds?” But you haven‘t heard evidence of that.
Trial Tr., ECF No. 84, at 51-52 (emphasis added).
Ayewoh‘s counsel timely objected to the first of these remarks by requesting to approach the bench, but the court denied
First, contrary to Ayewoh‘s contention that only he could provide the identity of the “friend of a friend,” Ayewoh himself was not the only person who could identify the alleged investor if he existed. For example, the “friend” who purportedly acted as an intermediary between Ayewoh and the mysterious “friend of a friend” might have testified as to the investor‘s identity and to their business arrangement. Morеover, in his interview with the bank representative, Ayewoh reportedly stated that he never knew the identity of the “friend of a friend” because the deal was all done through an immediate friend. Appellant‘s App. at 211. Thus, this case is distinguishable from cases in which “[n]o one but [the] appellant ... could have [testified]” regarding the issue, see Desmond v. United States, 345 F.2d 225, 227 (1st Cir.1965), because here it was “apparent on the record that there was someone other than himself whom the defendant could have called.” Id. As such, the prosecutor‘s comments regarding the lack of such evidence in the record did not “naturally and necessarily” point to Ayewoh‘s failure to testify. Gomes, 564 F.3d at 538 (quoting Glantz, 810 F.2d at 322); see also United States v. Wilkerson, 411 F.3d 1, 8-9 (1st Cir.2005) (prosecutor‘s comments that “there‘s no real evidence” and “pretty much nothing” to support defendant‘s theory did not “naturally and necessarily” comment on his failure to testify because they likely “referred to [defendant‘s] failure to produce other evidence supporting his theоry,” or were at most ambiguous).
Second, even if the prosecutor‘s remarks could be read as commenting on Ayewoh‘s failure to testify, the comments were a “fair response” to claims by the defendant. In United States v. Robinson, 485 U.S. 25, 34 (1988), the Supreme Court carved out an exception to Griffin for prosecutors who refer to a defendant‘s failure to testify while “fairly responding to an argument of the defendant.” In that case, the defense counsel asserted in closing arguments that the government had not given the defendant a chance to tell his side of the story. Id. at 27. On rebuttal, the prosecutor responded by informing the jury that the defendant “could have taken the stand and explained it to you.” Id. at 28. Finding no Fifth Amendment violation, the Supreme Court reasoned that, “[w]here the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant‘s silence, Griffin holds that the privilege against compulsory self-incrimination is violated,” but where the prosecutor‘s reference to the defendant‘s failure to testify is a “fair response to a claim made by defendant or his counsel,” the Fifth Amendment is not offended. Id. at 31-32. The Court further explained that “the Fifth Amendment should [not] be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense[‘s] case.” Id. (quoting United States v. Hasting, 461 U.S. 499, 515 (1983) (Stevens, J., concurring)).
Following the Supreme Court‘s decision in Robinson, this Court has applied the
We find that Robinson controls in this case and that, viewed in context, the prosecutor‘s challenged comments were part of a “fair response” to the arguments made by Ayewoh‘s counsel. The first two challenged comments, which emphasized the lack of evidence regarding the identity of the purported “friend of a friend,” were permissible attacks on the plausibility of Ayewoh‘s defense theory. “Having put forth a theory in [his] defense,” Ayewoh “[could not] expect the government to refrain from commеnting on its deficiencies” and the lack of evidentiary support for his theory—namely, that the record did not even include the identity of the mysterious person whom Ayewoh claimed he mistakenly believed “invested” over $122,000 in his company. The prosecution was permitted to highlight such a glaring weakness in the defense‘s case.
Similarly, it is clear that the prosecutor‘s third challenged comment, viewed in context, was a “fair response” specifically to the defense counsels comment that “[t]he government doesn‘t know if [Ayewoh] called his friend to find out” why some of the credit cards weren‘t working. Trial Tr., ECF No. 84, at 29. On rebuttal, the prosecutor‘s third comment fairly responded to the defense counsel‘s statement by informing the jury that “you haven‘t heard evidence” that Ayewoh placed any such calls to his friend. Trial Tr., ECF No. 84, at 52.
Thus, because all of the prosecutor‘s challenged comments were made in “fair response” to claims by the defense, Ayewoh‘s Fifth Amendment rights were not violated.
IV.
For the foregoing reasons, we affirm Ayewoh‘s conviction and sentence on the bank fraud and forfeiture counts.
Affirmed.
THOMPSON, Circuit Judge, dissenting.
I am happy to join my colleagues’ opinion except as to Section II.A. I cannot agree with their characterization of the evidence offered to show that BPPR was insured by the FDIC when Ayewoh defrauded BPPR—a central element of the conviction. The record, containing only a seven-year-old FDIC certificate and its authenticating testimony, is too flimsy to support the interpretation that the majori-
For more than thirty years now, prosecutors have been on notice that they must be as diligent in proving the FDIC insurance element of crimes likе bank fraud as they are in proving any other element. In 1980, the Fifth Circuit expressed “difficulty comprehending why the [g]overnment repeatedly fails to prove this element more carefully since [its] burden is so simple and straightforward,” and warned the government that it “treads perilously close to reversal.” United States v. Maner, 611 F.2d 107, 112 (5th Cir.1980). With increasing exasperation, our sister circuits have since continuously issued warnings to the government, imploring it to take this requirement more seriously.9 Eventually, they began reversing convictions where the government‘s measly evidentiary proffer could not have persuaded a jury beyond a reasonable doubt that the financial institution at issue was FDIC-insured as of the offense date.10
Though the line between sufficiency and insufficiency is by no means bright, its broad contours are readily discernible. On one side is a single FDIC certificate predating the offense, which our sister circuits have uniformly rejected as insufficient. Maj. Op. at 918-19 (collecting cases). On thе other side is the testimony of a bank employee to the effect that the bank is
The majority parses the evidence of insurance into two separate pieces: the FDIC certificate and the testimony of BPPR‘s record-keeper. The certificate itself, as in Shively and Platenburg, was issued about seven years before Ayewoh‘s fraud. Because a jury cannot reasonably conclude, without something more, that the bank‘s insurance status has remained in force throughout the intervening years, see Shively, 715 F.2d at 265, the certificate is insufficient. That leaves the record-keeper‘s testimony, which the majority insists provides enough proof of insurance that, when combined with the certificate, it pushes the quantum of evidence across the line.
As my colleagues recognize, the jury‘s verdict must be “supported by a plausible rendition of the record,” Wilder, 526 F.3d at 8 (internal quotations omitted), and although “the jury is entitled to choose among varying interpretations of the evidence[,] ... the interpretation it chooses [must be] a reasonable one,” Martinez, 922 F.2d at 914, 923. The factfinder does not have unfettered discretion to rely on any conceivable interpretation of the evidence. True, appellate courts must “view the facts in the light most favorable to the [g]overnment,” Neal, 36 F.3d at 1203, but the touchstones are plausibility and reasonableness.
Here is the entirety of the record-keeper‘s testimony:
Q: I would like to show you government‘s identification number 1. Let the record reflect that it has been shown to the defendant[.]
Q: Without discussing the substance, do you recognize that document?
A: Yes, I do.
Q: What do you recognize that to be?
A: This is the Federal Deposit Insurance Corporation certificate issued to Banco Popular [de] Puerto Rico on January 1999.
Q: How do you know it is the same one at Banco Popular?
A: My initials are on the back.
[Q:] Your Honor, we ask that govеrnment‘s exhibit 1 be admitted into evidence.
The majority asserts that this exchange is amenable to multiple reasonable interpretations, including one that relates to BPPR‘s insurance status at the time of trial. Maj. Op. at 919-20. I disagree. Rather, the record-keeper‘s testimony merely authenticated the paper she was shown as the 1999 certificate. Once the government succeeded in entering the certificate into the record, it elicited no further testimony explaining the significance of the certificate.11 The testimonial con-
The majority disagrees, suggesting that the key passage in the colloquy above could be interpreted by a rational juror to mean, “This is the [current FDIC] certificate [which was] issued to [BPPR] on January 1999.” Maj. Op. at 919 (alterations in original). But this interpretation imports meaning that the testimony itself does not support: the word “current” cannot be inferred from or found anywhere in either the statement or its testimonial context. Indeed, the statement conveys no information other than that the certificate is authentic and was issued in 1999.12
The majority also discusses the relative infrequency with which FDIC certificates are revoked. Maj. Op. at 918. While this information, in concert with other evidence, might buttress a jury‘s conclusion that a certificate remains valid, it is irrelevant hеre because it is nowhere in the record. When considering sufficiency claims, we consider only the evidence available to the factfinder, cf. United States v. DeCologero, 530 F.3d 36, 65 (1st Cir.2008), because it is ultimately the jury that must find the defendant guilty beyond a reasonable doubt, not a reviewing court. Of course, juries may rely upon their common sense and upon any fact in common knowledge in reaching a verdict. See, e.g., Maroules v. Jumbo, Inc., 452 F.3d 639, 644-45 (7th Cir.2006). But because the jury in this case was not made aware of the procedural and statistical details relating to the revocation of FDIC certificates, they should not inform our consideration of the sufficiency the government‘s proof. Unlike the majority‘s reasonable suggestion that “[i]t is common knowledge that cardholders may generally disavow unauthorized charges on their credit card statements,” Maj. Op. at 922, for example, it is hardly common knowledge that FDIC certificates are rarely revoked. Since we cannot assume that thе intricacies of FDIC insurance are widely known, we cannot say that there was sufficient evidence to support the proposition that BPPR was insured when Ayewoh carried out his schemes.
The government‘s failure to prove an indispensable element of the charged offense appears against a backdrop of both decades of warnings urging it to be more careful and notice after trial of the possibility of reversal.13 In situations such as
I do not come to this conclusion lightly. Ayewoh admits to intending to defraud innocent credit card owners. He stole more than one hundred thousand dollars, some tens of thousands of which were either never recovered by BPPR or borne unreported by the victimized cardholders. Nevertheless, we should not allow the centuries-old proposition that all elements of a crime must be proven beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 361 (1970), to be eroded slowly for expediency‘s sake.
I respectfully dissent.