A jury convicted the defendant of ten robberies of federally insured banks plus one attempted 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 photocopy 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 and 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 stipulation 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,
The defendant’s only possibly meritorious argument is that the copies that were placed in evidence are inadmissible 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,
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 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,
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.,
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 identification 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.ChD.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 prosecutor 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.,
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,
Affirmed.