Sunday, February 10, 2019

Hold the government to its burden

Recently, in United States v. Munksgard, No. 16-17654, 2019 WL 361432 (11th Cir. Jan. 30, 2019), the Eleventh Circuit issued an opinion which serves as a reminder to defense attorneys to hold the government to its burden and argue—after the evidence is closed—that the government failed to offer sufficient evidence at trial to prove that a bank is FDIC-insured. Although the defendant in Munksgard did not prevail in his appeal, the case was sufficiently close to provoke a detailed dissent and a strong word of warning from the majority to government prosecutors.
Mr. Munksgard was charged under 18 U.S.C. § 1014, which “criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC.” Munksgard’s appeal raised the issue of whether the government had presented sufficient evidence to prove that the bank was FDIC-insured at the time of the offense.
As the dissent noted, the government provided no direct evidence that the bank was FDIC-insured in 2013 when the offense was committed. Instead, the government presented the following evidence at trial: (1) certification which indicated that the bank was FDIC-insured at the time of its charter in 1990, decades before the offense; (2) testimony that the bank was insured at the time of trial in 2016; and (3) testimony that the bank “isn’t required to ‘renew’ its FDIC certificate ‘every so often.’”
Although the court concluded, “albeit reluctantly,” that a reasonable juror could find that the bank was insured by the FDIC at the time of the offense, it noted that “[f]or reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally ‘indispensable,’ element of FDIC insurance.”
As the majority stated, “let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.”
The decision can be found here.

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