Federal Evidence Review

In bank robbery trial, when copies of FDIC insurance certificates issued to victim bank were not self-authenticating under FRE 902(1) (because copies of the sealed documents were not the original sealed documents), the copies were admissible under FRE 1003 to prove the bank was federally insured when bank tellers testified that they recognized the copies of the certificates, the copies were dated before the robberies occurred, and the banks were currently insured, in United States v. Hampton, 464 F.3d 687 (7th Cir. Sept 20, 2006) (No. 05-3591)

It is not often that an appeal involves a single issue and invites the practitioner to assess the variety of ways to solve a practical evidence problem. One case that does this is the Seventh Circuit’s 2006 case United States v. Hampton, a bank robbery case. The sole issue on appeal was “whether the [robbed] banks were in fact federally insured.” The circuit noted that the government had failed to establish this element of the crime, apparently having gotten “sloppy in this case.” Hampton, 464 at 690. Along with the circuit’s assessment of a variety of ways that prosecutors could use to show the insurance status of the bank, the panel included a brief discussion of three seldom-noted Federal Rules of Evidence – FRE 902(1), FRE 1003 and FRE 1005, dealing with documents under seal, with duplicate copies, and with contents of public records, respectively.

In the case, defendant Hampton was convicted of ten robberies of federally insured banks and related charges. The only issue on appeal involved whether the government had proved beyond a reasonable doubt the banks were federally insured, an element of the offense. During trial, the prosecution introduced photocopies of certificates of insurance that the Federal Deposit Insurance Corporation (FDIC) had issued to the banks. No original certificates were introduced into evidence. An employee of each bank, “typically a teller, testified that an identical photocopy” hung on the wall of his bank and “was a true copy of the bank's certificate.” The victim banks included branches of huge banks like Bank One and Citibank and others with “more obscure names, such as … North Community Bank.” Hampton, 464 at 688.

The Seventh Circuit found that the photocopies of the FDIC certificates of insurance were inadmissible and rejected the theory the district court used for admitting the documents, that they were documents “under seal” pursuant to FRE 902(1). The circuit concluded that the photocopies were not admissible under FRE 902(1), which provides that documents bearing a seal of the United States or one of its officials, agencies, plus a signature purporting to attest or execute the document, is “self-authenticating.” The rule allows for the self-authentication of a document “without any need for a witness to testify that it is authentic” and that it is what it purports to be (an official document stating what it states). Hampton, 464 at 689 (citing United States v. Mateo-Mendez, 215 F.3d 1039, 1041, 1043-44 (9th Cir. 2000); United States v. Moore, 555 F.2d 658, 661 (8th Cir. 1977)).

The government’s proffer of the photocopies of the FDIC certificates failed because “no seal was stamped on the copies. The copies were copies of sealed documents rather than sealed documents themselves. The rationale of Rule 902(1), according to the Committee Notes, is that a seal is difficult to forge. But that is not true of a copy of a seal - or at least the government has made no effort to show that the authenticity of the seal can be inferred with confidence from its copy.” Hampton, 464 at 689 (citing United States v. Wexler, 657 F.Supp. 966, 971 (E.D. Pa. 1987)).

The circuit also rejected admission of the photocopies of the FDIC certificates as public records under FRE 1005. That rule makes copies of public records 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.” Hampton, 464 at 689-90 (citing Seese v. Volkswagenwerk A.G., 648 F.2d 833, 845 n.19 (3d Cir. 1981); United States v. Rodriguez, 524 F.2d 485, 487, 488 n.6 (5th Cir. 1975)).

Because some (but not all) of the bank employees testified that the photocopy the prosecutor showed them during their direct examination was a “copy of the certificate hanging on the wall of the bank” this could be sufficient if “there is no indication that that certificate was not itself a copy.” But the record did not resolve this because the fact finder did not know if the certificates “[w]ere … all originals? Does the FDIC issue multiple certificates for each branch office of an insured bank? There is no evidence bearing on the issue, and the government does not ask us to take judicial notice of the Corporation's practice” of posting the actual certificate. Hampton, 464 at 690.

Although there was a failure of proof of coverage of the victim banks by FDIC insurance at the time of the robberies under FRE 902(1) or FRE 1005, the circuit affirmed the conviction. The circuit concluded that the photocopies could still be admitted based on testimony by bank tellers that their banks were currently insured and that they recognized the photocopies as copies of certificates posted in their bank before the robberies (using FRE 1003). However, the circuit was critical of the need to boot-strap the evidence in the case, remarking: “The government was sloppy in this case, as in many others in which federally insured status is an element of the crime, probably because the matter is usually stipulated. But sloppiness is not a ground for reversal of a judgment.” Hampton, 464 at 690.

The circuit explained why the evidence rule regarding duplicates (FRE 1003) would permit the admission of the photocopies of the FDIC certificates and could satisfy the element of the crime requiring proof of coverage:

“[W]e 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). … 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.Ct.D.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., 309 F.Supp.2d 1043, 1052 (N.D.Ill. 2004) (and references cited there). No such evidence was offered.”

Having affirmed the conviction because there was proof in the record of FDIC coverage, the circuit concluded by suggesting a few ways to better prove this element of the crime:

“[T]he 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, 828 F.2d 644, 648-49 (10th Cir. 1987), or by offering testimony by the bank employee who is the actual authorized custodian of the bank's FDIC certificate, as in United States v. Cooper, 375 F.3d 1041, 1047-48 (10th Cir. 2004).”