I've always found it somewhat strange that there are all these cases that reverse (or almost reverse) federal bank robbery convictions on the grounds that the prosecution didn't properly establish at trial that the bank was FDIC insured when we all know that all banks are FDIC insured. Yes, I know that the government still has to prove it at trial, and that if it doesn't, a reversal is technically proper. And yes, I know that perhaps the bank's FDIC insurance might possibly have lapsed, or maybe the "bank" is something weird and uninsured, or something like that. And, yes, I know the bank's insured status is also a jurisdictional predicate for a federal conviction. But come one. The bank is always FDIC insured. We know it. The jury knows it. The banks that people rob are FDIC insured. If they robbed it, they're guilty. That we make the government elicit "magic words" to prove this basic fact -- and reverse on insufficiency grounds if they don't, with no ability to retry (given double jeopardy) -- is at least somewhat troubling. Particularly given the large number of cases about what exactly have to be in those "magic words". I've probably read 100+ cases about this exact issue.
Make that 101+. The interesting this about this one is that Judge Callahan obviously doesn't like the result of those prior cases either, so she goes to great lengths to "distinguish" them and hence uphold a conviction. The distinction here is somewhat tenuous, in my view. Ninth Circuit Cases X and Y say that trial testimony that the bank "is" FDIC insured isn't enough because it doesn't show that they "were" insured at the time of trial. But she holds that this case is different because the "is" here was uttered only months after the robbery, plus there was "testimony" (albeit lay and unsupported) by the bank teller that all banks are FDIC insured. So X and Y do not apply. And -- though she doesn't say it, but definitely cares -- that means that the vast majority of other "magic words" cases don't require reversal either. Hence the result we want to reach.
The distinction seems weak to me. And I don't think that it'd have been one that would have been bought by the panels in X and Y. But the thing about tough law that reaches results that judges don't particularly like (e.g., letting criminals go free on insufficiency grounds as a result of a hypertechnical mistake) is that it leads other judges to fudge the law and strain a bit harder for "distinguishing" characteristics. Like here.
Again, the result that the court reaches is one with which I definitely have sympathy. But I'm not sure that I really appreciate -- or find intellectually credible -- the doctrine upon which it's based. Seems to me it might be much more principled just to say "We all know banks are FDIC insured, so any case where the testimony even hints at that fact is enough. X and Y are hereby overruled." But, of course, a panel can't do that, and an en banc call might not succeed. But it can "distinguish" cases. And if the "distinguishing" characteristic is weak and results in an en banc call, so much the better. 'Cause then X and Y can be rejected. And if no en banc call, we've basically gutted X and Y already with the panel's holding and "distinction".
That's the realpolitik of panel decisions, I think. At least in cases like this one.
