                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3862
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the District
David Reynaldo Lewis,                   * of South Dakota.
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 18, 2001

                                 Filed: August 10, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD and BYE, Circuit Judges, and GAITAN,1
      District Judge.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       David Reynaldo Lewis was convicted of defrauding the Norwest Bank of Sioux
Falls, South Dakota, see 18 U.S.C. § 1344. On appeal, he raises only one significant
issue, namely, whether the evidence was sufficient to establish beyond a reasonable
doubt that Norwest Bank was insured by the FDIC at the time the fraud was
committed. We believe that the evidence was sufficient and therefore affirm.

      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
       In the present case, the manager of the Norwest branch office at which the fraud
occurred, when asked whether the bank "is" insured by the FDIC, answered in the
affirmative. The case is therefore identical in every relevant respect to United States
v. Hadamek, 28 F.3d 827, 827-28 (8th Cir. 1994), in which a bank's president testified
that his deposits "are" insured by the FDIC. We held that this testimony was "sufficient
to allow the jury to infer that the bank was FDIC insured on the date of the fraud." In
doing so, we cited with approval United States v. Schermerhorn, 906 F.2d 66, 69-70
(2d Cir. 1990), where the court observed that testimony that funds in a bank "are"
insured "viewed in the context" would allow a jury to "draw the inference that the bank
was insured" at the relevant time. The inference in the present case draws strength
from the fact that the interval between the commission of the fraud and the trial of this
case was not great.

        While it would manifestly have made out a better case if the witness's testimony
had related more directly to the time when the fraud was committed, we have opined
in a case very similar to the present one that the "existence of [a] fact is some indication
of its probable existence at an earlier time." United States v. Mitchell, 136 F.3d 1192,
1193 (8th Cir. 1998). Such testimony, moreover, would be irrelevant unless it is
understood to be evidence of a status that extended into the past, and a reasonable
factfinder would be justified in assuming that a witness would not be testifying to an
extraneous fact. While the present tense has, it is true, an instantaneous aspect, it also
can describe a status. The sentence "I am a man" carries with it an inference that I
always was one.

       Because we believe that Mr. Lewis's argument is foreclosed by precedents that
are directly apposite, we affirm the conviction.




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BYE, Circuit Judge, dissenting.

       I respectfully dissent. A defendant may be convicted under the federal bank
fraud statute upon proof that he defrauded a federally-insured financial institution by
scheme or artifice. See 18 U.S.C. § 1344; 18 U.S.C. § 20(1). Proof of federal
insurance is an essential element of the offense. Despite the government’s obvious
failure to introduce sufficient evidence of that element, however, the majority affirms
David Lewis’s bank fraud conviction.

      In February 1999, Lewis deposited four forged checks into his account with the
Norwest branch in Sioux Falls. Lewis later withdrew cash based on his deposits. He
was indicted on a single charge of bank fraud in November 1999, and tried in late May
2000, some fifteen months after he perpetrated the fraud.

       At trial, the government presented a single piece of evidence to prove that the
branch was FDIC-insured in February 1999. On direct examination, branch manager
Adeline Reiman was asked, “The Norwest Bank there, is that institution insured by the
Federal Deposit Insurance Corporation?” She responded, “Yes.” The government
presented no proof that Reiman worked at the branch in February 1999, nor that
Reiman had any basis for knowing that the branch was FDIC-insured at that time. The
jury also learned that Reiman had not been the branch manager in February 1999. Yet
Reiman’s one-word, present-tense response constitutes the sole proof that the Norwest
branch was federally insured in February 1999.

      In prior cases, we have occasionally indulged a temporal inference that what is
the case today was the case yesterday, thereby permitting proof of present FDIC-
insured status to serve as proof of past FDIC-insured status. But our willingness to rely
on this temporal inference has been strictly confined to cases that involve two
circumstances: proximity between the trial testimony and the offense, and the


                                          -3-
declarant’s continued employment at the bank between those times.              Neither
consideration permits us to apply the temporal inference in this case.

       As to time, fifteen months elapsed between Lewis’s check-cashing episodes and
his federal trial. The few cases in which we inferred FDIC-insured status at the time
of the offense from proof of FDIC-insured status at the time of trial involved
significantly shorter periods of time. See, e.g., United States v. Mitchell, 136 F.3d
1192, 1193 (8th Cir. 1998) (seven months); United States v. Carlisle, 118 F.3d 1271,
1274 (8th Cir. 1997) (four months).

       As to continued employment, we only grant the government the benefit of the
temporal inference with respect to testimony by bank officers employed both at the
time the criminal acts occurred and at the time of trial. See, e.g., United States v.
Hadamek, 28 F.3d 827, 827-28 (8th Cir. 1994); United States v. Schermerhorn, 906
F.2d 66, 69-70 (2d Cir. 1990) (cited approvingly in Hadamek). Yet in the present case,
the government introduced no evidence that Reiman was employed by Norwest Bank
in February 1999, or that Reiman had any reason to know whether the branch had been
FDIC-insured at that time.

       By applying the temporal inference without acknowledging our precedential
limitations of time and continued employment, the majority further eviscerates the
FDIC-insured element. The dual considerations of time and continued employment
tether the temporal inference to common sense and evidentiary principles. Absent
proximity in time and the testimony of a bank employee present during the fraud, we
lack confidence that present-tense testimony reliably indicates past federal insurance.

      I reject the majority’s point that we must apply the temporal inference to
preserve the relevance of Reiman’s testimony. Reiman’s testimony was relevant when
offered because the government would (everyone assumed) subsequently introduce
other reliable evidence of the branch’s FDIC-insured status to buttress Reiman’s

                                          -4-
present-tense testimony. Reiman’s answer simply laid the foundation for the next
questions: were you employed at the branch in February 1999, and, was the branch
FDIC-insured at that time? Unfortunately, the government never pursued these obvious
follow-up questions, and thus it failed to present sufficient evidence of an element of
the crime. That the government utterly failed to prove federal insurance does not force
us to apply the temporal inference simply to avoid the conclusion that Reiman’s
testimony was irrelevant. By so concluding, the majority catapults the evidentiary cart
before the substantive horse.

       Finally, I cannot permit the majority’s misleading analogy, ante at 2 (“I am a
man”), to pass without comment. The majority argues that present-tense testimony
conveys the sense of status, and that Reiman’s testimony should be so interpreted.
Status is not immutable, however, so the majority’s argument simply begs a further
temporal question. While the phrase “I am a man” suggests that the speaker has
always been a man, the phrase does not suggest the length of time that the speaker has
possessed that status. A four-year old who exclaims, “I am a man,” was not a man five
years earlier. Hence Reiman’s testimony that the Norwest branch was FDIC-insured
in May 2000 provides no assurance that the branch was FDIC-insured when Lewis
defrauded the bank in February 1999.

       After this case, district judges may nearly take judicial notice of FDIC-insured
status, for the government need not prove much more under our evaporating standard.
The government may present virtually any current bank employee to opine that the
bank is presently insured. The majority’s new rule will then complete the constitutional
heavy lifting by permitting the jury to infer that the bank was FDIC-insured at the time
of the offense.

      Perversely, our willingness to ignore obvious deficiencies in the government’s
proof accompanies the government’s growing disinterest in proving the federal
insurance element. Numerous cases in this circuit and other circuits demonstrate the

                                          -5-
government’s nearly perpetual difficulties in establishing the straightforward FDIC-
insured element. See, e.g., United States v. Schultz, 17 F.3d 723, 727-28 (5th Cir.
1994) (collecting cases). The government’s proof of federal insurance here—which the
district court generously characterized as “skinny proof”—was plainly insufficient to
permit a jury to find Lewis guilty of bank fraud under § 1344.

      I respectfully dissent.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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