     Case: 17-20420      Document: 00514601202         Page: 1    Date Filed: 08/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 17-20420                               FILED
                                                                           August 15, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff - Appellee

v.

HENRY LEE LONDON, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-167-1


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Henry Lee London, Jr. was convicted of one count of escape (count one),
two counts of bank robbery (counts two and four), and one count of attempted
bank robbery (count three). He appeals only his bank robbery and attempted
bank robbery convictions, arguing that his Sixth Amendment Confrontation
Clause rights were violated when prosecutors introduced out-of-court
statements from a FDIC official. We agree. Accordingly, we REVERSE


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-20420
London’s convictions for bank robbery and attempted bank robbery (counts
two, three, and four) and REMAND for new trial on those counts. London’s
conviction and sentence for escape (count one) are AFFIRMED.
                                       I.
      On March 20, 2014, a man wearing a baseball cap, blue jeans, and a dark
blue shirt robbed a BBVA Compass Bank (“Compass”) in Houston. The man
approached Rashad Deckard, a teller, and passed him a note stating, “This is
a robbery. Give large bills.” Deckard gave the culprit $1500, and the man left.
The bank sent photographs from a security video to the FBI.
      Four days later, a man wearing a baseball cap and dark clothing walked
into an International Bank of Commerce (“IBC”) in Houston. He put his fists
on the counter, leaned in, and demanded money from Ambrosia Collins, a bank
employee. Collins then reached for the cash in her drawer, but the man walked
away. The attempted robbery (the “IBC attempt”) lasted approximately 15
seconds. Like the Compass robbery, IBC sent photographs to the FBI.
      On the same day, a similar-looking man robbed a nearby Comerica Bank.
Myra Menjivar, a Comerica teller, testified that the culprit wore a cap and
sunglasses. Comerica sent photos to the FBI, where Special Agent Kevin Katz
was the assigned investigator.
      Katz noticed the suspect wore the same clothing on all three occasions:
a blue baseball hat with no logo, a black shirt, jeans, and tan-colored shoes. On
March 24th, the same day as the IBC attempt and Comerica robbery, Katz
learned that Henry Lee London, Jr. had escaped from a federal halfway house.
He compared London’s driver’s license photo with the bank photos and noticed
a resemblance. The next day, the FBI received an anonymous tip through
Crime Stoppers, identifying London as the person who robbed Comerica.
Following the tip, Katz interviewed Tracy Brewster, a halfway-house
employee, who identified London as the man in the bank photos.
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                                         No. 17-20420
      On March 27, 2014, London was arrested when he wrecked his
girlfriend’s car. A search of the car revealed a blue baseball hat on the driver’s
side floorboard. 1 London was indicted on one count of escape, two counts of
bank robbery (Compass and Comerica), and one count of attempted bank
robbery (IBC). He elected to put the Government to its burden of proof and
proceeded to trial.
      The main issue at trial was identity. Two of London’s ex-girlfriends and
a halfway-house employee identified him as the person in the bank videos.
Meanwhile, none of the bank employees were able to identify London.
However, as the end of the trial neared, London’s defense counsel noticed what
they perceived as a fundamental problem in the Government’s case: a lack of
evidence to prove that the banks were FDIC insured.
      The federal bank-robbery statute makes it a crime to take or attempt to
take “by force and violence, or by intimidation, . . . from the person or presence
of another . . . any property or money . . . belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or any savings
and loan association.” 18 U.S.C. § 2113(a) (emphasis added). In turn, one of the
ways in which the statute defines “bank” is “any institution the deposits of
which are insured by the Federal Deposit Insurance Corporation.” Id. § 2113(f).
“Proof that the institution meets [the] definition of ‘bank’ at the time of the
robbery is an essential element of the offense that must be proven beyond a
reasonable doubt to establish federal jurisdiction.” United States v. Guerrero,
169 F.3d 933, 944 (5th Cir. 1999) (quoting United States v. Slovacek, 867 F.2d
842, 845 (5th Cir. 1989)) (emphasis added). Although easy to overlook,
“[w]ithout a showing of the institution’s [FDIC-insured] status, in legal effect




      1   The legality of the search is not at issue.
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                                      No. 17-20420
there is no ‘bank’ to be robbed.” United States v. Trevino, 720 F.2d 395, 400
(5th Cir. 1983).
       When the Government rested, the FDIC evidence consisted of the
testimony of Katz and Menjivar, and the FDIC certificates for each bank. The
certificates do not indicate coverage of the specific branch locations robbed and
all significantly predate the robberies. 2 Katz’s testimony, which was over
objection, relied on the certificates as proof of FDIC-insured status. And
Menjivar, the Comerica teller, testified without objection that Comerica was
FDIC insured based on signs posted at the bank. There was no testimony from
Compass or IBC employees about FDIC insurance. Seeing a problem, London
moved for a judgment of acquittal under Federal Rule of Criminal Procedure
29, arguing that the Government failed to prove the banks were FDIC insured
at the time of the robberies.
       The district court allowed the Government to reopen its case, leading to
the evidence at the center of this appeal. Through Agent Katz, the Government
then introduced a letter from Ralph E. Frable, an Assistant Executive
Secretary at the FDIC, and three “Certificate[s] of Proof of Insured Status”
(“COPs”). 3 The COPs contained notarized, first-person statements made by
Frable that declared: (1) he had official custody of the FDIC’s records, (2) the
“insurance applicable to the main office” was applicable to the individual
Compass, IBC, and Comerica branches, and (3) that two exhibits attached to
the COPs were official records of the FDIC. 4 The COPs also contained the
following declaration:



       2 The FDIC certificates are dated as follows: Compass (November 8, 1993), IBC (May
1, 1989), and Comerica (November 1, 2007).
       3 The Certificates of Proof are identical with the exception of the information

identifying the banks and the corresponding insurance dates.
       4 Attached to each COP is an “Exhibit A” and “Exhibit B.” For simplicity, we refer to

Exhibit A as the “Admission History” and Exhibit B as the “Branch History Report.”
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                                      No. 17-20420
       I further certify that, after diligent search, no record or entry in
       the official records of the Corporation has been found to exist which
       terminated the status of [Compass/IBC/Comerica] as an insured
       depository institution . . . and that the [bank] retained its status
       as an insured depository institution . . . through and including [the
       corresponding robbery date].
       Frable’s letter explained that he was sending the documents in response
to Katz’s request for proof of FDIC coverage. All three COPs and Frable’s letter
were dated October 28, 2015, more than a year and a half after London’s arrest.
After Katz read the additional documents to the jury, the Government rested
(again), and London was convicted on all counts. Frable was not present and
did not testify at London’s trial. London now appeals, arguing that the
admission of the COPs and Frable’s letter violated his Sixth Amendment
Confrontation rights. 5 He properly preserved the issue for appellate review.
London does not appeal his escape conviction.
                                             II.
       When properly preserved, this court reviews a Confrontation Clause
challenge de novo. United States v. Tirado-Tirado, 563 F.3d 117, 122 (5th Cir.
2009). “A defendant convicted on the basis of evidence introduced in violation
of the Confrontation Clause is entitled to a new trial unless the admission of
that evidence constitutes harmless error, meaning that there is no reasonable
possibility that the improperly admitted evidence might have contributed to
the conviction.” Id. at 126. “In determining whether an error is harmless we
look to the totality of circumstances including all of the evidence adduced.”
United States v. Watkins, 741 F.2d 692, 695 (5th Cir. 1984). “A court must then
decide whether, absent the so-determined unconstitutional effect, the evidence



       5London also appeals his sentence, arguing that his instant and prior federal bank
robbery convictions do not qualify as crimes of violence under the sentencing guidelines. See
U.S.S.G. §§ 4B1.1; 4B1.2. However, he acknowledges the issue is foreclosed by United States
v. Brewer, 848 F.3d 711 (5th Cir. 2017). We do not address the issue further.
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                                      No. 17-20420
remains not only sufficient to support the verdict but so overwhelming as to
establish the guilt of the accused beyond a reasonable doubt.” Id. (quoting
Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir. 1980) (en banc)).
                                            III.
       The Sixth Amendment guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. Thus, the
Confrontation Clause bars the admission of out-of-court testimonial
statements unless the declarant-witness is unavailable and the defendant had
a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59
(2004); United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). 6
       The Supreme Court has described statements “which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial” to be part of a “core class” of testimonial statements.
Crawford, 541 U.S. at 51–52. Thus, a statement is testimonial if its “primary
purpose” is to “establish or prove past events potentially relevant to later
criminal prosecution.” United States v. Duron-Caldera, 737 F.3d 988, 992–93
(5th Cir. 2013) (citing Davis v. Washington, 547 U.S. 813, 822 (2006)). Records
“specifically produced for use at trial,” as opposed to those kept in the ordinary
course of government business, “are testimonial and are at the heart of
statements triggering the Confrontation Clause.” United States v. Martinez-
Rios, 595 F.3d 581, 586 (5th Cir. 2010) (internal quotations omitted).
       In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme
Court held that “certificates of analysis” showing forensic results violated the
Confrontation Clause. Id. at 329. The certificates were notarized and offered



       6It is undisputed that Frable did not testify at trial. No party has alleged (or even
insinuated) that Frable was unavailable or that London had a prior opportunity to cross-
examine him. Accordingly, we focus our analysis on whether Frable’s statements are
testimonial.
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                                  No. 17-20420
to prove a substance was, in fact, cocaine. Id. at 307. The Court explained that
the statements were “solemn declaration[s]” made under circumstances that
“would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Id. at 311.
      In United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010), we held
the Confrontation Clause was violated when prosecutors introduced a
“Certificate of Nonexistence of Record” (“CNR”). Id. at 586. The CNR, authored
by a non-testifying government employee, explained that a search of agency
records revealed nothing to indicate the defendant received consent to reenter
the United States. Id. at 583–84. The CNR, like the certificates in Melendez-
Diaz, was specifically produced for use at trial and “establish[ed] . . . a fact
necessary to convict.” Id. at 586. Thus, it was error to admit the CNR without
the testimony of the records analyst—though the conviction was ultimately
affirmed under plain error. Id. 586–87.
      Turning to the case at hand, the Government appears to concede the
issue, arguing only that any such error was harmless. In any event, we are
firmly convinced that the admission of the COPs and Frable’s letter violated
the Confrontation Clause. As Frable explained in his letter, the documents
were specifically prepared for use at trial: “Dear Mr. Katz: By email dated
October 26, 2015, you requested proof of the insured status of the three
depository institutions . . . In response to that request, we are enclosing [COPs]
certifying that these institutions were insured . . . during the time periods in
question.” Both the letter and COPs are dated October 28, 2015, more than a
year and a half after London’s arrest. Thus, the date of creation and Frable’s
own words indicate the documents were specifically prepared for use at trial.
See Crawford, 541 U.S. at 51–52 (2004); see Bullcoming v. New Mexico, 564
U.S. 647, 664 (2011) (explaining an unsworn declaration created solely for an


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                                      No. 17-20420
evidentiary purpose ranks as testimonial). 7 Further, paragraph five of the
COPs contains what amounts to the CNR from Martinez-Rios. Frable certified
that “after diligent search, no record or entry” was found terminating the FDIC
status of any of the three banks.
       The effect of the COPs and letter was to allow Frable, an out-of-court
witness not subject to cross-examination, to testify via “certificate” to an
essential element of London’s three bank-robbery-related convictions.
Admission of these statements was error and violated London’s Sixth
Amendment Confrontation Clause rights. See United States v. Sandles, 469
F.3d 508 (6th Cir. 2006) (reaching the same conclusion with similar affidavits
from the Assistant Executive Secretary of the FDIC).
                                            IV.
       The Government argues the error was harmless because the remaining
evidence establishes that the banks were FDIC insured at the time of the
robberies. We disagree. “In determining whether an error is harmless we look
to the totality of circumstances including all of the evidence adduced.” Watkins,
741 F.2d at 695. Our inquiry is not one of evidentiary sufficiency. Instead, we
must determine whether the remaining evidence is so overwhelming as to
establish the guilt of the accused beyond a reasonable doubt. Id.
       For decades, this court has expressed frustration over flimsy evidence of
FDIC-insured status. 8 In assessing a variety of challenges to evidentiary


       7 London does not appear to challenge the Branch History Reports and Admission
History records (admitted in conjunction with the COPs and Frable’s letter) on appeal. Unlike
the COPs and letter, they appear to be regularly kept government records. See United States
v. Martinez-Rios, 595 F.3d 581, 586–87 (5th Cir. 2010) (distinguishing regularly kept records
from those specifically prepared for trial).
       8 See United States v. Guerrero, 169 F.3d 933, 944 (5th Cir. 1999) (“It would not seem

necessary to caution the Government on the importance of solidly proving this.”); United
States v. Schultz, 17 F.3d 723, 727–28, n.11 (5th Cir. 1994) (“This Court has often warned
that insufficient attention to the . . . element might become the Government’s nemesis.”);
United States v. Trevino, 720 F.2d 395, 400 (5th Cir. 1983) (“Without a showing of the
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                                       No. 17-20420
sufficiency, we have broadly interpreted the direct testimony of high-level bank
officials. 9 However, in the absence of such testimony, we have been more
stringent.
       In United States v. Maner, 611 F.2d 107 (5th Cir. 1980), we held there
was “[j]ust barely” enough evidence to uphold a conviction when the FDIC proof
consisted of (1) a certificate of insurance, (2) testimony from the bank’s
assistant vice president/security officer identifying the certificate of insurance,
and (3) testimony from the branch manager that he had seen a certificate of
insurance in the bank vault and that copies of the insurance certificates were
posted on teller windows for public display. Id. at 108–12.
       In United States v. Platenburg, 657 F.2d 797 (5th Cir. 1981 Unit A.), we
clarified that Maner outlined the lowest level of acceptable proof. Id. at 800.
Indeed, the Platenburg panel reversed the conviction and dismissed the
indictment when the only evidence of FDIC insurance was a copy of the
certificate of insurance predating the charged events by seven years. Id.
       In the absence of the constitutionally problematic COPs and letter, the
evidence regarding Compass’s FDIC status consists of (1) Agent Katz’s
testimony that the FDIC certificate “just shows that the . . . Compass Bank
robbery is FDIC insured,” (2) the FDIC certificate itself, dated November of
1993, and (3) the Admission History and Branch History Report attached to



institution’s section 2113(f) status, in legal effect there is no ‘bank’ to be robbed.”); United
States v. Platenburg, 657 F.2d 797, 799 (5th Cir. Unit A 1981) (“[P]rosecutors have been
extremely lax in the treatment accorded this element.”); United States v. Maner, 611 F.2d
107, 112 (5th Cir. 1980) (“[W]e have difficulty comprehending why the Government
repeatedly fails to prove this element more carefully since the Government’s burden is so
simple and straightforward.”).
       9 See United States v. Slovacek, 867 F.2d 842, 845–47 (5th Cir. 1989) (finding

testimony from a bank vice president that the bank was insured on the day of the robbery
was close to the “minimum permitted”); see, e.g., United States v. Rangel, 728 F.2d 675, 676
(5th Cir. 1984) (finding testimony by an assistant vice president sufficient to establish FDIC
status).
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                                     No. 17-20420
Frable’s COP. There is no FDIC testimony from a Compass employee. The
remaining evidence treads perilously close to the minimum level of proof
required by our precedent. See, e.g., Platenburg, 657 F.2d at 800; Maner, 611
F.2d at 108–12. At best, the documents establish that the main office of
Compass bank was FDIC insured in 1993 and the branch was insured in
2004. 10 The Government argues that Agent Katz’s testimony bridges any
evidentiary gap between the date of the FDIC certificate and the date of the
robbery. However, Katz (an FBI agent) was merely explaining the certificates,
which themselves are insufficient. See Platenburg, 657 F.2d at 800. This razor-
thin evidence is not “so overwhelming as to establish the guilt of the accused
beyond a reasonable doubt.” Watkins, 741 F.2d at 695.
      The same can be said for the IBC attempt evidence. When asked if IBC
was federally insured, Katz said, “Yes . . . That’s what the . . . certificate
indicates, that they are insured.” The certificate of insurance is from May of
1989, and the latest date indicated by the Branch History Report is November
2008. A thorough review of the record reveals nothing close to overwhelming
evidence indicating that Compass and IBC were FDIC insured at the time of
the offenses.
      The evidence underlying Comerica’s FDIC insurance differs in one
respect: the Government did present testimony from the teller, Menjivar, who
answered “yes” when asked if the bank’s FDIC insurance was current. While
this type of testimony has been “[j]ust barely” sufficient when it has come from




      10 The Branch History Report only lists the address of the branch and says “Effective
Date 07/29/2003 . . . Processed Date 08/16/2004.” London disputes that the documents make
any connection between the bank’s main office and the specific Compass Bank branch that
was robbed. Because we are reviewing the evidence in the harmless-error context, the
evidentiary sufficiency of these documents is a question for another day.
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                                       No. 17-20420
senior-level employees, Menjivar is a “customer service teller.” 11 Further,
Menjivar’s personal knowledge of Comerica’s FDIC insurance appears to be
based on the fact it was “posted” around the bank. Were we reviewing for the
sufficiency of the evidence, Menjivar’s testimony might make for a close case.
But merely sufficient evidence does not establish harmless error. Compare
United States v. Baker, 17 F.3d 94, 96 (5th Cir. 1994) (When reviewing for
sufficiency of the evidence, the court “considers the evidence in the light most
favorable to the verdict”), with Watkins, 741 F.2d at 695 (Under a harmless
error analysis, the “court must . . . decide whether, absent the so-determined
unconstitutional effect, the evidence remains not only sufficient to support the
verdict but so overwhelming as to establish the guilt of the accused beyond a
reasonable doubt”).
       In addition to the minimal FDIC evidence, the Government’s harmless
error argument is hampered by the fact that the inadmissible COPs and letter
were highlighted to the jury. Prosecutors reopened their case-in-chief for the
specific purpose of admitting the COPs and letter. And Agent Katz read the
inadmissible documents, line by line, to the jury. 12 Further, the improper
evidence was referenced by the Government in closing arguments. See, e.g.,
Tirado-Tirado, 563 F.3d at 126 (noting additional emphasis of improper
evidence weighs against harmless error).




       11  Maner, 611 F.2d at 112 (holding testimony of an assistant vice president/bank
security officer and branch manager “[j]ust barely” met the minimum level of proof required);
but see United States v. Trice, 823 F.2d 80, 86–87 (5th Cir. 1987) (holding the direct testimony
of a loan officer was sufficient proof in 18 U.S.C. § 1014 false statements case).
        12 London argues that Frable’s inadmissible statements curtailed any credible closing

argument that focused on the lack of FDIC evidence. At a minimum, the error likely required
defense counsel to drop the issue or risk losing credibility with the jury. See United States v.
Watkins, 741 F.2d 692, 695 (5th Cir. 1984) (effect of the error on defense counsel’s conduct is
relevant to harmless error).
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                                    No. 17-20420
      In sum, the Government cannot establish the error was harmless. See
id.; Watkins, 741 F.2d at 695. London is entitled to a new trial. 13 See United
States v. Alvarado-Valdez, 521 F.3d 337, 343 (5th Cir. 2008) (remanding for
new trial as the result of a Confrontation Clause violation).
                                           V.
      London’s convictions for bank robbery (counts two and four) and
attempted bank robbery (count three) are REVERSED and REMANDED for
new trial. His conviction and sentence for escape (count one) are AFFIRMED.




      13The Government requests that if we reverse any of London’s convictions, we remand
any remaining convictions for resentencing. We decline the request.
                                           12
