                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 2, 2010
                 UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                 Nos. 09-3088 & 09-3175
 v.                                          (D.C. No. 2:08-CR-20128-KHV-1)
                                                         (D. Kan.)
 RICHARD D. BURK,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and EBEL, Circuit Judges.



      On December 2, 2008, Richard D. Burk conditionally pled guilty to one

felony count of bank robbery in violation of 18 U.S.C. § 2113(a). He received a

sentence of 189 months. Mr. Burk now brings two appeals, which we have

consolidated for purposes of disposition. The first is a counseled direct appeal


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
from his conviction and sentence (“09-3088 appeal”); the second is a pro se

appeal from the district court’s denial of Mr. Burk’s pro se motion to dismiss the

indictment (“09-3751 appeal”). Mr. Burk’s attorney has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), advising us that he discerns no

colorable basis for the 09-3088 appeal and seeking leave to withdraw. After

careful review and for the reasons we describe below, we grant counsel’s motion

to withdraw and dismiss the appeal in 09-3088. Given that Mr. Burk’s pro se

appeal in 09-3751 from the district court’s refusal to dismiss the indictment is

based on the same issues that we address in the main appeal, we dismiss that

appeal as moot.

      The district court sentenced Mr. Burk on March 31, 2009. He immediately

filed a pro se motion to dismiss the indictment pursuant to Fed. R. Civ. P. 12(b),

contending the district court did not possess jurisdiction over the criminal charge

against him because the Federal Deposit Insurance Corporation (“FDIC”) does not

provide insurance where, as here, the monies are taken from a cash register, and

arguing that the indictment was deficient. Mr. Burk’s counsel filed the 09-3088

appeal on April 6, 2009, raising claims identical to those raised in Mr. Burk’s

motion to dismiss the indictment. 1 The district court overruled the Fed. R. Civ. P.


      1
        At the request of Mr. Burk, counsel orally argued to the district court just
prior to the scheduled trial that the court lacked subject matter jurisdiction and
that the indictment was deficient. When the court denied the motion, Mr. Burk
pled guilty on the condition that he could appeal these issues.

                                         -2-
12(b) motion on June 3, 2009, on the basis that Mr. Burk filed the motion to

dismiss pro se while represented by counsel, and also that “defendant’s motion

lacks substantive merit.” See rec., vol. I at 71 (June 3, 2009 Order, at 1). Mr.

Burk filed pro se the notice of appeal in 09-3175. 2

                                The 09-3088 appeal

      Under Anders, when counsel appointed to represent an indigent defendant

on direct appeal determines a case to be wholly frivolous:

      He should so advise the court and request permission to withdraw.
      That request must, however, be accompanied by a brief referring to
      anything in the record that might arguably support the appeal. A copy
      of counsel’s brief should be furnished the indigent and time allowed
      him to raise any points that he chooses; the court – not counsel –
      then proceeds, after a full examination of all the proceedings, to
      decide whether the case is wholly frivolous.

386 U.S. at 744. Consistent with Anders’s instruction directing counsel to submit

a brief referring any support for the appeal, Mr. Burk’s counsel submitted the

following challenges:

      The District Court’s failure to dismiss the indictment for want
      of subject matter jurisdiction, its failure to dismiss the
      indictment for insufficiency, and the Court’s refusal to
      consider the defendant’s mental state at the time of the offense
      require a reversal of the convictions and dismissal with
      prejudice or, in the alternative, resentencing.



      2
        We deny the government’s motion to dismiss Mr. Burk’s pro se appeal.
While his initial notice of appeal was premature, we abated it pending the district
court’s denial of the pro se motion to dismiss the indictment. Mr. Burk filed
another notice of appeal after the district court ruled.

                                      -3-
Aplt. Br., No. 09-3088, at 5. Mr. Burk filed a supplemental pro se brief in

response to notice of the Anders brief, raising the first two issues and asserting

the additional reasons set forth in his pro se sentencing memorandum to overturn

the district court’s denial of the variance he requested.

      Mr. Burk’s primary claim, echoed in his appeal in 09-3175, is that the

district court did not possess jurisdiction over his alleged violation of 18 U.S.C. §

2113(a). He points out that FDIC insurance coverage is required to establish

federal jurisdiction over controversies arising under § 2113. See Aplt. Br., No.

09-3088, at 6, 7 (citing United States. v. Murrah, 478 F.2d 762 (5th Cir. 1973)).

He argues that the FDIC insurance covers “deposits” and does not cover the

bank’s money in a teller’s drawer/register, and thus no federal jurisdiction

attaches to his bank robbery of cash from such registers. See id. at 7. In his pro

se supplemental briefs, Mr. Burk contends there is no jurisdiction because the

United States was not injured. 3



      3
        In his reply brief, Mr. Burk asserts specifically that there is no subject
matter jurisdiction because:
      1. FDIC is not a party to the crime
      2. United States is not a victim
      3. §2113(f) is a “Definitional paragraph not a “Jurisdictional
          paragraph”
      4. If §2113(f) is a jurisdictional paragraph, law forbids a
          jurisdictional element to define a crime
      5. FDIC is not part of the United States
      6. First State Bank is the injured party
Aplt’s Reply at 4.

                                          -4-
      We review the district court’s determination of jurisdiction de novo. Olcott

v. Del. Flood Co., 327 F.3d 1115, 1121 (10th Cir. 2003), and we agree that Mr.

Burk’s contention lacks merit. As the court held in United States v. Dunham, 995

F.2d 45, 456 (5th Cir. 1993), the “argument that the federal courts are without

jurisdiction to conduct proceedings regarding the robbery of a federally insured

state bank has no arguable basis in law or in fact and is thus frivolous.”

      Mr. Burk’s second claim challenges the sufficiency of the indictment

charging him with robbing an FDIC-insured bank. He contends the indictment

charged him with taking “[d]eposits of which were then insured by the Federal

Deposit Insurance Corportation[,]” but that FDIC coverage does not extend to

cash in teller’s registers or drawers because the disputed funds do not constitute

“insured deposits.” Aplt. Br., No. 09-3088, at 9. An indictment is sufficient if “it

contains the elements of the offense charged, putting the defendant on fair notice

of the charge against which he must defend, and if it enables a defendant to assert

a double jeopardy defense. United States v. Doe, 572 F.3d 1162, 1173 (10th Cir.

2009). Mr. Burk cites nothing in support of his teller register/drawer exception to

federal jurisdiction over robberies of FDIC-insured banks, nor have we located

any such case. Our review of the indictment reveals clear notice of the offense

charged, including its elements, sufficient to enable Mr. Burk to assert a double

jeopardy defense. See Aple. Br., No. 90-3088, at 5-8.

      Third, Mr. Burk disputes the district court’s failure to grant him a

                                         -5-
sentencing departure or a variance. We review the district court’s factual findings

for clear error and its legal conclusions de novo. United States v. Kristl, 437 F.3d

1050, 1053 (10th Cir. 2006). Having reviewed the record, we are not persuaded

by counsel’s argument that the district court erred in determining Mr. Burk failed

to establish a diminished capacity at the time of the offense. With respect to the

argument Mr. Burk made in his sentencing memorandum, we review a district

court’s decision to deny a request for a variance under a deferential abuse of

discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008). Applying the presumption of reasonableness to Mr. Burk’s

within-guidelines sentence, we conclude that the district court’s denial of the

request for a variance based on Mr. Burk’s life circumstances did not constitute

an abuse of discretion.

      For these reasons, we agree with counsel’s assessment that no nonfrivolous

issue exists in the 09-3088 appeal. We therefore DISMISS that appeal and

GRANT counsel’s motion for leave to withdraw. Because Mr. Burk’s 09-3751

appeal from the denial of his motion to dismiss the indictment is based on the

same arguments we have addressed infra, we DISMISS that appeal as moot. We

deny as moot Mr. Burk’s motion to strike the government’s motion to dismiss.


                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge

                                         -6-
