                               United States Court of Appeals
                                 FOR THE EIGHTH CIRCUIT
                                        ___________

                                        No. 96-3496
                                        ___________

United States of America,                    *
                                             *
               Appellee,                     *
                                             *
       v.                                    *
                                             *
Ronald Mitchell,                             *
                                             *
               Appellant.                    *
                                             * Appeal from the United States
----------------------------                 * District Court for the
                                             * Eastern District of Arkansas
United States of America,                    *
                                             *
               Appellee,                     *
                                             *
       v.                                    *
                                             *
Ronald Mitchell,                             *
                                             *
               Appellant.                    *
                                        ___________

                                Submitted: December 3, 1997
                                    Filed: February 19, 1998
                                        ___________

Before McMILLIAN, BEAM, and MORRIS SHEPARD ARNOLD, Circuit Judges.
                            ___________
McMILLIAN, Circuit Judge.


      Ronald Mitchell appeals from the final judgment entered in the District Court for
the Eastern District of Arkansas after he pleaded guilty to an escape charge, in violation
of 18 U.S.C. § 751, and was convicted of armed bank robbery, in violation of 18
U.S.C. § 2113(a) and (d). The district court sentenced Mitchell to 174 months
imprisonment and five years supervised release. For reversal, Mitchell challenges his
armed robbery conviction for failure of proof of an element of the offense, and
maintains that the government breached the plea agreement. For the reasons discussed
below, we affirm the challenged conviction, but remand for resentencing.

I.    Challenges to Mitchell&s Conviction

        Mitchell first argues the government failed to prove that the bank he was
convicted of robbing on June 25, 1994, was insured by the Federal Deposit Insurance
Corporation (FDIC). We disagree. At trial, the bank&s vice president testified that the
bank “is” insured by the FDIC, as evidenced by a form displaying the bank&s FDIC
certificate number; the vice president also referred to a printout of the bank&s expense
account showing payment in January 1995 of the semi-annual FDIC premium. See
United States v. Schermerhorn, 906 F.2d 66, 69-70 (2d Cir. 1990) (bank vice
president&s testimony that bank&s deposits “are” FDIC insured was sufficient); Cook
v. United States, 320 F.2d 258, 259-60 (5th Cir. 1963) (applying evidentiary rule that
existence of fact is some indication of its probable existence at earlier time); cf. United
States v. Carlisle, 118 F.3d 1271, 1274 (8th Cir.) (stipulation that bank was FDIC-
insured, dated four months after robbery, allowed reasonable inference bank was
insured on date of robbery), cert. denied, 118 S. Ct. 429 (1997).

        Mitchell raises additional challenges to his conviction in a pro se supplemental
brief filed with leave of this court. We reject his pro se argument that the district court

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improperly denied his motion for acquittal. Having reviewed the trial transcript, we
conclude the two eyewitnesses& testimony--which indicates the robbery occurred in the
morning under circumstances that allowed the eyewitnesses to look closely at Mitchell
- -supports the jury&s decision. See United States v. Cunningham, 83 F.3d 218, 222
(8th Cir. 1996). We also reject Mitchell&s argument that his decision to represent
himself at trial was not voluntary and knowing, because the district court took steps to
ensure Mitchell made an informed decision to represent himself with stand-by counsel.
See Faretta v. California, 422 U.S. 806, 835-36 (1975). Mitchell also raises an
ineffective-assistance-of-counsel claim, but we decline to address it because it is more
properly raised in a 28 U.S.C. § 2255 motion. See United States v. Martin, 59 F.3d
767, 771 (8th Cir. 1995).

II.   Challenge to Mitchell&s Sentence

       Mitchell also argues on appeal that the government breached the plea agreement
at sentencing. The following events are pertinent to this claim. After Mitchell was
convicted of the instant armed bank robbery, he escaped from custody but was
apprehended. Mitchell then entered into an oral plea agreement, whereby he agreed
to plead guilty to escape; to plead guilty--in a separate case involving an August 1994
post-office robbery--to a lesser charge of assault; and to testify against his co-
conspirators in the post-office robbery case. In a written confirmation signed by an
Assistant United States Attorney (AUSA), the government stated it would move to
consolidate all of Mitchell&s cases for sentencing, at which time the government would
“recommend that Mr. Mitchell&s sentences be served concurrently,” and would “make
a motion pursuant to U.S.S.G. § 5K1.1 recommending a downward departure of up to
50% based on Mr. Mitchell&s cooperation.”

      At sentencing, however, the AUSA informed the court that the government had
“no specific recommendation as to the sentence.” The AUSA did move for a § 5K1.1
departure, but in the process of doing so indicated to the court that Mitchell had

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“earn[ed] his reward” for his assistance by being charged with assault rather than
robbery in the post-office robbery case. The AUSA additionally introduced victim-
impact statements from the two victim bank tellers in the instant armed-robbery
offense, who testified generally about the poor condition of their lives after the robbery.
The district court denied the § 5K1.1 motion, referring to “the victim effects that we
have in this case” and stating, among other things, that Mitchell had been rewarded for
his assistance by being charged only with assault for the post-office robbery.

       Plea agreements are “an essential component of the administration of justice,”
and fairness is presupposed in securing such agreements. See Santobello v. New York,
404 U.S. 257, 260-61 (1971). Moreover, “[a]n unambiguous, unconditional promise
to file a downward departure motion is binding on the government,” and “[i]f such a
promise was part of the inducement or consideration underlying a guilty plea, its breach
will entitle defendant” to specific performance or to withdraw his plea. United States
v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997). Both parties agree that the bargain
underlying the plea agreement included Mitchell&s promise to plead guilty in exchange
for the government&s agreement to seek a downward departure at sentencing.

       The government technically adhered to its promise to make a § 5K1.1 motion.
Nevertheless, we conclude that the AUSA&s reference to Mitchell&s “reward” in the
post-office robbery case, and the subsequent introduction of the victim-impact
statements, violated the spirit of the promise and ultimately the plea agreement. See
United States v. Clark, 55 F.3d 9, 10-13 (1st Cir. 1995) (concluding government&s
submission prior to sentencing of memorandum discussing defendant&s entitlement to
adjustment “effectively opposed” adjustment and thus breached plea agreement&s
provision not to oppose adjustment); United States v. Canada, 960 F.2d 263, 269 (1st
Cir. 1992) (stating that although government “stopped short of explicitly repudiating
the agreement,” Santobello v. New York&s interest in fairness prohibited government&s
“end-runs” around promises contained therein). Moreover, we conclude the
government&s statement that it had no recommendation as to the sentence was a breach




                                           -4-
of its promise to recommend a downward departure of up to fifty percent. Cf. United
States v. Myers, 32 F.3d 411, 412-13 (9th Cir. 1994) (per curiam) (holding government
breached promise to make recommendation for sentence at low end of Guidelines range
by not articulating any recommendation at sentencing); United States v. McCray, 849
F.2d 304, 305 (8th Cir. 1988) (per curiam) (holding government breached promise to
not make any recommendation as to sentencing range and to stand mute when it was
discussed, by stating it would resist defendant&s request that court designate him as
eligible for early parole). We reject as meritless the government&s contention that it
was required by Federal Rule of Criminal Procedure 32 to introduce the victim-impact
statements; we also reject, as contrary to the plain language of the AUSA&s
confirmation letter, the government&s position that it was not obligated to recommend
a reduction of up to fifty percent unless the § 5K1.1 motion was first granted.

      Accordingly, we affirm Mitchell&s conviction, but remand for resentencing before
another judge as required by Santobello v. New York. See United States v. McCray,
849 F.2d at 304.

BEAM, Circuit Judge, concurring in part and dissenting in part.

      I concur with the court&s opinion regarding Mitchell&s conviction, but I dissent
from the court&s order of remand for resentencing. I would affirm on all issues.

      A true copy.

             Attest:

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




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