State v. James Lee Eady, Jr., 2016 WI App 12; case activity (including briefs)
Under the forgiving standard for assessing the sufficiency of evidence, the state managed to introduce enough circumstantial evidence to prove that the bank Eady robbed was “chartered” by a state of the federal government, and therefore was a “financial institution” for purposes of § 943.87.
Eady was charged with robbing a “financial institution” in violation of § 943.87, a statute that provides for greater penalties (up to 40 years of imprisonment) than the standard robbery offense under § 943.32(1) (up to 15 years) even in the absence of the use or threat of use of a dangerous weapon. “Financial institution” is a term of art defined in § 943.80(2) to include entities like banks, credit unions, etc., that are “chartered” by a state or federal government. The jury was instructed that the State had to prove the “financial institution” Eady was accused of robbing—a branch of U.S. Bank—was “chartered.” (¶6). But the State introduced no documents or testimony showing U.S. Bank was “chartered,” so Eady argues the evidence was insufficient to prove the “financial institution” element.
The sufficiency standard erects a low hurdle, however, asking only whether the evidence, when viewed most favorably to the State, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. (¶7). The court of appeals therefore rejects Eady’s contention that the law requires either introduction of the charter itself or testimony from a witness with “personal knowledge” of the charter, because circumstantial evidence may prove an essential element of the crime charged (¶10) and there’s such circumstantial evidence here:
¶12 We conclude the circumstantial evidence of a chartered bank here—including evidence regarding the day-to-day operation of the bank, the U.S. Bank deposit slip found in the clothing discarded near the bank, and the numerous signs indicating that the bank was a “U.S. Bank” insured by the FDIC—was sufficient in probative value and force such that it cannot be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. ….
So it operates like a “bank,” calls itself a “bank”—in fact, brands itself “U.S. Bank”—and has signs saying it’s insured by the FDIC (though there was apparently no evidence that only “chartered” banks can be FDIC insured), and from those facts it follows it’s “chartered”? Mighty thin reasoning, but enough in the mind of the court of appeals to save a shoddy job of prosecuting. Why shoddy? A “charter” is a license to operate a bank. If it’s chartered by Wisconsin it will have a “certificate of authority” that is its “charter,” § 221.0208(2); the Feds also issue a “certificate of authority to commence banking” issued “under [the Comptroller of the Currency’s] hand and official seal,” 12 U.S. C. § 27(a). How hard could it be for the prosecutor to get his or her hands on U.S. Bank’s state or federal “certificate of authority” and put it into evidence? Even more perplexing, why wouldn’t the prosecutor do that, having drafted the jury instruction requiring the jury to find the bank is “chartered”?
Note that Eady looked for support to State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, which held the state failed to prove that the Tomah VA Medical Center was an “inpatient health care facility” under the law prohibiting sexual assault of a patient of such a facility, § 940.225(2)(g) (2001-02). An inpatient health care facility was defined as one licensed by the then-named Department of Health and Family Services, § 50.135(1) (2001-02), and the State conceded the VA didn’t have such a license. Id., ¶¶6, 20. But in this case the State doesn’t agree that the bank was not chartered; instead, it contends the circumstantial evidence raises a sufficient factual inference that U.S. Bank was properly chartered. The court agrees, and rejects Eady’s reliance on Powers. (¶10).
Finally, as Eady points out, the absence of direct evidence of a charter could lead to conviction for robbing a “fake bank,” or one of those new-fangled types of financial services (PayPal, Google Wallet, Bitcoin, and Walmart’s NewGoBank) that aren’t “chartered” but also operate like, look like, or call themselves “banks.” This doesn’t sway the court given the facts here:
¶11 …. We need not address hypothetical fact situations and limit our holding to the evidence presented to this jury. This evidence raises neither any inference of a fake bank nor of an unchartered bank. It is sufficient to note that circumstantial evidence under one set of facts may be and often is stronger than direct evidence while in another it may be weak and insufficient to support proof beyond a reasonable doubt. ….
“signs indicating that the bank was a “U.S. Bank” insured by the FDIC” — would that be enough to sustain a conviction for a *federal* bank robbery charge? If not, then could it still (for purposes of proof > RD) be considered a state bank? I only have questions, not answers, but there’s a slew of federal caselaw dealing with this sort of problem (i.e., arguably insufficient proof of FDIC status), e.g., U.S. v. Sliker, 751 F.2d 477, 484 et seq (2nd Cir 1984).