United States v. Ricardo Rusan ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 05-4446
________________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Ricardo Rusan, *
* [PUBLISHED]
Appellant. *
________________
Submitted: May 16, 2006
Filed: August 22, 2006
________________
Before BYE, HANSEN, and SMITH, Circuit Judges.
________________
HANSEN, Circuit Judge.
Ricardo Rusan appeals his convictions for bank robbery and bank larceny
pursuant to 18 U.S.C. § 2113(a), (b), contending that the district court1 erred in
denying his Batson2 challenge to the Government's use of peremptory strikes during
jury selection and that there was insufficient evidence to establish that the bank
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
2
Batson v. Kentucky, 476 U.S. 79 (1986).
involved was insured by the Federal Deposit Insurance Corporation (FDIC). After
careful review, we affirm.
I.
During the morning hours of November 12, 2004, a man wearing a skull cap
and sunglasses and carrying a backpack entered a branch of the Southern Commercial
Bank in St. Louis. Upon entering the bank the man approached one of the teller
windows and inquired about opening an account. He was directed to the customer
service desk and walked away, but then immediately returned and again approached
the window of teller Dianne Sanborn. When he returned to Ms. Sanborn's window,
he put the backpack on the counter and told her to start filling it with cash. As he
spoke to Ms. Sanborn, the man kept his hand in his pocket, pointing it at Ms.
Sanborn's chest. After she filled the backpack with over two thousand dollars in cash
and a dye pack, the man picked up the backpack and walked out of the bank. While
this was occurring, the bank alarm was activated by another bank employee. The
police arrived shortly after the man left. Witnesses reported seeing the man walking
down the street carrying a backpack from which red smoke was billowing, but the
man could not be identified.
No suspects were arrested in the time immediately after the robbery, and the
police began trying to discern images from the bank security cameras to develop
leads. In early January 2005, the police received a tip from an employee of the
Missouri Department of Corrections who recognized Rusan after seeing images from
the security camera tapes and who identified Rusan as the person who committed the
November 2004 bank robbery. After police received this information, they put out
notice that Rusan was wanted for questioning regarding the bank robbery.
A few days later, the police took Rusan into custody on a different matter, and
then also questioned him about the robbery. Rusan initially denied any involvement
-2-
in the November 2004 robbery and offered an alibi. However, after being told by
police of the mounting evidence pointing toward him as the perpetrator, Rusan
recanted his alibi and confessed to robbing the bank. That same day, Ms. Sanborn
identified Rusan in a multi-person lineup as the man who had approached her teller
window and robbed the bank on November 12.
A grand jury returned a one-count indictment, charging Rusan with bank
robbery. Rusan pleaded not guilty, and the case proceeded to trial. The day trial
began, Rusan waived indictment, and one count of bank larceny was added in order
to allow Rusan to argue for the lesser charge of bank larceny instead of bank robbery.
The district court overruled Rusan's Batson objection to the Government's use of its
peremptory strikes to remove three African-American venirepersons during the jury
selection process.
After a two-day trial, Rusan was convicted by a jury on both counts. The
district court sentenced Rusan to 240 months of imprisonment on the bank robbery
count and 120 months of imprisonment on the bank larceny count, with the sentences
to run concurrently. Rusan filed this timely appeal, challenging his convictions on
two grounds: (1) that the district court violated the separation of powers doctrine
during its ruling on the Batson challenge, and (2) that the evidence at trial was
insufficient to establish that the Southern Commercial Bank branch was federally
insured.
II.
A. Batson Challenge
At the start of trial there was a panel of 39 potential jurors, six of whom were
African-American. The Government removed four African-American venirepersons
in total, striking one for cause and using three of its six peremptory challenges against
the others. Rusan also struck one African-American venireperson, leaving one on the
panel. After the Government exercised its three peremptory challenges against
-3-
African-Americans, Rusan made a Batson objection, claiming the strikes were
improperly motivated by race. The Government responded, first challenging whether
Rusan had even made a prima facie showing of discrimination by the mere fact that
it had used three peremptory strikes against African-Americans and then articulating
several nondiscriminatory reasons for the strikes.
Rusan did not challenge the adequacy or factual correctness of the
nondiscriminatory explanations offered by the Government except to argue that they
were a pretext for discrimination because the Government had failed to strike Juror
Two, who Rusan maintained was a similarly situated white venireperson. Rather than
requiring the Government to respond to this assertion of pretext, the district court
relied upon the explanations already offered by the Government to note that Juror Two
was not similar in all legitimate factors to the three African-Americans struck by the
Government. (See Trial Tr. at 122-23). The district court then concluded that the
Government's nondiscriminatory reasons for exercising its peremptory strikes were
adequate and overruled Rusan's Batson objection.
On appeal, Rusan argues that a separation of powers concern arises from the
district court's Batson analysis, but because he did not raise this argument before the
district court, we review only for plain error. See United States v. Mohr, 407 F.3d
898, 901 (8th Cir.) (applying plain error review to constitutional arguments not
previously raised), cert. denied, 126 S. Ct. 670 (2005). We have discretion to reverse
for plain error if there is "an error that is plain," "that affects substantial rights," and
that "seriously affects the fairness, integrity or public reputation of judicial
proceedings." United States v. Olano, 507 U.S. 725, 732 (1993) (internal marks
omitted).
There are three steps in a Batson analysis: (1) the district court must determine
whether the challenger has made a prima facie showing that the peremptory strikes
were based upon race; (2) if the court so finds, then the exercising party must provide
-4-
its reasons for dismissing the potential jurors; and (3) the district court must then
determine if the challenger has satisfied the burden of proving purposeful
discrimination. United States v. Thompson, 450 F.3d 840, 844 (8th Cir. 2006). See
also Batson, 476 U.S. at 96-98. In this case, the district court did not discuss the first
step of whether Rusan had established a prima facie case, but went on to require the
Government to offer race-neutral reasons for the exercise of each peremptory strike
of an African-American venireperson. Rusan then attempted to show pretext by
stating that the Government did not strike a similarly situated white juror. The district
court then overruled the objection.
As we understand Rusan's argument on appeal, he complains that the district
court violated the separation of powers doctrine by, in effect, shouldering the
Government's burden of providing nondiscriminatory reasons when the court did not
require the Government to respond to his assertion of pretext. We see no error, let
alone plain error. The district court did not create its own race-neutral reasons to
satisfy the Government's burden. The Government had provided race-neutral reasons
before Rusan asserted that Juror Two was similarly situated. Because the district
court could determine from the voir dire proceeding it had conducted and the race-
neutral reasons already articulated by the Government that Juror Two was in fact not
similarly situated, there was no need for it to delay its ruling to allow further rebuttal
argument by the Government as to pretext. The district court did not err by relying
on the record already made, which demonstrated that Rusan had not met his burden
of proving purposeful discrimination. Rusan's claim of pretext was apparently so
meritless based on the record already made before her that the district judge had no
need to hear further argument from the Government. No separation of powers
concerns arise from the district court's disposition of the Batson challenge.
B. Sufficiency of the Evidence
Rusan further argues that there was insufficient evidence to prove that Southern
Commercial Bank was federally insured at the time of the robbery. "We review
-5-
challenges to the sufficiency of the evidence de novo, viewing the facts in the light
most favorable to the verdict, resolving any evidentiary conflicts in favor of the
prosecution, and accepting all reasonable inferences that support the verdict." United
States v. Osuna-Zepeda, 416 F.3d 838, 841-42 (8th Cir. 2005), cert. denied, 126 S. Ct.
1653 (2006). The verdict will be upheld if "a reasonable jury could have found
[Rusan] guilty beyond a reasonable doubt." Id. at 842.
"Bank robbery [and larceny are] federal crime[s] only if the institution robbed
is a federally chartered financial institution or is insured by a federal deposit insurer."
United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005), cert. denied, 126 S. Ct.
1083 (2006); see also 18 U.S.C. § 2113(f) (defining the term "bank"). The
Government relied on the fact that Southern Commercial Bank was insured by the
FDIC to satisfy the statutory requirements of 18 U.S.C. § 2113(f) and presented
evidence of the bank's insured status during its case-in-chief.
The Government offered a photocopy of a plaque on display at the bank that
notifies customers the bank is insured by the FDIC, and the testimony of Marcia
Ellerbeck, an employee of Southern Commercial Bank for over 31 years. The
photocopy of the plaque that was entered into evidence depicted the plaque displayed
in the bank on the day of the robbery. Ms. Ellerbeck testified that the bank was
insured on the day of the robbery and that her knowledge of that status came through
information disseminated from the bank. She also testified that part of her work
responsibilities included explaining the concept of FDIC insurance to new bank
customers. Rusan contends that this evidence is insufficient, based upon our prior
caselaw, to establish that the bank was FDIC insured. We respectfully disagree.
We first question whether we even need to look at the merits of this claim.
While Rusan now contends that there was insufficient evidence presented by the
Government to prove the bank was FDIC insured, at trial Rusan's counsel conceded
that the Government had met its burden on this element. During closing arguments,
-6-
Rusan's counsel argued that the Government had failed to prove beyond a reasonable
doubt all the elements of bank robbery. (Trial Tr. at 243.) His counsel then went on
to state that "[a]s to bank larceny, . . . I would concede that the government has proved
those elements." (Id.) Because one element of both crimes is the bank's federally
insured status, by conceding that the Government satisfied the elements of bank
larceny, Rusan's counsel conceded that the Government had sufficiently proven that
the bank was FDIC insured as to both counts. While statements made by counsel
during closing arguments are not evidence, United States v. Lowrimore, 923 F.2d 590,
593 (8th Cir.), cert. denied, 500 U.S. 919 (1991), concessions made by counsel as part
of a trial strategy are another matter, see generally Lingar v. Bowersox, 176 F.3d 453,
459 (8th Cir. 1999) (recognizing that trial counsel's decision to concede lesser charge
in closing argument as part of trial strategy was not ineffective assistance), cert.
denied, 529 U.S. 1039 (2000). See also United States v. Bentson, 947 F.2d 1353,
1356 (9th Cir. 1991) (holding that defendant was bound by attorney's judicial
admission during closing arguments), cert. denied, 504 U.S. 958 (1992); Rodriguez-
Gonzalez v. INS, 640 F.2d 1139, 1141-42 (9th Cir. 1981) (stating that attorney's
admission to an element of the offense, done in presence of defendant, was binding);
United States v. Adams, 422 F.2d 515, 518 (10th Cir.) (holding that defendants were
bound by admissions made by counsel during trial when made in defendant's presence
and with permission of defendant), cert. denied, 399 U.S. 913 (1970). Because this
issue can be simply dealt with on its merits we will do so, while acknowledging that
Rusan appears to have conceded this issue at trial.
We have not previously articulated a minimum standard of proof of insured
status in the prior cases that addressed this issue, but the evidence before us may well
be approaching what we would consider the bare minimum. We have stated that a
copy of the insurance certificate issued by the FDIC, proof of payment of the
insurance premium, and the testimony of a bank officer (or other knowledgeable
employee) that the bank's deposits are insured is sufficient to prove that the bank was
insured by the FDIC. See United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir.
-7-
1998); United States v. Merrill, 484 F.2d 168, 169-70 (8th Cir.), cert. denied, 414 U.S.
1077 (1973). While producing the actual certificate and proof of payment may be the
ideal evidence to prove insured status, we have upheld many cases on testimony alone.
See United States v. Lewis, 260 F.3d 855, 855-56 (8th Cir. 2001) (holding insured
status proven by statement of bank manager that deposits are insured by the FDIC),
cert. denied, 534 U.S. 1154 (2002); United States v. Hadamek, 28 F.3d 827, 827-28
(8th Cir. 1994) (stating that testimony from bank president that deposits are insured
was sufficient to allow jury to draw inference that bank was also insured at time of
robbery); United States v. Mays, 822 F.2d 793, 796 (8th Cir. 1987) (holding that
testimony of bank manager that bank was insured was enough to satisfy requirement
and noting that testimony of bank manager on this matter should receive the same
evidentiary weight as that of a bank officer).
The photocopy of the plaque itself is likely not enough to establish Southern
Commercial's insured status, but when admitted in conjunction with the testimony of
Ms. Ellerbeck, an employee (as opposed to a manager or officer) of the bank for over
30 years, it is enough to satisfy us that a jury could have reasonably found that the
bank was insured on the day of the robbery. Ms. Ellerbeck was asked at trial if
through her work she was "familiar with whether or not the deposits of that bank
[were] insured by the federal government." (Trial Tr. at 176.) Ms. Ellerbeck replied
that the deposits were insured and always had been while she had worked there. (Id.)
Not only did she know this through her work in customer service, but she also knew
of the insured status through training and information she received from her superiors.
Ms. Ellerbeck then identified a photocopy of the plaque as one that hangs in the bank
to notify customers that the bank is FDIC insured. Rusan objected to the admission
of the photocopy of the plaque under the best evidence rule, and the district court,
treating the objection as going to the fact that a photocopy and not the original plaque
was being used, overruled Rusan's objection. At no time did Rusan make any further
objections or contend that the court had misconstrued his original objection.
-8-
The issue of proof of insured status arises more frequently than it should. As
we stated in Hadamek, "we are at a loss to understand why the government did not
introduce more specific evidence regarding the bank's insured status on the date of the
offense, including a copy of the certificate of insurance." 28 F.3d at 828. While the
evidence in this instance was sufficient for the jury to find that the bank was insured
by the FDIC, we respectfully suggest again that the certificate of insurance in effect
at the time of the offense, accompanied by proof of the premium payment for the same
period offered through the testimony of a knowledgeable official from the bank,
would more specifically (and easily) satisfy this element of the offense without being
overly burdensome on the Government.
III.
Accordingly, we affirm the judgment of the district court.
______________________________
-9-