United States v Iverson

Iverson appealed his bank fraud conviction arguing evidence about the two institutions DCIC status was hearsay. The panel, 2-1 with an added concurrence, affirmed. The majority noted that there is a split of opinion among federal circuit courts as to why statements about FDIC status are admissible, but, no court has held them inadmissible. The majority held that the statements by the FBI agent about seeing the certificate of insurance on the FDIC website was admissible either because it was nonhearsay recounting of what the agent saw or because the certificate and the online information were public records under Rule of Evidence 803(8) as each sets out the activates of the FDIC public office. The majority noted that this ground was not argued below, but, adopted it as legally correct and apparent on eh record. The majority held that a best evidence challenge failed under plain error review because the testimony was only about the existence of the certificates not their content. The majority chided the government for failing to take advantage of FIC’s offer to provide proof of federally insured institution status. However, the majority held that the agent’s testimony and documents showing the banks claimed membership in FDIC was enough to provide a basis to infer insured status and thus the convictions were adequately supported. The concurrence argued that the FDIC online material was subject to judicial notice as a legislative fact as a bank’s status as a federally insured institution is independent of whether Iverson intended to defraud a certain bank. It further argued that no substantial right is implicated by taking notice here as there was overwhelming evidence of guilt and the jury was properly instructed. It noted that the government could have saved everyone a lot of trouble by pulling up the website at trial and showing the certificates to the jury. The dissent argued that the agent’s testimony was hearsay as it attempted to prove insured status by talking about what was seen on the Internet and the majority’s approach relieves the government of its burdens under the rules evidence. It agreed that the best evidence argument fails on plain error review as the government could have put the certificates in evidence and Iverson does not dispute that the banks are covered by the federal statute he violated. It finally argue what without the agent’s testimony, there was insufficient evidence to prove the element of insured status and thus the conviction must be overturned and a new trial held.