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UNITED STATES v. GLOVER

May 16, 1975

UNITED STATES OF AMERICA
v.
HARRY GLOVER, et al.


Fogel, J.


The opinion of the court was delivered by: FOGEL

FOGEL, J.

 On February 26, 1975, Harry Glover was convicted by a jury of conspiracy and violations of the federal bank robbery statute, 18 U.S.C. § 2113. Before us at this juncture are motions filed in his behalf seeking, in the alternative, a new trial, judgment of acquittal, or arrest of judgment, pursuant to Rules 33, 29, and 34 of the Federal Rules of Criminal Procedure.

 Various grounds were originally asserted in support of these motions. We have treated all except one contention as abandoned, since a single issue only has been pressed by defendant in the memorandum of law in support of his motion; namely, that the government failed to adduce competent evidence to establish that the Provident National Bank was, on October 16, 1974, a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, as required by 18 U.S.C. § 2113(f). *fn1"

 In order to assess the force of this argument, we will briefly review the evidence offered by the government to establish the federally insured status of the Provident National Bank.

 The government initially sought to introduce a document marked as Exhibit FDIC-1, which purported to be a duplicate certificate of insurance issued to the Provident National Bank by the F.D.I.C., accompanied by certificates from Alan R. Miller, Executive Secretary of the F.D.I.C. This document was excluded by the Court for failure to comply with the requirements of Rule 44 of the Federal Rules of Civil Procedure, as incorporated by Rule 27 of the Federal Rules of Criminal Procedure, N.T. 73-82 (February 19, 1975).

 A second document was thereupon substituted by the government, marked Exhibit FDIC-1a, which was admitted into evidence, and examined by the jury during deliberations. This document consisted of a duplicate certificate of insurance, accompanied by two certificates from Mr. Miller, which stated the following:

 
CERTIFICATE
 
I, Alan R. Miller, hereby certify and attest that I am Executive Secretary of the Federal Deposit Insurance Corporation, that I have the official custody of the records of the Federal Deposit Insurance Corporation, including the certificate of insurance, a copy of which is annexed hereto. I do further certify that the attached duplicate copy of the certificate of insurance issued to the Provident National Bank, Bryn Mawr, Pennsylvania, is a true and correct copy of the original.
 
DATED: February 20, 1975.
 
/s/ Alan R. Miller Executive Secretary
 
FEDERAL DEPOSIT INSURANCE CORPORATION
 
24537
 
(SEAL)
 
PROOF OF LACK OF OFFICIAL RECORD
 
DATED: February 20, 1975
 
/s/ Alan R. Miller Executive Secretary
 
FEDERAL DEPOSIT INSURANCE CORPORATION
 
(SEAL) 24537

 Each of these certificates was in turn accompanied by a certificate of a Notary Public in the District of Columbia, and a certificate from the Chief of the Notary Public Section, Executive Secretary to the Commissioner of the District of Columbia.

 The government offered additional evidence by way of testimony from Edwin Keleher, Vice President in Charge of Planning at the Provident National Bank, formerly Comptroller of that institution. Mr. Kelleher testified that on January 25, 1974, he issued a check to the order of the F.D.I.C., in the amount of $453,372.78, covering an assessment for the period ending June 30, 1974, and that he caused to be issued a second check on July 22, 1974, in the amount of $21,474.26, covering the six month period ending on December 31, 1974. He further testified that these checks bore the endorsements of the F.D.I.C. and the Treasurer of the United States, and that the respective amounts were charged to the bank's account in the normal course of business.

 To corroborate Mr. Keleher's testimony, the government offered as Exhibit G-2, photocopies of the two checks payable to the F.D.I.C., and computer printouts from the bank's internal records establishing that the proper voucher account was drawn down by the face amounts of the checks. Properly authenticated by Mr. Keleher, N.T. 86, (February 19, 1975), N.T. 8, (February 20, 1975), Exhibit G-2 was admitted into evidence, and submitted to the jury during its deliberations.

 We conclude that this evidence, consisting as it did, of certificates, authenticated copies of documents, and live testimony, was properly admissible, and was sufficient to enable a reasonable jury to conclude beyond a reasonable doubt that the Provident National Bank was, on October 16, 1974, a bank the deposits of which were insured by the F.D.I.C.

 First, it is clear that the government is not required to produce the original records of the F.D.I.C., kept in Washington, D.C., but may instead rely upon other admissible evidence to establish the federally insured status of the bank, Kane v. United States, 431 F.2d 172, 176 (8th Cir. 1970).

 Second, we are satisfied that the duplicate certificate of insurance, accompanied by the certificates from Mr. Miller, complied with the requirements of Rule 44 of the Federal Rules of Civil Procedure, made applicable in criminal cases by Rule 27 of the Federal Rules of Criminal Procedure. The former rule provides, in pertinent part:

 
PROOF OF OFFICIAL RECORD
 
(a) Authentication.
 
(1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof * * * or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer ...

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