United States v. David Reynaldo Lewis

Eighth Circuit

United States v. David Reynaldo Lewis

260 F.3d 855, 2001 U.S. App. LEXIS 18072, 2001 WL 897657

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 10, 2001

Docket00-3862

StatusPublished

Cited by10 cases

This text of 260 F.3d 855 (United States v. David Reynaldo Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. David Reynaldo Lewis, 260 F.3d 855, 2001 U.S. App. LEXIS 18072, 2001 WL 897657 (8th Cir. 2001).

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

David Reynaldo Lewis was convicted of defrauding the Norwest Bank of Sioux Falls, South Dakota, see 18 U.S.C. § 1344. On appeal, he raises only one significant issue, namely, whether the evidence was sufficient to establish beyond a reasonable doubt that Norwest Bank was insured by the FDIC at the time the fraud was committed. We believe that the evidence was sufficient and therefore affirm.

In the present case, the manager of the Norwest branch office at which the fraud occurred, when asked whether the bank “is” insured by the FDIC, answered in the affirmative. The case is therefore identical in every relevant respect to United States v. Hadamek, 28 F.3d 827, 827-28 (8th Cir.1994), in which a bank’s president testified that his deposits “are” insured by the FDIC. We held that this testimony was “sufficient to allow the jury to infer that the bank was FDIC insured on the date of the fraud.” In doing so, we cited with approval United States v. Schermerhorn, 906 F.2d 66, 69-70 (2d Cir.1990), where the court observed that testimony that funds in a bank “are” insured “viewed in the context” would allow a jury to “draw the inference that the bank was insured” at the relevant time. The inference in the [856]*856present case draws strength from the fact that the interval between the commission of the fraud and the trial of this case was not great.

While it would manifestly have made out a better case if the witness’s testimony had related more directly to the time when the fraud was committed, we have opined in a case very similar to the present one that the “existence of [a] fact is some indication of its probable existence at an earlier time.” United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir.1998). Such testimony, moreover, would be irrelevant unless it is understood to be evidence of a status that extended into the past, and a reasonable factfinder would be justified in assuming that a witness would not be testifying to an extraneous fact. While the present tense has, it is true, an instantaneous aspect, it also can describe a status. The sentence “I am a man” carries with it an inference that I always was one.

Because we believe that Mr. Lewis’s argument is foreclosed by precedents that are directly apposite, we affirm the conviction.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

David Reynaldo Lewis was convicted of defrauding the Norwest Bank of Sioux Falls, South Dakota, see 18 U.S.C. § 1344. On appeal, he raises only one significant issue, namely, whether the evidence was sufficient to establish beyond a reasonable doubt that Norwest Bank was insured by the FDIC at the time the fraud was committed. We believe that the evidence was sufficient and therefore affirm.

In the present case, the manager of the Norwest branch office at which the fraud occurred, when asked whether the bank “is” insured by the FDIC, answered in the affirmative. The case is therefore identical in every relevant respect to United States v. Hadamek, 28 F.3d 827, 827-28 (8th Cir.1994), in which a bank’s president testified that his deposits “are” insured by the FDIC. We held that this testimony was “sufficient to allow the jury to infer that the bank was FDIC insured on the date of the fraud.” In doing so, we cited with approval United States v. Schermerhorn, 906 F.2d 66, 69-70 (2d Cir.1990), where the court observed that testimony that funds in a bank “are” insured “viewed in the context” would allow a jury to “draw the inference that the bank was insured” at the relevant time. The inference in the [856]*856present case draws strength from the fact that the interval between the commission of the fraud and the trial of this case was not great.

While it would manifestly have made out a better case if the witness’s testimony had related more directly to the time when the fraud was committed, we have opined in a case very similar to the present one that the “existence of [a] fact is some indication of its probable existence at an earlier time.” United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir.1998). Such testimony, moreover, would be irrelevant unless it is understood to be evidence of a status that extended into the past, and a reasonable factfinder would be justified in assuming that a witness would not be testifying to an extraneous fact. While the present tense has, it is true, an instantaneous aspect, it also can describe a status. The sentence “I am a man” carries with it an inference that I always was one.

Because we believe that Mr. Lewis’s argument is foreclosed by precedents that are directly apposite, we affirm the conviction.

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260 F.3d 855, 2001 U.S. App. LEXIS 18072, 2001 WL 897657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-reynaldo-lewis-ca8-2001.

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