decided: February 27, 1984; As Amended February 28, 1984.
Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 82 CR 30095 -- Michael M. Mihm, Judge.
Posner, Coffey, and Flaum, Circuit Judges.
This is an appeal from the defendant's convictions for one count of bank robbery with a dangerous weapon, in violation of 18 U.S.C. § 2113(d) (1982), and for one count of bank robbery, in violation of 18 U.S.C. § 2113(a) (1982). Together with this appeal, the defendant has also presented this court with a motion to gain access to the transcript of an in camera proceeding and with a motion to remand the case to the district court for an evidentiary hearing. For the reasons set forth below, we affirm the defendant's convictions, and we deny the defendant's motions.
On the morning of Friday, August 7, 1981, two men wearing stocking hat masks entered the Bank of Carlock in Carlock, Illinois. One man carried a.45 caliber handgun, and the other carried a sawed-off shotgun. While holding customers and employees of the bank at gunpoint in the bank's vault, the gunmen gathered approximately $17,336, which they put in a pillowcase. They then drove off in a maroon Chevrolet owned by the bank, but they were pursued by a bank customer who had driven up to the bank at the moment of the getaway. After a high-speed chase on a highway outside of Carlock, the customer turned back when the maroon Chevrolet pulled onto the shoulder of the highway and one of the bank robbers ran toward the customer's car with his pistol drawn. As the customer retreated, he noticed that a silver Impala, which had appeared during the chase, had also pulled off the road and seemed to be waiting. Law enforcement officials later found the maroon Chevrolet, two stocking hat masks, two pairs of gloves, and a pillowcase on the shoulder of the highway.
Four months later, on December 6, 1982, a grand jury returned a two-count indictment charging the defendant with the bank robbery. At the defendant's jury trial that began on April 11, 1983, the vice president of the bank testified that the Bank of Carlock was federally insured during 1981. The prosecution then presented a number of witnesses who testified that the defendant was a friend of David Neff and that Neff and the defendant had discussed plans for pulling an armed robbery. Additional government testimony established that Neff had borrowed a.45 caliber handgun a few months before the robbery, that he kept a sawed-off shotgun in his home, and that he owned a silver Impala. Furthermore, government witnesses testified that, in the weeks following August 7, 1981, both the defendant and Neff had large amounts of money at their disposal, which they had not had previously.
On the second day of the three-day trial, prior to the close of the government's case, a conference took place outside the presence of the jury, during which the court discussed the defendant's intention to call David Neff as a witness. The prosecutor informed the court that, although the government had granted Neff use immunity to testify before the grand jury in this case, the government had revoked that immunity in a letter that was mailed to Neff's attorney earlier in the day. The prosecutor stated that the government had evidence that Neff "perhaps perjured himself" and that he was the subject of a grand jury investigation for bank robbery, perjury, and cocaine distribution. Trial Transcript at 463. The following day, another conference took place outside the presence of the jury, at which Neff's attorney appeared and indicated that Neff would assert his rights under the fifth amendment if he were called to testify at the defendant's trial. The defendant's attorney charged that the government had revoked Neff's immunity only to frustrate the defendant's defense, and he asked the court to compel the government to extend immunity to Neff. The prosecutor, on the other hand, represented to the court that the government had every intention of indicting Neff. Ruling that it had not heard anything that would indicate bad faith on the part of the government, the court refused to compel the government to extend immunity to Neff. Id. at 554-55. However, in view of Neff's intention to invoke the fifth amendment, the court found Neff to be unavailable, pursuant to rule 804(a)(1) of the Federal Rules of Evidence, and it allowed excerpts of Neff's grand jury testimony, in which Neff denied involvement in the robbery, to be read to the jury at the close of the government's case.
During closing argument, the defense counsel called into question the strength of the government's circumstantial evidence and the credibility of one of the government witnesses. In her rebuttal argument, the prosecutor reviewed much of the evidence and questioned the credibility of Judi Taylor, the defendant's former wife, who had testified for the defense. The jury returned a verdict of guilty on both counts.
At the defendant's sentencing hearing on June 10, 1983, the defense counsel informed the court that David Neff had not yet been indicted for the robbery, contrary to the representations that had been made by the prosecutor on the second day of trial. Contending that the lack of an indictment indicated government misconduct in revoking Neff's immunity, the defense counsel moved for a new trial. The district court held an in camera conference with the prosecutor in order to question the prosecutor about the delay in bringing an indictment against Neff. After the in camera conference, the court affirmed its prior ruling that there was no bad faith on the part of the government. See Sentencing Transcript at 9. The court then sentenced the defendant to imprisonment for eighteen years.
In appealing his convictions, the defendant raises three issues. First, he argues that the government failed to prove beyond a reasonable doubt that the Bank of Carlock was federally insured. Second, the defendant claims that he was denied his fifth amendment right to due process and his sixth amendment right to compulsory process when the government revoked Neff's immunity. Third, the defendant contends that the prosecutor engaged in improper rebuttal argument.
PROOF OF FEDERAL INSURANCE
When prosecuting a defendant under the federal bank robbery statute, the government must prove the federally insured status of the bank as an element of the offense.*fn1 The defendant argues that in this case, the testimony of the bank's vice president, unaccompanied by evidence such as the certificate of insurance or the contract of insurance, was insufficient proof of insurance. The government responds that this testimony was sufficient to prove the bank's insured status on the date of the robbery.
This court recently has established that, in order to support a conviction under federal banking statutes, evidence regarding a bank's insured status must indicate to the jury that the insurance existed at the time of the commission of the offense. See United States v. Shively, 715 F.2d 260 (7th Cir. 1983) (conviction for falsely stating the purpose of a loan, in violation of 18 U.S.C. § 1014, reversed because certificate of insurance issued in 1969 could not be taken to refer to the bank's insured status in 1978, when the crime was committed); United States v. Knop, 701 F.2d 670, 673 (7th Cir. 1983) (bank officers' testimony that bank "is" insured "could plausibly have been taken by the jury as referring to the time of the commission of the offense" and was sufficient to support conviction).
In the present case, the bank's vice president testified that the Bank of Carlock was insured by the Federal Deposit Insurance Corporation for the entire year of 1981. Trial Transcript at 200-01. Because this testimony clearly indicated to the jury that the bank was federally insured on August 7, 1981, the date of the robbery, it satisfied the proof requirement established in Shively and Knop. Furthermore, the vice president's testimony was uncontroverted by any evidence offered by the defendant. We thus hold that the ...