On Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 185 Rudolph T. Randa, Judge.
Before CUDAHY, COFFEY and RIPPLE, Circuit Judges.
Michael Locklear was convicted on eight counts of aiding and abetting the uttering of counterfeit cashier's checks purportedly issued by M&I Marshall & Isley Bank ("M&I Bank") knowing that the checks were counterfeit. See 18 U.S.C. secs. 493, 2. However, the indictment did not allege one element of section 493: that M&I Bank was a financial institution "authorized and acting under the laws of the United States." The government also failed to prove that the Bank had such a status. The government now confesses error. For the reasons that follow, we reverse the judgment of the district court and remand the case with directions to enter a judgment of acquittal.
On March 30, 1995, a superseding indictment was returned against Mr. Locklear, charging him with eight counts of aiding and abetting the uttering of counterfeit cashier's checks between January 28 and March 10, 1994. *fn1 Mr. Locklear went to trial June 5 through 7, 1995. Testifying for the government pursuant to a plea agreement was Eugene Caldwell, the man who had collaborated with Mr. Locklear on the plan to pass counterfeit checks. According to Caldwell's testimony, Mr. Locklear drove Caldwell to a selected retail store; Caldwell then bought a store item with the counterfeit check, which was written for more than the value of the item; and the two men split the change. The defendant and Caldwell (and others who became involved in the scheme) passed eight counterfeit cashier's checks, purportedly drawn on M&I Bank, to local merchants for merchandise (a mountain bike and a puppy, for example) and change. They were apprehended after a suspicious Sears employee followed Caldwell out of the store, recorded Mr. Locklear's license plate number, and notified law enforcement authorities.
At the close of the government's case, Mr. Locklear's counsel moved for dismissal of the indictment on the ground that there was insufficient evidence. The court denied the motion on the ground that the government had presented evidence on each element of each charge. After Mr. Locklear presented one witness (Mr. Locklear's wife) and rested, his counsel again moved for dismissal of the indictment for insufficient evidence. The district court denied that motion as well. The jury then convicted Mr. Locklear on all counts. *fn2
At the sentencing hearing, Mr. Locklear himself challenged the indictment's failure to allege that M&I Bank was a federally insured bank at the time he allegedly aided and abetted the passing of the checks. The court reread the indictment and again denied Mr. Locklear's motion. The court then imposed a sentence of forty-six months of imprisonment for each of the eight counts of the indictment, to run concurrently, and restitution of $27,280.
Mr. Locklear filed a timely notice of appeal. *fn3 At oral argument, we appointed an amicus curiae to argue the proposition that the government neither alleged nor proved that the instrument described in the indictment had been issued by any of the institutions mentioned in 18 U.S.C. sec. 493. The amicus curiae submitted that the defendant must be acquitted, given the complete failure of proof that M&I Bank was "authorized or acting under the laws of the United States" and thus that M&I Bank's instruments are within 18 U.S.C. sec. 493. The government agreed and requested that we vacate the sentence imposed on Mr. Locklear and remand the case to the district court with instructions that it enter a verdict of acquittal or a dismissal of each count with prejudice. *fn4
There is no question that the indictment in this case did not allege that M&I Bank had the federally protected status set forth in the statute. We must decide whether the federally protected status of M&I Bank is an essential element of the charged offense. The government has confessed error on this point and asks that we direct the district court to enter a judgment of acquittal. "Confessions of error [on the part of the government] are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.' " Sibron v. New York, 392 U.S. 40, 58 (1968) (quoting Young v. United States, 315 ...