Opinion
No. 1:95-CR-5287 OWW.
July 12, 2005
McGREGOR W. SCOTT, United States Attorney, DAWRENCE W. RICE, JR., Assistant U.S. Attorney, Fresno, California.
GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS INDICTMENT FILED JULY 7, 2005.
The defendant moves to dismiss the remanded counts of the indictment for using a firearm during the armed bank robberies on the grounds that the affirmed counts for armed bank robbery allege in the indictment that the "accounts" of the banks, rather than the "deposits" of the banks, were insured by the FDIC. The defendant contends that this is a fatal jurisdictional defect to the remanded counts. The motion is without merit.
The government has found only one case on point and it is contrary to the defendant's position. In United States v. McNeal, 865 F.2d 1167, 1169-70 (10th Cir. 1989), the defendant contended that an allegation that a credit union had its "deposits," rather than its "accounts," federally insured was fatal to the indictment. Id. The Court of Appeals rejected this contention and held that an allegation that a credit union had its "deposits," rather than its "accounts," federally insured was not fatal to an indictment charging the defendant with robbery of a credit union, even though there was technical difference between bank "deposits" and credit "accounts." Id.
The reasoning of the Court of Appeals was as follows:
I. "Accounts" vis-a-vis "Deposits"
[1] Count 1 charged a violation of 18 U.S.C. § 2113(a) and (d). Section (a) provides that whoever by force takes money belonging to a "bank" or "credit union" shall be fined not more than $5,000 or imprisoned not more than 20 years, or both. Section (d) provides that whoever violates section (a) and in so doing assaults a person by use of a dangerous weapon shall be fined not more than $10,000 or imprisoned not more than 25 years, or both. Section (f) provides that the term "bank" includes "any bank the deposits of which are insured by the Federal Deposit Insurance Corporation" (emphasis added). Section (h) states that the term "credit union" includes a "[s]tate-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration" (emphasis added). 18 U.S.C. § 2113 (1984).
The credit union in the instant case was a state-chartered credit union. The government alleged in each of the three counts that the "deposits of Mid-American Credit Union, Challenger, K.C. office were insured by the National Credit Union Administration" (emphasis added). Why the government eschewed the use of the term "accounts," and used the term "deposits," is not clear. In drawing an indictment, the safer course is to use the language of the statute. In any event, according to appellant, the use of the term "deposit" is appropriate where a bank is involved, but inappropriate where a credit union is involved and, therefore, is fatal to the indictment. In other words, appellant argues that referring to "deposits" of the credit union, instead of "accounts," which is the statutory language, renders the entire indictment subject to a motion to dismiss for failure to state an offense. Appellant further contends that this error was compounded by the court's instructions, which also referred to the credit union's "deposits," as opposed to "accounts."
Appellant has not drawn our attention to any case holding that an allegation in an indictment that a state-chartered credit union had its "deposits" — as opposed to "accounts" — insured by the National Credit Union Administration is such a departure from the statute as to render an indictment subject to a motion to dismiss for failing to charge a crime. An indictment is sufficient if it contains the elements of the offense *1170 charged and fairly informs the defendant of the charge against which he must defend, and, secondly, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Darrell, 828 F.2d 644, 647 (10th Cir. 1987) (citing United States v. Rudetsky, 535 F.2d 556, 562 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976)); United States v. Salazar, 720 F.2d 1482 (10th Cir. 1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985). Although it is quite true that the statute refers to a bank's "deposits," and a credit union's "accounts," we decline to hold that referring to a credit union's "deposits," instead of "accounts," is fatal.
In United States v. Janoe, 720 F.2d 1156 (10th Cir. 1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984), the indictment alleged that the insuring agency was the Federal Deposit Insurance Corporation (FDIC), when it should have been described as the Federal Savings and Loan Insurance Corporation (FSLIC). Id. at 1158-61. There we held that notwithstanding the erroneous reference to FDIC, the indictment specifically informed the defendant of the nature of the alleged offense and the statutory violation charged, and that the erroneous reference did not subject the defendant to the possibility of double jeopardy. Id. at 1159. In the instant case, although there is a technical difference between a bank "deposit" and a credit union "account," each represents money given by one to another, for the benefit and use of the former at his direction. Therefore, the indictment in the present case was sufficient.
Additionally, in line with the foregoing discussion, it was not error for the district court to instruct the jury that an essential element of Count 1 was that the credit union's "deposits" were insured by the National Credit Union Administration. United States v. McNeal, at 1169-70.