from the United States District Court for the Northern
District of Florida D.C. Docket No. 1:15-cr-00012-MP-GRJ-1
TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.
NEWSOM, CIRCUIT JUDGE.
criminal appeal presents both a surprisingly close question
of evidentiary sufficiency-so close, in fact, that it has
prompted a dissent-and an interesting
statutory-interpretation issue. As to the former, federal law
criminalizes the act of knowingly making a false statement in
order to obtain a loan from a bank that is insured by the
FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to
knowingly making false statements in order to obtain bank
loans-indeed, four times over. Even so, he contends, the
government failed to show beyond a reasonable doubt, as it
had to, that the institution he swindled was FDIC-insured.
This case presents the (irritatingly familiar) question
whether the government presented sufficient evidence to prove
that pesky jurisdictional prerequisite. The proof of FDIC
insurance here-as in other cases in which we have rapped the
government's knuckles-was hardly overwhelming. And given
the ease with which insurance coverage could have been
demonstrated-certificate, contract, cancelled check,
etc.-inexplicably so. Having said that,
"overwhelming" isn't the standard, and when we
view the evidence in the light most favorable to the
government, as we must, see United States v. Frank,
599 F.3d 1221, 1233 (11th Cir. 2010), we conclude-albeit
reluctantly-that the proof was adequate to demonstrate
Munksgard's guilt beyond a reasonable doubt. But let this
be a warning to federal prosecutors: You are (as the
author's mother used to say) cruisin' for a
bruisin'. Don't apologize-do better.
the statutory-interpretation issue: Federal law makes it a
crime for any person to "use, without lawful
authority, a means of identification of another person."
18 U.S.C. § 1028A(a)(1). The jury here found that
Munksgard violated this statute when, in an effort to obtain
financing to support his land-surveying business, he forged
another person's name to a surveying contract that he
submitted to a bank in support of his loan application. The
question before us is whether Munksgard's conduct
qualifies as a prohibited "use" within the
meaning of § 1028A(a)(1). Munksgard insists that we
should cabin the meaning of "use" to crimes in
which the accused attempted to impersonate, or act "on
behalf of," someone else. We disagree. Plain meaning,
statutory context, and existing precedent all show that
Munksgard "use[d]" his victim's means of
identification when he employed that person's signature
to obtain the loan and thereby converted the signature to his
Munksgard began banking with Drummond Community Bank in the
late 1990s. Drummond is a relatively small bank; at the time
of trial, it operated in only a few counties in west central
Florida. Munksgard obtained his first drawdown line of credit
from Drummond in 2010 to fund his work as a land surveyor.
After repaying that loan without incident, in 2012 Munksgard
obtained two more drawdown lines. He also repaid those loans,
albeit once from a different source of funds than he had
indicated in his loan application.
when the real trouble started. The next year, Munksgard
applied for yet another line of credit from Drummond, this
time supported by a surveying contract with a company called
Cal-Maine Foods. That contract showed the signature of
Cal-Maine employee Kyle Morris. Munksgard now admits that the
contract was fraudulent and that he signed Morris's name
to it without Morris's knowledge or permission.
obtained three more lines of credit from Drummond over the
next two years. He supported a 2013 credit application with a
contract with Maxwell Plum Creek signed, on Plum Creek's
behalf, by an "S. Riggins." Plum Creek had no
knowledge of the contract, and "S. Riggins"
didn't exist. Munksgard's third and fourth credit
applications, both in 2014, followed a similar pattern. To
support them, Munksgard submitted contracts with St. Johns
River Water Management and Triple Bell Farms. Both contracts
were fraudulent, and both were signed by fictional
employees-"Ross Rawlings" for St. Johns River and
"Jason Hanold" for Triple Bell.
years and four unpaid loans in, Drummond started asking
questions and ultimately contacted the FBI. A grand jury
later indicted Munksgard on four counts of knowingly making a
false statement in order to obtain a loan from an
FDIC-insured bank, in violation of 18 U.S.C. § 1014, and
one count of aggravated identity theft for his placement of
Kyle Morris's signature on the Cal-Maine Foods contract,
in violation of 18 U.S.C. § 1028A.
trial, the government presented three pieces of evidence to
prove that Drummond was FDIC-insured when Munksgard submitted
the fraudulent materials: (1) a certification indicating that
the bank's deposits were insured when it was initially
chartered in 1990; (2) testimony from a veteran bank
employee, David Claussen, that Drummond was currently
(i.e., in 2016) FDIC-insured; and (3) Claussen's
further testimony that the bank isn't required to
"renew" its FDIC certificate "every so
jury convicted Munksgard on all five counts. The district
court sentenced Munksgard to six months in prison for the
fraudulent credit applications and to a consecutive 24 months
for aggravated identity theft.
begin with Munksgard's bank-fraud conviction under 18
U.S.C. § 1014. Section 1014 prescribes stiff penalties
for anyone who "knowingly makes any false statement . .
. for the purpose of influencing in any way the action of any
institution the accounts of which are insured by the Federal
Deposit Insurance Corporation." 18 U.S.C. § 1014.
For purposes of appeal, all agree that Munksgard (1)
knowingly (2) made false statements (3) in order to obtain
financing from Drummond Community Bank. That gets the
government three-quarters of the way home. Munksgard
contends, though, that the government didn't quite finish
the job-in particular, he says, it failed to present
sufficient evidence to prove beyond a reasonable doubt that
Drummond was FDIC-insured at the time he submitted the
fraudulent loan applications.
seen this play before-part comedy, part tragedy. For reasons
that leave us mystified, in cases involving federally insured
banks-bank robbery, bank fraud, etc.-the government continues
to stub its toe in seeking to prove the seemingly
straightforward, but nonetheless jurisdictionally
"indispensable," element of FDIC insurance. See
United States v. Platenburg, 657 F.2d 797, 799 (5th Cir.
Unit A Oct. 1981). In our Circuit alone, the problem
stretches back more than half a century. For the good of all
involved, we'll pick up the story in 1978, when we (then
part of the old Fifth) considered a bank-robbery case in
which the government had presented evidence indicating that
the institution at issue had been insured (1) ten years
before the crime and (2) at the time of the trial. Citing our
own precedent, as well cases from the Sixth, Seventh, and
Eighth Circuits confronting the same question, we observed
that "a jury can reasonably infer that an institution
was federally insured on the date of a robbery if it is
presented with evidence showing that the institution was
insured both prior to that date and recently
thereafter." United States v. Fitzpatrick, 581
F.2d 1221, 1223 (5th Cir. 1978) (citations omitted). We
hastened to add, however-the proverbial shot across the
bow-that "the government obviously could have done a
much better job of proving the bank's insured status at
the date of the crime." Id.
years later, in what would later be described as the
"nadir of the acceptable level of proof,"
Platenburg, 657 F.2d at 800, we found-"[j]ust
barely"-that a reasonable jury could conclude that the
target bank was insured at the time of the offense based on
evidence that it had FDIC insurance five years earlier.
United States v. Maner, 611 F.2d 107, 110-112 (5th
Cir. 1980). We deemed it "at least arguable" that
the jury could indulge "the universal presumption . . .
that all banks are federally insured"-and further
"that a reasonable jury could infer beyond a reasonable
doubt that proof of the condition of insurance before the
robbery, absent evidence to the contrary, suggests the
continuation of that insurance." Id. at 110.
again-this time more vigorously-we expressed our annoyance.
We emphasized our "difficulty comprehending why the
Government repeatedly fails to prove this element more
carefully since the Government's burden is so simple and
straightforward," and we warned that "the
Government had tread[ed] perilously close to reversal in
th[at] case, and may soon find itself crossing the line from
sufficiency to insufficiency." Id. at 112.
Underscoring what we described as a "plague infecting
United States Attorneys throughout the land," our
opinion included a 760-word "digest" of cases in
which appellate courts had considered whether the government
had failed to shoulder its proof-of-insurance burden. More
generously, we even offered suggestions for how the
government could prove this "simple but indispensable
fact"-a certificate of FDIC coverage spanning the date
of the crime, an insurance contract, a cancelled check, etc.
Id. at 112 n.2.
warnings went unheeded. In Platenburg, the
government presented only a certificate of FDIC insurance
that predated the offense by seven years- nothing more.
Enough had finally become enough: "The day ha[d] come;
the line from sufficiency to insufficiency ha[d] been
crossed." 657 F.2d at 799.
then, what of this case? Notwithstanding our sympathy for our
dissenting colleague's exasperation, we don't think
the line has been crossed here. The government's evidence
of insurance, while not overwhelming, was sufficient to prove
beyond a reasonable doubt that Drummond Community Bank was
FDIC-insured. In one of the first cases to address the
FDIC-insurance issue, we quoted Professor Wigmore for the
following logico-evidentiary propositions: first,
"[w]hen the existence of an object, condition, quality,
or tendency at a given time is in issue, the prior existence
of it is in human experience some indication of its probable
persistence or continuance at a later period"; and
second, "[s]imilar considerations affect the
use of subsequent existence as evidence of existence at the
time in issue." Cook v. United States, 320 F.2d
258, 259 (5th Cir. 1963) (citations omitted). Thus, at least in
some circumstances, evidence of either "prior" or
"subsequent" insurance, even standing alone, can be
adequate proof of coverage at the time of the
offense. Needless to say, we much prefer both-and
contemporaneous evidence is even better.
event, given our precedent, what the government presented
here was good enough. First, the government introduced a
certificate of FDIC insurance issued when Drummond Community
Bank was initially chartered in 1990- evidence (in
Wigmore's terms) of "prior existence." Second,
David Claussen, Drummond's Senior Vice President and
Chief Underwriter, testified that the bank was insured at the
time of trial in 2016-"subsequent existence."
Finally, when asked whether Drummond's FDIC certificate
is renewed "every so often," Claussen-who had spent
25 years at the small bank, and was therefore likely to be
familiar with its administration and operations-testified
that it isn't. We think it clear that a reasonable jury
could conclude that his testimony provides additional
evidence-beyond mere prior and subsequent existence-that
Drummond was insured in 2013 and 2014, when Munksgard
submitted the fraudulent contracts.
* * *
all of the evidence, the government proved beyond a
reasonable doubt that Drummond Community Bank was insured by
the FDIC both before and after Munksgard's offenses and
that it didn't need to renew its insurance in the
interim. Coupled with the "universal presumption . . .
that all banks are federally insured," Maner,
611 F.2d at 110-and viewing the proof in the light most
favorable to the government-we conclude that a reasonable
juror could find that Drummond was insured by the FDIC on the
dates of Munksgard's offenses.
Munksgard's conviction for aggravated identity theft
under 18 U.S.C. § 1028A, which was based on his signing
Kyle Morris's name to the fraudulent contract with
Cal-Maine Foods. Section 1028A(a)(1) provides: "Whoever,
during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of
another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2
the fraud counts, all but one of the elements required to
convict Munksgard under § 1028A are straightforward.
First, § 1028A(a)(1)'s "during and in relation
to" clause covers Munksgard's § 1014 offense.
Among other crimes enumerated in "subsection (c)"
of § 1028A is "any provision contained in this
chapter  (relating to fraud and false statements) . . .
." 18 U.S.C. § 1028A(c)(4). Chapter 47, in turn,
"contain[s]" § 1014, which forbids
"knowingly mak[ing] any false statement" for the
purpose (as relevant here) of obtaining financing from an
FDIC-insured bank. Second, Munksgard does not dispute that he
"knowingly" signed Morris's name to the
contract. Third, § 1028 defines "means of
identification" as "any name or number that may be
used, alone or in conjunction with any other information, to
identify a specific individual, including any-name . . .
." 18 U.S.C. § 1028A(d)(7)(A). So, it seems clear
to us, "/s/ Kyle Morris" counts as a "means of
identification." Finally, Munksgard admits that he
signed Morris's name "without lawful
authority." 18 U.S.C. § 1028A(a)(1).
leaves the verb. The government also had to prove, as
pertinent here, that Munksgard "use[d]"
Morris's identity. Citing United States v.
Berroa, 856 F.3d 141 (1st Cir. 2017), and United
States v. Miller, 734 F.3d 530 (6th Cir. 2013),
Munksgard insists that the term "use"in §
1028A "require[s] that the defendant attempt to pass him
or herself off as another person or purport to take some
other action on another person's behalf."
Berroa, 856 F.3d at 156. Munksgard says that because
he only signed Morris's name, and didn't try to
impersonate Morris or otherwise act on his behalf, he
didn't "use" Morris's identification.
aren't persuaded. Rather, we find ourselves in agreement
with the Sixth Circuit's recent (post-Miller)
decision in United States v. Michael, which held
that a pharmacist had "used" a doctor's and
patient's "means of identification"-even though
he impersonated neither-when he included the doctor's
National Provider Identifier and the patient's name and
birthdate on a fraudulent insurance claim. 882 F.3d 624, 628
(6th Cir. 2018). Like the Michael court, we begin
with the ordinary meaning of the term "use"-and, in
particular, how standard English-language dictionaries define
the verb "use" when employed in conjunction with a
particular object, as in to "use . . . a means of
identification." In Webster's Second, for
instance, to "use" an object is "[t]o convert
[it] to one's service; to avail oneself of [it]; to
employ [it]; as, to use a plow, a chair, a book."
Webster's Second New International Dictionary
2806 (1944). Webster's Third likewise defines
"use" vis-à-vis an object to mean "to
put [it] into action or service"-e.g.,
"whether he would ever [use] the tie she had given
him." Webster's Third New International
Dictionary 2523 (2002). In Oxford, more of the
same: "take, hold, or deploy (something) as a means of
accomplishing or achieving something; employ; [as in] she
used her key to open the front door." Oxford
Dictionary of English 1958 (3d ed. 2010). And as proof
that "use" does not bear some idiosyncratic
connotation in the legal context, we note that
Black's too defines the verb form to mean
"[t]o employ for the accomplishment of some
purpose" or "to avail oneself of."
Black's Law ...