Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-1585

UNITED STATES OF AMERICA,

Appellee,

v.

OHIFUEMEH PETER AYEWOH,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

 Thompson, Selya, and Dyk, Circuit Judges. *

Victor J. Gonzalez-Bothwell, Assistant Federal Public

Defender, with whom Joseph C. Laws, Jr., Federal Public Defender,

Patricia A. Garrity, Assistant Federal Public Defender, and Thomas

J. Trebilcock-Horan, Research and Writing Specialist, were on

brief, for appellant.

Charles R. Walsh, Jr., Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, and Luke Cass,

Assistant United States Attorney, were on brief, for appellee.

December 13, 2010
 Ayewoh himself notes that, 1

[i]n a manual transaction the card is not present.

The merchant will key in an account number that a person

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DYK, Circuit Judge. Appellant Ohifuemeh Peter Ayewoh

("Ayewoh") was convicted of bank fraud in the United States

District Court for the District of Puerto Rico. On appeal Ayewoh

contends that the government provided insufficient evidence that

the defrauded bank, Banco Popular de Puerto Rico ("BPPR"), was

insured by the Federal Deposit Insurance Corporation ("FDIC") at

the time of the crimes; that Ayewoh knowingly defrauded BPPR; or

that Ayewoh made misrepresentations to BPPR. Ayewoh further

contends that the prosecutor violated his Fifth Amendment rights by

referring to his decision not to testify. We reject these

contentions and affirm Ayewoh's conviction and sentence.

I.

In 2005, Ayewoh established OIPA, Inc., as a for profit

corporation in Puerto Rico to provide inspection services at public

housing projects for the U.S. Department of Housing and Urban

Development ("HUD"). Ayewoh was the President of the corporation,

and his wife was the Secretary. In OIPA's name, Ayewoh acquired a

credit card point-of-sale device ("POS device") and a merchant's

account at BPPR. A POS device allows a merchant to accept credit

card payments either electronically (by swiping a card's magnetic

strip through the device) or manually (by entering a card's number

with a keypad). HUD's method of payment for OIPA's inspection 1
has given him and the transaction will be deposited in

the merchant's account. It is considered a high risk

transaction, as there is no magnetic strip reading such

as occurs when a plastic card is swiped or a signature.

Appellant's Br. 9 n.1. 

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services included providing Ayewoh with a credit card number and

authorizing him to perform manual transactions. However, the

government presented evidence at trial that Ayewoh used the POS

device to execute numerous unauthorized manual transactions using

other credit card numbers, many of which belonged to cards issued

by foreign banks. The defense's theory was that Ayewoh innocently

believed that the credit card charges made to the POS device were

authorized by the cardholders as legitimate investments in a new

real estate venture. In order to understand the respective

theories, some understanding of industry practice and Ayewoh's own

activities is required. 

When a credit card transaction executed on a POS device

is accepted by the bank that issued the card ("issuing bank"), the

payment is deposited directly into the merchant's bank account (at

the "acquiring bank"). In the event that a cardholder disputes a

transaction, contractual agreements with credit card providers such

as Visa and MasterCard permit the issuing bank to initiate a

"chargeback" whereby the acquiring bank is liable to the issuing

bank for the full amount of the disputed charge. The acquiring

bank, in turn, looks to the merchant for reimbursement.
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Ayewoh was the only person with access to OIPA's POS

device. For several months, Ayewoh, using the POS device,

processed relatively small charges, with monthly totals ranging

from $1,045 in February 2006, to $9,135 in March 2006. However, in

April 2006, OIPA's account received $113,070 in payments from at

least sixteen different credit cards. BPPR's records showed

numerous instances in which OIPA's POS device attempted to run a

large transaction, which was declined, and then it immediately

attempted several additional transactions with the same credit card

for progressively smaller amounts. Upon detecting this suspicious

activity, BPPR froze OIPA's account and sent investigators to

question Ayewoh. When asked how he obtained the credit card

numbers at issue, Ayewoh claimed he received a list of numbers from

a "friend of a friend" in Europe who wanted to invest in a new

housing development project Ayewoh had planned for OIPA. Though

repeatedly asked, Ayewoh declined to provide information about the

project and stated that he did not know the identity of the alleged

investor.

Soon thereafter the banks that issued the credit cards in

question began notifying BPPR that Ayewoh's March and April charges

were unauthorized. BPPR subsequently returned $122,104 in

chargebacks to the issuing banks. Of this $122,104, BPPR was only

able to recover about $100,000 from Ayewoh, who had withdrawn large
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amounts before his account was frozen. BPPR suffered a net loss of

$19,644.

Ayewoh was indicted by a grand jury in November 2007 on

one count of bank fraud, charging a violation of 18 U.S.C. § 1344,

and one forfeiture count, charging a violation of 18 U.S.C. §§

981(a)(1)(C) and 982(a)(2). After a jury trial in October 2008,

Ayewoh was convicted and sentenced to thirty months in prison to be

followed by five years of supervised release. He was further

ordered to pay restitution to BPPR in the amount of its losses.

Ayewoh timely appealed.

II.

Ayewoh does not dispute that the evidence established

that he made unauthorized charges to the credit cards at issue.

However, Ayewoh contends on appeal that the government failed to

prove all of the essential elements of the bank fraud offense. See

18 U.S.C. § 1344. Specifically, he claims that the government

failed to present sufficient evidence to permit a rational jury to

find beyond a reasonable doubt (1) that BPPR was insured by the

FDIC at the time of his crimes; (2) that Ayewoh had the requisite

knowledge that he was defrauding BPPR (as opposed to the individual

credit card owners); or (3) that he made misrepresentations to

BPPR. We review sufficiency claims de novo, "affirm[ing] the

conviction if, after assaying all the evidence in the light most

amiable to the government, and taking all reasonable inferences in
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its favor, a rational factfinder could find, beyond a reasonable

doubt, that the prosecution successfully proved the elements of the

crime." United States v. Wilder, 526 F.3d 1, 7-8 (1st Cir. 2008)

(quoting United States v. Connolly, 341 F.3d 16, 22 (1st Cir.

2003)). We address each claim in turn.

A.

Ayewoh first contends that the government failed to

present sufficient evidence at trial to establish that BPPR was

insured by the FDIC at the time of his crimes. The bank fraud

statute at issue punishes the

knowing[] execut[ion] . . . [of] a scheme or artifice--

(1) to defraud a financial institution; or (2) to obtain

any of the moneys . . . owned by, or under the custody or

control of, a financial institution, by means of false or

fraudulent pretenses, representations, or promises.

 

18 U.S.C. § 1344. The term "financial institution" as used in

Title 18 is defined in relevant part as "an insured depository

institution (as defined in section 3(c)(2) of the Federal Deposit

Insurance Act)." 18 U.S.C. § 20. Section 3(c)(2) in turn defines

"insured depository institution" as "any bank or savings

association the deposits of which are insured by the [FDIC]

pursuant to [the Federal Deposit Insurance Act]." 12 U.S.C. §

1813(c)(2). Thus, under § 1344, the defrauded financial

institution's federally-insured status is "a jurisdictional

prerequisite as well as a substantive element of the crime," and as

such must be proven by the prosecution beyond a reasonable doubt.
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United States v. Key, 76 F.3d 350, 353 (11th Cir. 1996); see United

States v. Brandon, 17 F.3d 409, 424 (1st Cir. 1994).

The government presented two items of evidence at trial

to establish BPPR's federally-insured status: (1) a certificate of

FDIC insurance issued to BPPR on January 2, 1999; and (2) testimony

by BPPR’s record custodian regarding the certificate. The record

custodian's testimony was as follows:

Q I would like to show you government’s

identification number 1. . . . Without discussing

the substance, do you recognize that document?

A Yes, I do.

Q What do you recognize that to be?

A This is the Federal Deposit Insurance Corporation

certificate issued to Banco Popular Puerto Rico on

January 1999.

Q How do you know it is the same one at Banco

Popular?

A My initials are on the back.

Appellant's App. 131-32 (emphasis added). 

Ayewoh did not object to admission of the certificate or

to the record custodian’s testimony, and he did not cross examine

the witness. Nonetheless, Ayewoh questioned in closing arguments

whether the evidence was sufficient to establish that BPPR was

federally insured during March and April of 2006, the time frame of

his criminal acts, and he subsequently moved for dismissal on these

grounds. The district court treated Ayewoh's argument as a motion

for acquittal under Fed. R. Crim. P. 29 and denied the motion. The
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court concluded that, while an FDIC certificate issued in 1999

might by itself be insufficient to permit the jury to find that

BPPR was federally insured in 2006, the addition of the record

custodian's unobjected "present tense" testimony that the

certificate "is" BPPR's FDIC certificate rendered the evidence

sufficient. United States v. Ayewoh, 587 F. Supp. 2d 378, 381

(D.P.R. 2008). That is, the court interpreted the record

custodian's statement as "oral testimony that the bank was insured

at the time of trial," which, when coupled with an FDIC certificate

that predated the offense, could permit a rational jury to infer

that BPPR was insured at the time of Ayewoh's crimes. Id.

The FDIC certificate presented in this case, which

predated Ayewoh's offenses by seven years, states: "[FDIC]

Washington, D.C., Hereby certifies that the deposits of each

depositor in Banco Popular de Puerto Rico . . . are insured to the

maximum amount provided by the Federal Deposit Insurance Act." It

further includes the official seal of the FDIC, signatures from

both the FDIC's Executive Secretary and Chairman of the Board,

BPPR's unique FDIC certificate number, and the date of January 2,

1999. No expiration date is listed because FDIC insurance never

expires, but rather continues indefinitely until terminated

voluntarily or involuntarily under 12 U.S.C. § 1818(a) [hereinafter

Section 8(a)]. 
 See 2006 FDIC Ann. Rep 117, 126 (showing statistics for 2

2004-2006, with one voluntary termination under Section 8(a) in

2006); 2004 FDIC Ann. Rep. 117 (showing no Section 8(a)

terminations from 2002-2004); 2002 FDIC Ann. Rep. 121 (showing

statistics for 2000-2002, with one involuntary termination under

Section 8(a) in 2000); 1999 FDIC Ann. Rep. 23 (showing no Section

8(a) terminations from 1997-1999). 

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Voluntary termination is not permissible for most banks.

12 U.S.C. § 1818(a)(1). Even involuntary termination for failure

to pay the annual assessments (premiums) required by 12 U.S.C. §

1817(b), or for any other reason, is not automatic; it requires

notice to the bank and a pre-termination hearing. 12 U.S.C. §

1818(a)(2)(B), (a)(3). Furthermore, for any termination under

Section 8(a)–-whether voluntary or involuntary–-banks are required

to give individual notice to each of their depositors, 12 U.S.C. §

1818(a)(6), 12 C.F.R. § 307.3(a), and all deposits on the date of

termination will continue to be insured for at least six months and

up to two years, 12 U.S.C. § 1818(a)(7). In 2006, the year of

Ayewoh's crimes, there were 8,755 banks insured by the FDIC. In

the ten years from 1997 through the end of 2006, only two banks had

their FDIC insurance terminated under Section 8(a)--one voluntarily

and one involuntarily. Clearly, termination of FDIC insurance is 2

an exceedingly rare event in the banking industry.

Nevertheless, there is a serious question as to whether

an FDIC certificate that predates the offense by seven years is

alone sufficient evidence of federal insurance. The Fifth and

Seventh Circuits have overturned convictions where the only
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evidence of federal insurance was a single FDIC certificate which

predated the offense, see United States v. Platenburg, 657 F.2d

797, 799 (5th Cir. 1981) (overturning conviction where only

evidence of federal insurance was an FDIC certificate predating the

offense by seven years); United States v. Shively, 715 F.2d 260,

265 (7th Cir. 1983) (where only evidence was an FDIC certificate

which predated the offense by nine years), and the Ninth and Tenth

circuits have indicated their support for this view, see United

States v. Chapel, 41 F.3d 1338, 1340-41 (9th Cir. 1994); United

States v. Darrell, 828 F.2d 644, 648 (10th Cir. 1987).

We need not decide in this case whether the FDIC

certificate would alone be sufficient proof of federal insurance,

for here there was also the testimony of BPPR's record custodian

who testified that the certificate offered into evidence "is the

[FDIC] certificate issued to [BPPR] on January 1999." Appellant's

App. 132. Here, the time between the alleged offenses and this

trial testimony was approximately two and a half years.

Generally, courts have found that testimony that a bank

is insured at the time of trial can alone permit a reasonable jury

to infer that the bank was insured at the time of the crime. For

example, when presented with a bank vice president's testimony that

the bank's deposits "'are' FDIC-insured," the Second Circuit held

that where . . . the evidence is oral testimony that the

bank is insured, and the interval between the crime and

the trial is not great, it is reasonable to conclude that

"viewed in context, the jury could draw the inference
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that the bank was insured at the time of the [crime],"–-

in other words, that th[e] jury could take "is" to mean

"is and has been."

United States v. Sliker, 751 F.2d 477, 484-85 (2d Cir. 1984)

(internal citation omitted). This approach is widely accepted by

the circuits. See, e.g., United States v. Ware, 416 F.3d 1118,

1121-23 (9th Cir. 2005); United States v. Lewis, 260 F.3d 855, 855-

56 (8th Cir. 2001); United States v. Knop, 701 F.2d 670, 672-73

(7th Cir. 1983); United States v. Safley, 408 F.2d 603, 605 (4th

Cir. 1969); United States v. Cook, 320 F.2d 258, 259 (5th Cir.

1963). But see United States v. Ali, 266 F.3d 1242, 1244 n.3 (9th

Cir. 2001) (finding testimony insufficient where time between trial

and crime was too lengthy). Furthermore, courts have tended to

accept any bank employee's testimony as sufficient, regardless of

whether that employee was in a managerial position. See, e.g.,

United States v. Bindley, 157 F.3d 1235, 1239 (10th Cir. 1998).

However, Ayewoh contends in this case that the district

court erred in interpreting the testimony of BPPR's record

custodian as "oral testimony that the bank was insured at the time

of trial." Ayewoh, 587 F. Supp. 2d at 381. Rather, Ayewoh argues

that the custodian's testimony that the certificate offered by the

government "is the [FDIC] certificate issued to [BPPR] on January

1999" should be construed as nothing more than merely attesting to

the document's authenticity.
 See also United States v. Wilder, 526 F.3d 1, 8 (1st Cir. 3

2008) ("[I]t is not the appellate court’s function to weigh the

evidence or make credibility judgments. Rather, it is for the jury

to choose between varying interpretations of the evidence."

(quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992))

(emphasis added)); United States v. Martinez, 922 F.2d 914, 923

(1st Cir. 1991) ("The evidence need not exclude every reasonable

hypothesis inconsistent with guilt, and the jury is entitled to

choose among varying interpretations of the evidence so long as the

interpretation it chooses is a reasonable one." (emphasis added)).

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We conclude that the bank employee's testimony is

ambiguous and that reasonable minds could differ as to its

interpretation. On one hand, the testimony could be read as

meaning "This is the [current FDIC] certificate [which was] issued

to [BPPR] on January 1999." Alternately, as Ayewoh contends, the

statement could reasonably be interpreted as mere authentication

testimony–-that is, to mean "This is the [FDIC] certificate [which

was] issued to [BPPR] on January 1999." 

This Court has previously stated that, "[i]n reviewing a

sufficiency-of-the-evidence claim, the Court must view the facts in

the light most favorable to the Government, deferring to the jury's

verdict if the evidence can support varying interpretations, at

least one of which is consistent with the defendant’s guilt."

United States v. Neal, 36 F.3d 1190, 1203 (1st Cir. 1994) (emphasis

added). This analysis "does not require a court to ask itself 3

whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt," but rather whether "any rational

trier of fact could have found the essential elements of the crime
See United States v. Lazzerini, 611 F.2d 940, 941-42 (1st 4

Cir. 1979) (finding that, in a juror corruption case where it was

ambiguous as to whether appellant's single-word statement "Don't"

was evidence that the defendant had urged the attempted influence

be stopped, the jury could have construed the statement in the

prosecution's favor); see also United States v. Barnhart, 979 F.2d

647, 650 (8th Cir. 1992) ("On appellate review, we must construe

all evidence--including the admittedly vague testimony . . . --in

favor of the government."); United States v. Taylor, 972 F.2d 1247,

1251-52 (11th Cir. 1992) (reversing judgment of acquittal because,

though the allegedly threatening statement in greeting card was

arguably ambiguous, the court was required to resolve the ambiguity

in the prosecution's favor when this was a reasonable

interpretation); United States v. Horn, 946 F.2d 738, 743 (10th

Cir. 1991) (finding that a rational jury could interpret in the

government's favor ambiguous testimony regarding defendant's sale

of crack).

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beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,

318-19 (1979) (internal citations and quotation marks omitted).

Therefore, we "ought not to disturb, on the ground of insufficient

evidence, a jury verdict that is supported by a plausible rendition

of the record." Wilder, 526 F.3d at 8 (quoting Ortiz, 966 F.2d at

711) (emphasis added).

Thus, when reviewing evidence for sufficiency and

considering ambiguous testimony that is susceptible to more than

one reasonable interpretation, we must construe the testimony in

the light most favorable to the prosecution. We must therefore 4

presume that the jury interpreted the record custodian’s testimony

as a statement that the FDIC certificate offered into evidence

indicated BPPR's presently-insured status as of the date of trial.

As such, the ultimate question with respect to

sufficiency in this case is whether a rational jury could have
See, e.g., United States v. Maner, 611 F.2d 107, 110-11 (5th 5

Cir. 1980) (FDIC certificate which predated the offense and bank

manager's testimony that FDIC stickers were posted on teller

windows at time of trial was sufficient); United States v. Rowan,

518 F.2d 685, 693 (6th Cir. 1975) (FDIC certificate dated 1969 and

statement by branch manager that bank was FDIC-insured in 1974 on

day of trial was sufficient); United States v. Jackson, 430 F.2d

1113, 1115-16 (9th Cir. 1970) (FDIC certificate identified by bank

auditor and testimony insurance continued until cancelled was

sufficient); United States v. Skiba, 271 F.2d 644, 644-45 (7th Cir.

1959) (FDIC certificate and testimony by bank cashier that bank was

operating at time of trial as an FDIC-insured organization was

sufficient).

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found beyond a reasonable doubt that BPPR was federally-insured

during March and April of 2006 (the time frame of Ayewoh's crimes),

given the evidence of: (1) an FDIC insurance certificate issued to

BPPR in 1999; and (2) testimony by BPPR's record custodian which,

interpreted in the light most favorable to the government, asserted

that the certificate remained a valid symbol of BPPR's federallyinsured status at the time of trial. We join the vast majority of

circuits in holding that such evidence is sufficient proof of FDIC

insurance. That is, with evidence of FDIC insurance both at a time

predating the offense and at the time of trial, a reasonable jury

could infer that, absent evidence to the contrary, the bank was

insured on the date of the crime.5

Consequently, we reject Ayewoh's contention that the

government failed to offer sufficient proof of FDIC insurance.

This is not to say that we endorse the prosecutor's handling of the

case. The prosecutor assuredly could–-and should--have done

better. Federally insured status is easily proved in a garden-
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variety bank fraud case, and it is not too much to expect that the

government will take the need to do so seriously. That said,

however, we find the proof in this case adequate, if barely, as to

that element of the offense.

B.

Ayewoh next contends that he lacked the requisite mens

rea for the crime charged. Under the bank fraud statute, the

alleged scheme or artifice to defraud a financial institution must

have been undertaken knowingly by the defendant. 18 U.S.C. § 1344;

see also Brandon, 17 F.3d at 424. Ayewoh argues that the

government presented insufficient evidence to prove he had

knowledge that his actions would defraud BPPR itself, as opposed to

the individual credit card holders. We disagree that the evidence

was insufficient.

When interpreting § 1344 in this circuit, "[i]t has been

established that the government does not have to show the alleged

scheme was directed solely toward a particular institution; it is

sufficient to show that [the] defendant knowingly . . . exposed a

. . . bank to a risk of loss." Brandon, 17 F.3d at 426 (emphasis

added); see also United States v. Moran, 312 F.3d 480, 489 (1st

Cir. 2002). "'Intent to harm' [a bank] is not required," United

States v. Kenrick, 221 F.3d 19, 29 (1st Cir. 2000) (en banc), so

"[e]ven proof of an extremely remote risk will suffice." United

States v. Barakett, 994 F.2d 1107, 1111 n.15 (5th Cir. 1993).
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Moreover, it is unnecessary that a defendant know "which particular

bank will be victimized by his fraud,” so long as he "knows that a

[bank] will be defrauded"--even a bank that is not federally

insured. Brandon, 17 F.3d at 426. As this Court stated in

Brandon, 

Congress intended to criminalize bank frauds that harm

federally insured banks, not just bank frauds directed

specifically toward federally insured banks. As other

courts have noted, the legislative history supports a

broad construction of the statutory language of the bank

fraud statute.

Defendants [cannot] . . . sanitize their fraud by

interposing an intermediary or an additional victim

between their fraud and the federally insured bank....

The fact that it should turn out that [a] financial

institution actually defrauded was federally insured is

a fortuitous stroke of bad luck for the defendants but

does not make it any less of a federal crime.

Id. (internal citations and quotation marks omitted). Thus, if a

defendant merely knows that his fraudulent actions will expose some

bank (whether or not federally insured) to a risk of loss, the mens

rea requirement of § 1344 is satisfied.

Ayewoh claims he "had no way of knowing that [BPPR] would

be held responsible to the issuing banks for chargebacks" resulting

from his unauthorized credit card transactions. Appellant's Br.

27. "[T]he target of the scheme was not [BPPR]," he contends, "but

[was] rather the credit card holders . . . ." Appellant's Br. 22.

This argument lacks merit. Whether Ayewoh specifically knew BPPR

would be liable to the issuing banks for chargebacks is irrelevant,

for all § 1344 requires is knowledge that his fraudulent actions
 See United States v. Jenkins, 210 F.3d 884, 886 (8th Cir. 6

2000) (deposit of credit card slips constituted representation that

sales had actually taken place); United States v. Miller, 70 F.3d

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would expose some bank to a risk of loss. It is common knowledge

that cardholders may generally disavow unauthorized charges on

their credit card statements and avoid personal losses from fraud,

thereby placing the risk of loss on a bank. A reasonable jury

therefore could have concluded that Ayewoh knew his fraudulent

actions would expose at least some bank--whether BPPR or even the

foreign issuing banks--to a risk of loss. For mens rea, § 1344

requires nothing more. Thus, there was sufficient evidence to find

that Ayewoh defrauded BPPR while possessing the requisite mental

state under the bank fraud statute.

C.

Ayewoh urges that there was not sufficient evidence for

the jury to conclude that he violated § 1344 by knowingly executing

a scheme to obtain money from the custody of BPPR "by means of

false or fraudulent pretenses, representations, or promises." 18

U.S.C. § 1344. Ayewoh contends that the act of entering a credit

card number into a POS device is not a "representation" of

anything. We disagree. The majority of our sister circuits have

broadly held that the misrepresentation element of § 1344 is

fulfilled by any intentional act or statement by an individual that

falsely indicates, explicitly or implicitly, that he has authority

to withdraw money from a bank. We find that, by running credit 6
1353, 1355-56 (D.C. Cir. 1995) (use of victim's ATM card and PIN

constituted fraudulent misrepresentation that defendant had

authority to withdraw funds); United States v. Briggs, 965 F.2d 10,

12 (5th Cir. 1992) (making a wire transfer by falsely holding

oneself out to have such authority constituted fraudulent

misrepresentation); United States v. Falcone, 934 F.2d 1528, 1542

(11th Cir. 1991) (deposit of fraudulent check constituted

misrepresentation), vacated, reh'g en banc granted, 939 F.2d 1455

(11th Cir. 1991), panel opinion reinstated in relevant part, 960

F.2d 988, 990 n.6 (11th Cir. 1992) (en banc); United States v.

Worthington, 822 F.2d 315, 318 (2nd Cir. 1987) (deposit of check

from fictitious bank was misrepresentation because it constituted

a false "averment that an obligor exists"); United States v. Price,

763 F.2d 640, 643 (4th Cir. 1985) (deposit of false credit card

slips constituted misrepresentation "akin to forgery").

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card numbers through his POS device, Ayewoh at least implicitly

represented to BPPR that he had the cardholders’ authorization to

make the charges. Here, as in other contexts, we are reluctant to

adopt a construction of the statute that would exclude "new

financial instruments." United States v. Agne, 214 F.3d 47, 54

(1st Cir. 2000). Moreover, it makes no difference that the agent

of the bank defrauded by Ayewoh's deceit was a computer as opposed

to a human teller. Without the implied representation that he was

authorized to charge the credit cards at issue, BPPR assuredly

would not have paid money into OIPA's account. Consequently, there

was sufficient evidence for the jury to conclude that Ayewoh

acquired funds from BPPR through fraudulent misrepresentations.

III.

We turn finally to Ayewoh's contention that the

prosecutor violated his Fifth Amendment rights by referring during

closing arguments to Ayewoh's decision not to testify. The closing
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argument is "an especially delicate point in the trial process,"

and we scrutinize the prosecutor's comments accordingly. United

States v. Glover, 558 F.3d 71, 77 (1st Cir. 2009) (quoting United

States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995)). In Griffin v.

California, 380 U.S. 609, 614 (1965), the Supreme Court held that

"comment on the [defendant's] refusal to testify" burdens the

constitutional privilege against compelled self-incrimination and

is therefore prohibited. To decide whether Ayewoh is entitled to

relief, we engage in a two-pronged analysis: First, we conduct a de

novo review to determine whether the prosecutor's comments offended

the Fifth Amendment by improperly insinuating that Ayewoh's failure

to testify constituted evidence of guilt. Gomes v. Brady, 564 F.3d

532, 537 (1st Cir. 2009). To that end, "we consider 'whether, in

the circumstances of the particular case, the language used was

manifestly intended or was of such character that the jury would

naturally and necessarily take it to be a comment on the failure of

the accused to testify.'" Id. at 538 (quoting United States v.

Glantz, 810 F.2d 316, 322 (1st Cir. 1987)). Second, if we

determine the comments were improper and the objection was

preserved, we review for harmless error. Glover, 558 F.3d at 76.

At trial, Ayewoh's counsel urged that Ayewoh did not

knowingly defraud anyone because he believed at the time that he

had obtained the credit cards legitimately from a "friend of a

friend" who sought to invest in his company OIPA, Inc. Under this
-20-

theory, the unidentified "friend of a friend" was the real criminal

who defrauded innocent Ayewoh by purporting to be a legitimate

investor. Though Ayewoh did not testify at trial, he proffered

this defense through the testimony of his wife. BPPR's

investigator Mr. Ponce also testified that Ayewoh stated during an

interview that he had received the credit cards from a "friend of

a friend" who was an investor in Europe and that the transaction

had been done entirely through his friend. Appellant's App. 211.

Finally, in closing arguments, Ayewoh’s counsel repeatedly asserted

that the purported "friend of a friend" was entirely to blame and

that Ayewoh was himself an innocent victim of fraud. For context,

we quote the relevant portions of defense counsel’s closing

argument: 

[T]he money was invested in OIPA, Inc., by this friend of

a friend. 

Mr. Ayewoh committed a mistake, but that mistake was

not defrauding anybody. That mistake was trying to grow

and seeing an opportunity and grabbing it without looking

at what was behind it, because somebody who knew that he

was in need offered him his dream, I’ll give you the

money, here, start charging here. And he did.

Trial Tr., Oct. 14, 2008, ECF No. 84, at 28 (emphasis added).

[Ayewoh] got somebody to invest in his company, the

company that he, with his wife, was developing so that he

could make a better living for himself and also pay back

his investors. 

But he was defrauded.... And you’ll say, but look at

all those things that the government showed . . . .

. . . .

The government doesn’t know if [Ayewoh] called his

friend to find out, hey, these [credit cards] are being

rejected, what’s going on[?] And his friend told him, Oh,

I gave you the wrong number. Oh, I need to deposit. Oh,
-21-

I need to do something. 

We don’t know that. The government doesn’t know

that.

Trial Tr., ECF No. 84, at 29 (emphasis added).

Ladies and gentlemen, the mistake Mr. Ayewoh made

was that he believed the friend of a friend.

Trial Tr., ECF No. 84, at 35 (emphasis added). 

It is a pity that [Ayewoh] didn’t have a contract

with this gentleman that lent him the money. If he had

sought his attorney’s advice at the moment, he would have

had one.

Trial Tr., ECF No. 84, at 38. 

Everything that surrounds this case shows that somebody

tried to defraud the bank. . . .

But that somebody is not Mr. Ayewoh. That somebody

is the person, the friend of the friend that gave him the

credit card numbers. We don’t know who he is.

Trial Tr., ECF No. 84, at 40 (emphasis added). 

Seeking to cast doubt on Ayewoh's defense theory, the

government made several comments in closing regarding the lack of

a known identity for Ayewoh’s purported "friend of a friend."

Specifically, Ayewoh contends that the following three comments

made during the government's rebuttal argument violated his Fifth

Amendment rights by improperly commenting on his failure to testify

as to the alleged investor's identity:

[1] Okay. Let's say the defendant says it is a mistake.

Well, you have an instruction on willful blindness. Was

he willfully blind that these credit cards were, in fact,

stolen[?]

Well, let's look at the defendant's statement. 

A friend of a friend. To this day, to this day, you

have heard from government witnesses, you have even heard

from the defendant’s spouse. We still don’t know who
-22-

this friend of a friend is. . . .

You are going to have, you know, an individual make

over $100,000 worth of investments in your company and

then not know who the person is. Not do an investment

contract?

Trial Tr., ECF No. 84, at 46-47 (emphasis added). 

[2] It makes absolutely no sense that this defendant got

these numbers from a friend of a friend, over 16 credit

cards, start[ed] essentially doing the manual POS

transactions, multiple times, and not know who that

individual is.

We still don't know who that individual is.

Gentleman who lent the money, we have no idea. We have

no name.

Trial Tr., ECF No. 84, at 47-48 (emphasis added). 

[3] But here, in looking at all the evidence--and, you

know, the defendant has argued that, now, this was a

mistake, that he believed a friend of a friend. That it

was a mistake, in believing a friend of a friend, that

what he wanted to do was to get a good life. 

Well, this is not believable. Use your common

sense. Okay. Common sense doesn't--it doesn’t make

sense. It is not a mistake that you get 17 credit card

numbers from a person that you don't know, have no idea

and then do multiple transactions over a short period of

time in order to figure out what the credit limits of the

credit cards are. You just don't do that. 

Because if you have a friend of a friend who is

actually giving you these numbers and you know who that

friend is, you call that friend and you tell the friend,

"Listen, the credit card isn't working, what's happening,

[is it] being declined for insufficient funds?" But you

haven't heard evidence of that.

Trial Tr., ECF No. 84, at 51-52 (emphasis added). 

Ayewoh's counsel timely objected to the first of these

remarks by requesting to approach the bench, but the court denied

the request. Ayewoh subsequently moved for a mistrial "based on

the comments made by the prosecution as to the defendant's
-23-

silence," but the court denied the motion as well. Ayewoh now

contends on appeal that the prosecutor's comments were improper

because only Ayewoh could have provided the identity of the "friend

of a friend," so references to the lack of such evidence

necessarily pointed to his failure to testify. We disagree.

First, contrary to Ayewoh's contention that only he could

provide the identity of the "friend of a friend," Ayewoh himself

was not the only person who could identify the alleged investor if

he existed. For example, the "friend" who purportedly acted as an

intermediary between Ayewoh and the mysterious "friend of a friend"

might have testified as to the investor's identity and to their

business arrangement. Moreover, in his interview with the bank

representative, Ayewoh reportedly stated that he never knew the

identity of the "friend of a friend" because the deal was all done

through an immediate friend. Appellant's App. at 211. Thus, this

case is distinguishable from cases in which "[n]o one but [the]

appellant . . . could have [testified]" regarding the issue, see

Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965), 

because here it was "apparent on the record that there was someone

other than himself whom the defendant could have called." Id. As

such, the prosecutor's comments regarding the lack of such evidence

in the record did not "naturally and necessarily" point to Ayewoh's

failure to testify. Gomes, 564 F.3d at 538 (quoting Glantz, 810

F.2d at 322); see also United States v. Wilkerson, 411 F.3d 1, 8-9
-24-

(1st Cir. 2005) (prosecutor’s comments that "there’s no real

evidence" and "pretty much nothing" to support defendant’s theory

did not "naturally and necessarily" comment on his failure to

testify because they likely "referred to [defendant’s] failure to

produce other evidence supporting his theory," or were at most

ambiguous).

Second, even if the prosecutor's remarks could be read as

commenting on Ayewoh's failure to testify, the comments were a

"fair response" to claims by the defendant. In United States v.

Robinson, 485 U.S. 25, 34 (1988), the Supreme Court carved out an

exception to Griffin for prosecutors who refer to a defendant’s

failure to testify while "fairly responding to an argument of the

defendant." In that case, the defense counsel asserted in closing

arguments that the government had not given the defendant a chance

to tell his side of the story. Id. at 27. On rebuttal, the

prosecutor responded by informing the jury that the defendant

"could have taken the stand and explained it to you." Id. at 28.

Finding no Fifth Amendment violation, the Supreme Court reasoned

that, "[w]here the prosecutor on his own initiative asks the jury

to draw an adverse inference from a defendant's silence, Griffin

holds that the privilege against compulsory self-incrimination is

violated," but where the prosecutor's reference to the defendant's

failure to testify is a "fair response to a claim made by defendant

or his counsel," the Fifth Amendment is not offended. Id. at 31-
 See United States v. Stroman, 500 F.3d 61, 64-66 (1st Cir. 7

2007) (finding that the prosecutor's reference to defendant's

confession as being "not contradicted" was a fair response to the

defendant's defense theory that challenged the confession's

reliability); United States v. Mangual-Garcia, 505 F.3d 1, 13 (1st

Cir. 2007) (applying the "invited reply doctrine" to find no Fifth

Amendment violation where, after defense counsel argued in closing

that the prosecution failed to produce evidence such as a utility

bill to prove the defendant's location, the prosecution responded

by stating that the defendant could have produced his own utility

bills if they were exculpatory); United States v. Henderson, 320

F.3d 92, 107 (1st Cir. 2003) (where defense counsel argued in

closing that the government did an insufficient job tracking down

a specific eyewitness, the prosecution fairly responded by stating:

"Where is [the eyewitness], both counsel ask you? Well, that's a

good question. Why don't they tell us?"); United States v. Adams,

305 F.3d 30, 37-38 (1st Cir. 2002) (where defense counsel argued in

closing that the government failed to call a particular informant,

the prosecution did not impermissibly shift the burden of proof by

fairly responding that defense counsel "could have called [him] if

he wanted him"); Amirault v. Fair, 968 F.2d 1404, 1406 (1st Cir.

1992) (where defense counsel suggested the prosecution was biased

against the defendant because no one ever asked him his side of the

story, the prosecution fairly responded by informing the jury that,

while the law forbids the state from approaching a defendant after

his arrest, "the law does not prevent [a defendant] from

affirmatively telling his side" of the story); United States v.

Rouleau, 894 F.2d 13, 15-16 (1st Cir. 1990) (where defense counsel

argued in closing that the government had not found the money

relating to an alleged drug transaction, prosecutor fairly

responded by stating that "[o]nly [the defendant] knows where that

[money] is now"). 

-25-

32. The Court further explained that "the Fifth Amendment should

[not] be converted into a sword that cuts back on the area of

legitimate comment by the prosecutor on the weaknesses in the

defense['s] case." Id. (quoting United States v. Hasting, 461 U.S.

499, 515 (1974) (Stevens, J., concurring)).

Following the Supreme Court's decision in Robinson, this

Court has applied the "fair response" doctrine in numerous cases.7
 See, e.g., United States v. Ivory, 532 F.3d 1095, 1100-03 8

(10th Cir. 2008) (where defense counsel argued that the government

had presented no evidence as to the meaning of a certain code word,

prosecution fairly responded by insinuating that only the defendant

could have supplied that information); Cook v. Schriro, 538 F.3d

1000, 1018-20 (9th Cir. 2008) (where witness vaguely testified that

defendant had an alibi, prosecution fairly responded by attacking

the alibi's credibility on grounds that defendant had never

actually told the witness where he was at the time of the crime);

United States v. Isaac, 134 F.3d 199, 206-07 (3d Cir. 1998) (where

defense counsel attacked the credibility of defendant's accomplices

who testified against him, it was a fair response for the

prosecution to note that, while the witnesses were not "paragons of

virtue," nobody other than the defendant and the witnessaccomplices could have testified to the events at issue); Howard v.

Moore, 131 F.3d 399, 421 (4th Cir. 1997) (where defense counsel

asserted that the defendant was remorseful for his actions,

prosecution fairly responded by arguing that none of the

defendant's actions or statements indicated remorse); United States

v. Smith, 41 F.3d 1565, 1569 (D.C. Cir. 1994) (finding that

prosecutor's indirect reference to defendant's failure to testify

was not a Fifth Amendment violation because his comments were

merely a "fair response" that challenged the plausibility of the

defendant's innocent bystander defense).

-26-

Likewise, our sister circuits have invoked the "fair response"

doctrine to reject Fifth Amendment claims on similar facts.8

We find that Robinson controls in this case and that,

viewed in context, the prosecutor's challenged comments were part

of a "fair response" to the arguments made by Ayewoh's counsel.

The first two challenged comments, which emphasized the lack of

evidence regarding the identity of the purported "friend of a

friend," were permissible attacks on the plausibility of Ayewoh's

defense theory. "Having put forth a theory in [his] defense,"

Ayewoh "[could not] expect the government to refrain from

commenting on its deficiencies" and the lack of evidentiary support
-27-

for his theory--namely, that the record did not even include the

identity of the mysterious person whom Ayewoh claimed he mistakenly

believed "invested" over $122,000 in his company. The prosecution

was permitted to highlight such a glaring weakness in the defense's

case. 

Similarly, it is clear that the prosecutor's third

challenged comment, viewed in context, was a "fair response"

specifically to the defense counsels comment that "[t]he government

doesn't know if [Ayewoh] called his friend to find out" why some of

the credit cards weren't working. Trial Tr., ECF No. 84, at 29.

On rebuttal, the prosecutor's third comment fairly responded to the

defense counsel's statement by informing the jury that "you haven't

heard evidence" that Ayewoh placed any such calls to his friend.

Trial Tr., ECF No. 84, at 52.

Thus, because all of the prosecutor's challenged comments

were made in "fair response" to claims by the defense, Ayewoh's

Fifth Amendment rights were not violated. 

IV.

For the foregoing reasons, we affirm Ayewoh's conviction

and sentence on the bank fraud and forfeiture counts.

Affirmed.

-Dissenting Opinion Follows-
 See, e.g., United States v. Rusan, 460 F.3d 989, 994-95 (8th 9

Cir. 2006); United States v. Bindley, 157 F.3d 1235, 1239 & n.3

(10th Cir. 1998); United States v. Slovacek, 867 F.2d 842, 846 (5th

Cir. 1989); United States v. Sliker, 751 F.2d 477, 484 (2d Cir.

1984); United States v. Knop, 701 F.2d 670, 674 (7th Cir. 1983);

-28-

THOMPSON, Circuit Judge, dissenting. I am happy to join

my colleagues' opinion except as to Section II.A. I cannot agree

with their characterization of the evidence offered to show that

BPPR was insured by the FDIC when Ayewoh defrauded BPPR – a central

element of the conviction. The record, containing only a sevenyear-old FDIC certificate and its authenticating testimony, is too

flimsy to support the interpretation that the majority constructs

upon it. Where, as here, the government has failed to prove every

element of the crime of which the defendant was charged beyond a

reasonable doubt, his conviction cannot stand.

For more than thirty years now, prosecutors have been on

notice that they must be as diligent in proving the FDIC insurance

element of crimes like bank fraud as they are in proving any other

element. In 1980, the Fifth Circuit expressed "difficulty

comprehending why the [g]overnment repeatedly fails to prove this

element more carefully since [its] burden is so simple and

straightforward," and warned the government that it "treads

perilously close to reversal." United States v. Maner, 611 F.2d

107, 112 (5th Cir. 1980). With increasing exasperation, our sister

circuits have since continuously issued warnings to the government,

imploring it to take this requirement more seriously. Eventually, 9
id. at 676-77 (Posner, J., dissenting).

 See, e.g., United States v. Sandles, 469 F.3d 508, 512-17 10

(6th Cir. 2006); United States v. Ali, 266 F.3d 1242, 1243-45 (9th

Cir. 2001); United States v. Dennis, 237 F.3d 1295, 1303-05 (11th

Cir. 2001); United States v. Lindsay, 184 F.3d 1138, 1142 (10th

Cir. 1999); United States v. Shively, 715 F.2d 260, 265, 269 (7th

Cir. 1983) (Posner, J.); United States v. Platenburg, 657 F.2d 797,

799-800 (5th Cir. 1981).

-29-

they began reversing convictions where the government's measly

evidentiary proffer could not have persuaded a jury beyond a

reasonable doubt that the financial institution at issue was FDICinsured as of the offense date.10

Though the line between sufficiency and insufficiency is

by no means bright, its broad contours are readily discernible. On

one side is a single FDIC certificate pre-dating the offense, which

our sister circuits have uniformly rejected as insufficient. Maj.

Op. at 9-10 (collecting cases). On the other side is the testimony

of a bank employee to the effect that the bank is insured at the

time of the trial, which is usually adequate. Maj. Op. at 10-11

(collecting cases). The central question, then, is this: did the

government introduce enough evidence in this case to push the proof

of insurance across that line? It is here that I depart from my

colleagues' analysis.

The majority parses the evidence of insurance into two

separate pieces: the FDIC certificate and the testimony of BPPR's

record-keeper. The certificate itself, as in Shively and

Platenburg, was issued about seven years before Ayewoh's fraud.
-30-

Because a jury cannot reasonably conclude, without something more,

that the bank's insurance status has remained in force throughout

the intervening years, see Shively, 715 F.2d at 265, the

certificate is insufficient. That leaves the record-keeper's

testimony, which the majority insists provides enough proof of

insurance that, when combined with the certificate, it pushes the

quantum of evidence across the line.

As my colleagues recognize, the jury's verdict must be

"supported by a plausible rendition of the record," United States

v. Wilder, 526 F.3d 1, 8 (1st Cir. 2008) (internal quotations

omitted), and although "the jury is entitled to choose among

varying interpretations of the evidence[,] . . . the interpretation

it chooses [must be] a reasonable one," United States v. Martinez,

922 F.2d 914, 923 (1st Cir. 1991). The factfinder does not have

unfettered discretion to rely on any conceivable interpretation of

the evidence. True, appellate courts must "view the facts in the

light most favorable to the [g]overnment," United States v. Neal,

36 F.3d 1190, 1203 (1st Cir. 1994), but the touchstones are

plausibility and reasonableness.

Here is the entirety of the record-keeper's testimony:

Q: I would like to show you government's identification

number 1. Let the record reflect that it has been shown

to the defendant[.]

Q: Without discussing the substance, do you recognize

that document?

A: Yes, I do.
Moreover, contrary to the majority's implication, Maj. Op. 11

at 7, Ayewoh did not have any reason to "object to admission of the

certificate or to the record custodian's testimony" or to "cross

examine the witness." An objection to evidence that was clearly

foundational and properly framed would have been unnecessary if not

inappropriate. And Ayewoh had no duty to cross-examine the recordkeeper, especially when the exercise could only have assisted the

prosecution. Instead, counsel properly adhered to crossexamination expert Irving Younger's well-regarded advice by leaving

insufficient testimony alone – not asking one question too many –

and holding the prosecution to its burden of proof.

-31-

Q: What do you recognize that to be?

A: This is the Federal Deposit Insurance Corporation

certificate issued to Banco Popular [de] Puerto Rico on

January 1999.

Q: How do you know it is the same one at Banco Popular?

A: My initials are on the back.

[Q:] Your Honor, we ask that government's exhibit 1 be

admitted into evidence.

The majority asserts that this exchange is amenable to multiple

reasonable interpretations, including one that relates to BPPR's

insurance status at the time of trial. Maj. Op. at 12. I

disagree. Rather, the record-keeper's testimony merely

authenticated the paper she was shown as the 1999 certificate.

Once the government succeeded in entering the certificate into the

record, it elicited no further testimony explaining the

significance of the certificate. The testimonial context 11

reinforces that this is the only plausible interpretation. The

record-keeper gave the key statement relied upon by the majority

after being asked to identify the document "[w]ithout discussing

[its] substance . . . ." Moreover, immediately after the key
 While no analogy is perfect, the following might serve to 12

illuminate this point. Imagine that a prosecutor, pointing to a

defendant, asked a witness, "Without saying anything substantive

about him, do you recognize that man?" If the witness responded,

"Yes I do, that is John Doe," it would be unreasonable for a jury

(or a court) to interpret that statement as "Yes I do, that is

[murderer] John Doe." Adding a single word can make a world of

difference.

-32-

statement, the government asked how she knew the document before

her was the same one on file at BPPR, and she responded, "My

initials are on the back." The colloquy thus dealt only with the

witness's personal knowledge of the physical certificate and

explicitly stopped short of discussing its content, legal effect,

or – most importantly – continuing validity.

The majority disagrees, suggesting that the key passage

in the colloquy above could be interpreted by a rational juror to

mean, "This is the [current FDIC] certificate [which was] issued to

[BPPR] on January 1999." Maj. Op. at 12 (alterations in original).

But this interpretation imports meaning that the testimony itself

does not support: the word "current" cannot be inferred from or

found anywhere in either the statement or its testimonial context.

Indeed, the statement conveys no information other than that the

certificate is authentic and was issued in 1999.12

The majority also discusses the relative infrequency with

which FDIC certificates are revoked. Maj. Op. at 8-9. While this

information, in concert with other evidence, might buttress a

jury's conclusion that a certificate remains valid, it is

irrelevant here because it is nowhere in the record. When
 Both Ayewoh and the district court alerted the government 13

to the infirmity of the evidence it adduced to prove the insurance

-33-

considering sufficiency claims, we consider only the evidence

available to the factfinder, cf. United States v. DeCologero, 530

F.3d 36, 65 (1st Cir. 2008), because it is ultimately the jury that

must find the defendant guilty beyond a reasonable doubt, not a

reviewing court. Of course, juries may rely upon their common

sense and upon any fact in common knowledge in reaching a verdict.

See, e.g., Maroules v. Jumbo, Inc., 452 F.3d 639, 644-45 (7th Cir.

2006). But because the jury in this case was not made aware of the

procedural and statistical details relating to the revocation of

FDIC certificates, they should not inform our consideration of the

sufficiency the government's proof. Unlike the majority's

reasonable suggestion that "[i]t is common knowledge that

cardholders may generally disavow unauthorized charges on their

credit card statements," Maj. Op. at 17, for example, it is hardly

common knowledge that FDIC certificates are rarely revoked. Since

we cannot assume that the intricacies of FDIC insurance are widely

known, we cannot say that there was sufficient evidence to support

the proposition that BPPR was insured when Ayewoh carried out his

schemes.

The government's failure to prove an indispensable

element of the charged offense appears against a backdrop of both

decades of warnings urging it to be more careful and notice after

trial of the possibility of reversal. In situations such as 13
element. When Ayewoh filed his motion for acquittal, he pointed

out the numerous exhortations from the courts of appeals not to

treat cavalierly the necessity of providing such proof. At that

point, had the government simply moved to reopen the case and

provided any one of a myriad of other pieces of evidence to

substantiate its claim, Ayewoh's conviction would be unassailable.

See United States v. Mojica-Baez, 229 F.3d 292, 299-300 (1st Cir.

2000) (approving that practice). For example, the government could

have asked the record-keeper whether she had searched for any

documents that superseded or rescinded the certificate. See Neal,

36 F.3d at 1207 n.22. It could have called BPPR's manager to ask

whether the company was insured. See United States v. Vachon, 869

F.2d 653, 657 (1st Cir. 1989). It could even have introduced into

evidence "the cancelled check for the [insurance premium for the]

period of time covering" the offense. Maner, 611 F.2d at 112 n.2.

Instead, it stubbornly insisted on the sufficiency of the paltry

evidence it had already produced.

-34-

these, as Judge Posner explained, "either the government proved

every element of the offense beyond a reasonable doubt or it did

not. If it did not, we must reverse; if it did, it is no business

of ours that it could have put on an even stronger case." Knop,

701 F.2d at 677 (Posner, J., dissenting). Here, the government's

deliberate oversight compels the reversal of Ayewoh's conviction

and sentence.

I do not come to this conclusion lightly. Ayewoh admits

to intending to defraud innocent credit card owners. He stole more

than one hundred thousand dollars, some tens of thousands of which

were either never recovered by BPPR or borne unreported by the

victimized cardholders. Nevertheless, we should not allow the

centuries-old proposition that all elements of a crime must be

proven beyond a reasonable doubt, see In re Winship, 397 U.S. 358,

361 (1970), to be eroded slowly for expediency's sake. 
-35-

I respectfully dissent.