UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 PlaintiffAppellee,

v.

ALAN CURTIS TUKES,

DefendantAppellant.

No. 11-2019

(D.C. No. 1:09-CR-02985-JEC-1)

(D.N.M.)

ORDER AND JUDGMENT*

Before LUCERO, EBEL, and GORSUCH, Circuit Judges. 

 

Alan Curtis Tukes appeals his federal conviction for bank robbery, arguing that 

the government’s evidence was insufficient to prove that the bank was insured by the 

Federal Deposit Insurance Corporation (“FDIC”) at the time of the crime. Exercising 

jurisdiction under 29 U.S.C. § 1291, we affirm. 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. The court generally disfavors the citation of orders and judgments; 

nevertheless, an order and judgment may be cited under the terms and conditions of 10th 

Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 6, 2011

Elisabeth A. Shumaker 

Clerk of Court
2 

I 

On September 23, 2009, a masked man robbed a Compass Bank in Albuquerque, 

New Mexico. A teller filled the robber’s backpack with money at his request, but slipped 

an electronic tracking device into the backpack along with the bills. Following the signal 

from the tracker, the police honed in on a van that Tukes was driving. A search of the 

van revealed the backpack with the money and the tracking device, as well as clothing 

that matched the robber’s attire. 

 The government indicted Tukes for bank robbery under 18 U.S.C. § 2113(a), 

which requires proof that the bank at issue was FDIC insured at the time of the robbery. 

See United States v. Cooper, 375 F.3d 1041, 1044 (10th Cir. 2004). At the July 2010 

trial, a prosecutor asked Barbara O’Neal, the bank’s branch manager, the following 

question: “Now, the Compass Bank, is that a bank that is federally insured by the 

[FDIC]?” She responded, in the present tense: “Yes, it is.” When asked whether the 

bank “has” any documentation proving its insured status, she replied, again in the present 

tense: “Yes. We have a certificate.” When asked whether the certificate “hangs” in the 

branch, O’Neal again replied in the affirmative. The district court admitted the 

certificate, dated November 8, 1993, into evidence. The government offered no 

additional evidence of the bank’s insured status. 

 At summation, Tukes argued that the government had not proven that the bank 

was FDIC insured at the time of the robbery. The jury returned a guilty verdict. Tukes 

now appeals, arguing that the evidence of the bank’s insured status on the date of the 
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robbery was insufficient to support his conviction. 

II 

We review a challenge to the sufficiency of the evidence de novo. United States 

v. Cooper, 375 F.3d 1041, 1044 (2004). We may reverse a judgment of conviction only 

if, viewing the evidence in the light most favorable to the government and drawing all 

reasonable inferences, no rational juror could have found the elements of the crime 

beyond a reasonable doubt. Id.

It is well-established that an FDIC certificate alone is not sufficient to prove that a 

bank was insured on the date of the robbery. United States v. Darnell, 828 F.2d 644, 648 

(10th Cir. 1985). Tukes contends that O’Neal’s present-tense testimony can prove only 

that the bank was insured at the time of trial and is thus legally insufficient to prove the 

bank’s insurance at the time of the robbery ten months earlier. 

We reject Tukes’ argument. Although it is certainly possible to interpret O’Neal’s 

present-tense statement to mean only that the bank was insured at the time of trial, our 

sister circuits have held that analogous present-tense testimony can be understood to 

mean that a bank was insured at the time of the offense. See United States v. Rangel, 728 

F. 2d 675, 676 (5th Cir. 1984); United States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969). 

We need not solely rely on the present-tense testimony as to insured status, however, 

because the prosecutor also presented the jury with the 1993 FDIC certificate, which, 

according to O’Neal, “hangs” in the bank as proof of insurance. Taken together, this 

evidence easily supports the inference that the bank’s insured status had continued 
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uninterrupted since 1993. Viewing the evidence in the light most favorable to the 

government, it is clear that a rational juror could have concluded beyond a reasonable 

doubt that the bank was insured at the time of the robbery. 

III 

Accordingly, the judgment of conviction is AFFIRMED. 

Entered by the Court: 

Carlos F. Lucero 

United States Circuit Judge