In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3591

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NIKITA HAMPTON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 983-1—Harry D. Leinenweber, Judge.

____________

ARGUED MAY 30, 2006—DECIDED SEPTEMBER 20, 2006

____________

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge. A jury convicted the defendant

of ten robberies of federally insured banks plus one attempted robbery (which we needn’t discuss separately) of

such a bank, and of related crimes involving firearms. The

judge sentenced him to a total of 444 months in prison. The

only issue on appeal is whether the banks were in fact

federally insured. Photocopies that purport to be the

certificates of insurance that the Federal Deposit Insurance

Corporation had issued to the banks (but no originals) were

introduced into evidence, and an employee of each bank,

typically a teller, testified that an identical photo-
2 No. 05-3591

copy hanging on the wall of his bank was a true copy of

the bank’s certificate. Several of the banks are branches of

huge banks like Bank One and Citibank, but others bear

more obscure names, such as Chicago Community Bank or

North Community Bank.

The government’s practice in cases in which federally

insured status is an element of the crime is to ask the

defendant’s lawyer to stipulate that the institution in

question was federally insured at the time of the offense.

But if the defendant’s lawyer was asked for such a stipulation in this case, which we haven’t been told, he refused,

thus putting the government to its proof.

All the copies placed in evidence bear dates of issuance of

the copied certificate before the robberies. So far, so good.

But even if the copies are accurate copies of valid certificates

of insurance issued by the FDIC, the insurance may have

expired or been cancelled or may have been issued to

predecessors of these banks and somehow lapsed when the

banks were acquired by their present owners. The bank

employees who testified about their banks’ insured status

testified that the banks were currently insured, and the jury

was entitled to believe their testimony. United States v.

Higgans, 507 F.2d 808, 813 (7th Cir. 1974); United States v. De

Tienne, 468 F.2d 151, 158-59 (7th Cir. 1972); United States v.

Williams, 592 F.2d 1277, 1281-82 (5th Cir. 1979). It would

have been better had they been asked not whether the banks

were currently insured (that is, at the time of trial), but

whether they had been insured on the date of the robberies,

five months earlier. But the likelihood that insurance had

lapsed and been reinstated was too slight to undermine the

testimony seriously. See United States v. Guerrero, 169 F.3d

933, 944-45 (5th Cir. 1999).
No. 05-3591 3

The defendant’s only possibly meritorious argument is

that the copies that were placed in evidence are inadmissible under the Federal Rules of Evidence. It is not so clear

that without the copies the jurors would have believed the

tellers that we can conclude that the admission of the copies,

if it was an error, was a harmless one. Usually when the

government relies on testimony to establish a bank’s

insured status, it is testimony by a bank officer, as in the

three cases we cited, rather than by a lowly teller. See also

United States v. Phillips, 606 F.2d 884, 887 (9th Cir. 1979)

(emphasis added) (“the rule, as stated in this circuit and

elsewhere, is that uncontradicted testimony of a ranking

official of the institution is sufficient to establish that the

institution is federally insured”); United States v. Ross, 77

F.3d 1525, 1547-48 (7th Cir. 1996); United States v. Harris, 914

F.2d 927, 933-34 (7th Cir. 1990); United States v. Taylor, 728

F.2d 930, 933 (7th Cir. 1984); United States v. Knop, 701 F.2d

670, 672-73 (7th Cir. 1983); United States v. McIntosh, 463 F.2d

250 (3d Cir. 1972). This is not to say that testimony by a

teller is insufficient as a matter of law to establish insured

status, United States v. Ware, 416 F.3d 1118, 1121, 1123 (9th

Cir. 2005); United States v. Bindley, 157 F.3d 1235, 1238-39

(10th Cir. 1998), but only that it is not so compelling that an

error in admitting other evidence of insured status must be

harmless. The argument in the government’s brief that even

a teller who had been employed for only a few hours would

know his bank’s insured status might fall quite flat with a

jury.

The district judge admitted the photocopies under Rule

902(1) of the Federal Rules of Evidence, which provides that

documents bearing a seal of the United States or one of its

officials, agencies, etc., plus a signature purporting to attest

or execute the document, is “self-authenticating.” This

means that the document is admissible in evidence without
4 No. 05-3591

any need for a witness to testify that it is authentic, that is,

that it is what it purports to be (an official document stating

what it states). United States v. Mateo-Mendez, 215 F.3d 1039,

1041, 1043-44 (9th Cir. 2000); United States v. Moore, 555 F.2d

658, 661 (8th Cir. 1977). But seals are used to attest the

authenticity of the document on which the seal is stamped,

and no seal was stamped on the copies. The copies were

copies of sealed documents rather than sealed documents

themselves. The rationale of Rule 902(1), according to the

Committee Notes, is that a seal is difficult to forge. See also

United States v. Wexler, 657 F. Supp. 966, 971 (E.D. Pa. 1987).

But that is not true of a copy of a seal—or at least the

government has made no effort to show that the authenticity of the seal can be inferred with confidence from its copy.

See 5 Stephen A. Saltzburg & Michael M. Martin, Federal

Rules of Evidence Manual 902-7 (8th ed. 2002). So the government’s argument fails. See Mathis v. State, 930 S.W.2d 203,

205 (Tex. App. 1996); 31 Charles A. Wright & Victor J. Gold,

Federal Practice and Procedure § 7135 (2000).

Another federal rule of evidence, however, Rule 1005,

provides that copies of public records are admissible if

either a witness testifies that he compared the copy with the

original and determined the copy to be accurate, or, in

accordance with Rule 902(4), either the custodian of the

original record, or someone else authorized to certify the

accuracy of copies of it, certifies that it is an accurate copy.

Seese v. Volkswagenwerk A.G., 648 F.2d 833, 845 n. 19 (3d Cir.

1981); United States v. Rodriguez, 524 F.2d 485, 487, 488 n. 6

(5th Cir. 1975); 31 Wright & Gold, supra, §§ 8032, 8034. Some

though not all of the bank employees testified that the

photocopy the prosecutor showed them during their direct

examination at trial was a copy of the certificate hanging on

the wall of the bank, but there is no indication that that

certificate was not itself a copy. One of these witnesses

testified that the certificate was posted throughout his bank.
No. 05-3591 5

Were those all originals? Does the FDIC issue multiple

certificates for each branch office of an insured bank? There

is no evidence bearing on the issue, and the government

does not ask us to take judicial notice of the Corporation’s

practice.

Nevertheless we think the copies were admissible to

establish the insured status of the banks as of the dates

shown on the copies. The parties have managed to overlook

provisions of the Federal Rules of Evidence which show that

Rules 902(1), (4), and 1005 are not intended as straitjackets.

Article IX of the rules deals with authentication and there

we read that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter

in question is what the proponent claims.” Fed. R. Evid.

901(a). And in Article X, which deals with the admissibility

of the contents of documents, we read that “a duplicate is

admissible to the same extent as an original unless (1) a

genuine question is raised as to the authenticity of the

original or (2) in the circumstances it would be unfair to

admit the duplicate in lieu of the original.” Fed. R. Evid.

1003. And a photocopy (or equivalent chemical or electronic

copy) is a “duplicate” within the meaning of the rule. Fed.

R. Evid. 1001(4); United States v. Gerhart, 538 F.2d 807, 810 n.

4 (8th Cir. 1976); 31 Wright & Gold, supra, § 7135. These

rules make clear that the principle enunciated in an 1807

case cited to us by the defendant that “authentication must

not rest upon probability,” United States v. Burr, 25 Fed.

Cases 27, 28 (Cir. Ct. D. Va. 1807), is no longer the law, even

if it was said by Chief Justice Marshall in the treason trial of

Aaron Burr.

The bank employees may conceivably have been mistaken

about the insured status of their banks. But they all testified

that they recognized the copies shown them by the prosecu-
6 No. 05-3591

tor as copies of the certificates possessed by or posted in

their banks, which is pretty compelling evidence that the

copies were not forgeries prepared by or for, or somehow

obtained by, the government. As between the parties’ rival

hypotheses—that the copies are genuine, as the government

contends, and that they are forgeries, as the defendant

contends—the defendant’s hypothesis is so improbable that

without some evidence to support the hypothesis no

reasonable person would accept it. Abbott Laboratories v.

TorPharm, Inc., 309 F. Supp. 2d 1043, 1052 (N.D. Ill. 2004)

(and references cited there). No such evidence was offered.

So we think the copies were admissible, and this kills the

appeal. But the government would be wise in future cases to

prove insured status more directly and conclusively than

was done in this case, either by getting an affidavit from the

FDIC confirming the insured status of the robbed bank, as

in United States v. Darrell, 828 F.2d 644, 648-49 (10th Cir.

1987), or by offering testimony by the bank employee who

is the actual authorized custodian of the bank’s FDIC

certificate, as in United States v. Cooper, 375 F.3d 1041, 1047-

48 (10th Cir. 2004). The government was sloppy in this case,

as in many others in which federally insured status is an

element of the crime, e.g., United States v. Bindley, supra, 157

F.3d at 1238-39; United States v. Brunson, 907 F.2d 117, 119-20

(10th Cir. 1990); United States v. Slovacek, 867 F.2d 842, 846

(5th Cir. 1989), probably because the matter is usually

stipulated. But sloppiness is not a ground for reversal of a

judgment.

AFFIRMED.
No. 05-3591 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-20-06