Indictment - United States v. Maurice Fayne related docket

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U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 272 · 2022-06-28 · Docket on CourtListener

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The Government's Notice Under Federal Rule of Evidence 902(11), filed June 28, 2022 as Document 272 in United States of America v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia. The government gives notice that it intends to offer at trial an FDIC Certificate of Insurance for United Community Bank, to show the bank's insured status for the bank fraud count under 18 U.S.C. § 1344 (Doc. 96, Count 5). It states that the defendant is unwilling to stipulate to that status. The notice argues the evidence is admissible under Rule 902(11), under Rule 902(5) as a government website record, and by judicial notice, citing FDIC information that the bank has been insured since March 1, 1950. It is signed by Assistant United States Attorneys John Russell Phillips and Bernita B. Malloy.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
UNITED STATES OF AMERICA 
V. 
DANIEL ERIC JAY 
CRIMINAL INDICTMENT 
1:20-CR-228-MHC-JKL 
SECOND SUPERSEDING 
Government’s Notice Under Federal Rule of Evidence 902(11) 
Pursuant to Federal Rule of Evidence 902(11), the United States of America 
hereby gives notice of its intent to offer into evidence at trial the attached 
Certificate of Insurance for United Community Bank, which was issued by the 
Federal Deposit Insurance Corporation (FDIC). In support of this notice, the 
Government shows the following: 
As relevant here, the Indictment alleges that Defendant Jay participated in 
a scheme to defraud United Community Bank, in violation of the bank fraud 
statute, 18 U.S.C. § 1344. (Doc. 96, Count 5). To convict a defendant of bank 
fraud, the government must prove, among other things, that the victim bank was 
federally insured when the crime was committed. United States v. Goldsmith, 109 
F.3d 714, 715 (11th Cir. 1997); see also 18 U.S.C. § 20 (stating that the term 
“financial institution,” as used in the bank fraud statute, means—(1) an insured 
depository institution . . . of the Federal Deposit Insurance Act”). 
“To satisfy the requirement of authenticating or identifying an item of 
evidence, the proponent must produce evidence sufficient to support a finding 
that the item is what the proponent claims it is.” FED. R. EVID. 901(a). 
Case 1:20-cr-00228-MHC-JKL     Document 272     Filed 06/28/22     Page 1 of 5

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Normally, in a case like this, the Government and the defendant would 
enter into a stipulation concerning the insured status of the victim bank. The 
Government provided the attached FDIC Certificate of Insurance to Defendant 
Jay approximately two years ago, as part of the Rule 16 discovery. There can be 
no reasonable dispute that the certificate is authentic. Nevertheless, Defendant 
Jay has indicated through counsel that he is unwilling to stipulate to United 
Community Bank’s insured status. Defendant Jay has offered no reason for 
refusing to enter into such a stipulation. 
The evidence that United Community Bank was insured by the FDIC is 
admissible in at least three ways: 
1. The attached FDIC Certificate of Insurance is a certified domestic record of 
a regularly conducted activity and is admissible under Federal Rule of 
Evidence 902(11). 
The Government requested that the FDIC provide proof of the insured 
status of United Community Bank from April 15, 2020 through May 1, 2020. In 
response, the FDIC provided the Government with the attached Certificate of 
Authenticity of Domestic Records of a Regularly Conducted Activity, Pursuant 
to Federal Rule of Evidence 803(6) and 902(11), certifying that United 
Community Bank was an insured depository institution on the dates in question 
(the “Certificate of Insurance”). 
Rule 902(11) of the Federal Rules Evidence states that certified domestic 
records of a regularly conducted activity are “self-authenticating [and] require no 
extrinsic evidence of authenticity in order to be admitted.” FED. R. EVID. 902(11). 
Case 1:20-cr-00228-MHC-JKL     Document 272     Filed 06/28/22     Page 2 of 5

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Rule 902(11) further states that, “[b]efore the trial . . . , the proponent must give 
an adverse party reasonable written notice of the intent to offer the record—and 
must make the record and certification available for inspection—so that the party 
has a fair opportunity to challenge them.” Id.; see also Phillips v. Mortg. Elec. 
Registration Sys., Inc., No. 5:09-CV-2507-TMP, 2013 WL 1498956, at *3 (N.D. Ala. 
Apr. 5, 2013) (“As a business record certified by a custodian under FRE 803(6), 
the records become self-authenticating under FRE 902(11).”). 
For the reasons set forth herein, the Government has complied with the 
requirements of Rule 902(11). 
2. Evidence of United Community Bank’s insured status is available on the 
FDIC’s website, and records from government websites are self-
authenticating and admissible under Federal Rule of Evidence 902(5). 
“A book, pamphlet, or other publication purporting to be issued by a 
public authority” is self-authenticating. FED. R. EVID. 902(5). “Records from 
government websites fall within the ambit of Rule 902(5).” United States v. 
Venture One Mortg. Corp., No. 13-CV-1872 W (JLB), 2016 WL 4768875, at *3 (S.D. 
Cal. June 10, 2016). The FDIC’s website shows that United Community Bank has 
been insured by the FDIC since March 1, 1950. 
https://banks.data.fdic.gov/bankfind-suite/bankfind/details/16889. This 
information is self-authenticating under Rule 902(5). See Venture One, 2016 WL 
4768875, at *3 (holding that “a record from the FDIC website . . . is self-
authenticating under Rule 902(5)”). 
Case 1:20-cr-00228-MHC-JKL     Document 272     Filed 06/28/22     Page 3 of 5

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3. Under Federal Rule of Evidence 201(2), this Court can take judicial notice 
that United Community Bank has been insured by the FDIC since March 1, 
1950. 
The Court may take judicial notice of “a fact that is not subject to 
reasonable dispute because it . . . can be accurately and readily determined from 
sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(2). 
For example, courts “take judicial notice of information found on government 
agency websites.” Pradhan v. Citibank, N.A., No. 10-CV-03245-LHK, 2011 WL 
90235, at *9 n.11 (N.D. Cal. Jan. 10, 2011) (granting Defendants’ request, under 
Federal Rule of Evidence 201, for judicial notice of information found on FDIC’s 
website); see also Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981 *5-6 
(N.D. Cal. Sept. 9, 2008) (citing appellate and district court decisions taking 
judicial notice of information found on government agency websites). 
Respectfully submitted, 
RYAN K. BUCHANAN 
United States Attorney 
/s/ JOHN RUSSELL PHILLIPS 
Assistant United States Attorney 
Georgia Bar Number 576335 
/s/ BERNITA B. MALLOY 
Assistant United States Attorney 
Georgia Bar Number 718905 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581-6000 
 
 
Case 1:20-cr-00228-MHC-JKL     Document 272     Filed 06/28/22     Page 4 of 5

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CERTIFICATE OF SERVICE 
I hereby certify that, on June 28, 2022, I electronically filed the foregoing 
document with the Clerk of Court using the CM/ECF system. 
 
JOHN RUSSELL PHILLIPS 
ASSISTANT UNITED STATES ATTORNEY 
GEORGIA BAR NO. 576335 
 
 
 
600 U.S. Courthouse 
75 Ted Turner Drive, SW 
Atlanta, GA 30303 
(404) 581-6000 
Case 1:20-cr-00228-MHC-JKL     Document 272     Filed 06/28/22     Page 5 of 5

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