Bank Fraud Conviction Reversed Because Insufficient Proof American Express Is “Financial Institution”

United States v. Davis, No. 12-20443 (Aug. 19, 2013) (Elrod, Higginson, Martinez)

Begrudgingly, the panel held that the government "did not offer evidence sufficient for any reasonable jury to find beyond a reasonable doubt that American Express Company was a depository institution holding company." The testimony at trial regarding American Express Company being a financial institution as described in the statute was scant and did not fully support a financial institution theory. The panel reversed the district court’s denial of Davis’s motion for a judgment of acquittal and remanded, noting that the decision compels dismissal of the bank-fraud counts on remand.

The lesson: every element is essential and must be proved in the context of the trial. (It does not matter if other courts have found that American Express Company is a financial institution.) "Reversal may be required even though the government might have discharged its burden of proof with relative ease."