No. 01-3528 UNITED STATES OF AMERICA v. Timothy McGlothlin

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-3528
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UNITED STATES OF AMERICA
v.
TIMOTHY MCGLOTHLIN
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 99-cr-00174
District Judge: Hon. Thomas I. Vanaskie, Chief Judge
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2002
Before: McKEE, BARRY, Circuit Judges and
ALARCON, Senior Circuit Judge
(Opinion Filed: April 23, 2002)
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OPINION OF THE COURT
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McKee, Circuit Judge.
Timothy McGlothlin appeals his conviction for bank fraud under 18 U.S.C.
1344. The district court had jurisdiction pursuant to 18 U.S.C. 3231. We have
jurisdiction pursuant to 28 U.S.C. 1291. For reasons that follow, we will affirm the
defendant’s conviction.
Inasmuch as we write only for the district court and the parties who are familiar
with the circumstances underlying the instant appeal, a comprehensive recitation of the
factual background is not necessary. Accordingly, we will discuss the facts only to the
extent they may be helpful to our brief discussion.
McGlothlin claims that his indictment was invalid because the government failed
to allege sufficient facts to support federal jurisdiction. Specifically, he claims that the
indictment only alleged that he defrauded "First Union Bank." McGlothlin argues that
the indictment had to allege that he defrauded a "financial institution," as defined in 18
U.S.C. 20 in order to support federal subject matter jurisdiction. Consequently,
McGlothlin urges us to set aside his plea and the ensuing conviction, and remand this
case to the district court.
The government argues, however, that "bank" and "financial institution" are
synonymous with each other, and that the indictment therefore properly alleged the
elements of bank fraud under 18 U.S.C. 1344. Further, the government argues that we
can take judicial notice that First Union is a financial institution within the meaning of
the statute.
A valid indictment must contain all the elements of the crime alleged. United
States v. Spinner, 180 F.3d 514 (3d. Cir 1999). Under 18 U.S.C. 1344, it is a crime to
defraud a "financial institution." 18 U.S.C. 1344 (2000). "Financial institution" is

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defined at 18 U.S.C. 20 and includes, among other things, a bank insured by the
Federal Deposit Insurance Corporation ("FDIC"). 18 U.S.C. 20(1) (2000).
McGlothlin is correct in noting that the indictment here fails to allege that he
defrauded a "financial institution." Rather, it merely alleges that he defrauded "First
Union Bank." Although it would have been preferable to allege that First Union is a
financial institution for purposes of bank fraud, the defect here is not fatal to our
jurisdiction.
The Federal Rules of Evidence define a judicially noticed fact as one "not subject
to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned." Fed R. Evid. 201(b).
First Union merged with Wachovia Corporation and is now this nation’s fourth
largest bank. Rick Brooks, Wachovia’s Results Show Its Progress With Troubled Loans
and Merger Costs, Wall St. J., Jan. 24, 2002, at B4. Anyone who passes through, or
resides in, the eastern part of the United States will quickly realize that First Union has
branch banks up and down the East Coast. It is publicly traded on the New York Stock
Exchange under the stock ticker symbol "WB." Due to its size and preeminence in the
banking industry First Union’s status as a federally insured bank, and therefore, as a
"financial institution", is beyond dispute. It is a fact that is both generally known, and
capable of accurate and ready determination by sources that cannot reasonably be
questioned. We will therefore take judicial notice that First Union is a "financial
institution" under 18 U.S.C. 1344. Consequently, we find that the indictment
sufficiently alleges all the elements of 18 U.S.C. 1344.
Accordingly, we will uphold the judgment of conviction and sentence.
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TO THE CLERK:
Please file the foregoing opinion.
By the Court:
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Circuit Judge

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