The following excerpt is from U.S. v. Allen, 88 F.3d 765 (9th Cir. 1996):
I do not believe that the second form, even when viewed in the light most favorable to the government, is sufficient to establish, beyond a reasonable doubt, what is both an essential element of the offense and a jurisdictional requirement. This is particularly true, in my view, because the government did not at the time of trial even consider this thin reed to constitute evidence that was relevant to or probative of the issue of federal insurance and never advised the jury that it constituted such evidence. At trial, the government never once suggested that somewhere in the exhibits submitted to the jury lay the proof of federal insurance. Instead, the government relied exclusively on the testimony of a bank officer to establish that critical element of the offense--evidence that the majority properly concludes is of no relevance and of probative value. Only when this court afforded the government a final opportunity to sift through the record did it discover the form on which the majority rests its decision. Because the government never argued to the jury that the form tended to establish the existence of federal insurance, it is highly unlikely that any juror considered, or could have considered, it probative on that issue. Accordingly, I must disagree with my colleagues in the majority: I conclude that no reasonable juror could have found that the government proved the element of federal insurance beyond a reasonable doubt. See United States v. James, 987 F.2d 648, 650 (9th Cir.1993).
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