United States v. Gabriel Arkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30071
Plaintiff-Appellee, D.C. No.
6:18-cr-00010-CCL-1
v.
GABRIEL ELIJAH KANE ARKINSON, MEMORANDUM*
AKA Daniel Elijahkane Arkinson,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted February 5, 2021**
Seattle, Washington
Before: McKEOWN and PAEZ, Circuit Judges, and ORRICK,*** District Judge.
Gabriel Arkinson (“Arkinson”) appeals his convictions for conspiracy to
commit robbery affecting commerce in violation of 18 U.S.C. § 1951(a); robbery
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
affecting commerce in violation of § 1951(a); and possession of a firearm in
violation of § 924(c)(1)(A)(ii). We have jurisdiction under 18 U.S.C. § 1291.
Reviewing de novo, we affirm. See United States v. Gonzales, 528 F.3d 1207,
1211 (9th Cir. 2008).
1. Arkinson challenges the district court’s denial of his post-trial motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29(c). Arkinson
argues that there was insufficient evidence to support his convictions. We apply a
two-step inquiry when reviewing a Rule 29 challenge to a conviction for
insufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th
Cir. 2010) (en banc). First, we view the evidence “in the light most favorable to
the prosecution.” Id. Viewing the evidence in the light most favorable to the
prosecution includes “draw[ing] all reasonable inferences favorable to the
government.” United States v. Tabacca, 924 F.2d 906, 910 (9th Cir. 1991).
Second, we must “determine whether th[e] evidence, so viewed, is adequate to
allow ‘any rational trier of fact [to find] the essential elements of the crime beyond
a reasonable doubt.’” Nevils, 598 F.3d at 1164 (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original)).
Here, there was sufficient evidence to convict Arkinson of all three counts of
conviction. Arkinson argues that there was insufficient evidence that he was one
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of the three people who committed the robbery.1 First, viewing the evidence in
the light most favorable to the prosecution, the government presented the
testimony of Curtis Alexander that Arkinson was one of the robbers. Second,
whether a rational trier of fact could convict Arkinson hinges on Alexander’s
credibility. But we are not free to substitute our credibility assessment for the
jury’s. United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir. 1984). And
Alexander’s testimony alone was sufficient to identify Arkinson as one of the
robbers, with or without corroborating evidence. See United States v. Ginn, 87
F.3d 367, 369 (9th Cir. 1996) (citing United States v. Smith, 563 F.2d 1361, 1363
(9th Cir. 1977)).2
Arkinson’s reliance on United States v. Whitson, 587 F.2d 948 (9th Cir.
1978), is misplaced. Whitson held that illegally obtained evidence that was
1
Arkinson also argues that “to the extent that the district court found that
Appellant ‘agreed’ to rob the victims . . . even [Curtis] Alexander said that
Appellant was ‘sleeping’ when co-defendants talked about the robbery initially.”
Construing this argument as a challenge to the agreement in furtherance of a
conspiracy, sufficient evidence supports the existence of an agreement. Although
Alexander testified that Arkinson was sleeping “the first time” the co-defendants
discussed the robbery, Alexander testified that Arkinson later agreed to participate
in the robbery.
2
The district court’s application of the accomplice-specific test from United States
v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), did not narrow the district court’s
inquiry. The accomplice-specific test from Lopez mirrors the general standard that
the testimony of a single witness can prove identity, see Smith, 563 F.2d at 1363,
but adds the additional requirement that testimony must not be incredible or
unsubstantial.
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admissible as impeachment evidence could not be used to determine guilt or
innocence. 587 F.2d at 952–53. Because there is no allegation that the
government used illegally obtained evidence as impeachment evidence, and the
“impeaching” evidence identified by Arkinson—the testimony of two witnesses
who contradicted Alexander—was admitted as substantive evidence, Whitson is
inapposite.
2. As Arkinson concedes, our recent opinion in United States v. Dominguez,
954 F.3d 1251, 1260–61 (9th Cir. 2020), forecloses his argument that Hobbs Act
robbery, 18 U.S.C. § 1951, is not a crime of violence.
AFFIRMED.
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