United States v. Enrique Hurtado

FILED
NOT FOR PUBLICATION MAR 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10035
Plaintiff - Appellee, D.C. No. CR 08-00102-KJD-LRL
v.
MEMORANDUM *
ENRIQUE HURTADO, aka Enrique
Hurtado Jiminez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted March 8, 2010 **
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
Defendant Enrique Hurtado was convicted in federal court on eleven counts,
including one count of bank robbery and one count of armed bank robbery, 18
U.S.C. § 2113(a), (d), and one count of using a firearm during and in relation to a
*
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. Fed. R. App. P. 34(a)(2).
crime of violence, 18 U.S.C. § 924(c)(1)(A). He appeals the sufficiency of the
evidence for these convictions. We affirm.
1. Defendant first contends that his stipulation that the bank and the credit
union were federally insured at the time of trial—approximately five months after
the robberies—was insufficient to prove that those institutions were federally
insured at the time of the robberies, as required by 18 U.S.C. § 2113. We review
for plain error because Defendant failed to move for acquittal. United States v.
Singh, 532 F.3d 1053, 1056-57 (9th Cir. 2008). In addition to signing the
stipulation, Defendant told the jury during his closing argument that "whether or
not the bank was insured by the FDIC, you don’t need[ ] to hear information like
that so we stipulate to that." A reasonable jury could have inferred beyond a
reasonable doubt from the stipulation and Defendant’s concession that the bank
and credit union were insured at the time of the robberies. Cf. United States v.
Ware, 416 F.3d 1118, 1120 (9th Cir. 2005) (present-tense trial testimony about
federally insured status, five months after the robbery, plus other evidence, was
sufficient).
2. Defendant also challenges the sufficiency of the evidence establishing
that the weapon used to rob the Bank of America branch satisfied the definition of
a firearm in 18 U.S.C. § 921(a)(3). Because Defendant moved for acquittal on the
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18 U.S.C. § 924(c)(1)(A) count, we review the sufficiency of the evidence de novo,
United States v. Naghani, 361 F.3d 1255, 1261 (9th Cir. 2004), and we conclude
that the evidence was sufficient. The testimony of an eyewitness to a crime may
establish that a weapon is a real firearm. United States v. Garrido, No. 08-10398,
2010 WL 653439, at *2 (9th Cir. Feb. 25, 2010); United States v. Westerdahl, 945
F.2d 1083, 1088 (9th Cir. 1991); United States v. Harris, 792 F.2d 866, 867-68
(9th Cir. 1986). Here, the bank teller had an opportunity to observe the weapon at
close range. She testified that Defendant "pulled out his gun, pointed at me, and
put it right back in his pocket." The teller also testified that, after Defendant
showed her the weapon, she "was panicking," giving rise to a reasonable inference
that she believed the weapon to be a real firearm. The jury also heard testimony
that Defendant fired a firearm during a different robbery three days after robbing
the Bank of America branch. There was no evidence that Defendant ever
possessed a toy or replica gun. Contra United States v. Martinez-Jimenez, 864
F.2d 664, 665 (9th Cir. 1989).
AFFIRMED.
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