United States v. Marie Cross

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10301
Plaintiff - Appellee, D.C. No. 2:12-cr-00024-MCE-1
v.
MEMORANDUM*
MARIE CROSS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Chief District Judge, Presiding
Submitted March 14, 2013**
San Francisco, California
Before: WALLACE, McKEOWN, and IKUTA, Circuit Judges.
Cross appeals from her misdemeanor judgment of conviction and sentence for
entering a military installation for a purpose prohibited by law. 18 U.S.C. § 1382. We
review her conviction by asking whether, construing the evidence in the light most
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
favorable to the Government, a rational trier of fact could have found the elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19
(1979). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We hold that the evidence is sufficient that a rational trier of fact could have
concluded beyond a reasonable doubt that Cross did not have permission to enter the
base and knew that her entry was unauthorized. See United States v. Cottier, 759 F.2d
760, 762 (9th Cir. 1985).
First, the evidence is sufficient to conclude that Cross lacked authorization to
enter the base. While on the base, Cross was unable to produce any identification
when asked by officers. Officer Trojanowski’s testimony about military dependent
identification cards undercuts Cross’s argument that she entered the base using a valid
identification card.
Second, the evidence was sufficient that a rational trier of fact could conclude
beyond a reasonable doubt that Cross knew she was unauthorized to enter the base.
The record demonstrates that the base was surrounded by a chain-link fence and all
entry gates had posted signs warning that permission to enter was required. Cross’s
statements to officers indicated that she was aware she needed identification to enter
the base. See id.2
Finally, Cross contends that she had reason to believe her entry was authorized
because all individuals entering the base must present identification and pass through
security gates. However, the magistrate judge found that Cross’s statements to the
officers indicating awareness of the identification requirement “cannot be reconciled
with the argument that [Cross] believed that merely being passed through the gate was
adequate authorization to be on the base.” While an alternative interpretation of this
apparent conflict is possible, we will not “usurp the role of the finder of fact,” United
States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010).
Cross does not raise her sentence as an issue in her opening brief and it is
waived.
AFFIRMED.
3