UNITED STATES COURT OF APPEALS
Filed 11/29/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6008
(D.C. No. CR-95-119-M)
RONN DARNELL STERLING, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before PORFILIO, HOLLOWAY, and BRISCOE, Circuit Judges.
Ronn Darnell Sterling appeals his convictions of bank robbery, 18 U.S.C. §
2113(a) and (d), carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1), and
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Sterling contends there
was insufficient evidence that First Enterprise Bank was insured by FDIC at the time of
the robbery, and that the district court erred in admitting evidence that he threatened the
government's principal witness. We affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I.
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When sufficiency of the evidence is challenged on appeal, this court must view the
evidence in the light most favorable to the government to determine whether any rational
factfinder could have found the defendant guilty beyond a reasonable doubt. E.g., United
States v. Reece, 86 F.3d 994, 995 (10th Cir. 1996).
Sterling does not challenge the sufficiency of the evidence generally, but argues
testimony regarding the insured status of the bank was insufficient to prove that element
of the crime of bank robbery. Proof that the institution robbed was insured by FDIC
establishes an essential element of an 18 U.S.C. § 2113 violation. See 18 U.S.C. §
2113(f) (defining "bank" to include "any institution the deposits of which are insured by
the Federal Deposit Insurance Corporation").
Evidence of the bank's insured status was presented through the testimony of
Donna Terbush, an auditor at the bank. Her testimony was clearly sufficient to meet the
government's burden of proof. There is ample evidence to support Sterling's conviction.
II.
During cross-examination, Josue Jerome Walton, a confessed participant in the
robbery and a witness for the government, was asked by defense counsel: "Is it true that
you need protection if you give the names of the robbers that committed this bank robbery
with you?" Walton responded, "I don't need it but I do believe he might try to do
something to my family. I've been threatened once." Vol. II at 169. During redirect
examination, the prosecutor sought to introduce Walton's testimony regarding the threats
made against him. Sterling's counsel objected, arguing it was more prejudicial than
probative. The district court permitted Walton to testify as follows:
In the van on the way over here, he was calling me a rat and a snitch and then he
said my son was going to grow up just like me to be a little snitch. Then he said,
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he kept going on and on about that. Calling me a rat and stuff. When we got
upstairs, when he was leaving coming down to court, he turned and said, "If
nothing can happen to you don't mean it can't happen to someone else, because I
still got people out there." That was it.
Vol. III at 311. Sterling argues on appeal that this evidence was irrelevant to any issues in
the case and that it was improperly admitted as evidence of other bad acts, contrary to
Fed. R. Evid. 404(b). The government argues the testimony was introduced under the
rule announced in United States v. Smith, 629 F.2d 650, 651 (10th Cir.), cert. denied 449
U.S. 994 (1980): "Evidence of threats to a prosecution witness is admissible as showing
consciousness of guilt if a direct connection is established between the defendant and the
threat."
We review the district court's admission of evidence for abuse of discretion and
will not disturb its decision unless we reach a definite and firm conviction that the court
"made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances." United States v. Snow, 82 F.3d 935, 943 (10th Cir. 1996) (citations
omitted).
Clearly, evidence of a defendant's threat to a prosecution witness is evidence of a
wrong, which is inadmissible under Rule 404(b) when introduced to show a defendant's
character in order to establish action in conformity therewith. However, such evidence is
properly admissible to show consciousness of guilt. See United States v. Esparsen, 930
F.2d 1461, 1476 n. 16 (10th Cir. 1991), cert. denied 502 U.S. 1036 (1992) (consciousness
of guilt relevant to motive, intent, plan, and knowledge under Rule 404(b) such that
threats properly admissible). This evidence was highly relevant and probative. Sterling's
statements to Walton that Walton was a "snitch" indicate not that Sterling believed
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Walton to be accusing Sterling falsely, but only viciously. The district court did not abuse
its discretion.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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