NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30056
Plaintiff-Appellee, D.C. No.
1:15-cr-00274-EJL-3
v.
ENRIQUE MATOS-HERRERA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted March 9, 2018
Seattle, Washington
Before: RAWLINSON, CLIFTON, Circuit Judges, and FREUDENTHAL,** Chief
District Judge
Defendant Enrique Matos-Herrera (“Matos”) appeals his convictions for
conspiracy to commit wire fraud, wire fraud, and aggravated identity theft. On
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
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appeal, Matos challenges the sufficiency of the evidence to support the
convictions. Matos also claims the district court erred in admitting other act
evidence concerning prior fraudulent trips under 404(b). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review challenges to the sufficiency of the evidence de novo. United
States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(citation omitted).
Sufficient evidence supports Matos’s conviction of conspiracy to commit
wire fraud. See Sullivan, 522 F.3d at 976. Matos traveled from Texas to Idaho
with five other people. Once in Idaho, Matos visited several different Walmart
stores with the other defendants in a vehicle containing a laptop computer, credit
card encoder, and several credit cards and gift cards. Video evidence and receipts
showed Matos purchase gift cards and other items with stolen account numbers.
Co-conspirators testified that Matos used the card encoder to encode credit cards
with stolen account information and that Matos hid the encoder in the air vent
when they went from store-to-store. The evidence showed Matos’s understanding
of the purpose of the conspiracy and voluntary actions in furthering the goals of the
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conspiracy. The direct and circumstantial evidence in this case supports Matos’s
conviction for conspiracy to commit wire fraud.
The same evidence supports Matos’s convictions for wire fraud. See United
States v. Green, 592 F.3d 1057, 1064 (9th Cir.2010). Matos used the card encoder
to put stolen account numbers onto credit cards. He then used those cards to
purchase gift cards at several different Walmart stores.
The evidence was also sufficient to support Matos’s convictions for
aggravated identity theft. See United States v. Nevils, 598 F.3d 1158, 1163–65 (9th
Cir.2010) (en banc). The government provided co-conspirator testimony that
Matos used the card encoder and that when encoding a blank card, you could see
the account numbers and names on the laptop. Surveillance videos and receipts
showed Matos authorizing the purchases with fake signatures. This evidence was
sufficient for the jury to find Matos knew the credit cards contained stolen account
numbers and that the account numbers belonged to an actual person.
Finally, the district court did not err in allowing 404(b) evidence of prior
trips to engage in the same fraudulent scheme. The evidence was admissible to
show motive, intent, or plan, and was not substantially more prejudicial than
probative. United States v. Ramos-Atondo, 732 F.3d 1113, 1123 (9th Cir. 2013).
AFFIRMED.
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