United States v. Guerrero

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________

No. 97-41184
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL GRACIA GUERRERO,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________

March 10, 1999

Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For contesting his convictions and enhanced sentences for two

bank robberies in April and May 1994, Rafael Gracia Guerrero

primarily challenges the sufficiency of the circumstantial identity

evidence linking him to the robberies; and of the evidence of

injury to security guards underlying the “bodily injury” increase

used in sentencing on each robbery. In addition, for those

convictions and those for two related firearms counts for each

robbery, Guerrero asserts that the introduction of evidence

concerning another suspect in the robberies violated FED. R. EVID.

404(b); and that there was insufficient proof that the banks were
insured by the Federal Deposit Insurance Corporation. We VACATE

the convictions related to the April robbery; and AFFIRM the

conviction for the May robbery, and the convictions and sentence

for the two related firearms counts. But, because the bodily

injury increase for the May robbery was applied erroneously, we

VACATE the sentence on that count and REMAND for resentencing.

I.

Guerrero was charged for three bank robberies that occurred in

the Brownsville, Texas, area in April and May 1994, and in January

1995. The first, on 25 April, was at the Boca Chica branch of the

Texas Commerce Bank (TCB-Boca Chica). Around 7:30 a.m., bank

employees Gonzalez, Thibodeaux, and Garcia unloaded the night

deposit bags from a night depository located across the rear bank

parking lot. After placing the funds in a container, they began to

walk across the parking lot to the bank’s rear entrance. Security

guard Garcia, carrying the container, was between Gonzalez and

Thibodeaux.

An automobile with tinted windows entered a parking spot in

front of them. Two men, armed with guns and wearing sunglasses,

white shirts, and dark ties and trousers, exited the vehicle and

approached the group. They took the container, which held

approximately $52,000, from Garcia and put it in the car. The

driver then returned, took Garcia’s gun and two-way radio, and hit

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Garcia over the head with a gun, causing him to lose consciousness.

The two robbers then drove quickly from the scene.

Approximately 30 months later, in November 1996, bank employee

Gonzalez identified a photo of Guerrero as resembling the passenger

in the robbery vehicle. At trial in June 1997, she stated that

Guerrero looked like the passenger, but that she was not totally

confident in her identification. Bank employee Thibodeaux

testified that she did not see the passenger well enough to be able

to make an identification, but that she believed he was about 5'5"

tall. Garcia, the assaulted security guard, did not testify.

Guerrero testified that he was at work on the morning of the

robbery. And, although his employer testified on his behalf, the

employer admitted, inter alia, that there were no written records

to confirm when Guerrero had worked; and that Guerrero normally

worked in the evenings. Guerrero, however, testified that he

sometimes began work in the early morning.

The day after the robbery, the getaway vehicle was found near

the bank. In the automobile were: a radio, identified by Garcia as

the one taken from him during the robbery; and a canister, like the

one used to hold the money. And, fingerprints, later identified as

Julio Torres’, were on the vehicle’s temporary paper license plate.

The second of the three robberies occurred at approximately

10:15 a.m. on 25 May 1994 at the Mercantile Bank. Villarreal, an

employee of an armored car company, was exiting the bank after

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picking up several bags of money, totaling $259,000. As Villarreal

returned to the armored truck, which was parked in the front bank

parking lot, the male passenger of a minivan parked there emerged

and put a pistol to Villarreal’s head. After Villarreal attempted

to wrest the gun away, the minivan driver exited it, hit Villarreal

in the back with a shotgun, and kicked him forward to the ground.

The two robbers, who were both wearing sunglasses, took the money

and drove off.

Approximately 30 months later, in November 1996, Villarreal

picked a photo of Guerrero from a lineup. But, at trial in June

1997, Villarreal was unable to identify Guerrero. And, Guerrero’s

cousin testified that Guerrero was attending a birthday party when

the robbery was committed.

A day after the robbery, the minivan was found near the bank.

In the vehicle were an empty bottle and an envelope. Fingerprints,

later identified as Guerrero’s, were found on both items. And, as

with the automobile used in the first robbery, fingerprints, later

identified as Torres’, were found on the vehicle’s temporary paper

license plate.

The third, and final, robbery occurred on 29 January 1995 —

“Super Bowl Sunday”. Ortiz and Lopez, employees of an armored car

company, made several pickups of night deposits from local

businesses. Around 5:30 p.m., they arrived at the Texas Commerce

Bank on Levee Street (TCB-Levee) to make a drop. As Lopez stepped

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out of the armored vehicle, an automobile carrying four men pulled

up. Three exited with guns; the driver, who was wearing

sunglasses, remained in the vehicle with his window slightly down

and a gun aimed at Lopez. One man pressed a gun to Lopez’s head;

another removed Lopez’s gun from its holster; the third entered the

armored vehicle and threw bags of money into the automobile. Ortiz

was told to remain still or Lopez would be killed. After the money

had been unloaded, the men drove off.

Ortiz and Lopez pursued the getaway vehicle and were able to

record a license plate number. Later, neither was able to identify

Guerrero as one of the robbers. And, Guerrero’s sister testified

that he was attending a Super Bowl party at her house when the

robbery occurred.

A few days after the robbery, the getaway vehicle was located

in Brownsville. A fingerprint, later identified as Guerrero’s, was

found on the inside of the driver’s side door handle.

As each getaway vehicle was discovered, it was dusted for

fingerprints; FBI Special Agent Hutchinson forwarded the prints to

the FBI laboratory. And, during his investigation, the Special

Agent received information from confidential informants regarding

suspects.

One informant provided Torres’ name. Torres, whose

fingerprints were later identified on the temporary paper tags for

the getaway vehicles for the April and May 1994 robberies, had been

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arrested soon after the first robbery on an unrelated charge and

his address book photocopied. Police later discovered Guerrero’s

name and telephone number in the book. (Torres, however, has

apparently never been apprehended for his suspected involvement in

the three robberies.)

As of mid-1996, Special Agent Hutchinson had not linked

Guerrero to the robberies. But, at that time, FBI Special Agent

Vela was told by a confidential informant that Guerrero had been

involved in them, and was an associate of persons who had also

participated. After obtaining Guerrero’s fingerprints and

photograph, the Special Agent began to use the latter in photograph

arrays.

Special Agent Vela showed the arrays to Gonzalez (a witness to

the April robbery) and Villarreal (a witness to the May robbery).

Both picked Guerrero’s picture. Thibodeaux and Garcia (the other

witnesses to the April robbery) were shown the arrays. There is no

evidence pertaining to Garcia’s response. Thibodeaux identified

Oscar Venegas (another suspect) as the driver of the getaway

vehicle. Venegas’ name was also in Torres’ earlier seized address

book.

As a result, Special Agent Vela sent Guerrero’s fingerprints

to the FBI laboratory for a comparison with those found on the

getaway vehicles. Guerrero’s prints matched with those in two of

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the vehicles (May and January); accordingly, an arrest warrant was

issued in December 1996.

Several law enforcement agencies conducted surveillance of

Guerrero’s parents’ home in Brownsville. In late March 1997, a man

fitting Guerrero’s description was spotted leaving that house in a

pickup truck.

Two Texas Department of Public Safety (TDPS) officers stopped

the truck for not having either a license plate or the required

light for it. In doing so, the officers activated only the lights

on their vehicle, and not the siren. Nevertheless, Guerrero exited

the truck with his hands above his head. One of the officers

testified that this response was unusual. Along this same line,

two law enforcement officers who had contact with Guerrero the

night after he was arrested and taken into custody testified that

he had expressed concern regarding his wife because “she didn’t

know anything”.

A search warrant was executed at Guerrero’s residence in

Brownsville, but no evidence directly connecting him to the

robberies was found. At trial, the Government introduced

photographs it had recovered from the home depicting Guerrero

holding guns and wearing a t-shirt with the insignia of a Mexican

drug enforcement agency.

Guerrero was tried in June 1997 for the robberies, and the

related counts for use of a firearm during a crime of violence, for

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April 1994 (counts 1-3), May 1994 (counts 4-6), and January 1995

(counts 7-9). As noted, Guerrero testified. And, he moved for

judgment of acquittal both at the close of the Government’s case

and at the close of the evidence.

Before the case went to the jury, the court entered a judgment

of acquittal on the counts related to the January robbery, because

the Government failed to prove that the funds were in the control

or custody of TCB-Levee, as required by 18 U.S.C. § 2113(f). The

court informed the jury of the reason for that ruling, but

instructed the jury that, in deliberating on the remaining counts,

it could still consider the evidence concerning that January

robbery. The jury returned a guilty verdict on the counts related

to the April and May robberies.

The sentencing judge did not preside over Guerrero’s trial.

Pursuant to U.S.S.G. § 2B3.1(b)(3)(A), an increase for “bodily

injury” to a robbery victim was added to Guerrero’s base offense

level for each of the robbery convictions. For those two counts,

and one firearms count for each robbery, Guerrero was sentenced to

397 months in prison.

II.

Guerrero asserts that: (1) there was insufficient evidence to

establish his involvement in the April and May robberies; (2)

evidence regarding Torres was erroneously admitted under FED. R.

EVID. 404(b); (3) the Government failed to prove that, on the dates

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of the robberies, the banks were insured by the Federal Deposit

Insurance Corporation; and (4) the bodily injury enhancement was

not applicable.

A.

For each robbery, Guerrero was charged pursuant to 18 U.S.C.

§ 2113(a); for the related use of a firearm, pursuant to 18 U.S.C.

§ 924(c). He does not contest that the Government proved that

someone committed the two robberies; rather, he claims that the

Government failed to prove that he was involved.

Regarding his sufficiency challenge, Guerrero preserved our

usual standard of review for such claims by moving for judgment of

acquittal at the close of the evidence. FED. R. CRIM. P. 29(a);

United States v. Pankhurst, 118 F.3d 345, 351 (5th Cir.), cert.

denied, 118 S. Ct. 630 (1998). “Therefore, the standard of review

is whether the evidence, as viewed in the light most favorable to

the verdict, would permit a rational trier of fact to find

[Guerrero] guilty beyond a reasonable doubt.” Pankhurst, 118 F.3d

at 352; United States v. Greer, 137 F.3d 247, 249 (5th Cir.), cert.

denied, 118 S. Ct. 2305 (1998); United States v. Jones, 133 F.3d

358, 362 (5th Cir.), cert. denied, 118 S. Ct. 1854 (1998); United

States v. Grossman, 117 F.3d 255, 258 (5th Cir. 1997). For such

review, we draw “all reasonable inferences in support of the

verdict”. United States v. Pennington, 20 F.3d 593, 597 (5th Cir.

1994).

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 Although the case against Guerrero, as the Government

concedes, is based largely on circumstantial evidence, our

sufficiency of the evidence review remains the same. United States

v. Delagarza-Villarreal, 141 F.3d 133, 139 (5th Cir. 1997); United

States v. Rosalez-Ozozco, 8 F.3d 198, 200 (5th Cir. 1993). We must

accept credibility choices that support the jury’s verdict, and we

may not reweigh the evidence. Delagarza-Villarreal, 141 F.3d at

139. But, if “the evidence viewed in the light most favorable to

the prosecution gives equal or near equal circumstantial support to

a theory of guilt and a theory of innocence, the conviction should

be reversed”. Grossman, 117 F.3d at 258 (quoting United States v.

Mackay, 33 F.3d 489, 493 (5th Cir. 1994)).

The Government maintains that, in part, it proved Guerrero’s

participation in the April and May robberies through modus operandi

evidence and evidence of an overlay of participants. Modus

operandi evidence may be introduced to prove identity; evidence of

extraneous acts to prove identity is admissible pursuant to Rule

404(b),

if the circumstances of the extraneous act
were so similar to the offense in question
that they evince a signature quality — marking
the extraneous act as the handiwork of the
accused. Indeed, proper identity evidence is
tantamount to modus operandi evidence.

United States v. Sanchez, 988 F.2d 1384, 1393-94 (5th Cir. 1993)

(internal quotation and citations omitted); United States v.

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Beechum, 582 F.2d 898, 912 n.15 (5th Cir. 1978) (en banc) (“The

identity of the defendant may be established by evidence of

offenses extrinsic to the indictment.... The physical similarity

must be such that it marks the offenses as the handiwork of the

accused.”); see FED. R. EVID. 404.

In Sanchez, 988 F.2d at 1394, our court found the similarity

between the location of the two transactions, combined with the

appearance of the same vehicle, to be “of signature quality”.

Likewise, our court has found a signature quality to two sexual

assaults that occurred on the same military base at the same time

of day. United States v. Bailey, 111 F.3d 1229, 1234 (5th Cir.

1997).

The Government notes that (1) all three robberies occurred in

Brownsville within a relatively short period of time; (2) each

occurred during times of minimal bank traffic; (3) in each, a

vehicle suddenly pulled up; (4) the robbers were wearing dress-

casual clothes, but not masks; (5) the robbers in the first two

robberies wore sunglasses, as did the driver in the last; (6) each

occurred outside the bank while funds were being transferred; (7)

the only witnesses were bank or armored car employees; (8) the

employee in control of the money was the one assaulted; and (9) the

getaway vehicle was found abandoned near each bank.

As in Sanchez and Bailey, such evidence has a modus operandi

or signature quality, sufficiently establishing that the same group

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was involved in all three robberies. And, there was sufficient

evidence for a rational juror to conclude that Guerrero was a

member of that group and participated in some of the robberies.

Additional evidence tying Guerrero to the robberies was

provided by the testimony regarding his quite unusual behavior both

when stopped by the TDPS officers and through his statements later

that day regarding his wife’s lack of knowledge. A rational juror

could find that both incidents indicate circumstantially that

Guerrero was involved in the group committing the robberies.

With regard to his behavior upon being stopped by the police,

Guerrero testified that he thought exiting his vehicle with his

hands raised was “normal”; and that he didn’t “see anything wrong

with that”. And, concerning his statements about his wife, he

testified that he made them because she did not have immigration

documentation, and he feared she would have problems with United

States immigration authorities. Of course, it is the province of

the jury to weigh the credibility of witnesses. E.g., United

States v. Hawkins, 658 F.2d 279, 289 (5th Cir. 1981).

More direct linkage to the April and May robberies is provided

by Guerrero’s fingerprints on the January getaway vehicle.

Regarding it, Guerrero testified that he had met Torres; that

Torres inquired about purchasing his automobile; that Torres had

also suggested exchanging vehicles; that he drove Torres’ vehicle

for a few minutes; that a deal was never reached; that he never saw

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Torres again; and that a photograph of the January robbery vehicle

(again, Guerrero’s prints were on a door handle) was “very similar”

to the one Torres let him drive.1

1
Although it acknowledged at oral argument on appeal that it
was in error, the Government’s brief stated that Guerrero’s
fingerprints were found on the door handle of the armored truck for
the January robbery. Obviously, had this been the case, it would
have been very powerful evidence indeed. (Instead, as noted, his
fingerprints were found on a door handle of the January getaway
vehicle.)

Amazingly, no reply brief was filed. Restated, this extremely
important error in the Government’s brief was not corrected by
Guerrero through a reply brief. Instead, the error was pointed out
at oral argument by questioning Guerrero’s counsel, prior to the
Government having the opportunity to correct the error.
Immediately at the start of its presentation, the Government noted
that, during preparation for oral argument, it had caught its
briefing error; we are certain that, had we not already raised the
point, the Government would have done so.

This incident underscores greatly the obvious extreme
importance of two aspects of briefing: painstaking care in
presenting the facts, see FED. R. APP. P. 28(a)(7), (e); and using
a reply brief to contest erroneous factual statements in the
appellee’s brief, see FED. R. APP. P. 28(c). Both sides fell far
short — the Government in the erroneous statement and Guerrero in
not filing a reply brief.

Such errors cannot always be remedied at oral argument. We
hear argument in only approximately 30% of our cases. For those
relatively few cases for which we do hear argument, a great deal of
time and effort is invested by our court in preparing for it. The
panel does not then have the record, and therefore must be able to
depend on the briefs. Needless to say, errors in briefs, as well
as errors not corrected by a reply brief, greatly adversely affect
our preparation and, more importantly, our understanding of the
case, and result in time being spent on correcting such errors at
argument, when that time should be available for other points at
issue. Finally, even when argument is held, it may be that such an
error may be missed, notwithstanding our close, post-argument
review of the record in preparing the opinion. Counsel, who should
and must know the case and record best, must prevent such errors.

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 Second, evidence linked Guerrero to Torres, whose fingerprints

were on the paper license plates for the April and May getaway

vehicles. Further, Guerrero testified that he saw Torres in a

vehicle resembling that used in the January robbery, thus linking

Torres to all three robberies.

Guerrero was also linked to Torres through Torres’ address

book, which listed Guerrero’s name and telephone number, and

through the presence of Guerrero’s fingerprints in the May robbery

getaway vehicle, on whose temporary tags Torres’ prints were found.

Also, as noted, Guerrero admitted at trial that he had met Torres.

Furthermore, bank employee/robbery witness Thibodeaux picked a

photograph of suspect Venegas out of a photo lineup as resembling

the driver of the April getaway vehicle; as noted, his name was

also in Torres’ address book.

1.

Direct linkage to the May robbery was through Guerrero’s

fingerprints on a bottle and envelope in the May getaway vehicle.

At trial, Guerrero did not offer any explanation for the presence

of his fingerprints in that vehicle, nor was he asked to.

In November 1996, Villarreal, the armored car guard attacked

in the May 1994 robbery, picked a photo of Guerrero out of a photo

lineup. And, at the June 1997 trial, Villarreal testified that,

while in a mall subsequent to the robbery, he had seen the May

getaway vehicle passenger. Villarreal was unable at trial to

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identify Guerrero as the robber; but, he did state that Guerrero

resembled him. “It is a basic rule of evidence that witnesses need

not assert that they are certain of their identification beyond a

reasonable doubt.” United States v. Roberts, 481 F.2d 892, 893

(5th Cir. 1973). Although “an uncertain in-court identification

will not support a conviction where that identification is the only

evidence offered on the issue of identity”, such “tentative nature

of ... identification is not fatal”, if there is other sufficient

evidence of identity. Hawkins, 658 F.2d at 289 (emphasis added).

The modus operandi evidence provides some of the evidence upon

which the jury could find Guerrero guilty of the May robbery.

There was sufficient evidence that he was a member of the group

that committed all three. More directly, his prints were found on

items in the May getaway vehicle. Furthermore, Villarreal was able

to identify Guerrero out of 48 photos in an array, and he did

testify that Guerrero resembled the robber.

In addition, the jury was allowed to consider the evidence

regarding the January robbery; Guerrero’s fingerprint was found on

the getaway vehicle. Whereas Guerrero might conceivably explain

away the presence of his fingerprints in one getaway vehicle (as he

attempted to do for the January, but not the May, vehicle), the

presence of his fingerprints in or on two such vehicles presents a

“coincidence” that is difficult to attribute either to mere

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happenstance or to Guerrero’s unlucky but innocent connection with

bank robbers.

Guerrero points out that his cousin testified that Guerrero

was attending his daughter’s birthday party on the day of the

robbery, as evidenced by a photograph dated “5/25/94”. However,

this testimony was impeached on cross-examination in two respects.

The witness (cousin) admitted that only two days earlier had she

informed Guerrero’s attorney of her ability to testify; and that,

although she was Guerrero’s cousin, she did not know that he had a

brother named Miguel. Thus, the jury could reasonably have found

the witness not credible and chosen to disregard the alibi

testimony.

Finally, Guerrero relies on the Borum rule. In Gibson v.

Collins, 947 F.2d 780, 785 (5th Cir. 1991), on accepting the rule

of Borum v. United States, 380 F.2d 595 (D.C. Cir. 1967), our court

stated:

We accept the Borum majority’s rule as we
understand it: In a criminal case in which the
only evidence is the discovery of the
defendant’s fingerprints at the scene of the
crime, a reasonable juror may find guilt
beyond a reasonable doubt only if the evidence
indicates that the imprinted object was
generally inaccessible to the defendant except
during the commission of the crime.

(Emphasis added.)

In Gibson, 947 F.2d at 781, a home was burglarized and the

defendant’s fingerprints were found on two silver trays in the

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home. Although the fingerprint expert was unable to determine the

age of the prints, our court upheld the conviction, finding that it

was reasonable for the jury to conclude that the defendant, who had

never been allowed inside the victims’ home, left the prints during

the burglary. Id. at 781, 785-86.

Guerrero notes that the fingerprint expert could not determine

the age of his fingerprints on the items in the May vehicle. And,

he asserts that the Government produced no proof that those items

were in any way connected to the robberies.

The Borum rule provides no relief for Guerrero. As emphasized

above, the rule applies only when “the only evidence is the

discovery of the defendant’s fingerprints at the scene of the

crime”. Gibson, 947 F.2d at 785. As discussed, in addition to

Guerrero’s fingerprints in the getaway vehicle, there is other

evidence connecting him to the robberies.

In sum, although Villarreal was unable in court to identify

Guerrero as the robber, identity may be proved through inference

and circumstantial evidence. E.g., United States v. Shah, 44 F.3d

285, 295 (5th Cir. 1995). In addition to the modus operandi and

overlay of participants evidence, Guerrero’s prints in the May

vehicle and Villarreal’s testimony directly linked Guerrero to that

robbery. There was sufficient evidence from which a reasonable

jury could find Guerrero guilty for the May robbery and related

counts.

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 2.

A little more than three years after the April 1994 robbery of

the TCB-Boca Chica, bank employee/robbery witness Gonzalez

testified that, during the robbery, she had focused on the

passenger; and that he had walked “pretty close” to her when he

took the money from the security guard. A few days after the

robbery, she identified a man from a photo lineup as the passenger,

stating that she felt “very confident” in that selection because of

“the shape of his face, his color and complexion and forehead as

well as the broad shoulders”. However, at a lineup a few days

later, upon seeing that man, she was confident that she had been in

error.

In 1996, almost three years after the robbery, Gonzalez picked

Guerrero’s photograph out of an array consisting of 36 pictures of

Hispanic-appearing men, stating that he “look[ed] like” the April

getaway vehicle passenger. At trial, she pointed out Guerrero as

resembling the passenger, but admitted that she was not totally

sure and that, as discussed above, shortly after the robbery, she

had identified someone else.

For the April robbery, bank employee/robbery witness

Thibodeaux testified that, while she could not make an

identification of the getaway vehicle passenger, she believed that

he was 5'5" tall. Although there was no proof at trial regarding

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Guerrero’s height, the jury, by observing him, could estimate it by

comparison to Thibodeaux’s testimony.

Again, identity may be proven though inference and

circumstantial evidence. E.g., Shah, 44 F.3d at 295. However, as

discussed supra, because of the tentative nature of Gonzalez’s

identification of Guerrero as the passenger in the April robbery,

the other identity evidence introduced by the Government takes on

added significance. Hawkins, 658 F.2d at 289.

Guerrero points out that, on cross examination, Gonzalez

admitted that her identification was based on viewing the robber

for only approximately two seconds; that she picked Guerrero’s

picture out of an array almost three years after the crime; and

that she had previously identified someone else.

In addition, for the 7:30 a.m. robbery, and concerning

Guerrero’s at-work alibi, Guerrero’s employer testified as a

defense witness. But, he stated that he and his permanent

employees worked from 8 a.m. to 7-8 p.m.; that Guerrero was not a

permanent employee and was called in only when there was too much

work; that Guerrero worked from 4 p.m until 9-11 p.m.(again, the

robbery occurred at 7:30 a.m.); that Guerrero occasionally missed

a couple of days of work; and that Guerrero was paid in cash and

there were no records of when he worked.

Guerrero testified that he was at work when the robbery

occurred at 7:30 a.m.; and that he started work at 7 a.m. Upon

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further questioning by the Government, Guerrero stated that he

sometimes worked in the early mornings, sometimes in the

afternoons.

Although it is a very close call, we conclude that there was

insufficient evidence to support Guerrero’s conviction for the

April robbery. The Government introduced evidence tending to prove

that the same group committed these robberies; but, a Government

witness testified that between three to five persons were believed

to be members of this group. Furthermore, while only two persons

participated in each robbery in April and May, four were involved

in January. Although the signature or modus operandi evidence

introduced by the Government is probative, it is not strong enough

to prove that, not only was the same group involved in every

robbery, but that Guerrero was involved in each.

The only evidence that specifically linked Guerrero to the

April robbery was Gonzalez’s testimony. Although it is, of course,

the province of the jury to weigh a witness’ credibility, the

earlier-discussed rule in Hawkins is that an uncertain

identification, like that given by Gonzalez, will not, alone,

support a conviction. The modus operandi evidence applied to the

April and May robberies. But, unlike the May robbery, in which it

was combined with a tentative identification and Guerrero’s

fingerprints on items in the getaway vehicle, the only evidence

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linking Guerrero to the April robbery was Gonzalez’s tentative

identification.

In sum, Gonzalez’s eyewitness testimony alone cannot sustain

Guerrero’s conviction for the April robbery; the modus operandi

evidence does not specifically link him to it. There was

insufficient evidence for a rational juror to find Guerrero guilty

beyond a reasonable doubt as to that robbery (related to counts 1-

3).

B.

Guerrero asserts in his brief “that the trial court erred in

admitting evidence of other bank robberies and other suspects,

particularly of Julio Torres[,] contrary to Fed. R. Evid. 404(b)”.

(Emphasis added.) However, in his discussion of this issue,

Guerrero addresses only the admission of evidence regarding Torres;

he does not present any arguments regarding the admission of

evidence of other robberies. Of course, issues not briefed are

deemed abandoned. See FED. R. APP. P. 28(a)(9); e.g., McCrary v.

Poythress, 638 F.2d 1308, 1310 n.2 (5th Cir. 1981).

Accordingly, concerning only Torres, Guerrero challenges the

admission of the following testimony regarding: (1) Torres as a

suspect in the robberies; (2) his address book; (3) his prints on

the paper license tags for two of the getaway vehicles.

Under our usual standard of review, the admission of extrinsic

evidence under Rule 404(b) is “subject to reversal only upon a

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clear showing of an abuse of discretion”. Bailey, 111 F.3d at

1233. But here, as hereinafter discussed, we instead review under

the far more narrow standard for plain error.

At trial, Guerrero objected to only one of the now-challenged

items of evidence: the testimony regarding Torres’ address book.

Moreover, that objection was based only on Federal Rules of

Evidence 402 and 403, not on Rule 404(b).2 Thus, concerning Rule

404(b), the only Rule now relied upon, the admission of the

challenged evidence is reviewed only for plain error. FED. R. CRIM.

P. 52(b); e.g., United States v. Olano, 507 U.S. 725, 732-35

(1993).

“Under Federal Rule of Criminal Procedure 52(b), this court

may correct forfeited errors only when the appellant shows that (1)

there is an error, (2) the error is plain, and (3) the error

affects [his] substantial rights.” United States v. Ravitch, 128

F.3d 865, 869 (5th Cir. 1997). And, even if such an error is

2
Guerrero did not brief the Government’s failure-to-object-
claim as to Rule 404(b). In other words, he did not brief how he
timely and properly objected on that basis. At oral argument, when
questioned on this point, Guerrero’s counsel stated he “thought” he
had properly objected, and claimed there was a bench conference
along this line. The record does indicate there was a bench
conference before this evidence was admitted. But, the transcript,
if any, of the conference is not in the record on appeal.

Of course, it is the duty of the party raising an issue on
appeal to include the relevant items in the record on appeal. FED.
R. APP. P. 11(a); e.g., United States v. Coveney, 995 F.2d 578, 587
(5th Cir. 1993). In short, the record on appeal does not contain
the Rule 404(b) objection now claimed by Guerrero.

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demonstrated, we will exercise our discretion to correct it only

when it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings”. Id.

For the first step in plain error review — whether the claimed

error was “plain” (“clear” or “obvious”, e.g., United States v.

Calverly, 37 F.3d 160, 163-64 (5th Cir. 1994)(en banc)) — the

admissibility of evidence under Rule 404(b) is governed by a two-

prong test: (1) “the evidence must be relevant to an issue other

than the defendant’s character”; and (2) “the probative value of

the evidence must not be substantially outweighed by its undue

prejudice and the evidence must meet the other requirements of Rule

403”. Bailey, 111 F.3d at 1233.

The Government contends that the evidence regarding Torres’

involvement in the robberies and Guerrero’s connection to him was

admissible because it completes the story of the crime. Pursuant

to Rule 404(b), our court has approved such extrinsic evidence.

See United States v. Morgan, 117 F.3d 849, 861 (5th Cir.), cert.

denied, 118 S. Ct. 454, 641 (1997); United States v. Kloock, 652

F.2d 492, 495 (5th Cir. 1981) (evidence to complete story is

admissible “unless its probative value was substantially outweighed

by the danger of unfair prejudice”); United States v. Wilson, 578

F.2d 67, 72 (5th Cir. 1978) (“Courts and treatise writers have come

to recognize an exception to the general rule of inadmissibility,

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by allowing the introduction of evidence of other criminal activity

in order to complete the story of the crime on trial”).

And, our court has approved the admission of evidence

regarding the defendant’s relationship with another person where it

was relevant in allowing the jury to determine whether the

defendant committed the crime charged. In United States v. Royal,

972 F.2d 643, 648 (5th Cir. 1992), our court stated:

In this case, the evidence pertaining to the
Defendant’s relationship with [a cooperating
witness with whom the defendant allegedly
conspired,] particularly as it involved prior
drug transactions, was relevant to the crime
charged in that it allowed the jury to
understand the nature of the relationship
between the two and evaluate whether it was
likely that the Defendant would have conspired
with [that witness] as charged.

Likewise, as discussed supra, evidence regarding Torres,

including his relationship to Guerrero, was relevant for

determining whether Guerrero was involved in the group that was

committing the robberies. As noted, one Government witness stated

that three to five persons were believed to be involved. Thus,

Guerrero’s connection to another person connected to the robberies

was relevant and important evidence for the jury to consider in

deciding whether Guerrero was so involved; and, pursuant to Rule

404(b), its probative value was not superseded by the protections

afforded by Rule 403.

It is well to remember that, for this issue, we are reviewing

only for plain error. For the first step in that analysis, we find

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no “clear” or “obvious” error. Accordingly, our review stops

there; there was no plain error. In other words, it is not “clear”

or “obvious” that the evidence regarding Torres (Guerrero’s name in

Torres’ address book; Torres a suspect in same robberies; Torres’

fingerprints on getaway vehicles) was not relevant to issues other

than Guerrero’s character (namely, to Guerrero’s involvement in the

group that committed the robberies), or that such evidence did not

satisfy the other requirements of Rule 404(b).

C.

Next, Guerrero asserts that he was entitled to judgment of

acquittal for each robbery because the Government failed to prove

that TCB-Boca Chica and Mercantile Bank were federally insured at

the time they were robbed. Only the May robbery remains at issue.

The federal bank robbery statute under which Guerrero was

convicted defines a “bank” as one whose deposits are insured by the

FDIC. 18 U.S.C. § 2113(a), (f); United States v. Slovacek, 867

F.2d 842, 845 (5th Cir. 1989). “Proof that the institution meets

this definition of ‘bank’ at the time of the robbery is an

essential element of the offense that must be proven beyond a

reasonable doubt to establish federal jurisdiction.” Slovacek, 867

F.2d at 845. It would not seem necessary to caution the Government

on the importance of solidly proving this. “Lack of sufficient

proof [of this element] ... compels reversal and dismissal of the

indictment, not just remand for a new trial with better evidence.”

- 25 -
Id. at 846 (quoting United States v. Maner, 611 F.2d 107, 112 n.4

(5th Cir. 1980)).

At trial, a Mercantile Bank security officer testified on

recall that it is federally insured. But, he did not testify that

the bank was federally insured at the time of the robbery.

In United States v. Rangel, 728 F.2d 675, 676 (5th Cir. 1984),

the only evidence that the bank was federally insured was a

witness’ affirmative answer to the question, “Is [the bank]

federally insured”. Our court ruled that the jury need not

understand this testimony narrowly to mean that the bank was

insured only at the time of trial, but that it could reasonably

find from this evidence, taken in the context of the witness’

complete testimony, that the bank was also insured when the crime

occurred. Id. (“The only relevant date of insured status was the

date of the ... robbery.... In context, and without any question

being raised, the jury could take this evidence and find that the

credit union was insured at the time of the [crime].”); see also

Slovacek, 867 F.2d at 846.

Thus, based on Rangel, we hold that, in the light of the

complete testimony by the bank official, the jury could find beyond

a reasonable doubt that the bank was federally insured at the time

of the robbery. (This notwithstanding, the Government is cautioned

again as to proving this element more properly.)

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 D.

The final issue is Guerrero’s challenge to the bodily injury

increase to his base offense level for each of the robbery

convictions. Although the April robbery conviction is no longer at

issue, the sentencing proceedings involving it remain relevant,

because the two enhancements were often combined, including in the

probation officer’s response to Guerrero’s objection to the

increase recommendation in the Presentence Investigation Report.

For a robbery, “[i]f any victim sustained bodily injury”, the

sentencing court is to “increase the offense level according to the

seriousness of the injury”. U.S.S.G. § 2B3.1(b)(3). A two-level

increase is required for “Bodily Injury”; greater increases are

required for “Serious” and “Permanent or Life-Threatening”

injuries. U.S.S.G. § 2B3.1(b)(3)(A)-(C).

Of these three degrees of injury, the increase at issue is for

“bodily injury”, defined as “any significant injury; e.g., an

injury that is painful and obvious, or is of a type for which

medical attention ordinarily would be sought”. See U.S.S.G. §

1B1.1, comment (n.1(b)) (emphasis added).

Very little was said in the PSR about the degree of injury

cited to justify the enhancement recommendation. The PSR stated,

for the April robbery, only that a guard was “pistol whipped”; for

the May robbery, only that one “was struck on his back”.

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 Regarding these enhancements, the PSR addendum states that

Guerrero objected only to the recommendation for the assault in the

April robbery. In other words, it does not appear that he objected

to the recommended increase for the May robbery. (Guerrero’s

objections to the PSR are not in the record on appeal. Federal

Rules of Criminal Procedure 32(b)(6)(B) and (C) require the

defendant to submit to the probation officer such objections; that

officer must then include an addendum addressing any unresolved

objections. Thus, although Guerrero was not required to file his

written objections with the court, it is, again, the duty of the

party raising an issue on appeal to include the relevant items in

the record on appeal. FED. R. APP. P. 11(a); e.g., Coveney, 995

F.2d at 587.)

Moreover, Guerrero’s referenced objection, apparently limited

to the April assault, addressed only no medical testimony or

records being introduced to support finding bodily injury. In

response, the probation officer stated in the PSR addendum that the

Sentencing Guidelines, as discussed supra, do not require medical

treatment. But, in responding to this objection (again, apparently

limited to the recommended increase for the April robbery), the

officer also stated that the assaulted guard for the May robbery

“sustained bodily injury”; and that “both guards were assaulted”.

In so doing, the officer advised that “bodily injury remains a

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disputed issue and will require resolution by the [district court]

at the sentencing hearing”.

As noted, different judges tried and sentenced Guerrero. In

other words, the sentencing judge did not hear the testimony at

trial, including that relevant to bodily injury. Nor is there any

indication that he read the trial transcript.

At sentencing, in addressing Guerrero’s limited objection, the

judge stated: “Objection Number Two [the objection to the April

robbery increase, referenced in the PSR addendum] makes reference

to the fact that [Guerrero] was assessed points because of the

allegation involving bodily injury”. (Emphasis added.) In other

words, the sentencing judge referred to only one bodily injury

“allegation” which indicates that he also believed the objection

(as presented in the PSR addendum) was only to the April increase.

Guerrero’s counsel responded, “That is correct”. Moreover, at

no point during the rest of the brief discussion of this objection

at the sentencing hearing did Guerrero attempt to clarify that he

objected not just to the April increase, but also to that for May.

The sentencing judge gave the Government and Guerrero the

opportunity to introduce further evidence; neither did. The court

then stated that only “minimal, minimal injury” is required for a

bodily injury increase, and imposed it for both robberies.

Inconsistent with his apparent limited objection in the

district court (no medical evidence and only as to the April

- 29 -
robbery), Guerrero now challenges the lack of direct evidence to

support an increase, including for the May robbery. The Government

does not contend either that Guerrero failed to object to the

increase for that robbery, or that his objection in district court,

which apparently touched only on a lack of medical proof, differed

from the broader lack of evidence claim asserted now. Instead, it

maintains solely that the severity of the attack alone is

sufficient to support the increase.

No authority need be cited for the fact that we, not the

parties, determine our standard of review. For the May robbery

increase, Guerrero is arguably raising issues for the first time on

appeal; if so, they would be reviewed only for plain error. But,

in the light of the above-discussed uncertainty as to the scope of

his objection to the PSR (demonstrated, in part, by the PSR

addendum stating that the assaulted guard in each robbery

“sustained bodily injury”), we conclude, dubitante, that review

under our normal, rather than plain error, standard is in order.

Accordingly, the district court’s interpretation of the Guidelines

is reviewed de novo; its findings of fact, for clear error. E.g.,

United States v. Claiborne, 132 F.3d 253, 254 (5th Cir.), cert.

denied, 118 S. Ct. 1855 (1998).

Both Guerrero and the Government fail to cite any cases

regarding the interpretation of the Guidelines’ “bodily injury”

increase. In any event, regarding sufficient proof of injury, and

- 30 -
although not for the Guidelines’ type at issue, our court has

found, for example, that post-traumatic stress disorder constitutes

a “serious” injury. United States v. Reed, 26 F.3d 523, 530 (5th

Cir. 1994). The “bodily injury” question at hand has not been

addressed by this circuit. We look to our sister circuits for

guidance.

The examined cases hold, for obvious reasons, that the focus

of the inquiry is not on the actions of the defendant, but rather

on the injury sustained. United States v. Perkins, 89 F.3d 303,

308 (6th Cir. 1996) (“[t]he basis for this enhancement is not the

striking of the victim in the head ... rather, it is the fact that

doing so caused physical injury”); United States v. Dodson, 109

F.3d 486, 489 (8th Cir. 1997) (“It is not the defendant’s conduct,

however, which determines whether a victim has sustained bodily

injury; rather, the resultant physical injury is the determining

factor”); United States v. Perkins, 132 F.3d 1324, 1326 (10th Cir.

1997) (“We agree with [the defendant] that it is the actual nature

of the injury sustained and not generalized statements concerning

the nature of the conduct or the victim’s age that must be the

focus of the district court’s determination”). See also United

States v. Harris, 44 F.3d 1206, 1218 (3rd Cir. 1995) (reversing

“bodily injury” increase where witness testified that victims were

sprayed with mace and later treated by medical personnel, but

district court made no findings with regard to whether victims

- 31 -
suffered either pain or injury or why victims received medical

treatment).

The following has been found to constitute “bodily injury”:

hitting the victim in the head with a gun and kicking him in the

face, causing injury, Perkins, 89 F.3d at 308; spraying victims

with mace, causing several injuries and requiring the victims to

obtain medical treatment and miss several days of work, United

States v. Taylor, 135 F.3d 478, 482 (7th Cir. 1998); spraying bank

tellers with mace, causing pain for hours and residual effects for

days, United States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.

1994); knocking the victim down, causing bumps, bruises, and a back

injury that required chiropractic treatment, United States v. Hamm,

13 F.3d 1126, 1127-28 (7th Cir. 1994); a slap in the face, causing

swelling and pain that required medical attention, United States v.

Greene, 964 F.2d 911, 911-12 (9th Cir. 1992); and a small

laceration and bruising, requiring medical attention, Perkins, 132

F.3d at 1325. But see United States v. Lancaster, 6 F.3d 208, 210

(4th Cir. 1993) (affirming finding that being sprayed with mace is

not “significant” injury warranting bodily injury increase because

burning sensation suffered by victim was “only momentary and the

mace produced no lasting harm”).

In most of these cases upholding “bodily injury”, the courts

indicated that the victim sought medical treatment for the injury.

But, again, the Guidelines do not condition the increase on such

- 32 -
treatment. The injury must be either “painful and obvious” or “of

a type for which medical attention would ordinarily be sought”.

U.S.S.G. § 1B1.1, comment (n.1(b)) (emphasis added). Another

common thread in the above-discussed cases is that there appears to

have been evidence regarding the injury sustained.

For the May robbery, the PSR does not indicate that the

guard’s being “struck on his back” resulted in any bruising,

swelling, or other type injury. And, the assaulted guard did not

testify at sentencing.

In Dodson, 109 F.3d at 488, the PSR recommended the bodily

injury increase, stating that a police officer sustained “minor

injuries” from a struggle with the defendant, during which the

officer was choked. The Eighth Circuit reversed the imposition of

the enhancement because “the government did not call [the officer]

to testify regarding the nature of his injuries or whether he had

suffered any pain as a result of being choked”. Id. at 489.

Further, the court disagreed with the finding that the act of

choking, itself, falls within the category of “bodily injury”,

because such a finding improperly focuses on the act rather than on

the injury. Id.

The imposition of the May robbery increase constitutes

reversible error. Such error results from the district court’s

erroneous guideline interpretation and finding of fact.

- 33 -
 The first reason for the reversible error is the sentencing

judge’s comment that only a “minimal, minimal injury” is required

to support the increase. As noted in the earlier-quoted definition

of “bodily injury”, the Guidelines define “bodily injury” in part

as “any significant injury”, prior to giving the two categories:

“painful and obvious”, or “type for which medical attention

ordinarily would be sought”. U.S.S.G. § 1B1.1 (comment n.1(b))

(emphasis added). The sentencing judge’s level of injury comment,

taken at its face value, is contrary to this definition.

Second, there is no evidence of any injury. Consistent with

the above-discussed decisions from other circuits, we reject the

Government’s assertion that evidence regarding the severity of the

attack is always sufficient to support a “bodily injury” increase.

See Perkins, 89 F.3d at 308; Dodson, 109 F.3d at 489; Perkins, 132

F.3d at 1326. Of course, an exception lies for certain types of

attacks for which the resulting injury follows automatically and is

obvious. That is not the case here.

The error affects the length of Guerrero’s sentence for the

May robbery count. Therefore, we vacate that sentence and remand

for resentencing on that count.

III.

For the reasons stated above, those portions of the judgment

as to Guerrero’s convictions for the May 1994 robbery count and the

convictions and sentence for the related firearms counts are

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AFFIRMED; those portions of the judgment as to the convictions and

sentences for the April 1994 robbery and the related firearms

counts and as to the sentence for the May 1994 robbery count are

VACATED; and we REMAND for resentencing on the May robbery count.

AFFIRMED in PART; VACATED in PART; and REMANDED

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