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,
- 23 -
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.”
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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.
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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
- 34 -
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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