15 F.3d 1090 (9th Cir. 1993), 92-50749, U.S. v. Brown

• Docket Nº: 92-50749.
• Citation: 15 F.3d 1090
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Lamar BROWN, Defendant-Appellant.
• Case Date: December 17, 1993
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1090

15 F.3d 1090 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Lamar BROWN, Defendant-Appellant.

No. 92-50749.

United States Court of Appeals, Ninth Circuit

December 17, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Dec. 8, 1993.

Appeal from the United States District Court for the Central District of California; No. CR-92-00524-WMB, William Matthew Byrne, Jr., District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before: FLETCHER, PREGERSON, and HALL, Circuit Judges.

MEMORANDUM ^[*]

Kevin Lamar Brown appeals the district court's denial of his suppression motion and his Rule 29 motion for acquittal, as well as his subsequent conviction of one count of bank robbery in violation of 18 U.S.C. § 2113(a). Brown also argues that prosecutorial misconduct during closing argument requires reversal.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I.

Brown contends that the district court erred in denying his motion to suppress evidence because police officers lacked reasonable suspicion to stop the Mazda RX-7. We review de novo whether reasonable suspicion existed for an investigatory stop. United States v. Hernandez-Alverado, 891 F.2d 1414, 1416 (9th Cir.1989).

A review of the circumstances indicates that reasonable suspicion existed for the stop. The stop was made within minutes of the attempted bank robbery. The officer knew the direction the robber had taken and had heard his radio description. The car was where the robber reasonably could be expected to be and the radioed description fit. This was an example of good police work. We find that the record supports the district court's finding of reasonable suspicion and its denial of the motion to suppress. ¹

II.

Brown argues that his Fed.R.Crim.P. 29 motion for acquittal should have been granted because the evidence was insufficient to prove that he committed the attempted bank robbery. The test for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Bank tellers Hannah and Mortensen both positively identified Brown as the robber in a field showup conducted shortly after the attempted robbery and identified him again in court. ² They also positively identified the shirt he was wearing during the robbery. Both Hannah and Mortensen described a distinctive haircut which matched Brown's booking photo, although only Hannah remembered the robber having a hair "tail" similar to Brown's photo. Additionally, part of the torn demand note was found in the RX-7 in which Brown was a passenger. While the descriptions the tellers gave before the field showup fit the driver of the RX-7 better than they fit Brown, who was the passenger, this does not overcome the evidence described above, which we conclude was sufficient to support Brown's conviction.

III.

Brown also argues there was insufficient evidence to establish that the bank was federally insured at the time of the robbery. A defendant cannot be convicted of bank robbery under 18 U.S.C. § 2113, or attempted...