21 F.3d 874 (9th Cir. 1994), 93-10035, United States v. Luna

Docket Nº:93-10035, 93-10036 and 93-10059.
Citation:21 F.3d 874
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David LUNA; Robert Todd Torres; Richard Aereleo Pina, Defendants-Appellants.
Case Date:April 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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21 F.3d 874 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

David LUNA; Robert Todd Torres; Richard Aereleo Pina,

Defendants-Appellants.

Nos. 93-10035, 93-10036 and 93-10059.

United States Court of Appeals, Ninth Circuit

April 5, 1994

Argued and Submitted Feb. 7, 1994.

As Amended May 4, 1994.

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James R. Homola, Fresno, CA, for defendant-appellant David Luna.

Francine Zepeda, Fresno, CA, for defendant-appellant Robert Todd Torres.

Barry F. Nix, Fresno, CA, for defendant-appellant Richard Pina.

Jonathan B. Conklin, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

FLETCHER, Circuit Judge:

Defendants Richard Pina and Robert Todd Torres were convicted of robbing the Western Financial Savings Bank in Fresno, California; Pina, Torres, and David Luna were convicted of robbing the Bank of America, also in Fresno. Evidence of two subsequent Oregon bank robberies for which Luna and Pina were alleged to have been responsible was admitted, under Fed.R.Evid. 404(b), to prove the identity of the Fresno bank robbers.

Luna and Pina contend that the district court erred in admitting the evidence of the two Oregon bank robberies. We agree, and reverse Luna's and Pina's convictions on that basis. We reject Pina's and Torres' challenge to the sufficiency of the evidence, and affirm Torres' conviction. We also conclude that the district court correctly adjusted Torres' offense level upward for reckless endangerment and for infliction of bodily injury.

FACTS

  1. The First Charged Robbery: Western Financial Savings Bank

    On March 12, 1992, the Western Financial Savings Bank, in Fresno, was robbed by two gunmen. The robbery was performed "takeover style": after a loud entry, the robbers ordered all of the bank employees and customers, at gunpoint, to get on the floor. One of the robbers then jumped over the counter, made the tellers open their drawers, and began emptying money into a pillowcase-like bag. The other robber stood guard on top of

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    the counter. Two of the tellers were grabbed or pulled by the hair. The robbers were also verbally abusive to the tellers.

    The robbers were dressed in dark sweatpants and sweatshirts, with nylon stocking masks over their heads. At least one robber wore gloves, which according to one witness were not surgical gloves. One or both of the robbers wore baseball hats.

    After three or four minutes, the robbers left the bank, yelling, as they went out, "this is Crips 107." The robbers were observed by a gardener, who was standing outside the bank raking flower beds; he watched them run by with their guns and their bag of money, one robber shedding his stocking mask as he ran. Baseball hats were later found in the hallway in front of the bank. The robbers jumped into a car which was then driven off, probably by a third person.

    After the robbery, one victim was able to make a positive identification of Torres from a police photo spread, and again identified Torres in court. Probation officers identified both Torres and Pina from bank surveillance photographs.

  2. The Second Charged Robbery: Bank of America

    On March 23, 1992, between 10:30 and 11:00 a.m., three men, at least two of them armed, robbed the Bank of America in Fresno. This robbery also was committed takeover style; when the men burst into the bank, they shouted out, according to different witnesses, "Everybody down," or "This is a robbery," or "This is a holdup. Don't move." All three robbers jumped over the counters; they pulled the cash cans out of the tellers' drawers and threw them onto the floor. They loaded the money into bags described variously as white bank bags, canvas bags, beige bags, and pillowcases. The robbers used foul language with the tellers, but did not physically abuse anybody until, on the way out, one of them struck the bank manager in the face.

    The robbers were dressed in dark sweatpants and sweatshirts. Two wore ski masks; one wore a nylon stocking mask. At least one robber wore surgical gloves. One of the bank tellers saw a tattoo on the left side of the neck of one of the robbers. The teller testified that the tattoo was consistent with a tattoo that Torres had on the left side of his neck at the time of trial.

    After the robbery, at 11:45 a.m., Deputy Elerick of the Fresno County Sheriff's Department recognized a car he had stopped on March 11, 1992. Elerick also recognized the occupants from the previous stop: the driver was Luna and one of the passengers was Pina. Elerick followed the car; after it ran three stop signs, he attempted to make a vehicle stop. Rather than pulling over, however, the car stopped in the middle of the street. Elerick approached the car, but after seeing Luna reach down toward the floorboard, ran back toward his own vehicle. The car started to move again; Elerick chased it for a short distance; the car stopped, and three persons jumped out and fled. The car, which was still running, rolled over the curb and then stopped beneath a tree. The third person who jumped from the car, according to Elerick, was an Hispanic male in his late teens or early twenties, between 5'5" and 5'9", and weighing between 130 and 150 lbs.

    Inside the car, officers found a revolver later discovered to have one of Torres' fingerprints on it. The customer service manager at the Bank of America testified that this revolver was similar to the gun one of the robbers had brandished. Also in the car, the officers found a semiautomatic handgun (in the area where Luna had been reaching), a bag of surgical gloves, and several torn-out yellow pages from a phone book, listing financial institutions. Outside the car, police discovered an L.A. Kings baseball hat; "Crips 107" was written under the bill. Police also found a maroon sweatshirt near a house that the suspects had run past; witnesses from the bank identified it as similar to a sweatshirt one of the robbers had been wearing. Upon investigation, the police found that the car belonged to Pina's girlfriend.

  3. The First Uncharged Robbery: Security Pacific Bank

    On April 20, 1992, at approximately 11:00 a.m., two men burst through the doors of the

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    Security Pacific Bank, in Beaverton, Oregon, and ordered everyone inside to get down on the floor. One man remained in the lobby area with his gun drawn; the other jumped over the tellers' counter and forced the tellers to open their cash drawers and give him money. This robber had a bag which one witness said might have been a pillowcase and which other witnesses described as light, whitish, or beige. The robbers yelled profanities at the bank employees, and the robber behind the counter grabbed one teller by the arm and attempted to pick up another teller by his hair.

    The robbers wore nylon stocking masks and were dressed in sweatshirts and sweatpants; the pants of one robber may have been blue, and his shirt may have been a lighter color. The robber who remained in the lobby wore a hat; the counter-jumper did not. The robbers wore gloves which may have been either cotton or surgical gloves.

    Also on the morning of April 20, a witness in the vicinity saw a car speeding away from the bank; reddish-colored smoke that could have been from a dye packet was coming out of the car. The witness saw three persons in the car. One person was holding onto the roof of the car with a surgical-gloved hand, while throwing items out of the car with the other hand. Two of these items turned out to be a baseball hat and a woman's nylon stocking.

    On that same day, half a mile from the bank, an FBI agent inspected an abandoned car which looked as if it had been stolen, and which had reddish dye stains in the interior. Money was scattered through the car. A semiautomatic handgun was also inside. The car had been left with its engine running.

    Parole officers looking at bank surveillance photographs later identified the robbers as Pina and Luna. On April 24, a police officer stopped a car driven by a man named Jimmy Ray Vaughn. The two other people in the car gave the names of Paul Lopez and Ralph Rey, but were later identified as Pina and Luna. Luna was wearing a baseball hat and blue sweats.

  4. The Second Uncharged Robbery: Far West Savings Bank

    At approximately 10:50 a.m. on April 28, 1992, two men wearing nylon stockings on their heads made a very loud entrance into the Far West Savings Bank in Hillsboro, Oregon. One of them brandished a gun. First one and then the other robber came over the tellers' counter. They forced a teller to open his drawer, and when he didn't give them enough money, pushed him and tossed him back and forth between them. They also took money from the purse of one of the women in the bank. They were verbally abusive. The robbers wore blue and red sweatsuits, and baseball hats. One robber wore gloves which a witness described as being "more like white cotton work gloves"; the other wore white gloves made of a material the witness did not recall. Tr. at 430.

    Just before 11:00 a.m. that same day, Officer Sarrett of the Washington County Sheriff's Office learned that a bank robbery had taken place, and drove toward Hillsboro to try to find the robbers. On his way to town, he noticed that the driver of a car coming toward him was staring straight ahead without looking from side to side. His suspicions alerted, Sarrett turned around and followed. He turned on his overhead lights, and the car sped away from him. He lost it briefly and soon thereafter found it abandoned in the middle of the road, with the ignition on. A bystander (holding a pillowcase) told him that three men had...

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