U.S. v. Guerrero

• Decision Date: 10 March 1999
• Docket Number: No. 97-41184,97-41184
• Citation: 169 F.3d 933
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael Gracia GUERRERO, Defendant-Appellant.

Page 933

169 F.3d 933

UNITED STATES of America, Plaintiff-Appellee, v. Rafael Gracia GUERRERO, Defendant-Appellant.

No. 97-41184.

United States Court of Appeals, Fifth Circuit.

March 10, 1999.

Katherine L. Haden, Paula Camille Offenhauser, Asst. U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Rene Gomez, Law Office of Rene Gomez, Brownsville, TX, for Defendant-Appellant.

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

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 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 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 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 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 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 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...