USA v. Zamora, No. 98-2314

• Citation: 222 F.3d 756
• Decision Date: 21 July 2000
• Docket Number: No. 98-2314
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAUL ZAMORA, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 756

222 F.3d 756 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAUL ZAMORA, Defendant-Appellant.

No. 98-2314

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 21, 2000

Appeal from the United States District Court for the District of New Mexico. D.C. No. CR-97-488 JC

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Marc H. Robert, Marc H. Robert, P.C., Albuquerque, New Mexico, for Defendant-Appellant.

Louis E. Valencia, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before EBEL,PORFILIO and ANDERSON, Circuit Judges.

EBEL, Circuit Judge.

Appellant Raul Zamora was convicted of one count of aiding and abetting an attempted armed robbery in violation of 18 U.S.C. 2113 (a) and (d). On appeal, Zamora argues that the district court erred by (1) admitting 404(b) evidence of a subsequent robbery, (2) finding that false imprisonment is a crime of violence under U.S.S.G. 4B1.1, (3) denying his motion to suppress statements to the FBI, and (4) denying his request to instruct the jury on simple bank robbery. We exercise jurisdiction under 28 U.S.C. 1291 and AFFIRM.

BACKGROUND

On July 9, 1997, Joseph Gutierrez attempted to rob the Guadalupe Credit Union ("GCU") in Sante Fe, New Mexico. Gutierrez testified at trial that two days prior to the attempted robbery, he and Zamora went from Albuquerque to Sante Fe to check out the GCU and plan how they were going to execute the robbery. During this dry run, Gutierrez and Zamora scoped out the GCU and planned where Zamora would park the getaway car while Gutierrez was inside robbing the GCU. In addition, the two men stopped at a supermarket that had a bank inside and obtained a bank receipt on which they planned to write the demand note.

On July 9, the day of the robbery, Zamora picked up Gutierrez at his house in Albuquerque. After buying and consuming a quantity of drugs, the two men headed to Zamora's Aunt's house, where they obtained some wrapping paper, which was used later to wrap up a box at Gutierrez' house. Once the package was wrapped, Gutierrez instructed Zamora to write out a note that stated there was a bomb in the box and demanded that the clerk put money in a bag. The note further stated that if the instructions were followed, the bomb would not be activated. After writing the demand note, Gutierrez testified that he and Zamora got into Zamora's car and headed down to Sante Fe. Zamora dropped Gutierrez off in front of the bank and parked the car in the previously selected spot.

Gutierrez, who was carrying the fake bomb, went inside the GCU and approached Joniva Garcia, who was covering the teller line at that time. Gutierrez first asked Ms. Garcia if she had coin wrappers. As Ms. Garcia was providing Gutierrez with the coin wrappers, he handed her the demand note that Zamora had written and placed the fake bomb on the counter. Ms. Garcia testified that she was terrified, because she knew that she did not have access to any money and she did not know what Gutierrez would do when he found out. She proceeded to open several drawers, but there was no money in either of them, and she did not have the key to open any drawers that did contain money. At that point, Gutierrez ran out of the bank. Ms. Garcia then activated the silent alarm and evacuated the building because of the bomb threat.

Meanwhile, Gutierrez found Zamora, who was waiting in the car, and told him to quickly leave town because the robbery attempt had failed. Gutierrez testified that when he told Zamora that he did not get any money in the GCU, Zamora stated "well, we're going to have to do something in Albuquerque." Zamora and Gutierrez then headed to Albuquerque and stopped at a JB's restaurant. After eating at JB's, Zamora told Gutierrez that he was going to rob the place. Gutierrez then headed out to Zamora's car to wait for Zamora. When Zamora returned to the car, he had a hand full of money with receipts. Zamora and Gutierrez used the money to buy drugs.

On July 11, 1997, Gutierrez was arrested and confessed to his participation in the GCU robbery. Gutierrez further revealed that he had an accomplice in the GCU robbery. A videotape taken during the JB's robbery helped to identify Zamora.

On July 27, 1997, the FBI arrested Zamora. After Zamora was advised of his Miranda rights, he made a statement to the agents. In his initial statement, Zamora claimed to be an innocent accomplice. The agents then interrupted Zamora and told him that his story was inconsistent with the facts as they knew them from their own investigation. Zamora then paused and said "if that's the case, then then I might want to talk to an attorney." The FBI agents did not consider this to be a request for an attorney and responded to Zamora by telling him that they had gotten everybody else's story. Zamora then went into a narrative as to his involvement in the attempted robbery of the credit union.¹

On August 21, 1997, a federal grand jury returned an indictment charging Zamora with aiding and abetting an attempted armed bank robbery. On October 9, 1997, Zamora filed a motion seeking to suppress the statement he made to the FBI when he was arrested, arguing that the FBI ignored his invocation of the right to counsel. After a hearing, the district court denied the motion. In February, Zamora entered a plea of guilty to a superseding indictment which he ultimately withdrew in May.

On June 4, 1998, a federal grand jury returned a superseding indictment charging Zamora with one count of aiding and abetting an attempted armed robbery, and one count of being an accessory after the fact.

On July 13, 1998, the government filed a motion in limine asking the trial court to admit under Federal Rule of Evidence 404(b) the JB robbery committed by Zamora. The district court granted the motion. Thereafter, Zamora stipulated to the JB robbery in order to minimize the impact on his defense. Because of the stipulation, the court excluded certain government witnesses to the JB robbery and the videotape, but allowed the government to question Gutierrez about the robbery. The court ultimately allowed the admission of the videotape, however, after Zamora testified on his own behalf. The court determined that Zamora opened the door by putting his credibility on the line when he testified that he committed the robbery to be macho and to protect the clerk.

Following the jury trial, Zamora was convicted on count one, aiding and abetting an attempted armed robbery. After finding that false imprisonment, of which Zamora had previously been convicted, is a crime of violence, the court determined that Zamora was a career offender under U.S.S.G. 4B1.1 and sentenced him accordingly to 262 months incarceration. Zamora now appeals.

DISCUSSION

I. 404(b) Evidence

Zamora objects to the admission at trial of evidence that he committed the robbery at JB's restaurant only hours after the failed robbery attempt at the GCU. Zamora claims evidence of the JB's robbery was not properly admissible under Federal Rule of Evidence 404(b), because it was irrelevant and highly prejudicial. The government counters that the evidence was highly relevant to the issues of Zamora's motive, state of mind, plan, knowledge, and lack of mistake or accident. We review the district court's admission of evidence under Rule 404(b) for an abuse of discretion. See United States v. Roberts, 185 F.3d 1125, 1141 (10th Cir. 1999).

Federal Rule of Evidence 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, evidence of another crime may be admitted to establish motive, intent, preparation, plan, identity, and absence of mistake or accident. See Fed. R. Evid. 404(b).

To determine whether Rule 404(b) evidence was properly admitted we look to the four-part test set out by the Supreme Court in Huddleston v.United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). This test requires that:

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed. R. Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

Roberts, 185 F.3d at 1141 (internal quotations and citation omitted).

The government states that the evidence was offered at trial for the purpose of showing Zamora's motive, state of mind, plan, knowledge, and lack of mistake or accident. These are clearly proper purposes for the introduction of Rule 404(b) evidence; thus the government has fulfilled the first Huddleston requirement.

The next question is whether the JB's robbery was relevant to proving these proper purposes. Zamora contends the evidence is not relevant because the JB's robbery was subsequent to the charged crime and was not sufficiently similar to the GCU robbery to be probative. We disagree.

This court has previously recognized the probative value of uncharged acts to show motive, intent, and knowledge, whether the acts involved previous conduct or conduct subsequent to the charged offense, as long as the uncharged acts are similar to the charged crime and sufficiently close in time. See United States v. Olivo, 80 F.3d 1466, 1468-69 (10th Cir. 1996); United States v. Bonnett, 877 F.2d 1450, 1461 (10th Cir. 1989). Moreover, although the uncharged crime must be similar to the charged offense, it need not be identical. United States v. Gutierrez, 696 F.2d 753, 755 (10th Cir. 1982). This similarity may be shown through "physical similarity of the acts or through the 'defendant's indulging himself in the same state of mind in the perpetration of both the...