Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1989)

MEMORANDUM^* 

Ruben Pina appeals his conviction on three counts of bank or savings and loan robbery in violation of 18 U.S.C. § 2113(a).¹  Pina contends that (1) the trial court erred in admitting evidence of his drug use near the time the robberies occurred, and (2) there was insufficient evidence to sustain his conviction on count three of the indictment.

Evidence that a defendant had a drug dependency is admissible pursuant to Fed.R.Evid. 404(b) to show a motive for robbery. See Huddleton v. United States, 108 S. Ct. 1496, 1499 (1988). The fact that Pina used drugs near the time of the robberies, coupled with the fact that he was unemployed, is probative of Pina's motive. See United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986); United States v. Saniti, 604 F.2d 603, 604 (9th Cir. 1979) (per curiam), cert. denied, 100 S. Ct. 461 (1979). The district court weighed the potential for unfair prejudice against the probative value of the evidence as required by Fed.R.Evid. 404(b). It did not abuse its discretion in admitting the evidence in this case.

Evidence at trial with respect to Count 3 of the indictment shows that Pina confronted a bank teller with a withdrawal ticket and asked the cashier how to fill it out. When she responded "I beg your pardon," he asked how much money the teller had in the cash drawer. She understood Pina to be demanding money, and gave him the money in her cash drawer. As he put the cash in his pocket he admonished the cashier not to pull anything. The appellant argues there is insufficient evidence to show "intimidation" within the meaning of 18 U.S.C. § 2113(a). We have held, however, that either express threats of bodily harm, threatening body motions, or the physical probability of concealed weapons are not required for conviction for bank robbery by intimidation. United States v. Hopkins, 703 F.2d 1102 (9th Cir.), cert. denied, 464 U.S. 963 (1963). Rather, threats may be implicit in written and verbal demands. The question of intimidation in this case properly went to the jury. See also United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980).

AFFIRMED.