Unpublished Disposition, 931 F.2d 898 (9th Cir. 1989)

MEMORANDUM^** 

David Eugene Cabrera appeals his conviction, following a jury trial, for one count of armed bank robbery. Cabrera claims that the district court abused its discretion by admitting evidence of a pellet gun found in the car he was driving when he was arrested two days after the robbery, and that the evidence was insufficient to show that he used a weapon in committing the crime. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the legal question whether a proffered item is evidence of "other crimes" under Fed.R.Evid. 404(b). United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). "Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ['other'] act and the evidence concerning the crime charged are inextricably intertwined.' " Id., 813 F.2d at 279 (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)). We review for abuse of discretion a district court's decision to admit evidence over a defendant's contemporaneous objection. United States v. Catraban, 836 F.2d 453, 456 (9th Cir. 1988).¹ 

Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Merely showing a gun in the commission of a bank robbery is an assault within the meaning of 18 U.S.C. § 2113(d). United States v. Martinez-Jimenez, 864 F.2d 664, 667 (9th Cir.), cert. denied, 489 U.S. 1099 (1989).

Cabrera was arrested on November 15, 1989, shortly after he robbed the American Interstate Bank in Orange, California. When they arrested him, police found a pellet gun in the car Cabrera was driving. On December 1, 1989, he was indicted in two counts for an armed bank robbery that occurred on November 13, 1989 (Count I) and the unarmed bank robbery for which he was arrested on November 15 (Count II). Before trial, he pleaded guilty to the November 15 robbery (Count II), and conceded that he had committed the November 13 robbery. Thus, the sole issue at trial was whether Cabrera had used a gun in the November 13 robbery. The district court admitted evidence of the pellet gun police found in Cabrera's car at the time of his arrest, and testimony that linked the gun to the November 13 robbery.

Cabrera contends that the toy gun was inadmissible evidence of "other crimes" under Fed.R.Evid. 404(b). We disagree. Possession of the gun was not itself a crime, and the other crime to which Cabrera pleaded was unarmed bank robbery. Thus, the gun was relevant only to the armed bank robbery for which Cabrera stood trial. Therefore, we hold that the gun was direct evidence, and not evidence of other crimes subject to exclusion under Fed.R.Evid. 404(b). See Soliman, 813 F.2d at 279.

Cabrera claims the evidence was insufficient to prove that he used or possessed a gun in the commission of the robbery. This claim lacks merit. The victim teller, Alice Williams, testified that Cabrera handed her a demand note which read in part "Give me your money. I have a gun." He then removed a gun from his waistband, pointed it at her, and returned it to his waistband. Williams could not conclusively identify the pellet gun at trial, however, and another teller testified that she observed Cabrera but saw no gun. Dennis Sulka, a retired Orange County Sheriff's Department investigator, testified that Cabrera had telephoned him on the day he was arrested and said he had shown the teller a gun in his waistband, but had not removed it and pointed it at her. Finally, Officer Alexander Varga of the Orange Police Department testified that, shortly after his arrest, Cabrera commented to him that his toy gun worked well and that people thought it was real. This testimony was sufficient to show beyond a reasonable doubt that Cabrera possessed or used a gun to commit the November 13 robbery. See Adler, 879 F.2d at 495.

AFFIRMED.