United States of America, Plaintiff-appellee, v. Timothy M. Frank, Defendant-appellant, 70 F.3d 1280 (9th Cir. 1995)

MEMORANDUM^** 

1. Frank waived his objection to the admission of prior bad acts evidence; we may therefore only review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 113 S. Ct. 1770, 1776-77 (1993). Frank does not claim that error of this type occurred here. He argues instead that a stipulation of counsel on a matter of law is not binding on the courts. See United States v. Miller, 822 F.2d 828, 831-32 (9th Cir. 1987). However, the parties here did not stipulate that the prior bad acts evidence was admissible; the district judge had already ruled to that effect. What Frank refers to as a stipulation was actually an agreement by Frank to waive his objection to the evidence; in exchange, the prosecutor did not present evidence of each prior bad act. That this stipulation does not bind us does not change the fact that Frank failed to preserve an objection to the evidence.

2. The district court properly imposed a two-point sentencing enhancement pursuant to USSG Sec. 3A1.1. Its finding that Frank knew or should have known that his victims were unusually vulnerable was not clearly erroneous. Contrary to Frank's argument, the enhancement is applicable even where the defendant did not specifically target his victims because they were vulnerable. See United States v. O'Brien, 50 F.3d 751, 755 (9th Cir. 1995).

AFFIRMED.