     Case: 10-50822     Document: 00511752038         Page: 1     Date Filed: 02/08/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 8, 2012
                                     No. 10-50822
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NAHUM SAMIENTO RAMIREZ, also known as Nahum Sarmiento Ramirez;
RUILBER ALEXANDER ALEMAN,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:10-CR-123-3


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Nahum Samiento Ramirez and Ruilber Alexander Aleman appeal from
their convictions of bank robbery, using, carrying, or brandishing a firearm
during and in relation to a crime of violence, and aiding and abetting. Both
Ramirez and Aleman challenge the introduction of certain evidence, and
Ramirez challenges the sufficiency of the evidence to support his bank robbery
conviction.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-50822   Document: 00511752038      Page: 2   Date Filed: 02/08/2012

                                  No. 10-50822

      The convictions under consideration here arose from the robbery of
Cattleman’s National Bank (CNB) in Round Mountain, Texas, on November 20,
2009. The district court allowed the Government to present testimony about the
robbery of an Allstate insurance agency in San Antonio on November 19, 2009,
and testimony about the robbery of the Covarrubias Insurance Agency in San
Antonio on November 6, 2009.        Aleman and Ramirez both challenge the
introduction of evidence of the Allstate and Covarrubias robberies. Aleman
further contends that his motion for a severance should have been granted
because the evidence of the other robbery was relevant to Ramirez but not to
him. The Government contends that evidence of the Allstate robbery was
intrinsic to the CNB robbery because the two robberies were hours apart and
were part of a single criminal episode. Moreover, the Government argues, the
robberies were sufficiently similar to the CNB robbery to be admitted as
extrinsic evidence pursuant to Federal Rule of Evidence 404(b), and that any
prejudice was obviated by the district court’s instruction that Aleman and
Ramirez were not on trial for any acts not charged in the indictment.
      A district court’s evidentiary rulings are reviewed under the abuse of
discretion standard. United States v. Setser, 568 F.3d 482, 493 (5th Cir. 2009).
Rule 404(b) prohibits the introduction of evidence of other acts “to prove a
person’s character in order to show that . . . the person acted in accordance with
the character,” but other act evidence may be admitted “for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b). “In a
criminal case, Rule 404(b) evidence must be strictly relevant to the particular
offense charged.”   United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006).
Moreover, Rule 404(b) evidence “is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the actor.”
Huddleston v. United States, 485 U.S. 681, 689 (1988). “Even if the district court
abused its discretion, this court will not overturn a conviction unless the

                                        2
   Case: 10-50822    Document: 00511752038      Page: 3    Date Filed: 02/08/2012

                                  No. 10-50822

defendant was prejudiced by erroneous admission of evidence.” Yi, 460 F.3d at
631.
       Here, the testimony about the Allstate and Covarrubias robberies was
relevant as extrinsic act evidence because the modus operandi employed, the
clothing worn by the robbers, and the language spoken by the robbers was
similar to the modus operandi, clothing, and language in the CNB robbery.
Additionally, a camera belonging to a victim of the Allstate robbery was found
in the CNB getaway car, and one of the Allstate robbers brandished a firearm
visually similar to the firearm taken from Aleman when he was arrested.
Moreover, a victim of the Covarrubias robbery identified Ramirez as a robber,
and his fingerprints were found at the scene. The testimony about the two other
robberies was relevant to the CNB robbers’ identity, their modus operandi, their
planning, and their preparation. See Rule 404(b). Admission of the evidence
was not an abuse of discretion. See Setser, 568 F.3d at 493.
       The Government contends that evidence of the Allstate robbery was
intrinsic to the CNB robbery. We need not decide that issue, as the evidence was
admissible pursuant to Rule 404(b).
       Aleman cannot demonstrate that the joint trial prejudiced him to the
extent that the district court could not protect him, and the denial of the
severance request was not an abuse of discretion. See United States v. Peterson,
244 F.3d 385, 393 (5th Cir. 2001). First, both robberies were relevant to the case
against Aleman, even if the evidence was circumstantial and the evidence as to
the Covarrubias robbery was much stronger as to Ramirez. Thus, any spillover
effect was minimal. Second, although Aleman did not request any limiting
instruction, the district court instructed the jury that Aleman “is not on trial for
any act, conduct, or offense not alleged in the indictment.” Third, the prosecutor
told the jurors during closing arguments that it would not be asked to reach a
verdict as to the two robberies and that the evidence was presented to assist the
jury “make decisions about the planning of this case, about the aiding and

                                         3
   Case: 10-50822      Document: 00511752038    Page: 4   Date Filed: 02/08/2012

                                  No. 10-50822

abetting of these individuals together . . . , to help you make decisions about
identity of the robbers.” The jurors were informed correctly that Aleman was not
on trial for the other robberies and informed of the permissible uses of the
evidence. See FED. R. EVID. 404(b).
      This court will uphold the jury’s verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). This court “view[s] the
evidence in the light most favorable to the verdict and draw[s] all reasonable
inferences from the evidence to support the verdict.” Percel, 553 F.3d at 910
(internal quotation marks and citation omitted).
      This court does “not weigh evidence or assess the credibility of witnesses,
and the jury is free to choose among reasonable constructions of the evidence.”
United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). The jury
alone decides the credibility of witnesses and chooses among reasonable
constructions of the evidence. United States v. Zuniga, 18 F.3d 1254, 1260 (5th
Cir. 1994). This court must “consider the evidence, all reasonable inferences
drawn therefrom, and all credibility determinations in the light most favorable
to the prosecution.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
Review is “limited to whether the jury’s verdict was reasonable, not whether
[this court believes] it to be correct.” United States v. Williams, 264 F.3d 561,
576 (5th Cir. 2001).
      To establish a violation of 18 U.S.C. § 2113(a), “bank robbery and
incidental crimes,” the Government was required to prove beyond a reasonable
doubt that an individual or individuals “by force and violence, or by intimidation,
t[ook], or attempt[ed] to take, from the person or presence of another . . . any
property or money or any other thing of value belonging to, or in the care,
custody, control, management, or possession of, any bank, credit union, or any
savings and loan association.” § 2113(a). The statute defines a bank as an

                                        4
  Case: 10-50822    Document: 00511752038      Page: 5   Date Filed: 02/08/2012

                                 No. 10-50822

institution whose deposits are insured by the Federal Deposit Insurance
Corporation. § 2113(f). The FDIC-insured status of CNB is not at issue on
appeal; Ramirez challenges only his identity as a robber.
      Much of Ramirez’s brief is devoted to attacking the credibility of Police
Chief Randy Holland’s identification of Ramirez.            Even without that
identification, however, the evidence was sufficient to support Ramirez’s
conviction. First, Ramirez’s DNA was found in the getaway car and on a ski
mask found at George and Susie Bircks’s residence. Second, Ramirez was
wearing items of the Bircks’s clothing when he was arrested. Third, Ramirez
was identified as one of the robbers of the Covarrubias agency; Ramirez’s
fingerprints were found at the scene of that robbery; and the modus operandi of
the CNB and Covarrubias robbers was very similar. Fourth, the modus operandi
of the CNB and Allstate robberies was very similar. Fifth, Ramirez was engaged
in telephone calls with Aleman and codefendant Baltazar Nava that ended
approximately two hours before the CNB robbery. The jury could have inferred
beyond a reasonable doubt from this evidence that Ramirez was one of the CNB
robbers.
      Finally, Aleman moves for an order compelling counsel to file a brief or, in
the alternative, for appointment of new counsel. Counsel filed a merits brief,
rendering Aleman’s motion moot.
      AFFIRMED; MOTION DENIED.




                                        5
