     Case: 12-40052       Document: 00512069564         Page: 1     Date Filed: 11/30/2012




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

                                                                            FILED
                                                                        November 30, 2012
                                     No. 12-40052
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN IBARRA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1029-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Ruben Ibarra was convicted by a jury of one count of unlawfully possessing
a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced him to 120 months of imprisonment and two years
of supervised release.
       On appeal, Ibarra presents several arguments related to the evidence
offered by the Government in support of his status as a previously convicted
felon. First, he argues that the district court improperly admitted a fingerprint

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 12-40052

card that was attached to a state court felony judgment. Ibarra’s argument is
flatly contradicted by the trial record. Here, the Government offered into
evidence a certified copy of a Judgment of Conviction and Sentence issued
against “Ruben Ibarra” on January 6, 2009, in the 406th Judicial District Court
of Webb County, Texas, Cause No. 2008CRD000629-D4. Attached to the state
judgment was a copy of a document bearing the same caption and date as that
judgment and containing a full set of fingerprints of the defendant in that case.
The fingerprints were taken by a court bailiff in accordance with the Texas
statute requiring that a judgment reflect the defendant’s thumbprint. See TEX.
CODE. CRIM. P. art 42.01 § 1(23).
      Additionally, the Government presented the testimony of a deputy clerk
for the District Clerk’s Office of Webb County. According to the deputy clerk,
who testified as custodian of records for that office and the courts that it serves,
the judgment–including the fingerprint card–was the certified copy of conviction
kept by the Clerk’s Office in the regular course of business. Based on the
foregoing testimony, it is evident that the challenged fingerprint card is
self-authenticating, and thus the district court did not abuse its discretion in
admitting the card. See FED. R. EVID. 902(4)(A); United States v. Jackson, 636
F.3d 687, 692 (5th Cir. 2011). Even if the fingerprint card arguably is not self-
authenticating, the district court did not abuse its discretion in admitting the
card into evidence, because it also qualifies as a “public record” admissible under
Rule 901(b)(7) of the Federal Rules of Evidence.
      Next, Ibarra complains that the evidence was not legally sufficient to
support his conviction. Because Ibarra moved for a judgment of acquittal after
the Government rested and presented no evidence in his own defense, he
properly preserved his evidentiary sufficiency argument. United States v.
Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995). We review de novo a challenge
to the sufficiency of evidence supporting a conviction.          United States v.
McDowell, 498 F.3d 308, 312 (5th Cir. 2007). “[We] view all evidence, whether

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                                   No. 12-40052

circumstantial or direct, in the light most favorable to the Government with all
reasonable inferences to be made in support of the jury’s verdict.” United States
v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). “The evidence need not exclude
every reasonable hypothesis of innocence or be completely inconsistent with
every conclusion except guilt, so long as a reasonable trier of fact could find that
the evidence established guilt beyond a reasonable doubt.” Id.
      To prove the felon-in-possession charge, the Government was required to
prove that (1) Ibarra had a prior felony conviction, (2) he possessed a firearm,
and (3) the firearm had traveled in interstate commerce. See 21 U.S.C. § 922(g);
United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). Ibarra’s sufficiency
challenge concerns only the first element and, more specifically, his identity as
the “Ruben Ibarra” listed in the state court felony judgment. This challenge
fails, however. As noted above, the Government introduced authenticated copies
of the fingerprint card taken by the defendant in the previous state court
proceeding on the same day judgment was entered in that case.                    The
Government also presented the testimony of an expert in the field of fingerprint
analysis and identification, who testified that, on the morning of trial, he took
the impressions of Ibarra’s fingerprints, which he determined matched the set
of fingerprints found in the state court papers. This evidence, when viewed in
the light most favorable to the Government, was sufficient to prove beyond a
reasonable doubt that Ibarra was the defendant in the prior state felony
judgment. See, e.g., United States v. Lampton, 158 F.3d 251, 260 (5th Cir. 1998)
(involving challenge to 21 U.S.C. § 841(b)(1)(A) enhancement).
      As an alternative argument, Ibarra argues that this court should grant
him a new trial. His argument is premised on this court’s finding enough doubt
as to his guilt, even if not sufficient to require acquittal, such that a new trial is
warranted. Assuming arguendo that this court had the power to grant a new
trial under 28 U.S.C. § 2106, such relief is not warranted here as the evidence



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                                  No. 12-40052

supports Ibarra’s conviction beyond a reasonable doubt. See United States v.
Garcia-Gracia, 324 F. App’x 286, 296-97 & n.6 (5th Cir. 2009).
      Finally, Ibarra contends that, during his rebuttal closing argument, the
prosecutor improperly commented on the weight of the evidence and on matters
not in evidence. However, even if the prosecutor made an improper remark, as
Ibarra alleges, he has not demonstrated that the remark caused him prejudice.
See United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007). Following the
complained-of remark, the district court immediately instructed the jury that
neither counsel was not providing any personal opinions.          The court also
instructed the jury several times that arguments made by counsel were not
evidence and that the jurors were the sole judges of the credibility of each
witness and of the weight to be given to each witness’s testimony. This court
presumes that the jury follows the instructions of the court. See United States
v. Tomblin, 46 F.3d 1369, 1390 (5th Cir. 1995). Moreover, the evidence of
Ibarra’s culpability for the charged offense was extensive. Considering the
foregoing, the prosecutor’s remarks, even if improper, do not cast serious doubt
on the correctness of the jury’s verdict, and thus the district court did not abuse
its direction or err in overruling Ibarra’s objection to the rebuttal argument. See
United States v. Gracia, 522 F.3d 597, 600 n. 2 (5th Cir. 2008); United States v.
Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004).
      AFFIRMED.




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