                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-10035

             Plaintiff - Appellee,               D.C. No. CR 08-00102-KJD-LRL

  v.
                                                 MEMORANDUM *
ENRIQUE HURTADO, aka Enrique
Hurtado Jiminez,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                            Submitted March 8, 2010 **
                             San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

       Defendant Enrique Hurtado was convicted in federal court on eleven counts,

including one count of bank robbery and one count of armed bank robbery, 18

U.S.C. § 2113(a), (d), and one count of using a firearm during and in relation to a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
crime of violence, 18 U.S.C. § 924(c)(1)(A). He appeals the sufficiency of the

evidence for these convictions. We affirm.

       1. Defendant first contends that his stipulation that the bank and the credit

union were federally insured at the time of trial—approximately five months after

the robberies—was insufficient to prove that those institutions were federally

insured at the time of the robberies, as required by 18 U.S.C. § 2113. We review

for plain error because Defendant failed to move for acquittal. United States v.

Singh, 532 F.3d 1053, 1056-57 (9th Cir. 2008). In addition to signing the

stipulation, Defendant told the jury during his closing argument that "whether or

not the bank was insured by the FDIC, you don’t need[ ] to hear information like

that so we stipulate to that." A reasonable jury could have inferred beyond a

reasonable doubt from the stipulation and Defendant’s concession that the bank

and credit union were insured at the time of the robberies. Cf. United States v.

Ware, 416 F.3d 1118, 1120 (9th Cir. 2005) (present-tense trial testimony about

federally insured status, five months after the robbery, plus other evidence, was

sufficient).

       2. Defendant also challenges the sufficiency of the evidence establishing

that the weapon used to rob the Bank of America branch satisfied the definition of

a firearm in 18 U.S.C. § 921(a)(3). Because Defendant moved for acquittal on the


                                           2
18 U.S.C. § 924(c)(1)(A) count, we review the sufficiency of the evidence de novo,

United States v. Naghani, 361 F.3d 1255, 1261 (9th Cir. 2004), and we conclude

that the evidence was sufficient. The testimony of an eyewitness to a crime may

establish that a weapon is a real firearm. United States v. Garrido, No. 08-10398,

2010 WL 653439, at *2 (9th Cir. Feb. 25, 2010); United States v. Westerdahl, 945

F.2d 1083, 1088 (9th Cir. 1991); United States v. Harris, 792 F.2d 866, 867-68

(9th Cir. 1986). Here, the bank teller had an opportunity to observe the weapon at

close range. She testified that Defendant "pulled out his gun, pointed at me, and

put it right back in his pocket." The teller also testified that, after Defendant

showed her the weapon, she "was panicking," giving rise to a reasonable inference

that she believed the weapon to be a real firearm. The jury also heard testimony

that Defendant fired a firearm during a different robbery three days after robbing

the Bank of America branch. There was no evidence that Defendant ever

possessed a toy or replica gun. Contra United States v. Martinez-Jimenez, 864

F.2d 664, 665 (9th Cir. 1989).

      AFFIRMED.




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