                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2010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. 09-30301

              Plaintiff - Appellee,              D.C. No. 2:07-cr-02056-LRS-1

  v.
                                                 MEMORANDUM *
CHARLES ALLEN GIPSON,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Eastern District of Washington
                  Lonny R. Suko, Chief District Judge, Presiding

                             Submitted July 13, 2010 **
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
      Charles A. Gipson appeals his jury conviction for robbing the Wapato

branch of the Central Valley Bank (Wapato Branch). 18 U.S.C. § 2113(a). We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      As the government concedes, the Confrontation Clause was violated by the

admission of a declaration stating that an FDIC search revealed no record that the

Wapato Branch’s FDIC-insured status had been terminated. See Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2538-40 (2009). However, assuming the issue is

preserved, this violation was harmless beyond a reasonable doubt, see United

States v. Norwood, 603 F.3d 1063, 1068-69 (9th Cir. 2010), and the government

met its burden of proving the Wapato Branch’s FDIC-insured status, see United

States v. Ware, 416 F.3d 1118, 1121-23 (9th Cir. 2005). The offending statement

was cumulative of other circumstantial evidence showing, beyond a reasonable

doubt, that the Wapato Branch was federally insured on the day of the robbery.

Moreover, Gipson presented no evidence contradicting the government’s records

and testimony, and he does not contend on appeal that this evidence was

improperly admitted.

      Further, the district court did not abuse its discretion in admitting exhibits

comparing post-arrest photographs of Gipson with stills of the bank robber taken

from the security camera footage. “The admission of photographic evidence is


                                           2
largely a matter of discretion for the trial judge.” United States v. May, 622 F.2d

1000, 1007 (9th Cir. 1980). First, these photographs were not altered as Gipson

claims. Second, the production of the photographs was thoroughly described to the

jury, so it was within the province of the jury to decide how much weight to give

this evidence. See Unites States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.

2003). Third, the jury had the originals to compare to the enlarged photographs, so

it could determine whether there had been improper manipulation. Cf. United

States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980) (“[T]he photographs

exhibited to the [government’s witnesses] depicted the perpetrators of the robbery.

Thus, any resemblance between the persons in the photographs and the defendants

not only was not impermissibly suggestive, but, in fact, was highly probative.”);

Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (“We are content to rely upon the

good sense and judgment of American juries, for evidence with some element of

untrustworthiness is customary grist for the jury mill.”).

      AFFIRMED.




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