                          UNITED STATES COURT OF APPEALS
Filed 11/29/96
                                     TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

               v.                                             No. 96-6008
                                                        (D.C. No. CR-95-119-M)
 RONN DARNELL STERLING,                                       (W.D. Okla.)

           Defendant-Appellant.




                                  ORDER AND JUDGMENT*


Before PORFILIO, HOLLOWAY, and BRISCOE, Circuit Judges.


       Ronn Darnell Sterling appeals his convictions of bank robbery, 18 U.S.C. §

2113(a) and (d), carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1), and

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Sterling contends there

was insufficient evidence that First Enterprise Bank was insured by FDIC at the time of

the robbery, and that the district court erred in admitting evidence that he threatened the

government's principal witness. We affirm.




       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I.




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       When sufficiency of the evidence is challenged on appeal, this court must view the

evidence in the light most favorable to the government to determine whether any rational

factfinder could have found the defendant guilty beyond a reasonable doubt. E.g., United

States v. Reece, 86 F.3d 994, 995 (10th Cir. 1996).

       Sterling does not challenge the sufficiency of the evidence generally, but argues

testimony regarding the insured status of the bank was insufficient to prove that element

of the crime of bank robbery. Proof that the institution robbed was insured by FDIC

establishes an essential element of an 18 U.S.C. § 2113 violation. See 18 U.S.C. §

2113(f) (defining "bank" to include "any institution the deposits of which are insured by

the Federal Deposit Insurance Corporation").

       Evidence of the bank's insured status was presented through the testimony of

Donna Terbush, an auditor at the bank. Her testimony was clearly sufficient to meet the

government's burden of proof. There is ample evidence to support Sterling's conviction.

                                            II.

       During cross-examination, Josue Jerome Walton, a confessed participant in the

robbery and a witness for the government, was asked by defense counsel: "Is it true that

you need protection if you give the names of the robbers that committed this bank robbery

with you?" Walton responded, "I don't need it but I do believe he might try to do

something to my family. I've been threatened once." Vol. II at 169. During redirect

examination, the prosecutor sought to introduce Walton's testimony regarding the threats

made against him. Sterling's counsel objected, arguing it was more prejudicial than

probative. The district court permitted Walton to testify as follows:

       In the van on the way over here, he was calling me a rat and a snitch and then he
       said my son was going to grow up just like me to be a little snitch. Then he said,

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       he kept going on and on about that. Calling me a rat and stuff. When we got
       upstairs, when he was leaving coming down to court, he turned and said, "If
       nothing can happen to you don't mean it can't happen to someone else, because I
       still got people out there." That was it.

Vol. III at 311. Sterling argues on appeal that this evidence was irrelevant to any issues in

the case and that it was improperly admitted as evidence of other bad acts, contrary to

Fed. R. Evid. 404(b). The government argues the testimony was introduced under the

rule announced in United States v. Smith, 629 F.2d 650, 651 (10th Cir.), cert. denied 449

U.S. 994 (1980): "Evidence of threats to a prosecution witness is admissible as showing

consciousness of guilt if a direct connection is established between the defendant and the

threat."

       We review the district court's admission of evidence for abuse of discretion and

will not disturb its decision unless we reach a definite and firm conviction that the court

"made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances." United States v. Snow, 82 F.3d 935, 943 (10th Cir. 1996) (citations

omitted).

       Clearly, evidence of a defendant's threat to a prosecution witness is evidence of a

wrong, which is inadmissible under Rule 404(b) when introduced to show a defendant's

character in order to establish action in conformity therewith. However, such evidence is

properly admissible to show consciousness of guilt. See United States v. Esparsen, 930

F.2d 1461, 1476 n. 16 (10th Cir. 1991), cert. denied 502 U.S. 1036 (1992) (consciousness

of guilt relevant to motive, intent, plan, and knowledge under Rule 404(b) such that

threats properly admissible). This evidence was highly relevant and probative. Sterling's

statements to Walton that Walton was a "snitch" indicate not that Sterling believed



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Walton to be accusing Sterling falsely, but only viciously. The district court did not abuse

its discretion.

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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