United States v. Guerrero

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 3, 2003

Charles R. Fulbruge III No. 01-41115 Clerk Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL GRACIA GUERRERO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-00-CR-514-1-S)

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rafael Gracia Guerrero appeals his conviction, following a

jury trial, for bank robbery. 18 U.S.C. § 2113(a) & (d) (taking

money with force, violence or intimidation from a bank). In

contending the district court erred in denying his motion for a

judgment of acquittal, Guerrero claims insufficient evidence

proving his identity as one of the bank robbers. There was

evidence: Guerrero was a major contributor of DNA to a ski mask

found at the bank; he participated in robberies with similar modus

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. operandi; and his behavior upon being stopped for a traffic

violation indicated a guilty conscience. Viewed in the light most

favorable to the government, a rational jury could have found,

beyond a reasonable doubt, that Guerrero was one of the bank

robbers. E.g., United States v. Edwards, 303 F.3d 606, 635 (5th

Cir. 2002), cert. denied, __ S.Ct. __, 71 U.S.L.W. 3430 (24 Feb.

2003).

Guerrero also contends the district court erred by admitting

claimed hearsay testimony discrediting his alibi. Even if the

testimony were hearsay, given the evidence of Guerrero’s guilt, the

admission constituted harmless error. E.g., Edwards, 303 F.3d at

623.

AFFIRMED