United States v. Brian Fierro , 450 F. App'x 586 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 15 2011
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. 10-10075
Plaintiff - Appellee, D.C. No. 2:09-cr-00240-RLH-RJJ-
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v.
BRIAN FIERRO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted September 13, 2011 **
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief 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 Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
Brian Fierro appeals his jury trial conviction of one count of interference
with commerce by robbery (18 U.S.C. § 1951), one count of discharging a firearm
during a crime of violence (18 U.S.C. § 924(c)), and two counts of being a felon in
possession of a firearm (18 U.S.C. § 922(g)). We affirm in part and vacate and
remand in part. Because the parties are familiar with the history of the case, we
need not recount it here.
I
The district court did not plainly err by admitting the evidence Fierro
challenges on appeal. The district court did not plainly err when it admitted the
evidence that Fierro now challenges under Fed. R. Evid. 403. District judges are
not obligated to exclude evidence under Rule 403 sua sponte. See Wright &
Graham, Federal Practice & Procedure § 5224 (1978). Nor are they required to
explicitly describe their balancing determinations on the record when a 403
objection is raised. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1090-91
(9th Cir. 2000). The evidence that Fierro now challenges was mentioned only
briefly at trial, was “not an integral part of the government’s case,” and thus its
admission did not reach the level of plain error. See United States v. Gomez-
Gallardo, 915 F.2d 553, 557 (9th Cir. 1990).
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The district court did not plainly err when it admitted the evidence that
Fierro now challenges under Fed. R. Evid. 404(b). Rule 404(b) is a “rule of
inclusion” and “[u]nless the evidence of other crimes tends only to prove
propensity, it is admissible.” United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.
1999) (internal quotation marks and citation omitted). The government did not
introduce or use the challenged evidence to prove propensity. Fierro’s argument
that the district court should have applied a four-part test before admitting evidence
under Rule 404(b) is unpersuasive because it presumes that the defendant timely
objected, which Fierro did not.
II
The government introduced sufficient evidence of a nexus to interstate
commerce required to prove Hobbs Act robbery under 18 U.S.C. § 1951. To
establish the interstate commerce element of a Hobbs Act charge, “the government
need only establish that a defendant’s acts had a de minimis effect on interstate
commerce.” United States v. Lynch, 437 F.3d 902, 908 (9th Cir. 2006) (en banc).
The interstate nexus is satisfied by “proof of a probable or potential impact on
interstate commerce.” Id. at 909 (internal quotation marks omitted). This standard
is quite low, as “[t]he government need not show that a defendant’s acts actually
affected interstate commerce.” Id. We have “consistently upheld convictions
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under the Hobbs Act even where the connection to interstate commerce was
slight.” Id. (internal quotation marks and citation omitted).
Fierro agrees that the business he robbed, the Lucky Nickel Saloon, was
engaged in interstate commerce. However, he argues that the government failed to
present evidence that the robbery had even a de minimis effect on interstate
commerce. The record, however, indicates that the government introduced
sufficient evidence that could permit a jury to find that the robbery had a de
minimis impact on interstate commerce. Immediately following the robbery and
shooting, the Lucky Nickel temporarily closed so that officers could cordon off and
secure the scene to preserve it for investigation. They then interviewed witnesses
and examined the area with the crime scene analyst. The analyst photographed the
scene and collected evidence, even cutting open the wall to retrieve the bullet
embedded within. This is enough evidence of at least a de minimis interference
with interstate commerce. See United States v. Boyd, 480 F.3d 1178, 1179 (9th
Cir. 2007) (affirming a Hobbs Act conviction premised on a robbery that forced
the temporary closure of a business engaging in interstate transfers of money).
III
The government concedes that the district court committed plain error by
failing to dismiss a multiplicitous § 922(g) count for possession of the same
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firearm. Fierro was convicted of two counts of 18 U.S.C. § 922(g), each for
possession of the same .357 revolver. Fierro argues, and the government agrees,
that only one conviction is appropriate because his possession was one,
uninterrupted course of conduct. See United States v. Horodner, 993 F.2d 191,
192-93 (9th Cir. 1993) (holding that a defendant’s double jeopardy rights were
violated by his convictions on two § 922(g) counts where his gun “possession was
one uninterrupted course of conduct.”). Moreover, in order to support separate
§ 922(g) offenses, the separateness of acquisition or possession of a firearm must
be found by a jury. See United States v. Ankeny, 502 F.3d 829, 838 (9th Cir.
2007). Thus, we must vacate and remand to allow the district court to amend the
judgment to omit one of Fierro’s multiplicitous § 922(g) convictions.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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