United States v. Renteria

Full title: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANUEL TISCORENA…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 22, 2006

No. 04-50576 (9th Cir. Dec. 22, 2006)

Opinion

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANUEL TISCORENA RENTERIA, aka Manuel Tescorena Renteria, Defendant-Appellant. No. 04-50576 United States Court of Appeals, Ninth Circuit December 22, 2006

NOT FOR PUBLICATION

Southern District of California, No. CR-04-00138-LAB San Diego.

Before: SCHROEDER, Chief Circuit Judge, FRIEDMAN ^* and LEAVY, Circuit Judges.

* The Honorable Daniel M. Friedman, Senior United States Circuit Judge for the Federal Circuit, sitting by designation.

ORDER

The memorandum disposition filed June 27, 2006, and appearing at 187 Fed.Appx. 704 (9th Cir. 2006), is amended as follows:

At 187 Fed.Appx. at 706-707, delete the paragraph beginning §Renteria also argues that the evidence not show . . .§ and insert the following two paragraphs:

Although we reverse Renteria§s conviction, we must still consider his claim that the government failed to present sufficient evidence at trial to support a conviction. See United States v. Bishop, 959 F.2d 820, 828 (9th Cir. 1992) (§[t]he existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence§). §[T]he defendant who successfully challenges a conviction for insufficiency of the evidence is entitled not only to a reversal of his conviction but also to an order directing the district court to enter a judgment of acquittal with respect to that conviction.§ Id.

Viewing the evidence presented concerning the gift shop in the light most favorable to the prosecution, we conclude that a §rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.§ Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence presented showed that the gift shop space was rented by the Synagogue to an independent third party at a fixed monthly rate. The shop averaged $2,000 to $3,000 a month in sales of goods from throughout the United States and Israel. The gift shop was open to the public for walk-in sales and also filled orders placed over the telephone and internet. Thus, a rational trier of fact could have found that the building was actively used for commercial purposes in addition to religious worship.

With the amendment, the panel has voted to deny the petition for panel rehearing. Chief Judge Schroeder has voted to deny the petition for rehearing en banc and Judges Friedman and Leavy so recommend.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions shall be entertained.