Submitted: March 16, 2018
from United States District Court for the District of
Minnesota - St. Paul
GRUENDER, MURPHY, and KELLY, Circuit Judges.[*]
morning of March 1, 2016, a man attempted to rob a Wells
Fargo Bank in Shakopee, Minnesota. Shortly before noon that
same day, a man robbed the Charter Bank in Chaska,
Minnesota. A few hours later, Tong Moua was arrested
in Chaska. A jury convicted Moua of attempted bank robbery
(of the Wells Fargo Bank) and bank robbery (of the Charter
Bank), in violation of 18 U.S.C. § 2113(a), but did not
convict him in relation to five other bank robberies that
were also charged. The district court sentenced him to 150 months
in prison on each count, to be served concurrently. Moua
challenges the sufficiency of the evidence and the
substantive reasonableness of his sentence. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
argues that the evidence was insufficient to prove that he
was the robber. "We review the sufficiency of the
evidence de novo, viewing evidence in the light most
favorable to the government, resolving conflicts in the
government's favor, and accepting all reasonable
inferences that support the verdict." United States
v. Brooks, 715 F.3d 1069, 1080-81 (8th Cir. 2013)
(quoting United States v. Miller, 698 F.3d 699, 702
(8th Cir. 2012)). We are "deferential to the jury's
verdict" and we "reverse only if no reasonable jury
could have found the defendant guilty beyond a reasonable
doubt." United States v. Perez, 663 F.3d 387,
391 (8th Cir. 2011) (quotation omitted).
defense at trial was straightforward: he was not the person
who robbed, or attempted to rob, any of the banks as charged.
The government presented the following evidence to show that
Moua had, in fact, robbed the Charter Bank and attempted to
rob the Wells Fargo Bank. In the five months preceding the
March 1, 2016, robberies, five other Twin Cities banks were
robbed. Each time, the robber handed a note to the teller
demanding money and received cash.
from all but the Wells Fargo Bank identified Moua in court as
the man who had robbed them. Three Wells Fargo employees
testified. None of them was able to identify Moua as the man
who had tried to rob the Wells Fargo Bank, but a teller
testified that the robber was wearing a black baseball hat, a
dark jacket, dark colored pants, and white high-top sneakers.
The other two Wells Fargo employees testified that the robber
had driven away in a Toyota with Minnesota license plates.
There were some inconsistencies between the Wells Fargo
employees' descriptions of the robbery, e.g.,
whether the robber's hat had holes or rivets on the side,
whether the Toyota was silver or dark in color, and whether
its license plate was 263 CVA or 263 CYA. The Charter Bank
teller identified Moua in court as the robber. But the
reliability of her identification was questionable: Right
after the robbery, she had picked a different person out of a
government also presented videos from the Wells Fargo and
Charter Banks, a church near the Charter Bank, and a nearby
casino. Although the videos from the banks and the church all
showed a man wearing a dark jacket, dark pants, and white
high-top tennis shoes, they did not show much of the
man's face. Videos from the casino early in the morning
of March 1, 2016, depicted (1) a Toyota with Minnesota
license plate 263 CVA driving onto the casino property; (2)
Moua present inside and outside the casino, wearing dark
pants, a light t-shirt, a dark jacket, and white high-top
sneakers; and (3) Moua leaving the casino in the Toyota at
approximately 8:25 a.m. Casino records indicated that Moua
used his customer loyalty card at the casino that same
Toyota with Minnesota license plate 263 CVA was found in
front of the Charter Bank after it was robbed. In the car,
officers found a black baseball hat and pieces of paper with
writing impressions saying, "Please hand over 10,
000," "don't shoot," and "I'll
shoot you." Clothing similar to that worn by the robber
in three of the robberies was found in Moua's apartment,
and a jacket that matched the one worn by the robber during a
December 28, 2015, robbery was found in another car linked to
Moua, as were bait bills given out during that robbery.
Finally, location data from a phone found on Moua when he was
arrested showed that the phone had been in the area of the
casino and at both banks on the morning of March 1,
challenging the sufficiency of the government's evidence,
Moua argues that the Charter Bank teller's initial
identification of a different person as the robber was more
credible than her later in-court identification; that the
bank videos did not show enough of the robber's face to
identify him as the robber; that there was no evidence
linking the Toyota to the Charter Bank robbery; that the
Wells Fargo employees differed in their descriptions of the
robber and the car; and that other witnesses' testimony
was conflicting and unreliable.
reviewing the sufficiency of the evidence, "[i]t is
axiomatic that we do not pass upon the credibility of
witnesses or the weight to be given their testimony."
United States v. Clay, 618 F.3d 946, 950 (8th Cir.
2010) (quoting United States v. Slaughter, 128 F.3d
623, 627 (8th Cir. 1997)). "Credibility determinations
are uniquely within the province of the trier of fact, and
are entitled to special deference." United States v.
Goodale, 738 F.3d 917, 923 (8th Cir. 2013) (quoting
Sullivan v. Minnesota, 818 F.2d 664, 666 (8th Cir.
1987)). "[I]t is for the jury to resolve conflicting
evidence and make credibility determinations."
United States v. Lohnes, 554 F.3d 1166, 1169 (8th
Cir. 2009). Here, the jury determined the credibility of the
witnesses, weighed the evidence, and concluded that Moua was
the person who, on ...