NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

KIMBERLY ANN HERNANDEZ, AKA 

Ramona Vigil, 

Defendant-Appellant.

No. 16-50461 

D.C. No. 

2:16-cr-00504-JFW-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted March 9, 2018

Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and SIMON,** District Judge.

Kimberly Ann Hernandez (“Hernandez”) appeals her jury convictions for

conspiracy to commit bank fraud; bank fraud and attempted bank fraud; conspiracy 

to steal mail and to possess stolen mail; and possession of stolen mail. Hernandez 

raises two issues on appeal, relating to the admission of certain evidence and the 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Michael H. Simon, United States District Judge for the 

District of Oregon, sitting by designation.

FILED

AUG 15 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-50461 

sufficiency of the evidence to sustain her conviction for conspiracy to commit bank 

fraud. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

First, Hernandez argues that the court erred in admitting evidence relating to 

her theft of a purse. We review the district court’s evidentiary rulings for abuse of 

discretion. United States v. McFall, 558 F.3d 951, 960 (9th Cir. 2009).

The district court admitted this evidence after concluding that it was 

“inextricably intertwined” with the charged offenses of possession of stolen mail

and conspiracy to steal mail. As this Court has previously explained:

We have recognized two categories of evidence that may 

be considered “inextricably intertwined” with a charged 

offense and therefore admitted without regard to 

Rule 404(b). First, evidence of prior acts may be 

admitted if the evidence constitutes a part of the 

transaction that serves as the basis for the criminal 

charge. Second, prior act evidence may be admitted when 

it was necessary to do so in order to permit the prosecutor 

to offer a coherent and comprehensible story regarding 

the commission of the crime.

United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004) (internal quotation 

marks and citations omitted). The district court did not abuse its discretion in 

concluding that evidence of Hernandez’s theft of the purse was inextricably 

intertwined with the charged offenses. Although Hernandez admitted driving her 

passengers to the community mailbox, she denied getting out of the car. Her 

admitted theft of the purse and the fact that a credit card from the purse was found 

in the gutter near the community mailbox several hours later is circumstantial, 
3 16-50461 

albeit not dispositive, evidence that Hernandez did not remain in the car as she 

claims. Also, the fact that Hernandez stole the purse and that the contents of the 

purse’s wallet were strewn throughout Hernandez’s car is relevant to show a 

common plan by the alleged co-conspirators. It allows the reasonable inference 

that the individuals who took part in the mail theft intended to share the proceeds 

of that theft, just as they had apparently agreed to share the proceeds of 

Hernandez’s theft of the purse.

Hernandez also objected that the evidence of her theft of the purse should 

have been excluded under Rule 403 of the Federal Rules of Evidence. The district 

court did not abuse its discretion by concluding that the probative value of this 

evidence was not substantially outweighed by the risk of unfair prejudice.

Second, Hernandez argues that the evidence at trial was insufficient to 

sustain her conviction for conspiracy to commit bank fraud. We review a claim of

insufficiency of the evidence by asking “whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” McFall, 558 F.3d 

at 955 (citation and quotation marks omitted) (emphasis in original).

To prove conspiracy, the government generally must establish: “(1) an 

agreement to engage in criminal activity, (2) one or more overt acts taken to 

implement the agreement, and (3) the requisite intent to commit the substantive 
4 16-50461 

crime.” United States v. Grasso, 724 F.3d 1077, 1086 (9th Cir. 2013) (citations 

omitted). The government also must prove that the defendant had a “knowing 

connection . . . with the conspiracy.” Id. (quoting United States v. Meyers, 847 

F.2d 1403, 1413 (9th Cir. 1988)). “The government may rely on circumstantial 

evidence and inferences drawn from that evidence in order to prove [a] defendant’s 

knowing connection to the conspiracy.” Id.

Viewing the evidence in the light most favorable to the prosecution, shortly 

before her arrest, Hernandez attempted to negotiate a check that she knew had been 

stolen. Also, at the time of her arrest, she was in possession of another stolen 

check. Further, two of her co-defendants had fraudulently negotiated checks. This 

is sufficient to establish a modus operandi of Hernandez and her co-defendants. 

Further, on the same evening as the mail theft, Hernandez stole a purse at the 

urging of her passengers, and the contents of the purse, which could be used to 

commit bank fraud, were strewn throughout the car along with the stolen mail. 

This is circumstantial evidence that the four defendants intended to share the 

profits of the crimes carried out that evening, and a rational jury could conclude 

that they shared a common goal of stealing mail and using the contents of that mail 

to commit bank fraud, just as they had apparently agreed to share the proceeds of 

Hernandez’s theft of a purse. There is sufficient evidence of the crime of 

conspiracy to commit bank fraud to sustain the jury’s verdict.
5 16-50461 

AFFIRMED.