United States of America v. Nicholas John Montano

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS JOHN MONTANO,
Defendant - Appellant.
No. 12-30057
D.C. No. 1:10-cr-00155-RFC-1
U.S. District Court for Montana,
Billings
ORDER
Before: TASHIMA, CLIFTON and BEA, Circuit Judges.
Appellee United States’ request to amend the memorandum disposition filed
on March 15, 2013, is GRANTED. The amended memorandum disposition will be
filed concurrently with this order.
FILED
MAR 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS JOHN MONTANO,
Defendant - Appellant.
No. 12-30057
D.C. No. 1:10-cr-00155-RFC-1
AMENDED
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted March 5, 2013**
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
Nicholas Montano appeals his conviction of being a felon in possession of a
firearm. He argues that there was insufficient evidence to sustain the jury’s verdict.
We affirm.
FILED
MAR 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
In reviewing a challenge to the sufficiency of evidence supporting a
conviction, we must determine 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.” United States v.
Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). Viewing the evidence in
that light, we conclude that it was sufficient to sustain the conviction. Anthony
Delgado, a passenger in the vehicle, testified that he saw Montano place the
firearm in the glove compartment shortly before police officers found it there.
Though the defense impeached Delgado because he had recounted a different
version of events before trial, it is not our role as a court of review “to question the
jury’s assessment of witness credibility.” United States v. Bingham, 653 F.3d 983,
995 (9th Cir. 2011). The government also presented evidence probative of
Montano’s consciousness of guilt: that Montano lied about his identity to the
police officers, urged the driver of the vehicle to refuse to consent to the search of
the vehicle, and fled from the officers at the scene to avoid arrest. A rational juror,
viewing this evidence in the light most favorable to the government, could have
concluded that Montano possessed the firearm.
AFFIRMED.

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