Alejo

MEMORANDUM **

Gerardo Morales Alejo appeals the district court’s denial of his motion for acquittal on the second of two counts stemming from the robbery of a Wells Fargo bank in Portland, Oregon. 1 Alejo contends that the evidence was insufficient to support his conviction, under 18 U.S.C. § 924 (c)(1)(A), for having knowingly and intentionally aided and abetted the use of a firearm in connection with the robbery. We agree and reverse the conviction on this count.

We review the trial court’s denial of Alejo’s motion de novo. United States v. Johnson, 357 F.3d 980, 983 (9th Cir.2004). Examining the ruling in the light most favorable to the government, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Although circumstantial evidence may be used to prove any fact, “mere suspicion or speculation” is insufficient to establish an essential element. See United States v. Dinkane, 17 F.3d 1192, 1196 (9th Cir. 1994).

To be guilty of aiding and abetting the use of the firearm, Alejo must have “directly facilitated or encouraged” the use. United States v. Nelson, 137 F.3d 1094, 1103 (9th Cir.1998); see…