Unpublished Disposition, 872 F.2d 430 (9th Cir. 1989)

MEMORANDUM^** 

Gladys Ayala appeals her convictions for (1) conspiracy to defraud and conceal material information from the United States, in violation of 18 U.S.C. § 371; (2) willfully aiding and abetting or causing her employer financial institution to file a materially false Currency Transaction Report, in violation of 18 U.S.C. § 2 and 31 U.S.C. §§ 5313 and 5322(b); and (3) willfully aiding and abetting or causing her employer to file a materially false CTR in violation of 18 U.S.C. § 1001.

Ayala argues that the trial court should have granted her motion for judgment of acquittal on all counts because her employer did not file a materially false CTR. She argues that, to the extent Part I of IRS Form 4789 requires banks to list the name of the person who physically conducted a transaction, the CTR filing requirements are unconstitutionally vague. IRS Form 4789, Part I requires the reporting institution to list the name of the "individual who conducted this transaction." Ayala's employer listed the name of a person who was not present at the bank, and who was only involved in the transaction to the extent that her nephew did business under her forged name. As applied to this case, the requirements of IRS Form 4789 are not unconstitutionally vague.

Ayala's reliance on United States v. Murphy, 809 F.2d 1427 (9th Cir. 1987) is misplaced. In Murphy, we affirmed the dismissal of an indictment under the Currency Reporting Act, on the ground that an ambiguity in Part II of IRS Form 4789 rendered the reporting requirements unconstitutionally vague. By contrast, the only false statement mentioned in Ayala's indictment appeared on Part I of IRS Form 4789. Part II was left blank. There is no ambiguity in Part I as applied to these facts.

Ayala argues that even if her bank filed a materially false CTR, she cannot be held criminally liable because she did not participate personally in the preparation of the CTR, and had no duty to assure that it was accurately prepared. Those facts do not require reversal. There was evidence in the record from which a jury could conclude that Ayala knowingly participated in a deceptive scheme and willfully caused her employer to file a materially false CTR. See, e.g., United States v. Giles, 300 U.S. 41 (1937); United States v. Causey, 835 F.2d 1289 (9th Cir. 1987). Such evidence is sufficient to support a conviction under any of the statutes named in the indictment. See United States v. Hayes, 827 F.2d 469, 472-73 (9th Cir. 1987); United States v. Thompson, 603 F.2d 1200, 1202-04 (5th Cir. 1979); United States v. Polychron, 841 F.2d 833, 836 (8th Cir.), cert. denied, 109 S. Ct. 135 (1988).

We understand but reject Ayala's other assignments of error. Her counsel was not incompetent and there was no error in the jury instructions. The amendment of the indictment does not constitute grounds for reversal.

AFFIRMED.