Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Tufono appeals his convictions for participating in the use of extortionate means to collect an extension of credit in violation of 18 U.S.C. § 891(1), and the denial of his motion for a new trial. He seeks reversal on the grounds that the court's jury instruction defining "extension of credit" was erroneous, that he was the only one convicted for a crime that requires a plurality of actors, and that the court improperly denied his motion in limine. We affirm.

The district court did not err by refusing to give an instruction defining an "extension of credit" based on United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir. 1982). We have declined to apply Boulahanis beyond its unique facts. See United States v. Lopez, 803 F.2d 969, 974-75 (9th Cir. 1986); United States v. Polizzi, 801 F.2d 1543, 1557 (9th Cir. 1986). The instruction given by the court properly defined "extension of credit" in the language of 18 U.S.C. § 891(1).

There is no merit in Tufono's contention that his conviction of "participation" in the use of extortionate means must be reversed because he was the sole person convicted. The statutory language does not require participation with another person. Since the statute prohibits both participation and conspiracy, Tufono's interpretation equating participation with conspiracy, would render part of the statute meaningless.

The court did not abuse its discretion by declining to consider Tufono's untimely motion in limine made on the eve of trial. See Fed. R. Crim. P. 12(f); United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984).

AFFIRMED.