Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

Steven P. Hewey appeals his conviction for various counts of fraud and aiding and abetting. On appeal, he contends that the district court erroneously admitted several items into evidence and that the evidence was insufficient to support his conviction. We affirm.

* Hewey contends that the district court judge erred in admitting testimony that months prior to the indictment a witness found in appellant's wallet four credit cards in names other than his own. Appellant argues that this testimony is inadmissible evidence of "other crimes" under Fed.R.Evid. 404(b).

Whether the testimony was "other crimes" evidence within the meaning of Rule 404(b) is a question of law, which we review de novo. See U.S. v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984). The admission of evidence of other crimes under 404(b) is reviewed for abuse of discretion. U.S. v. Connors, 825 F.2d 1384, 1390 (9th Cir. 1987).

We conclude that the evidence was properly admitted as direct evidence of appellant's participation in the crimes charged. This testimony links him to the scheme of obtaining and using fraudulent credit cards. Consequently, appellant's reliance on Rule 404(b) is misplaced. See U.S. v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) ("Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ['other'] act and the evidence concerning the crime charged are inextricably linked.' ") (quoting U.S. v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979).

II

Appellant next objects to the introduction of Exhibit 9 into evidence. Exhibit 9 consists of a series of copies of credit card applications found by a witness in a file drawer in an office used by appellant and co-defendant. The claim on appeal is that these applications were irrelevant, since there was no showing that appellant "did something to or with the document [s]," and thus erroneously admitted into evidence. A district court has broad discretion to determine whether evidence is relevant. U.S. v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987).

This claim is without merit. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. One of the government's theories against appellant is aiding and abetting under 18 U.S.C. § 2 (1982). To discharge its burden of proving all the elements of aiding and abetting, the government must establish the existence of the substantive crime of fraud. See U.S. v. Causey, 835 F.2d 1289, 1291-92 (9th Cir. 1987). These applications are clearly relevant to prove that fraud in fact was committed. The crime of aiding and abetting does not require the government to prove that appellant directly participated in every act of the underlying crime. U.S. v. Lane, 514 F.2d 22, 27 (9th Cir. 1975).

III

Appellant's next objection concerns an unmailed credit card application that he filled out and that was seized pursuant to a search warrant. Appellant's specific objection is not clear. From what we can discern, he appears to argue that this evidence was improperly admitted as "other crimes" evidence under Rule 404(b), positing alternative grounds for this conclusion: (1) the application was not delivered or mailed and thus constitutes an uncharged act of misconduct; or, (2) the act of completing this application was lawful. Once again, we review admission of evidence under Rule 404(b) for abuse of discretion. U.S. v. Connors, 825 F.2d 1384, 1390 (9th Cir. 1987).

This contention misconstrues the proper scope of Rule 404(b). Rule 404(b) refers not merely to "other crimes" but to "other crimes, wrongs, or acts." In short, the admitted behavior need not be criminal. See U.S. v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986) (evidence that defendant had met with co-defendants deemed admissible under Rule 404(b)).

Hence, appellant's argument that Rule 404(b) does not encompass either acts of misconduct or lawful acts is meritless. The district judge properly found this evidence to be relevant to show intent, plan, and identity and correctly admitted this evidence under Rule 404(b).

IV

Appellant's final evidentiary objection involves co-defendant statements contained in Exhibits 10, 17A, and 18A that were admitted against him under Fed.R.Evid. 801(d) (2) (E). These exhibits consist of handwritten and photographic copies of a list of credit card companies kept by appellant's co-defendant. Because the government's theory at trial was aiding and abetting and not conspiracy, appellant argues, the trial judge erred in admitting this evidence under Rule 801(d) (2) (E). Appellant further contends that admission of this evidence violated his constitutional rights under the Confrontation Clause. U.S. Const. amend. VI. Finally, appellant alleges that the district judge erred in not providing a requested limiting instruction.

We reject these contentions. First, Rule 801(d) (2) (E) is not limited to cases in which the prosecution charges conspiracy. See U.S. v. Weiner, 578 F.2d 757, 768 (9th Cir.), cert. denied, 439 U.S. 981 (1978); see also U.S. v. Dawson, 576 F.2d 656, 658 (5th Cir. 1978), cert. denied, 439 U.S. 1127 (1979). Second, since the statements were properly admitted under Rule 801(d) (2) (E), appellant's right to confrontation was not infringed. See Bourjaily v. U.S., 107 S. Ct. 2775, 2782 (1987) ("requirements for admission under Rule 801(d) (2) (E) are identical to requirements of the Confrontation Clause"). Third and finally, the lack of a limiting instruction does not warrant reversal. Exhibits 17A and 18A were not objected to at trial upon their introduction and thus are held to a plain error standard of review. Admission of this evidence did not rise to the level of plain error. Appellant did object to Exhibit 10 and requested a limiting instruction. However, since the court properly admitted this evidence under 801(d) (2) (E), it was not error to fail to give a limiting instruction. See U.S. v. Miller, 799 F.2d 985, 990-91 (5th Cir. 1986).

V

Appellant also questions the sufficiency of the evidence to support his convictions for (1) fraudulent use of a social security number, (2) mail fraud, and (3) false document.

We address these contentions first by noting the standard of review: whether any rational jury could have found the existence of the essential facts of the crime charged, viewing the evidence in the light most favorable to the government. U.S. v. Gordon, 844 F.2d 1397, 1404 (9th Cir. 1988).

Fed. R. Crim. P. 29(a) forecloses appellant's sufficiency challenge concerning the counts for fraudulent use of a social security number. Rule 29(a) required appellant to move for acquittal to save the sufficiency challenge on appeal. U.S. v. Harden, 846 F.2d 1229 (9th Cir. 1988); U.S. v. Curtis, 568 F.2d 643, 647 (9th Cir. 1978).

Appellant did make the required Rule 29(a) motion for acquittal as to the other two charges. We conclude, however, that, viewing the evidence in this case in the light most favorable to the prosecution, the jury reasonably could have found appellant guilty beyond a reasonable doubt.

VI

Appellant's "Statement of the Case" makes some vague allegations of impropriety at trial. One general allegation involves his not having proper time to obtain and prepare an expert witness. Other allegations involve various items of evidence that were admitted into evidence.

Appellant raises but fails to support these allegations. In Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988), we held that " [i]ssues raised in a brief which are not supported by argument are deemed abandoned," unless manifest injustice otherwise would result. Our failure to review these general assertions will not result in manifest injustice; accordingly, we decline to address them.

AFFIRMED.