Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1320 (9th Cir. 1989)

No. 87-1206.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and THOMAS ZILLY, District Judge* 


Appellant Herbert Blitzstein appeals his conviction for conspiracy to use counterfeit credit cards with intent to commit fraud in violation of 18 U.S.C. § 1029(b) (2) (Count I); and appellants Blitzstein and Edward DeLeo appeal their convictions of attempted use of counterfeit credit cards with intent to commit fraud in violation of 18 U.S.C. § 1029(b) (1) and aiding and abetting a violation thereof (Count II). The conspiracy in which the appellants were involved was a government sting operation. The credit cards were actually cards issued by the Bank of America that the appellants believed to be counterfeit. For the reasons stated in this disposition, we affirm.


Appellants were convicted of conspiracy in violation of 18 U.S.C. § 1029(a) (1), and fraud in connection with counterfeit access devices in violation of 18 U.S.C. § 1029(b) (2). Only appellant Blitzstein appeals from the conviction under Count I. Blitzstein contends that the government failed to prove an overt act in furtherance of a conspiracy. There is substantial evidence from which a jury could find an overt act in furtherance of the conspiracy. There is evidence that, after Blitzstein agreed with Detective Scholl of the Las Vegas Police to use the purportedly counterfeit credit cards, he put Scholl, who was acting under cover, in contact with defendant DeLeo, who made arrangements for a fur merchant to accept the credit cards. There is also evidence that Blitzstein attempted to arrange for the fencing of the furs. Blitzstein was also in the vicinity of the fur store at the time of the purchase of furs by the undercover agent. A jury could have found beyond a reasonable doubt that these were overt acts in furtherance of the conspiracy. United States v. Posey, 864 F.2d 1487 (9th Cir. 1989).


With respect to Count II, Blitzstein and DeLeo raise several issues: (1) Were the credit cards utilized in the sting operation actually counterfeit access devices as defined by 18 U.S.C. § 1209 and, if not, was their use by Blitzstein and DeLeo an attempt to commit fraud by use of a counterfeit access device; and (2) can they be convicted of aiding and abetting the commission of a crime where of the two principals involved one was a government agent and one was acquitted. The essence of appellants' contention is that the white plastic credit cards used in the government's sting operation were not counterfeit cards and hence the government has not proved an element of the crime of attempting to use a counterfeit card.

Appellants' arguments must be rejected. It is not material that the credit cards the appellants attempted to use in violation of 18 U.S.C. § 1029(b) (1) were not actually counterfeit. Rather, the proper focus is on the appellants' criminal intent. United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978); United States v. Everett, 692 F.2d 596 (9th Cir. 1982) cert. denied, 460 U.S. 1051, 75 L. Ed. 2d 930, 103 S. Ct. 1498 (1983). In the present case there is substantial evidence that Blitzstein and DeLeo believed the credit cards were counterfeit and that they intended to use the cards to commit fraud.

Appellants also maintain that their conviction cannot stand because a substantive crime was not committed and the government agent and an acquitted defendant were the only principals. Cf. United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988). This argument must also be rejected. In order to convict a defendant of aiding and abetting there must be evidence that a principal offense was committed. Id.; United States v. Powell, 806 F.2d 1421, 1424 (9th Cir. 1986). Here, a principal offense was committed, i.e., attempt to commit fraud. See 18 U.S.C. § 1029(b) (1). One who aids and abets the commission of a criminal act is as responsible for that act as if he committed it directly, 18 U.S.C. § 2; Nye & Nissen v. United States, 336 U.S. 613 (1949).

Defendant Blitzstein also argues that there was not sufficient evidence that he took a substantial step towards completion of the crime. Mere preparation to commit a crime is insufficient. United States v. Scott, 767 F.2d 1308, 1311 (9th Cir. 1985). However, in this case, there is substantial evidence that Blitzstein took a substantial step towards completion of the crime. During the credit card transaction, Blitzstein was in his vehicle in the vicinity of the fur store in order to help transport the furs, if necessary. Blitzstein told the undercover agent that he wanted to fence the furs. These acts contributed to the commission of the crime and are evidence that Blitzstein undertook a substantial step in furtherance of the scheme.

The defendant Blitzstein also claims the trial court committed reversible error by confusing the jury in its instructions and supplemental charges. An appropriate standard of review for a challenge to jury instructions where there is no objection to them is to review for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). A plain error is a highly prejudicial error affecting substantial rights. Id. Reversal of a criminal conviction on the basis of plain error is an exceptional remedy that the court will invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.

In this case, the trial court provided supplemental instructions in response to questions from the jury during deliberations. A supplemental charge is in addition to the original instructions and is not an independent charge. Reversible error does not occur so long as the combined instructions reviewed as a whole accurately reflect the legal issues. United States v. Nickerson, 669 F.2d 1016, 1021 (5th Cir. 1982). The instructions taken as a whole correctly presented the law to the jury.



Honorable Thomas Zilly, United States District Judge for the Western District of Washington, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3