Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Edilberto BOBADILLA, Defendant-Appellant.

No. 88-3312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 1990.Decided Oct. 11, 1990.

Before CYNTHIA HOLCOMB HALL, DAVID R. THOMPSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Edilberto Bobadilla appeals his conviction, following a jury trial, for aiding and abetting bank fraud in violation of 18 U.S.C. §§ 2 & 1344 and conspiracy to traffic in stolen credit cards in violation of 18 U.S.C. §§ 371 & 1029(a). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* Bobadilla contends that there is insufficient evidence to support his convictions for aiding and abetting bank fraud and conspiracy to traffic in stolen credit cards. The evidence is sufficient if, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988).

Substantial evidence supports Bobadilla's conviction for aiding and abetting bank fraud. See 18 U.S.C. § 1344(a); Adler, 879 F.2d at 495; United States v. Cloud, 872 F.2d 846, 850 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989). A rational jury could conclude beyond a reasonable doubt that Bobadilla aided and abetted the principal, Josemerto Palacio, who worked in the mail room of Seattle First National Bank ("Seafirst") and who stole credit cards from Seafirst. See Adler, 879 F.2d at 495. The jury could conclude that Bobadilla masterminded the scheme. Palacio passed cards to Bobadilla on three occasions, Bobadilla gave the cards to his confederate Brown, Brown gave the cards to his contact Schultz, and Schultz tried to obtain cash for the cards. Substantial evidence supports the conclusion that Bobadilla willingly associated himself with a criminal venture and that he intended to aid and abet Palacio's theft of the cards. Id.; see Cloud, 872 F.2d at 850.

Bobadilla nevertheless argues that his conviction cannot be sustained because the government did not prove that he aided Palacio's unauthorized use of a credit card issued in the name of Robin Ludemann. Bobadilla asserts that the indictment required the government to prove this element beyond a reasonable doubt and argues that the government, in presenting its case, tried to prove him guilty of a crime that was different from the crime charged in the indictment. We disagree.

Although it is unconstitutional to convict a defendant of an offense different from that charged in the indictment, Guam v. Cruz, 801 F.2d 101, 103 (9th Cir.), cert. denied, 110 S. Ct. 109 (1989), we find that the allegations in the indictment are not so specific as to exclude the government's mode of proving its case.

B. Conspiracy to Use Unauthorized Credit Cards

Bobadilla was convicted of conspiracy to traffic in stolen credit cards in violation of 18 U.S.C. § 1029(a). He concedes that the jury could have found that he conspired to traffic in credit cards, but argues that there was not sufficient evidence to establish that his crime fell within section 1029(a)'s jurisdictional requirement that he either (1) obtain goods valued at $1,000 or more or (2) possess 15 or more credit cards. See 18 U.S.C. §§ 1029(a) (2)-(3). This argument lacks merit.

First, a rational jury could conclude that Bobadilla masterminded a conspiracy to traffic in stolen credit cards because he recruited the people who stole the cards and the person through whom the cards were funneled to generate goods and cash. Even though Bobadilla eventually was excluded from the conspiracy, a jury could conclude that without Bobadilla's involvement, no cards would have been stolen and no unauthorized charges would have been made.

Second, sufficient evidence was presented at trial from which the jury rationally could find that the conspirators obtained goods valued at $1,000 or more. For example, a Seafirst bank fraud officer testified that unauthorized purchases totalling more than $4,500 were made to stolen cards, and a co-conspirator testified that he used stolen cards to make multiple purchases exceeding $1000. Moreover, sufficient evidence was presented at trial from which the jury rationally could conclude that the conspirators possessed 15 or more credit cards.

Thus, sufficient evidence was presented for the jury to conclude that Bobadilla was involved in a conspiracy whereby the conspirators (1) obtained goods valued at $1,000 or more or (2) possessed 15 or more credit cards. See 18 U.S.C. § 1029(a); Adler, 879 F.2d at 495.

II

Bobadilla raises three challenges to the jury instructions. He first contends that the district court's failure to give his proposed instruction on the conspiracy count was erroneous and that the court's instruction was improper because it did not instruct the jury on the specific conspiracy alleged in the indictment. This contention lacks merit.

A trial judge is given substantial latitude in tailoring jury instructions. See United States v. Castillo, 866 F.2d 1071, 1087 (9th Cir. 1988). Although the district court must instruct the jury properly as to the elements of the crime, a party may not demand that specific language be read to the jury. See id. We review challenges to the language or formulation of an instruction for an abuse of discretion. Id. at 1086. We review a claim of error in a jury instruction by looking to "the adequacy of the entire charge ... in the context of the whole trial." United States v. Mundi, 892 F.2d 817, 818 (9th Cir. 1989). Whether a specific jury instruction correctly defines the elements of the offense charged is reviewed de novo. United States v. Pemberton, 853 F.2d 730, 735 (9th Cir. 1988).

Here, Bobadilla's contention that the jury was unaware of the precise conspiracy charged in the indictment lacks merit because the indictment was sent to the jury. The jury was specifically instructed that it must "determine whether the single conspiracy charged in the Indictment existed between two or more conspirators" and that "to find a defendant guilty you must find that he was a member of the conspiracy charged in the Indictment and not ... [an]other separate conspiracy." Thus, the jury was aware of the precise conspiracy charged and found Bobadilla guilty of the conspiracy charged in the indictment.

Bobadilla also argues that the instruction did not require the jury to find that the defendant conspired with the charged conspirators. This contention lacks merit because the instruction specifically stated that the jury must "determine whether the single conspiracy charged in the Indictment existed between two or more conspirators."

Finally, Bobadilla contends that the district court's instruction on the "aiding and abetting bank fraud" charge was erroneous because it did not require the jury to find that he helped Palacio (the principal) to commit the crime. We conclude that the district court's instruction, when reviewed in the context of the entire charge, adequately instructed the jury on the "aiding and abetting" crime. See Mundi, 892 F.2d at 818. In addition to defining aiding and abetting, the court instructed the jury that to return a guilty verdict, it must find " [t]hat Edilberto Bobadilla knowingly aided Josemerto Palacio to commit the offense charged."

AFFIRMED.

 *

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