United States of America, Plaintiff--appellee, v. John Mcallister, Defendant--appellant, 141 F.3d 1181 (9th Cir. 1998)

MEMORANDUM^* 

John D. McAllister appeals his sentence and conviction for making illegal payments to a government official in violation of 18 U.S.C. § 666. We affirm.

Reviewing the record, as we must, in the light most favorable to the prosecution, we hold that any rational trier of fact could have found that the MTA received over $10,000 in federal grant funds in each of the relevant years. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 n. 2 (9th Cir. 1997). Although the government could have easily produced documentation to establish the amount of federal funding, its failure to do so does not preclude a reasonable juror from finding that this jurisdictional qualification was satisfied.

Leslie Rogers's testimony regarding the general practices and procedures of disbursing federal monies to local agencies, including the MTA, is not hearsay. Likewise, Siu Ling Kwan's testimony that the MTA requested millions of dollars each month and that when those funds do not come through she is notified of that is not hearsay. Having heard these witnesses testify, a reasonable juror could infer that the MTA received over $10,000 in federal grants in each of the years in question.

Where there is no objection to the jury instructions at the time of trial, the court of appeals will review only for plain error. See United States v. Ripinsky, 109 F.3d 1436, 1443 (9th Cir. 1997). Plain error is a highly prejudicial error affecting substantial rights. See United States v. Payne, 944 F.2d 1458, 1463 (9th Cir. 1991).

Neither the instruction concerning "anything of value" nor the instruction regarding "corruptly" establish any error, let alone a plain error on the part of the district court.

The denial of a defendant's motion for a new trial is reviewed for an abuse of discretion. See United States v. Alvarez, 86 F.3d 901, 906 (9th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 748, 136 L. Ed. 2d 686 (1997). The district court's denial of a motion for arrest of judgment is also reviewed for an abuse of discretion. See United States v. Baker, 63 F.3d 1478, 1499 (9th Cir. 1995).

Although "made and agreed to make payments" is not identical in meaning to "gives" or "agrees to give anything of value," the former is a subset of the latter. Accordingly, we hold that the indictment "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend." United States v. Henson, 123 F.3d 1226, 1235 (9th Cir. 1997) (citation and quotation omitted).

AFFIRMED.