United States v. Dwayne Brooks ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 15 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30122
Plaintiff-Appellee, D.C. No.
2:19-cr-00093-JLR-1
v.
DWAYNE BROOKS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted January 23, 2023
San Francisco, California
Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.
Dwayne Brooks (Brooks) appeals his conviction and sentence after a jury
convicted him of four counts of bank fraud and two counts of attempted bank fraud
in violation of 18 U.S.C. §§ 1344 and 2, two counts of access-device fraud in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violation of 18 U.S.C. § 1029(a)(2), and two counts of aggravated identity theft in
violation of 18 U.S.C. § 1028A.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “We
review the district court’s evidentiary rulings for an abuse of discretion. . . .”
United States v. Obendorf, 894 F.3d 1094, 1098 (9th Cir. 2018) (citation omitted).
We “review de novo whether a jury instruction misstated an element of a statutory
crime.” Id. (citation omitted). If the defendant failed to raise a constructive
amendment or variance issue before the district court, we review for plain error.
See United States. v. Ward, 747 F.3d 1184, 1188 (9th Cir. 2014). “Plain error is
(1) error, (2) that is plain, and (3) that affects substantial rights. . . .” United States
v. Bautista, 989 F.3d 698, 701-02 (9th Cir. 2021) (citation and internal quotation
marks omitted). Plain error affects substantial rights if there is “a reasonable
probability” that the outcome would have been different. Id. at 702. “We review a
district court’s construction and interpretation of the Guidelines de novo . . .”
United States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017) (en banc) (citation and
alteration omitted). We review a district court’s findings regarding relevant
conduct for clear error. See United States v. Daychild, 357 F.3d 1082, 1103 (9th
Cir. 2004). “A finding is clearly erroneous if it is illogical, implausible, or without
support in the record.” United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th
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Cir. 2020) (citation omitted).
1. The district court did not abuse its discretion when admitting the
credit union dispute log as a business record. See ABS Ent., Inc. v. CBS Corp., 908
F.3d 405, 425-26 (9th Cir. 2018). Alaska USA Federal Credit Union employees
created the log “at or near” the time of each entry. The log was made in the
ordinary course of Alaska USA’s business, and was established as trustworthy.
See S.E.C. v. Jasper, 678 F.3d 1116, 1122-24 (9th Cir. 2012). Neither did
admission of the dispute log violate the Confrontation Clause. This business
record had an administrative purpose and was not testimonial. See Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 324 (2009).
2. Under plain error review, the evidence at trial and jury instruction for
Count 3 (attempted bank fraud) did not constructively amend the indictment. See
United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). A constructive
amendment to the indictment occurs when the indictment charged the defendant
with one crime, and the defendant is tried for a different crime. See id. Whether
the financial institution was insured by the Federal Deposit Insurance Corporation
or by the National Credit Union Administration was not an element of the charged
offense. See 18 U.S.C. § 20 (1)-(2) (financial institution defined); see also 18
U.S.C. § 1344(2) (bank fraud defined). Because Brooks was not tried for a
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different crime than the one with which he was charged, there was no constructive
amendment of the indictment, and no plain error occurred. See Pang, 362 F.3d at
1194; see also United States v. Singh, 995 F.3d 1069, 1079 (9th Cir. 2021).
A variance exists when “the indictment and the proof involve . . . a . . .
materially different[] set of facts.” United States v. Adamson, 291 F.3d 606, 615
(9th Cir. 2002). Because the facts in the indictment (federally insured by the
FDIC) and proof at trial (federally insured by the NCUA) were not “materially
different,” there was no variance and no plain error. See id.
3. Under plain error review, the evidence and jury instruction did not
constructively amend Count 7 (using unauthorized access devices, “to wit:
Discover credit cards”). The evidence presented and the jury instructions
permitted the jury to find Brooks guilty of violating 18 U.S.C. § 1029(2) as
charged. See Pang, 362 F.3d at 1194; see also Singh, 995 F.3d at 1079. The
government conceded that there was a variance in proof due to the admission of
evidence involving additional credit cards. However, the variance did not affect
Brooks’ substantial rights because there was no material difference between the
indictment and the evidence presented. See Adamson, 291 F.3d at 615.
4. Under our precedent, the instruction defining intent to defraud as “an
intent to deceive or cheat” was erroneous. See United States v. Saini, 23 F.4th
41155, 1160 (9th Cir. 2022) (explaining that the statute required intent to “deceive
and cheat”) (emphasis in the original). However, the evidence overwhelmingly
established Brooks’ intent to “deceive and cheat.” Id. Accordingly, the error did
not affect Brooks’ substantial rights. See id. at 1165-66.
5. The district court did not clearly err at sentencing by declining to
consider the vehicle theft and eluding police state charges as relevant conduct. See
United States v. Marler, 527 F.3d 874, 879 (9th Cir. 2008). These were entirely
different crimes resulting from different “discrete, identifiable illegal acts.” Id.(alteration omitted).
6. “[T]he cumulative effect of multiple errors may prejudice a defendant
even if no single error in isolation is sufficient to establish prejudice. . . .”
Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018) (citation omitted). However,
there are no multiple errors in this case and thus no cumulative error. See id.AFFIRMED.
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