United States v. McHenry

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 20, 2009
No. 08-10254
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CANTRICE MCHENRY, also known as Candy
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-147-3
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cantrice McHenry has appealed her jury conviction of bank robbery and
aiding and abetting. A credit union officer testified that the victim credit union
was insured by the National Credit Union Administration (NCUA), as opposed
to the NCUA Board, as alleged in the indictment. Over McHenry’s objection, the
district court omitted the word “Board” from its instruction regarding the
jurisdictional element of the statute, and it denied McHenry’s motion for
judgment of acquittal.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-10254
McHenry contends that the Government failed to prove that the credit
union was insured by the NCUA Board, contrary to the statutory definition in
18 U.S.C. § 2113(g). A reasonable juror could have found that the credit union
officer’s uncontradicted testimony established the credit union’s federally
insured status beyond a reasonable doubt. See United States v. Ortega Reyna,
148 F.3d 540, 543 (5th Cir. 1998); United States v. Sanders, 343 F.3d 511, 516-17
(5th Cir. 2003).
McHenry contends also that the district court erred in varying the jury
charge from the allegations in the indictment by omitting the word “Board” from
its instruction regarding the jurisdictional element of the offense. The district
court merely instructed the jury that it could satisfy the jurisdictional element
by finding that the credit union was insured by the NCUA, as opposed to the
NCUA Board. The instruction did not modify the jurisdictional element; it only
provided that the element could be satisfied by facts different from those alleged
in the indictment. See United States v. Munoz, 150 F.3d 401, 417 (5th Cir. 1998).
Thus, the modification was “one of form and not of substance.” United States
v. Slovacek, 867 F.2d 842, 847 n.4 (5th Cir. 1989). Any error in instructing the
jury was harmless. See United States v. Dentler, 492 F.3d 306, 312 (5th Cir.
2007).
AFFIRMED.
2