Document Info

DocketNumber: 19-1014

Judges: Thomas, McKeown, Bennett

Filed Date: 10/21/2013

Status: Non-Precedential

Modified Date: 11/6/2024

  •                                                                           FILED
    NOT FOR PUBLICATION                            OCT 21 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 12-10595
    Plaintiff - Appellee,             D.C. No. 2:11-CR-00505-LKK-1
    v.
    MEMORANDUM*
    DUSTIN E. BOLE,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence K. Karlton, Senior District Judge
    Submitted October 15, 2013**
    San Francisco, California
    Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District
    Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes that this case is suitable for decision
    without oral argument. See FED. R. APP. P. 34(a)(2).
    ***
    The Honorable Mark W. Bennett, District Judge for the U.S. District
    Court for the Northern District of Iowa, sitting by designation.
    Defendant-Appellant Dustin E. Bole appeals his conviction for stealing
    auxiliary Social Security benefits, in violation of 
    18 U.S.C. § 641
    . We have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    . Bole contends that the magistrate judge
    who presided over his trial erred in not instructing the jury that theft of government
    money must be “willful.” Bole did not object to the jury instruction at trial, and we
    find the magistrate did not commit plain error by giving the Ninth Circuit Model
    Criminal Jury Instruction for a § 641 charge. Thus, we affirm Bole’s conviction.
    Because the parties are familiar with the factual and procedural history of the case,
    we will not recount it here.
    Because Bole did not object to the jury instructions, we review for plain
    error. See United States v. Ajoku, 
    718 F.3d 882
    , 889 (9th Cir. 2013). “To notice
    error under Federal Rule of Criminal Procedure 52(b), this court must find that (1)
    there was ‘error,’ (2) it was ‘plain,’ and (3) the error affected ‘substantial rights.’”
    United States v. Mancuso, 
    718 F.3d 780
    , 794–95 (9th Cir. 2013) (quoting United
    States v. Olano, 
    507 U.S. 725
    , 732–35 (1993)). Even if these three conditions are
    met, we may reverse only if the error “seriously affect[s] the fairness, integrity or
    public reputation of judicial proceedings.” Johnson v. United States, 
    520 U.S. 461
    ,
    467 (1997) (internal quotation marks omitted).
    2
    Bole argues that the magistrate judge erred in failing to instruct the jury that,
    in order to convict him of theft of government money, it had to find that his actions
    were “willful.” Our precedent clearly forecloses that argument. See United States
    v. Derington, 
    229 F.3d 1243
    , 1248 (9th Cir. 2000); United States v. Campbell, 
    42 F.3d 1199
    , 1204–05 (9th Cir. 1995). In each of these decisions, this court
    explicitly held that instructions nearly identical to the instruction used here and
    patterned after the Ninth Circuit Model Criminal Jury Instruction for theft of
    government money or property appropriately defined the mens rea required to
    convict a defendant under § 641. See Derington, 
    229 F.3d at 1248
     (“The
    instructions were sufficient to put at issue whether or not Derington had mens
    rea.”) (emphasis added); Campbell, 42 F.3d at1205 (“In the absence of objection, it
    was not plain error for the district court to use [the Ninth Circuit Model Criminal
    Jury] instructions.”).
    Accordingly, we conclude it was not plain error for the magistrate judge to
    give the Ninth Circuit Model Criminal Jury Instruction for theft of government
    money or property.
    AFFIRMED.
    3