United States v. Frank Mendoza , 473 F. App'x 765 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 06 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50221
Plaintiff - Appellee, D.C. No. 5:09-cr-00107-RHW-1
v.
MEMORANDUM*
FRANK E. MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert H. Whaley, Senior District Judge, Presiding
Submitted June 4, 2012**
Pasadena, California
Before: TROTT and THOMAS, Circuit Judges, and SEEBORG, 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
Frank Mendoza appeals from his conviction. We affirm. Because the
parties are familiar with the history of this case, we need not recount it here.
I
A reviewing court may set aside the jury’s verdict on the ground of
insufficient evidence only if no rational trier of fact could have agreed with the
jury. Cavazos v. Smith, __ U. S. __, 132 S. Ct. 2, 4 (2011) (per curiam). In this
case, sufficient evidence supports Mendoza’s conviction under the version of 31
U.S.C. § 5318(g)(2)(A)(i) in effect at the time of his conviction.1 That version of
the statute made it unlawful for any financial institution employee who reported a
suspicious transaction to a government agency to notify any person involved in the
transaction that the transaction has been reported. It is undisputed that Mendoza
drafted a report that served as supporting documentation to the Suspicious Activity
Report sent to the United States Department of Treasury’s Financial Crimes
Enforcement Network, and that he disclosed to a person involved in the transaction
that it had been reported.
1
31 U.S.C. § 5318(g)(2)(A)(i) was amended after Mendoza’s conviction.
Under the current version, an employee of a financial institution is prohibited from
notifying any person involved in a suspicious transaction reported to a government
agency that the transaction has been reported regardless of whether that employee
is directly involved in the reporting of the transaction.
2
Mendoza argues that the statute does not embrace this type of activity.
However, that argument was not preserved specifically. Further, Mendoza’s
counsel joined in proposing the jury instruction that contained the language to
which he now objects. Therefore, he waived his objection to the instruction. See
United States v. Cain, 130 F.3d 381, 383 (9th Cir. 1997) (counsel’s signature on
joint jury instructions evidences that he was aware of and relinquished right to
challenge instruction). Given the applicable standard, there was sufficient
evidence to support the conviction under the instruction given.
Mendoza also argues the court should have given an instruction requiring the
jury to unanimously agree on the particular statement by Mendoza that constituted
the prohibited disclosure. However, jurors need not unanimously agree on which
fact satisfies the element of a crime. United States v. Hofus, 598 F.3d 1171, 1176
(9th Cir. 2010).
II
The district court did not plainly err in not dismissing allegedly
multiplicitous counts in the indictment. An indictment is multiplicitous when it
charges multiple counts for a single offense, thus raising double jeopardy concerns.
United States v. Vargas-Castillo, 329 F.3d 715, 718-20 (9th Cir. 2003). However,
where a defendant fails to raise a multiplicity argument before a district court, we
3
review only for plain error. United States v. Smith, 424 F.3d 992, 999-1000 (9th
Cir. 2005).
Mendoza contends that the two bribery payments should have been
considered a single act. However, 18 U.S.C. § 215(a)(2) is silent as to whether
each installment payment of a bribe amounts to a separate violation of the statute,
and there is no controlling Supreme Court or Ninth Circuit authority on the
question. Where there is no controlling authority, any error is not plain error.
United States v. Thompson, 82 F.3d 849, 855-56 (9th Cir. 1996).
III
We decline to consider Mendoza’s ineffective assistance of counsel claim on
direct appeal because the record is insufficiently developed. United States v.
McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
AFFIRMED.
4