United States v. Frank Mendoza

NOT FOR PUBLICATION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.

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).

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.