United States v. Brooks

• Decision Date: 15 February 2023
• Docket Number: 21-30122
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DWAYNE BROOKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DWAYNE BROOKS, Defendant-Appellant.

No. 21-30122

United States Court of Appeals, Ninth Circuit

February 15, 2023

NOT FOR PUBLICATION

Argued and Submitted January 23, 2023 San Francisco, California

Appeal from the United States District Court No. 2:19-cr-00093-JLR-1 for the Western District of Washington James L. Robart, District Judge, Presiding

Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.

MEMORANDUM ^[*]

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

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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...