United States v. Ricky Mariano, 2013 U.S. App. LEXIS 18684

Background

Mariano led and participated in a conspiracy that stole checks and credit cards, washed checks, and used stolen payment instruments to purchase merchandise for resale.
On March 9, 2011, a wallet stolen from victim S.B. (containing a Capital One card ending in 2611) was at Dutton’s house; Mariano and Dutton later went to Walmart intending to use that card to buy a PlayStation for $385.96.
Surveillance showed Mariano and Dutton together in the store; Dutton presented the stolen Capital One card to a cashier and was asked for ID; the attempted purchase failed and the men left.
A superseding indictment charged Mariano with multiple offenses, including Count 9 (attempted bank fraud for the Walmart transaction) and Count 14 (aggravated identity theft alleging unlawful possession and transfer of S.B.’s identifying information in relation to the attempted bank fraud).
At trial Mariano conceded guilt on several counts but contested Count 14; the jury convicted him on Count 9 and Count 14 (and acquitted on two other identity-theft counts involving different victims).
Mariano appealed only the Count 14 conviction, arguing (1) the jury instruction and government argument constructively amended the indictment by adding “use” and by referencing a credit-card account number or an additional card, and (2) the evidence was insufficient to support identity-theft conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instructions/argument constructively amended indictment by adding “use”	Mariano: instruction allowed conviction for "use" though Count 14 charged only possession/transfer; government argued "use" in closing	Government: instruction was the one Mariano requested; argument merely applied that instruction	The court: No constructive amendment; Mariano invited the instruction by requesting it, so he cannot challenge it on appeal
Whether listing “credit card account number” in examples amended Count 14	Mariano: instruction’s example expanded Count 14 to include card account numbers not specified in Count 14	Government: instruction also tracked Count 14’s specific language and cross-referenced Count 9; jury was sufficiently informed	No plain error; instruction both tracked Count 14 and fairly put Mariano on notice via cross-reference to Count 9
Whether jury could convict based on an uncharged second stolen card	Mariano: instruction and prosecutor’s fleeting references allowed conviction on uncharged conduct involving another card	Government: case and jury questions focused on the Capital One card ending 2611 and Walmart attempt; court instructed jury to consider only charged conduct	No reversible error; no substantial likelihood jury convicted on uncharged card conduct
Sufficiency of evidence for identity theft	Mariano: insufficient proof he possessed/transferred/used or aided Dutton in using S.B.’s card with requisite intent	Government: testimony showed Mariano possessed the card, directed plan, gave card to Dutton, and intended to further bank fraud	Sufficient evidence: reasonable jury could find Mariano possessed/transferred the card and aided/abetted Dutton’s attempted use with intent to further bank fraud

Key Cases Cited

United States v. Begnaud, 783 F.2d 144 (5th Cir. 1986) (defines constructive amendment of an indictment)
Stirone v. United States, 361 U.S. 212 (1960) (constructive amendment doctrine; grand jury charging integrity)
United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver and forfeiture; plain-error framework)
United States v. Wisecarver, 598 F.3d 982 (8th Cir. 2010) (invited-error rule: defendant cannot challenge a jury instruction he requested)
United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc) (post-Olano discussion whether invited-error doctrine requires proof defendant knew he was relinquishing a right)
United States v. Johnson, 934 F.2d 936 (8th Cir. 1991) (discusses substantial likelihood standard for constructive amendment)