United States of America v. Daniel Duane Crape

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James S. Gwin, District Judge for the U.S. District Court**
for the Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL DUANE CRAPE,
Defendant-Appellant.
No. 11-30093
D.C. No. 2:10-cr-00119-RMP-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
Argued and Submitted March 7, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN, District Judge.**
Following a jury trial, Appellant Daniel Crape was convicted for stealing a
government-owned border-monitoring sensor in violation of 18 U.S.C. § 641.
Crape appeals his conviction on three grounds. We affirm.
FILED
MAR 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Jury Instructions
First, Crape argues that the district court erroneously rejected two of his
proposed jury instructions: 1) an instruction that a conviction under § 641 requires
proof beyond a reasonable doubt that the defendant knew the stolen property
belonged to the United States, and 2) an instruction on Crape’s good faith defense.
Both arguments fail.
The district court correctly instructed the jury on knowledge. “The reason
for including the requirement [in § 641] that the property, in fact, belongs to the
Government was to state the foundation for federal jurisdiction. A defendant’s
knowledge of the jurisdictional fact is irrelevant . . . .” United States v. Howey,
427 F.2d 1017, 1018 (9th Cir. 1970). Accordingly, the district court did not err
when it refused to instruct the jury that Crape could only be convicted if he knew
the border-monitoring sensor belonged to the United States.
The Supreme Court’s reasoning in Flores-Figueroa v. United States, 556
U.S. 646, 129 S. Ct. 1886 (2009), neither applies to § 641 nor undermines Howey.

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“Whoever, during and in relation to any felony violation enumerated in1
subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a
means of identification of another person shall, in addition to the punishment
provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18
U.S.C. § 1028A(a)(1).
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In Flores-Figueroa the Court construed 18 U.S.C. § 1028A(a)(1), an identity-theft1
statute that, unlike § 641, has the term “knowingly” before the other elements of
the crime. Using “ordinary English grammar,” the Court concluded that
“knowingly” applied to all subsequently listed elements of § 1028A(a)(1).
129 S. Ct. at 1890. But Flores-Figueroa did not set aside the line of cases, like
Howey, that find government ownership is needed to establish jurisdiction but
knowledge of government ownership is unnecessary to convict. See United States
v. X-Citement Video, Inc., 513 U.S. 64, 72 n.3 (1994).
Similarly, the district court did not err in rejecting Crape’s proposed good-
faith instruction. A criminal defendant “has ‘no right’ to any good faith instruction
when the jury has been adequately instructed with regard to the intent required to
be found guilty of the crime charged, notwithstanding the normal rules governing
‘theory of defense’ requests.” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir.
2004). In this case, as Crape concedes, the district court adequately instructed the
jury on the intent element required for a conviction under § 641.

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Furthermore, using a First Circuit Model Jury Instruction, the district court
gave a good-faith instruction and instructed the jury that it must acquit Crape if it
had a “reasonable doubt that Defendant acted knowingly to deprive the owner of
the use or benefit” of the property. That instruction was not “misleading or
inadequate to guide the jury’s deliberation,” United States v. Dixon, 201 F.3d 1223,
1230 (9th Cir. 2000), and it did not impair Crape’s ability to argue his good-faith
defense.
Constructive Amendment of the Indictment
Crape next argues that both the evidence at trial and the jury instructions
constructively amended the indictment against him. The Fifth Amendment’s
Grand Jury Clause ensures a criminal defendant’s “substantial right to be tried only
on the charges set forth in an indictment by a grand jury.” United States v.
Shipsey, 190 F.3d 1081, 1085 (9th Cir. 1999). Thus, “the indictment’s charges
may not be broadened by amendment, either literal or constructive, except by the
grand jury itself.” United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002).
“A variance between indictment and proof,” however, “does not require reversal
unless it affects the substantial rights of the parties.” United States v. Kaiser, 660
F.2d 724, 730 (9th Cir. 1981).

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In this case, the indictment alleged that Crape stole a border-monitoring
sensor, property of the United States Border Patrol. Evidence at trial showed that
the sensor was the property of the United States Marine Corps, not the Border
Patrol, and the jury instructions referred to the sensor as property of the United
States. Crape’s substantial rights were not affected by that variance; the precise
governmental owner is irrelevant to a conviction under § 641. See United States v.
Von Stoll, 726 F.2d 584, 586-87 (9th Cir. 1984). The differences do not constitute
a constructive amendment of the indictment. Accordingly, the district court
properly denied Crape’s motion for a judgment of acquittal. See Fed. R. Crim. P.
29.
Sufficiency of the Evidence
Finally, Crape argues that the evidence was insufficient to show that he had
the requisite guilty intent to steal the border-monitoring sensor. We review de
novo “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Crape, an electronics hobbyist, recognized that the border-monitoring sensor’s
expensive lithium-sulfur-dioxide batteries were inconsistent with an abandoned
device. More important, Crape disassembled and concealed the border-monitoring

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sensor in a manner that suggested knowledge that the sensor was valuable. A
rational trier of fact could, therefore, conclude that Crape intended to steal the
border-monitoring sensor. Accordingly, substantial evidence supports Crape’s
conviction, and the district court correctly denied Crape’s motion for judgment of
acquittal. See Fed. R. Crim. P. 29.
AFFIRMED.

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