Free USCA Mandate - District Court of Connecticut - Connecticut

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` · ` ` Case 3:03-cr-00224¥PCD ` Document 101 Filed 04/18/2005 Page 1 of 3
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p 1 UNITED STATES COURT OF APPEALS
2 l FOR TI-IE SECOND CIRCUIT
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H 3 SUMMARY ORDER
J 4 THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER
H 5 AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER
1 6 COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER
A 7 COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN
E 8 ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
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N 10 At a stated term of the United States Court of Appeals for the
Q 11 Second Circuit, held at the Thurgood Marshall United States
12 Courthouse, Foley Square, in the City of New York, on the 21st day
1 13 of March, two thousand and five.
1 14
H 1 5 PRESENT :
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17 I-Ion. John M. Walker, Jr., 3 23
18 Chief Judge, _
19 Hon. Thomas J. Meskill, Eb 21 ms E _
20 Hon. Dennis Jacobs, `S*é.'° 21 A Circuit Judges. OGA`§°‘%;h'é° Y`, `:’
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25 umursn STATES OF AMER1cA, ;=`if· U WW1 1
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27 Appellee, Ejg}~g§ W Q
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30 No. 03-1789(L}
31 CARLOS J. DELGADO, 04-0836 `
32 04-2748 ·
33 Defendant-Appellant.
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- 37 APPEARING FOR APPELLANT MICHAEL O'BRIEN, Syo set, NY
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i ` . * Case 3:03-cr-00224-PCD Document 101 Filed 04/18/2005 Page 2 of 3
1 APPEARING FOR APPELLEE ERIC J. GLOVER, Assistant United l
States Attorney (Kevin J. 5
0’Connor, United States Attorney !
for the District of Connecticut,
William J. Nardini, Assistant
United States Attorney, on the
brief), New Haven, CT E
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3 Appeal from the United States District Court for District of 1
4 Connecticut (Peter C. Dorsey, Judge). W
5 J
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
7 DECREED that the judgment of the district court is AFFIRMED.
8
9 Defendant—appellant Carlos Delgado appeals from the May 10,
10 2004 judgment of the United States District Court for the
11 District of Connecticut (Peter C. Dorsey, Judge) convicting him Q
12 after a jury trial of trafficking in unauthorized access devices,
13 in violation of 18 U.S.C. § 1029(a)(2). Delgado was sentenced \
14 principally to 37 months' imprisonment to be followed by three` Q
15 years' supervised release. Familiarity with the facts and
16 procedural background is assumed. We affirm.
17 On appeal, appellant-—both through counsel and pro se--
1 18 raises four challenges to his conviction, none of which have
19 merit. First, Delgado argues that the evidence was insufficient
20 to satisfy the $1,000 monetary threshold requirement of S .
21 1029(a)(2). The statute prohibits “knowingly and with intent to
22 defraud traffic[king] in or us[ing] one or more unauthorized _
23 access devices . . . and by such conduct obtain[ing] anything of Q
24 value aggregating $1,000 or more during that period.” 18 U.S.C.
25 § 1029(a)(2) (emphasis added). Delgado trafficked in
26 unauthorized access devices when he gave six credit card numbers _ {
- 27 to the undercover agent in exchange for cash; “by such conduct" _
28 he received $3,000, which far exceeded the $1,000 threshold.
29 Second, appellant claims that there was a constructive
30 amendment of the indictment or, alternatively, a variance that
31 resulted in substantial prejudice. Appellant bases his claim on
32 the fact that the grand jury indictment charged him with “us[ing]
33 and traffick[ing] in" unauthorized access devices, while the ¥
34 evidence at trial and the jury instructions addressed only -
. 35 trafficking. We have previously held that “[w]here charges are ‘
36 constructively narrowed . . . no constructive amendment occurs.” E
37 United States v. Wallace, 59 F.3d 333, 337 (2d Cir. 1995)
38 (internal quotation marks and citation omitted). Because the ` ‘
39 facts proved at trial were the same as those alleged in the
40 indictment, there was no variance either, much less a variance
41 that caused substantial prejudice. Sag id; at 338.
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1 Third, appellant argues that the government did not present
2 sufficient evidence that his conduct affected interstate commerce
3 because the credit card account numbers he was charged with
4 selling were issued by local banks. This claim fails because (1) ;
5 three of the six cards were issued by out—of—state financial
-6 institutions, and (2) the other credit card account numbers had
7 traveled across state lines, both electronically and by mail, and
8 had been used in interstate financial transactions.
9 Fourth, appellant alleges grand jury abuse, claiming that
10 the government knowingly presented false testimony to the grand
11 jury. Appellant’s contention is based on a mischaracterization `
12 of the government agent’s grand jury testimony. The record shows
13 that the agent's testimony was not false or misleading and was
14 fully substantiated at trial. Delgado thus fails to demonstrate ·
15 any error, let alone prejudicial error. ggg Bank gf N.S. v.
16 United States, 487 U.s. 250, 256 (1988). `
17 We have carefully reviewed Delgado's contentions and find .
18 them to be without merit. For the reasons set forth above, the
19 judgment of the district court is hereby AFFIRMED.
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23 FOR THE COURT: y
24 Roseann B MacKech 'e, Clerk
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27 By
28 Lucille Carr, Deputy Clerk
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