United States v. Dustin Bole

MEMORANDUM

Defendant-Appellant Dustin E. Bole appeals his conviction for stealing auxiliary Social Security benefits, in violation of 18 U.S.C. § 641 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . Bole contends that the magistrate judge who presided over his trial erred in not instructing the jury that theft of government money must be “willful.” Bole did not object to the jury instruction at trial, and we find the magistrate did not commit plain error by giving the Ninth Circuit Model Criminal Jury Instruction for a § 641 charge. Thus, we affirm Bole’s conviction. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.

Because Bole did not object to the jury instructions, we review for plain error. See United States v. Ajoku, 718 F.3d 882, 889 (9th Cir.2013). “To notice error under Federal Rule of Criminal Procedure 52(b), this court must find that (1) there was ‘error,’ (2) it was ‘plain,’ and (3) the error affected ‘substantial rights.’” United States v. Mancuso, 718 F.3d 780, 794-95 (9th Cir.2013) (quoting United States v. Olano, 507 U.S. 725, 732-35 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)). Even if these…