United States of America, Plaintiff,-Appellee v. Joseph Washington, Defendant.-Appellant

962 F.2d 16 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff,-Appellee, v. Joseph WASHINGTON, Defendant.-Appellant, No. 90-10420. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 13, 1991. Decided April 23, 1992. 1 Before CANBY and KOZINSKI, Circuit Judges, and CARROLL * , District Judge 2 MEMORANDUM ** OVERVIEW 3 Appellant Joseph Washington and co-defendants Marvin Perkins and Danilo Frias were indicated and charged with having embezzled, stolen and converted property valued at more than $5,000 from Bay Area Rapid Transit (BART) in violation of 18 U.S.C. § 666 , and of having conspired to do so, in violation of 18 U.S.C. §§ 371 and 666. Both Frias and Perkins pleaded guilty, and a jury convicted defendant Washington of both counts on April 24, 1990. Washington now appeals, claiming that the trial court constructively amended the indictment and failed to properly instruct the jury on an essential…