Figueroa

MEMORANDUM **

Mario Cacho Figueroa (Figueroa) appeals his convictions on ten counts of mail fraud and aiding and abetting the same, 18 U.S.C. §§ 2 , 1341; six counts of wire fraud and aiding and abetting the same, 18 U.S.C. §§ 2 , 1343; four counts of bank fraud and aiding and abetting the same, 18 U.S.C. §§ 2 , 1344; and one count of conspiracy, 18 U.S.C. § 371 . He also moves for permission to raise a post-briefing, Sixth Amendment challenge to his 151-month sentence in light of the Supreme Court’s June 24, 2004, decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004).

Figueroa argues that his challenged convictions should be reversed because the district court refused to give, at the end of trial, then-current Ninth Circuit Model Jury Instruction (Criminal) 4.10 (2000), which pertains to how the jury should evaluate the testimony of a witness who has received benefits from the government. Figueroa did not object to the jury instructions when given, but argued for Instruction 4.10 only after the court suggested sua sponte, after the jury had been instructed, that it might recall them to give that instruction. It is not entirely clear from the…