                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 19 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10525

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00037-RVM-1

  v.
                                                 MEMORANDUM*
ADRIAN MENDIOLA,

              Defendant - Appellant.


                  Appeal from the United States District Court
                 for the District of the Northern Mariana Islands
               Ramona V. Manglona, Chief District Judge, Presiding

                             Submitted June 13, 2013**
                                Honolulu, Hawaii

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

       Appellant Adrian Mendiola appeals his jury conviction on Count I of an

indictment charging him with, inter alia, violation of the Endangered Species Act,

16 U.S.C. §§ 1531 et seq. On December 19, 2008, agents from the U.S. Fish and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Wildlife Service and federal law enforcement executed a search warrant for

Mendiola’s residence on Rota, an island in the Commonwealth of the Northern

Mariana Islands, and discovered four dead fruit bats in the bottom of a freezer

(“the freezer bats”). All of the freezer bats were identified as belonging to the

genus Pteropus, and three out of the four were of the species Pteropus mariannus.

Fruit bats of the subspecies Pteropus mariannus mariannus were listed as

“threatened” on Rota as of February 7, 2005. 70 Fed. Reg. 1190–91 (January 6,

2005). After a four-day trial, the jury found Mendiola guilty of Possession of a

Threatened Species, in violation of 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1), and 50

C.F.R. §§ 17.21(a), (d), 17.31(a). The district court denied Mendiola’s post-trial

motion for acquittal or, in the alternative, for a new trial. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Mendiola argues that there was insufficient evidence to sustain his

conviction because the government failed to prove that: (1) the freezer bats were of

the subspecies Pteropus mariannus mariannus; and (2) the freezer bats were taken

on or after February 7, 2005, the date they were listed as “threatened” on Rota.

Mendiola also contends that reversal is warranted because the district court issued

an erroneous supplemental jury instruction in response to the jury’s request for

clarification of the term “possessed.”


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      We “review de novo the sufficiency of the evidence to support the

conviction.” United States v. Parker, 651 F.3d 1180, 1182 (9th Cir. 2011) (per

curiam). “A challenge to the sufficiency of the evidence requires this court to

determine if ‘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.’” United States v. Carranza, 289 F.3d 634,

641–42 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

“[C]ircumstantial evidence can form a sufficient basis for conviction.” United

States v. Yoshida, 303 F.3d 1145, 1151 (9th Cir. 2002).

      1.     Although a forensic morphologist who examined the freezer bats was

only able to identify three of the bats to the species level, testimony from a local

bat biologist revealed that Pteropus mariannus mariannus is the only subspecies of

fruit bat endemic to Rota, and that other subspecies are physically incapable of

flying to Rota from other islands. There was no indication that the freezer bats had

been smuggled into Rota, and there was substantial evidence linking Mendiola and

the freezer bats to a colony of Pteropus mariannus mariannus on Rota that had

recently been taken by poachers. “Although the government’s case consisted of

largely circumstantial evidence and required the jury to make reasonable

inferences,” this circumstantial evidence was sufficient to support a finding beyond


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a reasonable doubt that at least one of the freezer bats was of the subspecies

Pteropus mariannus mariannus. Yoshida, 303 F.3d at 1151.

      2.     There was sufficient evidence for a rational factfinder to infer that the

freezer bats found in Mendiola’s residence belonged to the colony of Pteropus

mariannus mariannus that had been poached approximately six weeks prior.

Moreover, when the authorities discovered the freezer bats, Mendiola sighed and

looked down, and subsequently admitted that he knew hunting fruit bats was

illegal. From this evidence, a rational juror could conclude beyond a reasonable

doubt that the freezer bats were taken after February 7, 2005.

      3.     We review the district court’s formulation of a supplemental jury

instruction for abuse of discretion. United States v. Solomon, 825 F.2d 1292, 1295

(9th Cir. 1987) (“Although the trial court is obliged to ‘eliminate confusion when a

jury asks for clarification of a particular issue,’ the ‘necessity, extent and character’

of supplemental instructions[] lies within the discretion of the trial court.” (quoting

United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986))). “In reviewing jury

instructions, the relevant inquiry is whether the instructions as a whole are

misleading or inadequate to guide the jury’s deliberation.” United States v. Frega,

179 F.3d 793, 806 n.16 (9th Cir. 1999).




                                            4
      We find that the district court’s supplemental jury instruction, issued in

response to the jury’s request for clarification of the term “possessed,” was not

misleading in the context of the overall charge, and did not constitute an abuse of

discretion. Moreover, Mendiola has not established that he was prejudiced by the

district court’s supplemental instruction. See Frega, 179 F.3d at 806 n.16 (“Jury

instructions, even if imperfect, are not a basis for overturning a conviction absent a

showing that they prejudiced the defendant.”).

      AFFIRMED.




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