                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2005

USA v. Ibrocevic
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1496




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-1496
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                CAMIL IBROCEVIC,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 03-cr-00333)
                    District Judge: Honorable Jerome B. Simandle
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 10, 2005

     Before: RENDELL and FISHER, Circuit Judges, and YOHN,* District Judge.

                               (Filed: March 29, 2005)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       The parties are familiar with the facts, which we recite only to the extent necessary

to the disposition of this appeal of the judgment below, which we will affirm. A jury

convicted appellant Camil Ibrocevic based on an indictment alleging that he had used

more than one access device in violation of 18 U.S.C. § 1029(a)(5) and (b)(1).

       Ibrocevic first argues that because the indictment did not mention aiding and

abetting liability under 18 U.S.C. § 2, the District Court erred in instructing the jury that

he could be convicted as an aider/abettor. This argument is without merit, as federal

courts have long held that a jury may be instructed concerning aiding and abetting even if

the indictment does not explicitly charge aiding and abetting under 18 U.S.C. § 2. See,

e.g., United States v. Bryan, 483 F.2d 88, 95 (3d Cir. 1973) (en banc); see also United

States v. Sorells, 145 F.3d 744, 752 (5th Cir. 1998).

       Second, Ibrocevic argues that the District Court abused its discretion in holding

that the government was not obliged under Fed. R. Crim. Proc. 16 to turn over to the

defense the hand-written notes of a Secret Service agent detailing a post-arrest confession

and interview with the defendant. The District Court found that the notes had been lost

following a series of office moves after the Secret Service’s office in the World Trade

Center was destroyed on September 11, 2001. The government did, however, hand over a

copy of a final report done by the agent and indicated that it would have handed over the

notes if they could have been located.



                                               2
       The District Court concluded that the government’s obligation extended only to

handing over information regarding the substance of the conversation under Fed. R.

Crim. P. 16(a)(1)(A) rather than to turning over the actual notes under Rule

16(a)(1)(B)(ii). Ibrocevic, for his part, argues that it is not enough to turn over a summary

of the conversation where a written record of the conversation exists, pointing to the fact

that Rule 16(a)(1)(B)(ii) requires that the government turn over upon request “the portion

of any written record containing the substance of any relevant oral statement” he made in

response to interrogation by the Secret Service agent.

       Even assuming that Ibrocevic is correct, we find any error to be harmless. There

was considerable evidence of Ibrocevic’s guilt and he was given a copy of the agent’s

final report which the agent testified contained everything in her notes. Moreover, there

is no evidence that the government acted in bad faith. See United States v. Ramos, 27

F.3d 65, 72 (3d Cir. 1994) (officers acted in good faith in destroying interview notes);

United States v. Ammar, 714 F.2d 238, 259-60 (3d Cir. 1983) (any error in destruction of

notes was harmless where drafts and reports were “substantially identical”).

       Third, Ibrocevic argues that the evidence was insufficient to convict him of using

more than one access device in violation of 18 U.S.C. § 1029(a)(5) and (b)(1).1 We


       1
       The indictment alleged that Ibrocevic “knowingly, wilfully, and with intent to
defraud attempt[ing] to effect transactions with more than one access device issued to
another person, in a manner affecting interstate commerce, to receive things of value
aggregating more than $1,000 during a one-year period” in violation of 18 U.S.C. §
1029(a)(5) and (b)(1).” (Emphasis added.) Although the underlying statute refers to

                                             3
disagree. The direct evidence showed that at 8:56 p.m. on April 18, 2002, Ibrocevic

fraudulently attempted to use a credit card belonging to a third party at Harrah’s Hotel

and Casino in New Jersey. At that time, Ibrocevic presented a fake Florida driver’s

license with his picture in the name of the third party.

       After Ibrocevic’s initial arrest by state authorities, a wallet was found in a restroom

containing 14 additional credit cards belonging to the third party and nine other persons,

along with nine other fake Florida driver’s licenses in those names with Ibrocevic’s

picture. Other evidence showed that between 8:00 to 9:00 p.m. that night, somebody had

attempted to use several of these credit cards. Some attempts were declined as the cards

had been reported as lost. Ibrocevic, for his part, admitted that he had worked together

with a man named “Sonny” with whom he would split the money. “Sonny” would steal

credit cards from New York City gyms, make false identifications with Ibrocevic’s image

in the relevant names, and Ibrocevic would obtain cash advance with the cards. Further,

Ibrocevic expressly admitted to using multiple credit cards.

       Despite this significant direct and circumstantial evidence, and despite conceding

that circumstantial evidence merits weight equal to direct evidence, App. Br. at 28,

Ibrocevic complains that two of the attempted transactions occurred on the morning after

his initial arrest when he was in police custody. He thus suggests that since direct



“1 or more access devices” rather than “more than one” device, we accept for purposes of
this appeal Ibrocevic’s contention that for his conviction to stand, the evidence must
comport with the indictment’s requirement of multiple access devices.

                                              4
evidence only shows use of one credit card, and since several of the credit cards were

used after his arrest, that he was responsible for none of the other transactions. But

Ibrocevic ignores the fact that after conviction, we must affirm where the evidence, when

viewed in the light most favorable to the government, would allow a rational trier of fact

to convict. In making this inquiry, we draw all reasonable inferences in the government’s

favor and credit only evidence that supports the verdict. United States v. Perez, 280 F.3d

318, 342 (3d Cir. 2002). Here, there was ample evidence of Ibrocevic’s guilt.

       Finally, defendant raises sentencing issues arising from the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), which the Supreme Court

subsequently addressed in United States v. Booker, 125 S. Ct. 738 (2005). Having

determined that the sentencing issues appellant raises are best determined by the District

Court in the first instance, we will vacate the sentence and remand for resentencing in

accordance with Booker.




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