                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-10383

              Plaintiff - Appellee,              D.C. No. 09-cr-00058-RMW

  v.
                                                 MEMORANDUM *
RAFIC LABBOUN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                     Argued and Submitted December 6, 2011
                            San Francisco, California

Before: O’SCANNLAIN and BERZON, Circuit Judges, and LASNIK, District
Judge.**

       Raffic Labboun appeals his conviction of seven counts of bank fraud in

violation of 18 U.S.C. § 1344(1). As alleged by the government and found by the

jury, each of these counts arose from an alleged credit card “bust out” scheme in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
which Labboun used “bad checks” to pay off outstanding credit card account

balances and then incurred or attempted to incur additional charges on those

accounts before the checks bounced. He raises eight issues on appeal. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.1

      1. The district court did not err in determining that venue was appropriate in

the Northern District of California. “Any offense involving . . . transportation in

interstate or foreign commerce . . . is a continuing offense and, except as otherwise

expressly provided by enactment of Congress, may be inquired of and prosecuted

in any district from, through, or into which such commerce . . . moves.” 18 U.S.C.

§ 3237(a). And, as found by the district court, Labboun’s “fraud involved the use

of bad checks drawn on an account in the district to pay on credit card accounts . . .

opened by defendant in the district.”

      2. The court did not err in refusing to dismiss Count 3, Count 4, Count 5, or

Count 7 for failing to assert a violation of § 1344(1). Labboun’s contention that

the counts were infirm because none alleged any “subsequent purchases” is not

supported by either circuit law or the record before us. United States v. Rizk, 660

F.3d 1125, 1135 (9th Cir. 2011) (“This circuit ‘has never adopted a “risk of loss”



      1
        We presume the parties are familiar with the facts of the case and thus do
not repeat them here.

                                           2
analysis in bank fraud cases.’” (quoting United States v. Wolfswinkel, 44 F.3d 782,

786 (9th Cir. 1995))); see United States v. Mason, 902 F.2d 1434, 1442 (9th Cir.

1990).

         Even assuming we were inclined to adopt a “risk of loss” requirement to

establish a § 1344(1) violation, evidence was introduced at trial that Labboun

caused his creditors to extend him credit otherwise not available to him when he

submitted “bad checks” to them. And we have previously held that the extension

of credit equates to risk of loss. Mason, 902 F.2d at 1442–43; see United States v.

Estacio, 64 F.3d 477, 480 (9th Cir. 1995) (“When Estacio directed the deposit of

checks drawn on insufficient funds, . . . he unquestionably knowingly promoted the

commission of bank fraud as defined in 18 U.S.C. § 371 and § 1344.”). Although

no additional credit was extended to Labboun by the bank implicated in Count 7,

the proximity of Labboun’s payment and the use of sequential checks demonstrates

that the payment was an attempt to obtain an extension of credit, which failed only

because the account had been suspended.

         3. The court did not abuse its discretion in admitting the AmEx evidence.

This evidence was “inextricably intertwined” with the course of conduct

underlying each count. United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.

1993) (“The policies underlying rule 404(b) are inapplicable when offenses


                                           3
committed as part of a ‘single criminal episode’ become other acts simply because

the defendant ‘is indicted for less than all of his actions.’” (citation omitted)). It

was both “a part of the transaction that serves as a basis for the criminal charge,”

and “necessary to . . . permit the prosecutor to offer a coherent and comprehensible

story regarding the commission of the crime.” United States v. Rrapi, 175 F.3d

742, 748–49 (9th Cir. 1999) (alteration in original) (citations and internal quotation

marks omitted).

      4. The court did not err in admitting the testimony of the government’s

expert. Labboun concedes that she was an expert, and we are not persuaded that

her testimony did not assist the trier of fact. Fed. R. Evid. 702; cf. United States v.

Mejia-Luna, 562 F.3d 1215, 1219 (9th Cir. 2009) (“The federal courts uniformly

hold . . . that government agents or similar persons may testify as to general

practices of criminals to establish the defendants’ modus operandi.” (alteration in

original) (citation and internal quotation marks omitted)). Nor are we persuaded

that the expert’s testimony violated Federal Rule of Evidence 704(b). United

States v. Morales, 108 F.3d 1031, 1041 (9th Cir. 1997) (en banc) (“Rule 704(b)

does not preclude expert testimony from which a jury might infer that a criminal

defendant did or did not possess the requisite mens rea.”). The trial judge acted

well within the bounds allowed by our precedent in permitting the expert to testify


                                            4
only about the general operation of a “bust out” scheme and precluding the United

States from using her as a summary witness.

      5. We also cannot agree that the court permitted either a constructive

amendment of the indictment or a fatal variance from it. Labboun’s contention that

the district court “ruled that the government no longer needed to prove to the jury

that the fraud was occasioned by Labboun sending in checks to the credit card

banks with knowledge of the insufficient funds for the checks” is flatly refuted by

the record. His second contention fares no better. The indictment was not altered

or broadened by the introduction of evidence regarding Labboun’s accrual of

balances on his accounts. Rather, the indictment itself refers to these balances.

      6. “[V]iewing the evidence in the light most favorable to the prosecution,”

the evidence was more than sufficient to support the jury’s verdict. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The United States introduced evidence that

Labboun never reported his cards missing, that Labboun’s card was swiped for one

of the purchases in Saudi Arabia, that at least one of the payments was made by an

actual check bearing what appeared to be Labboun’s signature, and that the

individual making the fraudulent telephonic payments had access to information

known only to Labboun.




                                          5
      7. Labboun’s sentence was not illegal. First, the district court correctly

applied a preponderance of the evidence standard to establish the loss amount.

United States v. Watts, 519 U.S. 148, 157 (1997) (“[A] jury’s verdict of acquittal

does not prevent the sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct has been proved by a preponderance of

the evidence.”); United States v. Hopper, 177 F.3d 824, 832–33 (9th Cir. 1999)

(holding that a “four-level increase in sentence is not an exceptional case that

requires clear and convincing evidence”).

      Second, the court properly included the amount of the bad checks in its loss

calculation. United States v. Gilchrist, 658 F.3d 1197, 1202 (9th Cir. 2011)

(“[I]ncluded in the Guidelines’ alternate methods of calculating intended loss is the

tallying of deposited fraudulent checks.”); United States v. Ali, 620 F.3d 1062,

1074 (9th Cir. 2010) (noting that a court must make only “‘a reasonable estimate of

the loss, given the available information’” (quoting United States v. Bussell, 504

F.3d 956, 960 (9th Cir. 2007))). Though the court ultimately erred by including

late fees and finance charges in its calculation, U.S.S.G. § 2B1.1 application note




                                            6
3(D)(i), this error was harmless. The offense level would remain the same under

the revised loss amount of $146,609.2 U.S.S.G. § 2B1.1(b)(1).

      Finally, we see no basis for concluding that Labboun’s sentence was

substantively unreasonable. Labboun was sentenced to 27 months—the bottom of

the applicable Guidelines range. United States v. Carty, 520 F.3d 984, 991 (9th

Cir. 2008) (en banc) (“[T]he Guidelines are the starting point and the initial

benchmark . . . .” (citation and internal quotation marks omitted)). Moreover, the

record plainly demonstrates that the court considered each of the 18 U.S.C. § 3553

factors and adequately explained why it considered that within-Guidelines sentence

appropriate. Id. at 991–94.

      8. Because we have failed to find any error, Labboun cannot be entitled to

reversal for alleged cumulative error. United States v. Jeremiah, 493 F.3d 1042,

1047 (9th Cir. 2007).

      AFFIRMED.




      2
         Because the inclusion or exclusion of the AmEx charges would not affect
the offense level calculation, see U.S.S.G. § 2B1.1(b)(1), we do not address them.

                                           7
