                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2874
                         ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                  Ricky W. Mariano,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                             Submitted: March 15, 2013
                              Filed: September 9, 2013
                                   ____________

Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,1 District
Judge.
                        ____________

COLLOTON, Circuit Judge.

       A jury found Ricky W. Mariano guilty of two counts of theft of mail matter, in
violation of 18 U.S.C. § 1708, two counts of destruction of letter boxes, in violation


      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
of 18 U.S.C. § 1705, one count of bank fraud conspiracy, in violation of 18 U.S.C.
§§ 1344 and 1349, one count of aiding and abetting attempted bank fraud, in violation
of 18 U.S.C. §§ 1344 and 2, and one count of aiding and abetting aggravated identity
theft, in violation of 18 U.S.C. §§ 1028A and 2. The district court2 sentenced Mariano
to a total term of 70 months’ imprisonment, which included a consecutive term of 24
months’ imprisonment for aggravated identity theft. Mariano challenges only his
conviction for identity theft, charged as Count 14 in the indictment. He contends that
the district court’s jury instructions and the government’s presentation of the case
constructively amended the indictment, and that the evidence adduced at trial was
insufficient to support the conviction. We affirm.

                                          I.

       Mariano and several others participated in a scheme to steal checks and credit
cards. The conspirators obtained the checks and credit cards in various ways,
including by breaking into post boxes to steal checks enclosed in outgoing United
States mail. Using a common cleaning product, the conspirators “washed” the stolen
checks to remove the date, payee, payment amount, and signature inked on the check
by the lawful account holder. Some members of the conspiracy also burgled vehicles
and stole credit and bank cards, passports, and other identity cards. The conspirators
used the washed checks and stolen cards without authorization to purchase high-value
electronics or other goods at retail stores, which they resold or returned for cash, or
traded the stolen checks or cards with each other in exchange for money or drugs.

      At trial, several cooperating co-conspirators described Mariano’s role in the
enterprise. James Newton Hahne, Jr., stated that Mariano directed him to post boxes
that Mariano believed might prove especially lucrative, showed Hahne how to remove


      2
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

                                         -2-
ink from stolen checks, and provided Hahne and others with checks that Mariano
himself had washed, in return for a fee of half of the face value at which the
conspirator ultimately negotiated the check.

      James Edward Freeman testified that Mariano gave him methamphetamine in
exchange for credit cards that Freeman had stolen from parked cars. Freeman added
that Mariano generally would offer the stolen checks and cards to a different
conspirator rather than use the checks or cards himself because, as Mariano told
Freeman, he believed “he looked too much like a drug user and a criminal” to
impersonate lawful account holders successfully.

      Jacob Dutton stated that he and Mariano broke into multiple post boxes together
while under the influence of methamphetamine, with Dutton acting as the driver.
Mariano kept the checks that he and Dutton extracted from the mail, washed them,
“divvied up” the haul in “his discretion” among the other members of the conspiracy,
and directed “who would do what and how much he would get” for each check. On
one occasion, Dutton observed between forty-five and sixty freshly washed checks
drying on a metal rack in the kitchen of Mariano’s home.

       Events of March 9, 2011, are important to the prosecution of Mariano for
identity theft. Michael Robert Drexl arrived at Dutton’s home with a wallet that Drexl
had stolen from a parked car. Dutton and Mariano were present. The wallet belonged
to a victim identified in the indictment as S.B., and contained three credit or bank
cards, including a Capital One credit card.

       At trial, Dutton recalled that Drexl “insisted” on keeping a particular credit card
for his own use, but could not remember who removed the remaining two credit cards
from the wallet. Drexl testified that he was indifferent to which conspirator used the
credit cards, so long as he received a portion of the profits. Ultimately, Mariano and
Dutton received two stolen cards from Drexl, including the Capital One credit card.


                                           -3-
        Mariano and Dutton discussed where and how to use the stolen cards. They
eventually settled on a plan to purchase electronics from a nearby Walmart and share
the proceeds. At some point, Mariano and Dutton decided that Dutton would be the
first to use the stolen Capital One credit card inside the store, and that he would then
give it to Mariano to use. Dutton, who had never before presented a stolen card to a
store cashier, stated that “didn’t want” to use the Capital One credit card. He
ultimately assented after Mariano “put on” a “guilt trip” and told Dutton that he
“never followed through with using anything.” Dutton testified that he and Mariano
each handled the stolen Capital One credit card at some point during the Walmart trip.
When asked to specify when each man possessed the card, Dutton answered, “You
know, I cannot believe that I had the card going into the store.”

       Photographs and video recorded by Walmart surveillance cameras showed
Mariano and Dutton entering the store and perusing the electronics section together.
The men took turns pushing a shopping cart. Mariano eventually sought out a
Walmart employee to unlock a case containing a PlayStation. After the store
employee removed the PlayStation from the locked case, Dutton proceeded to a sales
register in the electronics section and handed a cashier the stolen Capital One credit
card. The cashier asked Dutton for identification, and Mariano, who was within
earshot, began moving away from the area. Dutton ultimately left the store without
the PlayStation, met Mariano in the parking lot, and drove away with him.

      A grand jury charged Mariano by superseding indictment with offenses
including three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A.
This statute criminalizes the unauthorized transfer, possession, or use of another
person’s means of identification during and in relation to certain enumerated felonies,
including bank fraud. 18 U.S.C. § 1028A(a)(1), (c)(5). The indictment listed Counts
11-15 as a group. A prefatory paragraph alleged that Mariano and a co-defendant did
“knowingly transfer, possess, and use” a means of identification of another person “as
alleged in each count below.” Count 14 then specified that Mariano was charged with

                                          -4-
“[u]nlawful possession and transfer of name, address, bank account number, and bank
routing number of victim S.B. for $385.96 attempted credit card purchase during
commission of Bank Fraud, as alleged in Count 9.” Count 9 charged Mariano with
attempting unlawfully to withdraw $385.96, the price of the PlayStation, from the
Capital One credit account of victim S.B.

        At trial, Mariano challenged only the identity theft charges and conceded his
guilt on the remaining counts. The jury convicted Mariano of aggravated identity
theft, as charged in Count 14, and bank fraud, as charged in Count 9. It also convicted
him of two counts of theft of mail matter, two counts of destruction of letter boxes,
and one count of bank fraud conspiracy. Mariano was acquitted of the remaining two
charges of aggravated identity theft, listed as Counts 11 and 13 in the indictment,
which did not involve victim S.B. Following the verdict, Mariano moved for a
judgment of acquittal on Count 14, and the district court denied the motion. The court
sentenced Mariano, and he appeals.

                                          II.

                                          A.

       Mariano first contends that the district court constructively amended the
indictment by instructing the jury that it could convict him if he “transferred,
possessed or used” victim S.B.’s means of identification. As a consequence, he
argues, the jury could have convicted him of unlawfully using or aiding and abetting
the unlawful use of victim S.B.’s Capital One credit card, rather than unlawful
possession or transfer of the card, as charged in the indictment. He complains that the
problem was compounded by the government’s closing argument that Mariano “used”
or aided and abetted Dutton’s attempt to “use” the stolen Capital One credit card.




                                         -5-
       Not only did Mariano raise no objection to the district court’s inclusion of “use”
in the jury instruction, but he affirmatively requested the language. Before trial,
Mariano submitted the following proposed instruction:

      The crime of aggravated identity theft, as charged in Counts 11,
      13, and 14 of the indictment, has four elements, which are:

             One, the defendant knowingly [transferred]
             [possessed] [used] the (specify means of
             identification transferred, possessed, or used);

             Two, the defendant knew that the (specify means of
             identification) the defendant [transferred]
             [possessed] [used] belonged to another actual person;

             Three, the defendant [transferred] [possessed] [used]
             the (specify means of identification) without lawful
             authority; and,

             Four, the defendant [transferred] [possessed] [used]
             the (specify means of identification) during and in
             relation to the crime of bank fraud, as charged in
             Counts 8 and 9 of the indictment.

R. Doc. 328, at 22 (brackets in original). The bracketed material left ambiguity about
the elements, but a later colloquy was more precise.

       Following the close of evidence, the district court discussed the jury
instructions with the parties. Mariano asked to be excused and the district court
granted his request, after confirming that he understood his right to be present and
cautioning him that the court would “be making some decisions about the jury
instructions.” During the subsequent colloquy, Mariano’s attorney requested that the
court read a separate instruction for each count of identity theft, and gave an example
of the language for Count 11:

                                          -6-
      [I]f we get to where are the elements here for Counts 11, 13, and 14, for
      example? I would request that each count, the Court read the
      instructions for each count. For example, if it were Count 11, it would
      read, first, the Defendant knowingly transferred possessed or used
      another’s means of identifications [sic], specifically G.M. . . . Second,
      the Defendant knew the means of identification it then transferred
      belonged to [G.M.], and it should read that way for each count.”

Tr. 552-53 (emphases added). Like Count 14, Count 11 charged Mariano with
unlawful “possession and transfer” of another’s means of identification, but Mariano’s
counsel requested in this colloquy that the court instruct the jury about transfer,
possession, or use.

        The district court determined to give just one instruction on identity
theft—using Mariano’s proposed language—along with an admonition that the jury
must consider each count separately and return a separate verdict on each. Mariano’s
counsel responded that he would “just work with that,” and that there was no need “to
redo” the instructions. So the court instructed the jury that it could convict Mariano
if the government proved that he knowingly transferred, possessed, or used, or aided
and abetted the transfer, possession, or use of another’s means of identification. In
closing argument, the government argued that Mariano and Dutton had “used” victim
S.B.’s Capital One credit card, and that Mariano had committed identity theft by
“using” it. The jury convicted on Count 14.

      Mariano argues on appeal that because Count 14 of the indictment charged only
that Mariano had possessed and transferred S.B.’s means of identification, the district
court’s instructions constructively amended the indictment by adding the element of
“use.” An indictment is constructively amended “when the essential elements of the
offense set forth in the indictment are altered, either actually or in effect, by the
prosecutor or the court after the grand jury has passed upon them,” United States v.
Begnaud, 783 F.2d 144, 147 n.4 (8th Cir. 1986), thereby creating a “substantial


                                         -7-
likelihood” that the petit jury convicted the defendant of an offense that the grand jury
had not charged. United States v. Johnson, 934 F.2d 936, 941 (8th Cir. 1991); see
also Stirone v. United States, 361 U.S. 212, 217-19 (1960).

       This court long has held, however, that a defendant “is in no position to
challenge the giving of an instruction which he has requested.” Petschl v. United
States, 369 F.2d 769, 774 (8th Cir. 1966); see United States v. Friedman, 506 F.2d
511, 515 (8th Cir. 1974); Bianchi v. United States, 219 F.2d 182, 194 (8th Cir. 1955).
In other words, the defendant has “invited” the alleged mistake, and “there can be no
reversible error.” United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir. 2010)
(internal quotation omitted). Cf. Dennis v. United States, 341 U.S. 494, 500 n.2
(1951) (“[P]etitioners themselves requested a charge similar to the one given, and
under Rule 30 of the Federal Rules of Criminal Procedure would appear to be barred
from raising this point on appeal.”). Despite a suggestion in Stirone that a
constructive amendment is not subject to harmless error analysis, 361 U.S. at 217, a
defendant may forfeit a challenge to a constructive amendment, United States v.
Gavin, 583 F.3d 542, 546-47 (8th Cir. 2009); a fortiori, he can waive it.

        There has been some discussion after United States v. Olano, 507 U.S. 725
(1993), about whether an “invited error” in a jury instruction is a “waiver” that
precludes appellate review, or merely a “forfeiture” that permits review for plain error
under Federal Rule of Criminal Procedure 52(b). Waiver is the “intentional
relinquishment or abandonment of a known right,” Olano, 507 U.S. at 733 (internal
quotation omitted), whereas forfeiture is “the failure to make the timely assertion of
a right.” Id. A divided en banc panel of the Ninth Circuit concluded that Olano
required it to “reformulate” its “invited error” doctrine to “consider whether the
defendant intentionally relinquished or abandoned a known right.” United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). A six-judge majority determined
that it must consider whether there “is evidence in the record that the defendant was
aware of, i.e., knew of, the relinquished or abandoned right.” Id. at 845. A five-judge

                                          -8-
concurrence objected that Olano said nothing about “invited error,” that it is
impractical to search for evidence of defense counsel’s mental state, and that other
circuits had applied the invited error rule without change after Olano. Id. at 849-53
(Kleinfeld, J., concurring in the judgment). The Third Circuit seems to have followed
Perez in one case, Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 291-92 (3d Cir.
2005), but it has not done so consistently. See United States v. Holmes, 607 F.3d 332,
335 (3d Cir. 2010).

       We do not think Olano justifies a departure from our panel precedents that a
defendant who requests and receives a jury instruction may not challenge the giving
of that instruction on appeal. Wisecarver, a post-Olano decision from this circuit,
treated as “fundamental” the rule that an “invited error” on a jury instruction is not
reversible, 598 F.3d at 988, and another post-Olano decision said in dicta that if the
defendant had proposed the very jury instructions to which he objected on appeal, then
he “would of course have waived his right to object to them.” United States v. Pinque,
234 F.3d 374, 377 (8th Cir. 2000) (citing Olano, 507 U.S. at 732-33). See also United
States v. Maxie, 294 F. App’x 247, 249 (8th Cir. 2008) (per curiam). Several circuits
have followed a comparable approach after Olano. See United States v. Natale, 719
F.3d 719, 729-31 (7th Cir. 2013); United States v. Souffrant, Nos. 10-11579, 10-
11603, 2013 WL 1748723, at *11-12 (11th Cir. Apr. 23, 2013); United States v.
Demmler, 655 F.3d 451, 458-59 (6th Cir. 2011); United States v. Spivey, 129 F. App’x
856, 859 (4th Cir. 2005) (per curiam); cf. United States v. Jefferson, 432 F. App’x
382, 387-88 (5th Cir. 2011) (request to “leave the instructions as they are” is waiver);
United States v. Hansen, 434 F.3d 92, 101 (1st Cir. 2006) (statement that counsel was
“content” with the jury instruction is waiver).

       Olano said that whether and how a right is waivable depend on the right at
stake. 507 U.S. at 733. A defendant need not personally waive objections to jury
instructions, as they raise questions of law to be handled by counsel. United States
v. Perez, 612 F.3d 879, 883 (7th Cir. 2010). The Olano decision, therefore, does not

                                          -9-
seem inconsistent with our longstanding precedent that when a defendant specifically
requests a particular instruction, he gives up the right to appeal any error in that
instruction. Under Olano, moreover, a court of appeals retains discretion whether to
correct a forfeited error, and should do so only if an error affects the fairness,
integrity, or public reputation of judicial proceedings. 507 U.S. at 735-37. If
proposing an instruction is not waiver of the right to challenge it on appeal, then our
“invited error” cases also could be understood as a categorical conclusion that a
conviction based on a mistaken jury instruction that was specifically requested by the
defendant does not result in a miscarriage of justice. See United States v. Lespier, No.
12-4266, 2013 WL 3988769, at *10 (4th Cir. Aug. 6, 2013); cf. United States v.
Gomez, 705 F.3d 68, 76 (2d Cir.), petition for cert. filed, 81 U.S.L.W. 3618 (U.S. Apr.
6, 2013) (No. 12-1212).

      Mariano specifically requested that the jury be instructed about transfer,
possession, and use of a means of identification. He cannot challenge on appeal the
court’s giving of the precise instruction that he requested. The government’s closing
argument simply applied the instruction that Mariano requested and received, so it was
not improper.

       In a related contention, Mariano asserts that the district court constructively
amended the indictment by listing “credit card account number” as an “example” of
a “means of identification,” although Count 14 did not mention a credit card account
number. The indictment listed “credit card account number” as a “means of
identification” in the prefatory paragraph for Counts 11-15, but charged in Count 14
that Mariano committed “[u]nlawful possession and transfer of name, address, bank
account number, and bank routing number of victim S.B. for $385.96 attempted credit
card purchase during commission of Bank Fraud as alleged in Count 9.” Count 9, in
turn, charged the “[a]ttempted unlawful withdrawal of $385.96 from Capital One
credit card account XXXXXXXXXXXX2611 of victim S.B.”



                                         -10-
       Mariano did not raise this objection at trial, and there is no plain error for two
reasons. First, although the court gave examples of “means of identification,” the
instruction also specified the means of identification at issue in Count 14 in the same
language as the indictment: “name, address, bank account number, and bank routing
number of victim S.B. for $385.96 attempted credit card purchase during commission
of Bank Fraud as alleged in Count 9.” The jury was thus advised about which means
of identification were encompassed by the allegations in Count 14. Second, there is
at least a reasonable dispute about whether Count 14 of the indictment—by cross-
referencing the “attempted credit card purchase” alleged in Count 9, which in turn
listed S.B.’s credit card account number as a means of identification—fairly informed
Mariano that S.B.’s credit card account number was a means of identification at issue
under Count 14. Cf. United States v. Pemberton, 121 F.3d 1157, 1169 (8th Cir. 1997);
United States v. Morris, 18 F.3d 562, 568 (8th Cir. 1994). Any imprecision in the
instructions on this point does not rise to the level of a plain error.

       Mariano also claims there was a constructive amendment because the jury
instructions permitted a conviction based on uncharged conduct involving a second
credit card that Drexl had stolen from victim S.B. He complains that the instructions
did not limit the jury’s consideration to specific means of identification, and that the
government referred to this second stolen card in its closing argument.

       Again, Mariano did not object to the jury instructions or closing argument, and
there was no plain error warranting relief. The government’s theory on Count 14, as
reflected in the indictment and in closing argument, involved S.B.’s stolen credit card
ending in 2611 and the attempted purchase at Walmart. The jury’s questions about
Count 14, which can enlighten a reviewing court, see United States v. Robertson, 606
F.3d 943, 956 (8th Cir. 2010), likewise focused on the stolen Capital One credit card
and the trip by Mariano and Dutton to Walmart. The jury instructions referred
specifically to the attempted credit card purchase that was charged in the indictment,
while making no mention of the second stolen card. The government’s reference in

                                          -11-
argument to the second card was only fleeting. The district court instructed the jury
that Mariano was not on trial for any acts or crimes not charged in the indictment.
Under these circumstances, there is no substantial likelihood that Mariano was
convicted of an uncharged offense involving a second credit card.

      For these reasons, we reject Mariano’s contention that the conviction on Count
14 should be reversed because of a constructive amendment.

                                          B.

       We also conclude that there was sufficient evidence for the jury to convict
Mariano on Count 14. Dutton testified that he and Mariano each possessed the stolen
Capital One credit card at some point after receiving it from Drexl, and that Mariano
handed the card to Dutton at some point before Dutton gave it to the Walmart cashier.
Although Dutton initially had trouble recalling whether Mariano gave him the card in
the car or inside the store, a reasonable jury could have believed Dutton’s testimony
and inferred that Mariano held the card when the men entered the store. The evidence
was sufficient for a jury to find that Mariano possessed or transferred the stolen
Capital One card.

       The evidence also was sufficient for a jury to find that Mariano aided or abetted
the use of the stolen Capital One credit card. The jury was instructed that it must find
that the government had proved, beyond a reasonable doubt, “that someone committed
each of the essential elements of the offense of bank fraud and aggravated identity
theft” before Mariano could be found guilty of aiding or abetting the crime. Dutton’s
detailed testimony provided a sufficient basis for the jury to conclude that Dutton
himself attempted to use the card, and that Mariano knowingly and deliberately
associated himself with and participated in that crime.




                                         -12-
       There was also sufficient evidence that Mariano acted with “some purpose or
effect with respect to the commission of the crime of bank fraud,” as required by the
fourth element of the offense. The government presented evidence that Mariano and
Dutton agreed to target the Walmart and aimed to purchase expensive merchandise
with a card they knew to be stolen. Mariano and Dutton discussed who would use the
credit card and decided how to divide the proceeds. And Dutton testified that Mariano
had the credit card when the pair entered the store. This was a sufficient basis for the
jury to find that Mariano intended to further the commission of the crime of bank
fraud.

                                 *       *       *

      The judgment of the district court is affirmed.
                        ______________________________




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