                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 06 2012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. 11-30284

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00311-TSZ-7

       v.
                                                 MEMORANDUM *
AKOP DANIYELYAN,

              Defendant - Appellant.


UNITED STATES OF AMERICA,                        No. 11-30326

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00311-TSZ-6

       v.

GRAYR POGOSOVICH YERIKYAN,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Western District of Washington
                     Thomas S. Zilly, District Judge, Presiding

                     Argued and Submitted November 9, 2012
                              Seattle, Washington




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**

      Akop Daniyelyan appeals his judgment of conviction and sentence for one

count of conspiracy to commit bank fraud and one count of bank fraud. Grayr

Yerikyan appeals his sentence for one count of conspiracy to commit bank fraud,

one count of bank fraud and one count of conspiracy to commit unlawful

production of identification documents. We affirm.

      1.     Sufficient evidence supported Daniyelyan’s conviction for conspiracy

to commit bank fraud and for bank fraud. The evidence showed that, consistent

with a check-kiting scheme described by a co-conspirator, Daniyelyan opened

bank accounts in the name of a fraudulent business, used debit cards of other

fraudulent businesses to purchase hundreds of thousands of dollars of cigarettes,

purchased the cigarettes by drawing on accounts whose balances were artificially

inflated and stayed in close communication with other members of the conspiracy

while purchasing these cigarettes. See United States v. Chung, 659 F.3d 815, 823

(9th Cir. 2011) (“We review the sufficiency of the evidence de novo to determine

whether, ‘viewing the evidence in the light most favorable to the prosecution, any




       **
        The Honorable Gordon J. Quist, Senior District Judge for the U.S. District
Court for the Western District of Michigan, sitting by designation.

                                         2
rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))).

         2.   There was no plain error when the prosecutor stated in closing

argument that Daniyelyan had lied to the bank associate who helped him open the

bank accounts and that Daniyelyan had lied on the stand, because the prosecutor

did not personally vouch against Daniyelyan’s trial testimony and it was a

reasonable inference from the evidence that Daniyelyan had lied to open the bank

accounts and on the stand. See United States v. Moreland, 622 F.3d 1147, 1161-62

(9th Cir. 2010); United States v. Weatherspoon, 410 F.3d 1142, 1147 n.3 (9th Cir.

2005).

         3.   The district court did not plainly err by employing a three-level

sentencing enhancement for Yerikyan based on his role as a manager or supervisor

of the conspiracy. The evidence showed that Yerikyan supervised at least one co-

conspirator in opening fraudulent bank accounts. See United States v. Egge, 223

F.3d 1128, 1132 (9th Cir. 2000).

         4.   The district court did not plainly err by imposing a condition of

supervised release that prohibited Daniyelyan and Yerikyan from frequenting

places where controlled substances are illegally sold, used, distributed or

administered. Even if the release condition was error, for error to be “plain,” it


                                           3
must affect substantial rights, see Moreland, 622 F.3d at 1158, but the right to

frequent places where controlled substances are illegally sold, used, distributed or

administered is not a substantial right. We construe this condition to exclude

unintentional violations. See United States v. Vega, 545 F.3d 743, 750 (9th Cir.

2008).

         AFFIRMED.




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