                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 29 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10058

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cr-00252-JSW-1
 v.

HUGH ROBINSON,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                       Argued and Submitted April 12, 2018
                            San Francisco, California

Before: W. FLETCHER and TALLMAN, Circuit Judges, and MORRIS,** District
Judge.

      Hugh Robinson appeals his jury conviction for conspiracy to defraud the

United States, theft of public money, and aggravated identity theft in violation of

18 U.S.C. §§ 371, 641, and 1028A. Robinson contends the district court should be



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
reversed for three reasons: (1) the failure to authorize the search of electronic

devices in a search warrant that sought information in “electronic” form rendered

the warrant facially defective; (2) law enforcement’s execution of the warrant

unreasonably exceeded the warrant’s scope; and (3) the jury instructions and

verdict form erroneously relied on an invalid theory of guilt. We have jurisdiction

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

      1. Robinson waived his argument that the search warrant had been defective

on its face. Robinson failed to challenge the facial validity of the warrant before

trial as required by Federal Rule of Criminal Procedure 12(b)(3), and further failed

to make the requisite showing of good cause to excuse that failure. Therefore,

Robinson’s filing of a motion to suppress on other grounds does not render timely

this new suppression argument. See United States v. Wright, 215 F.3d 1020, 1026

(9th Cir. 2000.

      2. The district court properly denied Robinson’s motion to suppress certain

evidence based on his allegation that the searching agents exceeded the scope of

the search warrant. Although the district court improperly found that the warrant

incorporated Attachment C, a protocol for searching electronic devices,

Attachment B to the warrant described seventeen categories of evidence to be

seized “in whatever form, such as, electronic, typed, and/or handwritten.” Because

neither Attachment B, nor any other document incorporated into the warrant,



                                           2                                    17-10058
specifically authorized the search of electronic devices, we assume without

deciding that the search of the electronics exceeded the scope of the warrant. See

United States v. Giberson, 527 F.3d 882, 887 (9th Cir. 2008).

      The district court nevertheless correctly denied Robinson’s motion to

suppress because the agents who executed the warrant acted in good faith. Not

only did the affidavit in support of the search warrant application detail the use of

computers in tax refund schemes, and identify an IP address used in the scheme

and registered to the residence to be searched, but Special Agent Mitchell also

believed that the warrant authorized him to search electronic devices, briefed the

search team on the affidavit, and brought a copy of the affidavit to the search site.

See United States v. Leon, 468 U.S. 897, 918–21 (1984).

      3. Robinson last raises objections to the jury instructions and verdict form.

Because Robinson stipulated to the aggravated identity theft jury instruction and

did not object to the verdict form, however, we review his claim that the jury

materials furthered a “legally erroneous theory,” for plain error. See United States

v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). To demonstrate plain error,

Robinson must show “(1) that the proceedings below involved error, (2) that the

error is plain, and (3) that the error affected [Robinson’s] substantial rights.”

Alferahin, 433 F.3d at 1154.

      Robinson cannot show that the proceedings below involved error. Robinson



                                           3                                        17-10058
argues that the aggravated identity theft instruction and verdict form allowed the

jury to convict him “without reaching unanimous agreement that [Robinson] used

the name of a unique, specific, individual person, rather than just a name common

to many.” But the aggravated identity theft instruction given matched Ninth Circuit

Model Criminal Jury Instruction 8.83, and the statute at issue defines “means of

identification” as “any name or number that may be used . . . to identify a specific

individual,” including a name or Social Security Number. 18 U.S.C.

§ 1028A(d)(7). Because the government presented evidence of Robinson’s practice

of culling Social Security Numbers from lists of real, specific, deceased people,

Robinson has failed to demonstrate that the district court committed plain error

when it offered the pattern jury instruction on aggravated identity theft.

      AFFIRMED.




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