The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DORIAN JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CR-221-1-P
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April 1, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Dorian Johnson appeals his conviction and sentence
for unauthorized use of an access device and for mail fraud.
Johnson argues that the trial court erred by failing to
include an accomplice instruction in the jury charge regarding
Jackie Kilinc’s testimony that Johnson asked her to call credit
card companies and pose as the cardholder. The record does not
indicate that Kilinc received immunity for her testimony or that
she had the criminal intent required to be an accomplice. See
United States v. Santos, 483 F.2d 35, 35 (5th Cir. 1973)(holding
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-10477
-2-
that a district court’s refusal to include an accomplice
instruction is not error unless the person who testified could be
considered an accomplice). Johnson’s argument is without merit.
Johnson argues that the district court abused its discretion
by admitting purported double hearsay evidence at trial. The
district court admitted First USA Bank business records which
included statements made by an individual identified as “Robert
Johnson” and recorded by a first USA Bank employee. The bank
records are admissible under the business records exception to
the hearsay rule. See Wilson v. Zapata Off-Shore Co., 939 F.2d
260, 271 (5th Cir. 1991); Fed. R. Evid. 803. The statements
within the bank records are admissible under Rule 801(d)(2)(A) as
the admissions of a party opponent. See United States v.
Clemons, 676 F.2d 122. 123 (5th Cir. 1982); Wilson, 939 F.2d at
271 (holding that if the information contained in business
records is supplied by an outsider, the outsider’s statement must
fall within another hearsay exception to be admissible).
Johnson’s argument is without merit.
Johnson argues that the evidence is insufficient to support
his convictions of unauthorized use of an access device because
the Government failed to prove his intent to defraud. The
evidence indicated that an Advanta Visa card and a First USA Bank
Visa card were issued in Lea Ann Bair’s name, that Bair did not
know the cards were issued, that Johnson used the credit cards
without her knowledge or consent, and that Johnson took steps to
hide his actions. A rational trier of fact could have found
beyond a reasonable doubt that Johnson had intent to defraud.
No. 98-10477
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See United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996)
(holding that intent to commit credit card fraud may be
established by circumstantial evidence). Johnson’s argument is
without merit.
Johnson also argues that the evidence is insufficient to
support his conviction of mail fraud because the Government
failed to prove his intent to defraud. The evidence indicated
that a Discover card was issued in Bair’s name, that Bair did not
apply for the credit card or give Johnson authority to do so, and
that Johnson signed Bair’s name on the credit card application.
A reasonable trier of fact could have found beyond a reasonable
doubt that Johnson had intent to defraud. See Crowe v. Henry,
115 F.3d 294, 297 (5th Cir. 1997).
Finally, Johnson argues that the district court clearly
erred in determining the amount of loss attributable to his
criminal conduct. The credit card transactions involving
Johnson’s ex-wife and his business partner were sufficiently
similar to the offense of conviction to establish a continuing
pattern of criminal behavior. See § 1B1.3(a)(2); United States
v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992). The district
court did not err by including the transactions as relevant
conduct. Johnson’s argument is without merit.
We have reviewed the record and find no reversible error.
Accordingly, the judgment of the district court is AFFIRMED.