                                                                          FILED
                           NOT FOR PUBLICATION                            OCT 21 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 12-10595

              Plaintiff - Appellee,             D.C. No. 2:11-CR-00505-LKK-1

 v.
                                                MEMORANDUM*
DUSTIN E. BOLE,

             Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence K. Karlton, Senior District Judge

                           Submitted October 15, 2013**
                             San Francisco, California

Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District

Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes that this case is suitable for decision
without oral argument. See FED. R. APP. P. 34(a)(2).
       ***
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
      Defendant-Appellant Dustin E. Bole appeals his conviction for stealing

auxiliary Social Security benefits, in violation of 18 U.S.C. § 641. We have

jurisdiction pursuant to 28 U.S.C. § 1291. Bole contends that the magistrate judge

who presided over his trial erred in not instructing the jury that theft of government

money must be “willful.” Bole did not object to the jury instruction at trial, and we

find the magistrate did not commit plain error by giving the Ninth Circuit Model

Criminal Jury Instruction for a § 641 charge. Thus, we affirm Bole’s conviction.

Because the parties are familiar with the factual and procedural history of the case,

we will not recount it here.

      Because Bole did not object to the jury instructions, we review for plain

error. See United States v. Ajoku, 718 F.3d 882, 889 (9th Cir. 2013). “To notice

error under Federal Rule of Criminal Procedure 52(b), this court must find that (1)

there was ‘error,’ (2) it was ‘plain,’ and (3) the error affected ‘substantial rights.’”

United States v. Mancuso, 718 F.3d 780, 794–95 (9th Cir. 2013) (quoting United

States v. Olano, 507 U.S. 725, 732–35 (1993)). Even if these three conditions are

met, we may reverse only if the error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461,

467 (1997) (internal quotation marks omitted).




                                            2
      Bole argues that the magistrate judge erred in failing to instruct the jury that,

in order to convict him of theft of government money, it had to find that his actions

were “willful.” Our precedent clearly forecloses that argument. See United States

v. Derington, 229 F.3d 1243, 1248 (9th Cir. 2000); United States v. Campbell, 42

F.3d 1199, 1204–05 (9th Cir. 1995). In each of these decisions, this court

explicitly held that instructions nearly identical to the instruction used here and

patterned after the Ninth Circuit Model Criminal Jury Instruction for theft of

government money or property appropriately defined the mens rea required to

convict a defendant under § 641. See Derington, 229 F.3d at 1248 (“The

instructions were sufficient to put at issue whether or not Derington had mens

rea.”) (emphasis added); Campbell, 42 F.3d at1205 (“In the absence of objection, it

was not plain error for the district court to use [the Ninth Circuit Model Criminal

Jury] instructions.”).

      Accordingly, we conclude it was not plain error for the magistrate judge to

give the Ninth Circuit Model Criminal Jury Instruction for theft of government

money or property.

      AFFIRMED.




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