* Under 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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-50944

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LETICIA AVILA,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-97-CR-272-ALL-DB

- - - - - - - - - -

August 5, 1998

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

A jury convicted Leticia Avila of converting to her own use

funds which came into her possession in the execution of her

employment by the Government, in violation of 18 U.S.C. § 654.

The district court sentenced her to a four-year term of probation

and ordered her to pay restitution in the amount of $5,211.75. 

Avila timely filed notice of appeal. We affirm. 

Avila is not entitled to relief on the ground that the

Government did not reveal to her the full results of a polygraph
No. 97-50944

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examination of Linda Coppock, a government witness. The

Government revealed the fact that Coppock admittedly understated

the amount of money Coppock had stolen, and Avila has not

suggested how the Government’s failure to provide more may have

denied her a fair trial or undermined confidence in the jury’s

verdict. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Avila contends that her conviction should be reversed

because the district court allowed the jury to hear Coppock’s

testimony that Avila’s husband gave Coppock advice concerning a

shortage of money in a government fund of which Coppock was the

custodian. The district court sustained the defense’s hearsay

objection and directed the jury to disregard it, but the court

denied a mistrial. Avila is not entitled to relief because the

testimony would have been admissible as evidence of instructions

which Mr. Avila gave to Coppock. See United States v. Reilly, 33

F.3d 1396, 1410 (3d Cir. 1994); United States v. Cantu, 876 F.2d

1134, 1137 (5th Cir. 1989).

Avila seeks relief on the ground that the jury charge

constructively amended the indictment, allowing the jury to find

her guilty of embezzlement under § 654 while the second count of

the indictment alleged only that she had converted funds. 

Because Avila did not lodge an adequate objection in the district

court, we review her claim for plain error. See United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). Avila

is not entitled to relief; her substantial rights were not
No. 97-50944

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affected. Id. It is evident from the record that any

shortcomings in the district court’s instructions did not have

any bearing on the jury’s decision to convict Avila of conversion

of funds. The court instructed the jury that in order for the

government to sustain a conviction under Count II of the

indictment, the government was required to prove that “the

defendant embezzled or wrongfully converted the money of another

to her own use.” Even though Count II of the indictment charged

Avila only with conversion, the discrepancy between the

indictment and the instruction was inconsequential. Indeed, by

incorporating the term “embezzlement” in the instruction, the

court added an element that the Government was required to prove,

namely that “the money or property has lawfully come within the

possession or control of the person taking it.” If anything, the

district court’s instruction on embezzlement with respect to

Count II heightened the Government’s burden. See United States

v. Sayklay, 542 F.2d 942, 944 (5th Cir. 1976)(holding that

embezzlement is a peculiar form of conversion) and United States

v. Harmon, 339 F.2d 354, 357 (6th Cir. 1964)(holding that the

crime of conversion has wider application than the crime of

embezzlement). Avila, therefore, could not have suffered

prejudice. 

Finally, Avila argues that the evidence marshaled against

her was so insufficient that the affirmance of her conviction

would constitute a miscarriage of justice. The evidence,
No. 97-50944

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however, viewed in the light most favorable to the Government,

fully supports the jury’s verdict. See United States v. Ruiz,

860 F.2d 615, 617 (5th Cir. 1988). 

AFFIRMED.