UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4524

MICHAEL SHONUKAN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Peter J. Messitte, District Judge.

(CR-95-198-PJM)

Submitted: March 10, 1998

Decided: March 23, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Steven F. Reich, Assistant

Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynne

A. Battaglia, United States Attorney, Jan Paul Miller, Assistant

United States Attorney, Stephen S. Zimmermann, Assistant United

States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael A. Shonukan appeals his conviction for conspiracy to traffic in unauthorized access devices, in violation of 18 U.S.C.A.

§ 1029(b)(2) (West Supp. 1997); and bank fraud, in violation of 18

U.S.C.A. § 1344 (West Supp. 1997). After reviewing his claims, we

affirm his conviction.

I

In May 1995, Michael Shonukan and two codefendants, Hakeem

Salu and Victor Nwandu, were charged in a multi-count indictment.

Count one charged all three men with conspiracy to traffic in unauthorized access devices, using and trafficking in counterfeit access

devices, possession of fifteen or more unauthorized devices, and possession of device-making equipment, in violation of 18 U.S.C.

§ 1029(b)(2). Count two charged Shonukan with defrauding Chevy

Chase Federal Savings Bank by causing the bank to honor an $1800

check in another man's name, in violation of 18 U.S.C. § 1344. Salu

and Nwandu were named in four other counts, and pled guilty before

trial.

The conspiracy allegedly ran from December 1993 to March 1995.

The conspirators obtained and used unauthorized access devices,

including credit cards and convenience checks drawn on unauthorized

credit card accounts. They also shared stolen financial information

among themselves, using it to open fraudulent accounts, often with

their own phone numbers and mailing addresses.

The Government introduced a number of exhibits found in searches

of Shonukan's residence, car, and person, including a variety of bank

records, credit card receipts, and a quantity of correspondence from

banks, all to various names at the address where Shonukan lived

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alone. Also found were a number of payroll receipts that had been

tampered with to show different employers, dates and names. A notebook containing names and the type of information needed to open

credit card accounts--such as date of birth and mother's maiden name

--was found by police during Shonukan's arrest. An address book

seized from Salu's residence contained seven accounts in the name of

Philip Soucy, two of which used Shonukan's address, and two

accounts in the name of Dwight Frush. Further evidence established

that Shonukan and Salu shared account information and convenience

checks. For example, a $4000 convenience check in the name of

Philip Soucy from an account identified from evidence in Salu's

apartment was deposited by Shonukan in his personal checking

account. Six convenience checks were drawn on fraudulent accounts

in the name of Dwight Frush, accounts opened under a name found

in Shonukan's notebook and with Shonukan's address and phone

number. The jury convicted Shonukan on both conspiracy to traffic

in unauthorized access devices and bank fraud. Shonukan was sentenced to thirty months imprisonment and four years of supervised

release.

II

Shonukan claims that his Fifth and Sixth Amendment rights were

violated because the indictment charged a single conspiracy among

the three codefendants but the evidence at trial established multiple,

separate conspiracies. He also challenges the district court's refusal to

include a multiple conspiracy jury instruction and to allow counsel for

Shonukan to argue the multiple conspiracy theory. We conclude that

these claims lack merit.

"A variance occurs when the evidence at trial establishes facts

materially different from those alleged in the indictment." United

States v. Ford, 88 F.3d 1350, 1360 (4th Cir. 1996), cert. denied, ___

U.S. ___, 65 U.S.L.W. 3369 (U.S., Nov. 18, 1996) (No. 96-6379). In

a conspiracy prosecution, a defendant can establish a material variance by showing that the indictment alleged a single conspiracy but

the government's proof established multiple, separate conspiracies.

United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). This is

grounds for reversal only if the appellant demonstrates that the variance infringed his substantial rights, resulting in actual prejudice. Id.

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The question whether a variance exists is one of law, which we

review de novo. United States v. Williamson, 53 F.3d 1500, 1512

(10th Cir. 1995).

Shonukan bases his argument for a material variance on the following facts: Salu and Nwandu pled guilty prior to trial. Nwandu's role

in the conspiracy had been to recode the numbers on the backs of

credit cards, thereby creating counterfeit access devices. Due to the

guilty pleas of Shonukan's codefendants, the Government's evidence

at trial was tailored to prove the unauthorized access aspect of the

conspiracy, as defined in § 1029(a)(2), with no evidence regarding

counterfeiting, which is covered in § 1029(a)(1). However, a conspiracy can have more than one objective, and proof that a defendant

agreed to participate in at least one objective is sufficient for conviction. See United States v. Reyes, 930 F.2d 310, 312 (3d Cir. 1991);

United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir. 1989). The

Government did not introduce evidence regarding the counterfeit

access device aspect of the case, but introduced substantial evidence

regarding Shonukan's participation with Salu to use unauthorized

access devices.

We conclude that there was no material variance between the

indictment and the proof offered at trial. There was no proof of multiple conspiracies at trial, but of one aspect of the single conspiracy

alleged in the indictment. Therefore, Shonukan's claim of Fifth and

Sixth Amendment violations fails. Because the evidence did not justify introduction of an instruction on multiple conspiracies, the district

court did not abuse its discretion in refusing to give a jury instruction

on the issue. See United States v. Burgos, 55 F.3d 933, 935 (4th Cir.

1995) (holding grant or denial of a requested instruction reviewed for

abuse of discretion). Nor was the district court's ruling that counsel

for Shonukan could not argue multiple conspiracies in closing argument an abuse of direction. See Herring v. New York, 422 U.S. 853,

862 (1975) (district court is accorded wide latitude in controlling closing argument).

Shonukan also seeks to challenge his sentence, asserting that the

amount of loss calculation under the sentencing guidelines was erroneous. Because Shonukan has completed serving his sentence and has

been released by the Bureau of Prisons, this claim is dismissed as

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moot. Lane v. Williams, 455 U.S. 624, 632 (1982). We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

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