United States v. Charles Spotted Elk-Booth, Jr. , 481 F. App'x 326 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 11-30278 U .S. C O U R T OF APPE ALS
Plaintiff - Appellee, D.C. No. 1:09-cr-00013-RFC-2
v.
MEMORANDUM *
CHARLES WILLIAM SPOTTED ELK-
BOOTH,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted August 8, 2012 **
Seattle, Washington
Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.
Defendant, Charles William Spotted Elk-Booth, appeals the district court’s
denial of his motion to dismiss for double jeopardy a Superseding Indictment
charging him with attempted aggravated sexual abuse, in violation of 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
§§ 1153(a) and 2241(a)(1). Reviewing de novo, United States v. Price, 314 F.3d
417, 420 (9th Cir. 2002), we affirm.
1. Defendant argues that the Initial Indictment did not charge him with
attempted aggravated sexual abuse. Because Defendant failed to challenge the
sufficiency of the Initial Indictment at trial, we review for plain error. United
States v. Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002).
The Initial Indictment charged Defendant with attempted aggravated sexual
abuse, despite failing to articulate the specific intent requirement for an attempt,
because it charged Defendant with committing aggravated sexual abuse and with
"attempt[ing] to do so." See United States v. Resendiz-Ponce, 549 U.S. 102, 107
(2007) ("[T]he word ‘attempt’ . . . encompasses both the overt act and intent
elements."); see also Fed. R. Crim. P. 31(c)(2) ("A defendant may be found guilty
of . . . an attempt to commit the offense charged[.]"). Therefore, there was no
error.
Even if there was an error, it was not plain, nor did it affect Defendant’s
substantial rights. The Initial Indictment identified the statute that criminalized
attempted aggravated sexual abuse, and the district judge correctly instructed the
jury on the elements of attempted aggravated sexual abuse, including intent. See
Velasco-Medina, 305 F.3d at 847 (finding no prejudice because the indictment
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referred to the statute that criminalized attempted reentry and the district judge
correctly instructed the jury on the elements of attempted reentry, including
specific intent).
2. Defendant also argues that the Initial Indictment was duplicitous. By
failing to raise that argument before trial, Defendant waived it. United States v.
McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995).
Furthermore, even if the argument was not waived and the Initial Indictment
was duplicitous, the district court cured the defect by providing a verdict form
requiring separate determinations for each crime and by instructing the jury that its
verdict had to be unanimous. See United States v. Ramirez-Martinez, 273 F.3d
903, 915 (9th Cir. 2001) ("[A] defendant indicted pursuant to a duplicitous
indictment may be properly prosecuted and convicted if . . . the court provides an
instruction requiring all members of the jury to agree as to which of the distinct
charges the defendant actually committed."), overruled on other grounds by United
States v. Lopez, 484 F.3d 1186, 1188 & n.2 (9th Cir. 2007) (en banc).
AFFIRMED.
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