                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10086

              Plaintiff-Appellee,                D.C. No.
                                                 4:13-cr-00622-RCC-JR-1
 v.

ANTHONY RAY SHIRLEY,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, Chief Judge, Presiding

                       Argued and Submitted April 10, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,**
District Judge.

      Following a jury trial, Anthony Ray Shirley appeals his convictions on four

counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153(a), 2241(a)(2)

or (c), and 2246(2)(B) or (2)(C) and two counts of abusive sexual contact in

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
violation of 18 U.S.C. §§ 1153(a), 2244(a)(5), and 2246(3). We reject the

arguments raised in Shirley’s opening brief and decline to reach the issues on

which we invited supplemental briefing. Accordingly, we affirm Shirley’s

convictions.

      1. The district court allowed the government to introduce evidence of

Shirley’s alcohol and drug use on the night of the incident, which he contends was

an abuse of discretion. Shirley’s counsel, however, was the first to mention the

alcohol and drug use to the jury. Any error is therefore waived. See Ohler v. United

States, 529 U.S. 753, 760 (2000); Bowoto v. Chevron Corp., 621 F.3d 1116, 1130

(9th Cir. 2010).

      2. Shirley next contends that the district court abused its discretion by not

allowing him to introduce additional portions of his statement to police when the

government introduced part of it. However, the portions that Shirley wanted to

introduce were completely unrelated to what the government introduced and there

was no risk of confusing or misleading the jury. See United States v. Collicott, 92

F.3d 973, 983 (9th Cir. 1996).

      3. Shirley also objects to the government’s introduction of evidence of his

refusal to voluntarily submit to a buccal swab. Shirley’s counsel, however, was the




                                          2
first to elicit testimony about the refusal and any error is therefore waived. See

Ohler, 529 U.S. at 760.

      4. Finally, Shirley claims that the district court should have given a

spoliation instruction because the tribal police officers were unable to bring the

physical evidence to trial due to an FBI lockdown of the tribe’s evidence storage

facility. However, Shirley never asked for access to the evidence and accordingly

was never improperly denied access, rendering a spoliation instruction

inappropriate. Cf. United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013).

      5. In an order filed before oral argument, we directed the parties to brief

additional issues that were not raised below or in Shirley’s appellate brief. In its

response, the government conceded (a) that the jury instructions erroneously

included the “threat” requirement, 18 U.S.C. § 2241(a)(2), as an element of Counts

Two through Four rather than Count One and that this error was obvious, though it

disputed whether this error was prejudicial;1 (b) that the instructions erroneously

omitted the requirement (relevant to Count Three) that the penetration of the

genital opening by a hand or finger be “with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any person,” 18 U.S.C.


      1
        In addition, we note that the instruction allowed the jury to convict based
on either force or threat, though force is an element under a different subsection,
18 U.S.C. § 2241(a)(1), that was not charged in the indictment.
                                           3
§ 2246(2)(C), though it again disputed prejudice; (c) that the jury should have been

instructed that the government was required to prove that Shirley performed each

specific sexual act charged in the indictment, though it contended that the

instructions as a whole implicitly conveyed this requirement; and (d) that Count

One, as reflected in both the indictment and the judgment, was duplicitous because

it charged Shirley with violations of both § 2241(a)(2) and § 2241(c), which define

separate offenses,2 though the government again disputed prejudice.3

      While we have discretion to reach an issue despite appellate counsel’s

failure to include it in the opening brief, see, e.g., Zumel v. Lynch, 803 F.3d 463,

475 n.14 (9th Cir. 2015), we decline to exercise that discretion in this case so that

the district court can have an opportunity to consider these issues in the first

instance. Shirley may raise them (and any other issues) through a motion under 28

U.S.C. § 2255 asserting ineffective assistance of trial and appellate counsel.

      AFFIRMED.




      2
       The government also appears to concede that to the extent Count One
charges a violation of § 2241(c), it is multiplicitous with Count Two, which also
charges a violation of § 2241(c) based on the same sexual act.
      3
        We note that § 2241(c) carries a mandatory minimum of 30 years in prison,
while § 2241(a)(2) does not.
                                           4
