                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 11 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30155

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-00051-BMM-1
 v.

JOHN WILLIAM LIEBA II,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Brian M. Morris, District Judge, Presiding

                              Submitted July 9, 2018**
                                 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,*** District
Judge.

      John William Lieba II challenges the sufficiency of the evidence supporting

his convictions for kidnapping an individual under eighteen, aggravated sexual


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
abuse, and assault resulting in serious bodily injury on an individual under

eighteen. As the parties are familiar with the facts, we do not recount them here.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Viewed in the light most favorable to the government, United States v.

Nevils, 598 F.3d 1158, 1163–65 (9th Cir. 2010) (en banc), the eyewitness, medical,

and DNA evidence that Mr. Lieba abducted a four-year-old girl, penetrated her

vaginally and/or anally, and strangled her is sufficient to support Mr. Lieba’s three

convictions.

      1. To prove that Mr. Lieba kidnapped an individual under eighteen in

violation of 18 U.S.C. §§ 1201(a) and 3559(f)(2), the government must show that

Mr. Lieba intentionally and unlawfully abducted a person younger than eighteen.

It is undisputed that M.L. was abducted, and that she was younger than eighteen at

the time. To prove that Mr. Lieba committed the abduction, the government

introduced the eyewitness testimony of J., the DNA evidence of M.L.’s DNA on

Mr. Lieba’s hand and of Mr. Lieba’s DNA on M.L.’s chest, the audio recording of

Mr. Lieba telling the FBI interviewer where to look for M.L., and other

circumstantial evidence, such as eyewitness testimony that Mr. Lieba had chased

other children earlier that evening. Based on this evidence, a rational trier of fact

could have found beyond a reasonable doubt that Mr. Lieba abducted M.L. Nevils,

598 F.3d at 1163–64.


                                           2
      2. To prove that Mr. Lieba committed aggravated sexual abuse in violation

of 18 U.S.C. § 2241(c), the government must show that Mr. Lieba knowingly

engaged in a sexual act with a person who was younger than twelve at the time. A

“sexual act” is defined as penetrative contact between the penis and either the

vulva or the anus. 18 U.S.C. § 2246(2)(A). As noted above, it is undisputed that

M.L. was younger than twelve at the time of her abduction and assault.

      On appeal, Mr. Lieba renews his argument that the government failed to

show that M.L.’s injuries were caused by a “sexual act,” as her injuries could have

been caused by penetration by a hand or some other object. Circumstantial

evidence would allow a rational trier of fact to conclude that a “sexual act”

occurred: specifically, M.L.’s DNA on Mr. Lieba’s penis, and the apparent

transmission of herpes from Mr. Lieba to M.L.’s anus. Because this court may not

ask whether a finder of fact could have construed the evidence produced at trial to

support acquittal, and instead asks whether a reasonable juror could have convicted

on the evidence viewed in the light most favorable to the government, Nevils, 598

F.3d at 1164, Mr. Lieba’s conviction for aggravated sexual abuse is supported by

sufficient record evidence.

      3. To prove that Mr. Lieba committed assault resulting in serious bodily

injury on an individual under eighteen in violation of 18 U.S.C. §§ 113(a)(6) and

3559(f)(3), the government must show (1) that Mr. Lieba intentionally struck or


                                          3
wounded a person; (2) that the person was younger than eighteen at the time; and

(3) that the assault caused the person serious bodily injury. See United States v.

Loera, 923 F.2d 725, 728–29 (9th Cir. 1991). “Serious bodily injury” is defined as

injury causing “a substantial risk of death,” “extreme physical pain,” “protracted

and obvious disfigurement,” or “protracted loss or impairment of the function of a

bodily member, organ, or mental faculty.” 18 U.S.C. §§ 113(b)(2), 1365(h)(3). As

above, M.L.’s age is undisputed.

      The medical evidence demonstrates that M.L. was assaulted, and that she

suffered “serious bodily injury” as statutorily defined. Medical testimony supports

the conclusion that she was strangled, and that strangulation is an injury causing “a

substantial risk of death.” See 18 U.S.C. § 1365(h)(3)(A). The presence of M.L.’s

DNA on Mr. Lieba’s hand, combined with Mr. Lieba’s statement during the

second interview that he “doubted” whether M.L. was still alive, was sufficient

evidence from which a rational trier of fact could find beyond a reasonable doubt

that Mr. Lieba intentionally strangled M.L. Nevils, 598 F.3d at 1163–64.

      AFFIRMED.




                                          4
