                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-4625


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DOMINIQUE OUTLAW,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:09-cr-00123-IMK-JSK-2)


Submitted:   January 5, 2012                 Decided:   February 8, 2012


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Brandon S.
Flower, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 A    federal    grand    jury     indicted     Dominique         Outlaw      for

aiding and abetting Jonathan Heiligh in the assault of a fellow

inmate with a deadly weapon (Count One); assaulting a fellow

inmate       with      a   deadly   weapon,      specifically,         a    “shank”      (Count

Two);    and         assaulting     a   fellow     inmate      with    a    deadly      weapon,

specifically, a “shod foot” (Count Three), all in violation of

18 U.S.C. § 113(a)(3), 7(3) (2006).                         Following a jury trial,

Outlaw was convicted of all counts and sentenced to fifty-seven

months’ imprisonment, and he now appeals.                           Finding no reversible

error, we affirm.

                 On appeal, Outlaw first contends that his convictions

for    two       counts    of   assault     with    a   deadly       weapon      violate      the

Double Jeopardy Clause of the Fifth Amendment.                                  Outlaw argues

that     the         charged    conduct     constitutes         a     single,      continuous

offense       permitting        conviction       for    only    one     violation        of    18

U.S.C.       §    113.         Therefore,    Outlaw      asserts,          the    superseding

indictment           was    multiplicitous         in   violation          of     the   Double

Jeopardy Clause.

                 An indictment is multiplicitous if it charges the same

crime in two counts, subjecting the defendant to two punishments

for the same crime in violation of the Double Jeopardy Clause.

United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005).                                   We

review a double jeopardy claim raised for the first time on

                                              2
appeal for plain error.          Brecht v. Abrahamson, 507 U.S. 619, 635

(1993); United States v. Sutton, 961 F.2d 476, 479 (4th Cir.

1992).     When a challenge is urged for the first time on appeal,

“[i]ndictments    and    informations           are    construed    more   liberally

. . . in support of the sufficiency.”                  Sutton, 961 F.2d at 479.

            “An indictment may divide a course of conduct into

separate    assaults    only     when   the      Government      demonstrates    that

‘the actions and intent of [the] defendant constitute distinct

successive criminal episodes, rather than two phases of a single

assault.’”    United States v. Thomas, No. 11-4065, slip op. at 8

(4th Cir. Jan. 25, 2012) (published).                   Reviewing only for plain

error, however, we cannot say that “under current law” Outlaw’s

actions     involving     two       different          weapons    “obvious[ly]       or

clear[ly]”    constituted       a   single       assault.        United    States    v.

Knight, 606 F.3d 171, 177 (4th Cir. 2010).

            Outlaw next argues that the district court erroneously

denied his motion to dismiss the superseding indictment based on

false testimony before the grand jury.                      According to Outlaw,

Special Investigative Agent Petrisko, who testified based upon

his review of video surveillance footage capturing the prison

assault,    provided     false      grand       jury    testimony   regarding       the

alleged assault.        Outlaw disputes Agent Petrisko’s depiction of

the events, arguing that his testimony “falsely exaggerated the

strength of the Government’s case.”

                                            3
               When reviewing the denial of a motion to dismiss an

indictment, we review a district court’s factual findings for

clear error and its legal conclusions de novo.                        United States v.

Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002).                               A court may

exercise its supervisory power to dismiss an indictment because

of misconduct before the grand jury if the misconduct “amounts

to a violation of one of those few, clear rules which were

carefully drafted and approved by [the Supreme Court] and by

Congress to ensure the integrity of the grand jury’s functions.”

United   States      v.    Williams,     504   U.S.       36,   46   (1992)     (internal

quotation marks and citation omitted).

               If a defendant establishes such a violation, dismissal

of an indictment is only warranted if the violation resulted in

prejudice      to   the     defendant.       Bank    of    Nova      Scotia     v.   United

States, 487 U.S. 250, 256 (1988).                   Such prejudice may be shown

“only    if    it   is     established    that      the    violation      substantially

influenced the grand jury’s decision to indict, or if there is

grave    doubt      that    the   decision     to    indict     was      free   from   the

substantial influence of such violations.”                        Id.     However, “the

mere fact that evidence itself is unreliable is not sufficient

to require a dismissal of the indictment.”                      Id. at 261; Costello

v. United States, 350 U.S. 363-64 (1956) (holding that “[i]t

would    run     counter     to   the    whole      history     of      the   grand    jury

institution” to permit an indictment to be challenged “on the

                                           4
ground that there was inadequate or incompetent evidence before

the grand jury.”).

           We find that the district court did not err in denying

Outlaw’s motion to dismiss the superseding indictment based upon

false   testimony.       As   the   district   court     correctly     noted,

Outlaw’s argument that dismissal of the superseding indictment

was warranted because Agent Petrisko provided false grand jury

testimony amounts to “nothing more than a disagreement with the

witness’s opinions of the facts of the case.”

           Accordingly, we affirm the district court’s judgment.

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




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