                                                                             FILED
                           NOT FOR PUBLICATION                                MAR 23 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30154

              Plaintiff - Appellee,              D.C. No. 2:11-cr-02123-RMP-1

 v.
                                                 MEMORANDUM*
STEPHEN MARTY WARD, AKA
Stephen Martin Ward

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                      Argued and Submitted February 1, 2016
                               Seattle, Washington

Before: KOZINSKI and O’SCANNLAIN, Circuit Judges, and ORRICK,** District
Judge.

      1. Ward did not timely object to the sufficiency of the indictment.

Accordingly, we review for plain error, United States v. Leos-Maldonado, 302


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
          The Honorable William Horsley Orrick III, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
                                                                                  page 2
F.3d 1061, 1064 (9th Cir. 2002), “liberally construing the indictment in favor of

validity,” United States v. Arnt, 474 F.3d 1159, 1162 (9th Cir. 2007) (internal

alterations omitted). Ward has not shown that he was prejudiced by any deficiency

in the indictment’s description of the alleged trade secrets. See United States v.

Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002).

      2. There was no constructive amendment at trial. “A constructive

amendment occurs when the defendant is charged with one crime but, in effect, is

tried for another crime.” United States v. Lazarenko, 564 F.3d 1026, 1034 (9th

Cir. 2009). “For a constructive amendment to inhere, jury instructions must

diverge materially from the indictment and evidence must have been introduced at

trial that would enable the jury to convict the defendant for conduct with which he

was not charged.” United States v. Alvarez-Ulloa, 784 F.3d 558, 570 (9th Cir.

2015) (internal quotation marks omitted); see also United States v. Ward, 747 F.3d

1184, 1191 (9th Cir. 2014). The indictment in this case described the alleged trade

secret information as “information related to the maintenance and operation of

unmanned aircraft systems developed by Insitu Incorporated.” Neither the jury

instructions nor the special verdict form diverged materially from this language in

describing the specific trade secrets that Ward converted. Nor was there evidence

introduced at trial that enabled the jury to convict Ward based on trade secret
                                                                                    page 3
information beyond the scope of that described in the indictment.

       3. Ward’s contention that there was a variance at trial also fails. “A

variance occurs when the charging terms of the indictment are left unaltered, but

the evidence offered at trial proves facts materially different from those alleged in

the indictment.” United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012)

(internal quotation marks omitted). The evidence presented at trial did not show

that Ward had converted trade secrets materially different from “information

related to the maintenance and operation of unmanned aircraft systems developed

by Insitu Incorporated.”

       4. Ward did not timely raise the issue of duplicity with the district court.

“Where a defendant fails to object to an indictment as duplicitous before trial and

fails to object to the court’s jury instructions at trial, we review for plain error.”

United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). Given that the jury

instructions and special verdict form required the jury to unanimously agree on

which particular trade secrets Ward had converted, any duplicity error in the

indictment is not grounds for reversal under the plain error standard. See United

States v. Kennedy, 726 F.2d 546, 548 (9th Cir. 1984) (finding no plain error in an

allegedly duplicitous indictment where the jury instructions eliminated any “danger

that the jury could convict . . . without reaching unanimous agreement on a given
                                                                                page 4
set of facts”).

       5. Ward challenges the sufficiency of the evidence, which we review de

novo. United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). “A claim of

insufficient evidence fails if after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. (internal quotation marks and

emphasis omitted). Viewed in the light most favorable to the prosecution, the

evidence at trial was sufficient to allow a rational juror to conclude that Ward was

guilty of violating 18 U.S.C. § 1832(a)(2). Ward’s argument regarding the

meaning of “public” as used in 18 U.S.C. § 1839(3)(B) is also without merit; the

district court did not commit plain error by not delivering a sua sponte instruction

defining “public” as “economically relevant public.”

       6. Ward contends that the district court erred by sequencing the special

verdict form as it did. “We treat verdict forms like jury instructions, the

formulation of which we review for abuse of discretion.” United States v. Stinson,

647 F.3d 1196, 1218 (9th Cir. 2011) (internal citations omitted). “Jury

instructions, even if imperfect, are not a basis for overturning a conviction absent a

showing that they prejudiced the defendant.” United States v. Cherer, 513 F.3d

1150, 1155 (9th Cir. 2008). The special verdict form and jury instructions allowed
                                                                               page 5
the jury to convict only if it unanimously found that one or more of the alleged

trade secrets qualified for trade secret protection. Viewed as a whole, the special

verdict form and jury instructions were not misleading or inadequate, and they did

not prejudice Ward.

      7. We reject as meritless Ward’s challenges under the First and Fifth

Amendments for violation of his due process, free speech, and “self-

representation” rights.


      AFFIRMED.
