                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30035

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00060-SEH-1

  v.
                                                 MEMORANDUM *
PATRICK JEDIDYA LAVERDURE, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted February 4, 2013
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Defendant Patrick Laverdure, Jr., was convicted following a jury trial of

three counts of sexual abuse under 18 U.S.C. § 1153 (offenses committed within

Indian country), including the following: aggravated sexual abuse of a person

under 12 years of age under 18 U.S.C. § 2241(c) (Count I); sexual abuse of a



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
person incapable of appraising the nature of the conduct under § 2242(2)(A)

(Count II); and abusive sexual contact with a person under 12 years of age under §

2244(a)(1), (c) (Count III). On appeal, he challenges the admission of other-acts

evidence, the district court’s prohibition of any testimony related to a polygraph

examination, the sufficiency of the evidence supporting Count III, and his

sentence. The government concedes that Laverdure’s conviction on Count II was

not supported by substantial evidence. We have jurisdiction under 28 U.S.C. §

1291.

1.      Because we have previously held that Federal Rules of Evidence 413 and

414 are constitutional and do not violate a defendant’s due process rights, equal

protection rights, or the right to a fair trial and the presumption of innocence,

United States v. LeMay, 260 F.3d 1018, 1027–28, 1030–31 (9th Cir. 2001), we

reject Laverdure’s challenge to those rules. And there was no abuse of discretion

related to Rule 403 balancing because, in admitting the other-acts evidence, the

district court satisfied its duty by properly analyzing each factor from LeMay. Id.

at 1027–28.

2.      The district court did not plainly err in prohibiting any polygraph-related

testimony. United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011)

(stating the standard for plain error review). Laverdure never alerted the district


                                            2
court to the theory of relevance he now advances on appeal. Even if there was

error, it was not plain and it was harmless. Indeed, at argument defense counsel

represented that Laverdure’s testimony about the circumstances of his confession

would have been essentially the same even if he had been allowed to refer to the

polygraph.

3.    Sufficient evidence supports Laverdure’s conviction on Count III. Taking

all the evidence presented at trial in the light most favorable to the prosecution, a

rational trier of fact could have found him guilty of the charged offense beyond a

reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc). M.S.’s testimony coupled with the testimony of other victims abused by

Laverdure while sleeping also allows a reasonable jury to conclude that after

Laverdure abused M.S., he abused her sister, who woke up and began to cry.

M.S.’s testimony as a percipient witness provided corroborating evidence of the

corpus delicti of the Count III offense, and the FBI agents’ testimony was

corroborating evidence of the trustworthiness of Laverdure’s confession. United

States v. Lopez-Alvarez, 970 F.2d 583, 591–92 (9th Cir. 1992).

4.    In light of the government’s concession that Laverdure’s conviction on

Count II was not supported by substantial evidence, we vacate his conviction on




                                           3
that count and remand for resentencing. Because we remand for resentencing, we

need not address Laverdure’s challenge to his sentence.

      We AFFIRM Laverdure’s conviction on Counts I and III, VACATE his

conviction on Count II, VACATE his sentence and REMAND for resentencing on

Counts I and III.




                                         4
