                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 4, 2010
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-8075
                                              (D.C. No. 2:07-CR-00193-WFD-1)
    TRAVIS J. MCGILL,                                     (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.


         Defendant Travis J. McGill was convicted by a jury on six counts of

aggravated sexual abuse while in Indian country, 18 U.S.C. §§ 2241(c), 1153(a),

and one count of possession of child pornography, id., § 2252A(a)(5)(A), (b)(2).

The district court imposed a sentence of 560 months on each of the six aggravated

sexual abuse counts and a sentence of 120 months on the child pornography



*
       After examining the appellate record and the materials submitted by the
defendant-appellant and his counsel, this panel has determined unanimously that
oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
count, to run concurrently, followed by a term of supervised release. After timely

initiating this appeal at defendant’s request, counsel moved to withdraw and filed

an Anders brief explaining that he could find no non-frivolous grounds for appeal.

See Anders v. California, 386 U.S. 738 (1967). For the reasons stated below, we

grant the motion and dismiss the appeal as frivolous.

                              I. Anders Framework

      In Anders, the Supreme Court set out the following prophylactic procedure

as a guide for criminal defense counsel and the appellate court when a defendant

insists on taking an appeal that appears to be frivolous:

      [I]f counsel finds [the defendant’s] case to be wholly frivolous, after
      a conscientious examination of it, he should so advise the court and
      request permission to withdraw. That request must, however, be
      accompanied by a brief referring to anything in the record that might
      arguably support the appeal. A copy of counsel’s brief should be
      furnished the indigent and time allowed him to raise any points that
      he chooses; the court–not counsel–then proceeds, after a full
      examination of all the proceedings, to decide whether the case is
      wholly frivolous. If it so finds it may grant counsel’s request to
      withdraw and dismiss the appeal insofar as federal requirements are
      concerned, or proceed to a decision on the merits, if state law so
      requires. On the other hand, if it finds any of the legal points
      arguable on their merits (and therefore not frivolous) it must, prior to
      decision, afford the indigent the assistance of counsel to argue the
      appeal.

Id. at 744; see Smith v. Robbins, 528 U.S. 259, 265, 269-76 (2000) (clarifying that

Anders procedure is proper, but not exclusive, means to balance defendant’s right

to appellate counsel with State’s interest in barring frivolous appeals).




                                         -2-
      Counsel followed this procedure by filing a brief discussing one potential

ground for appeal and providing defendant a copy of the brief. 1 Defendant

responded by submitting a demand for thirty billion dollars from the federal

government, with cryptic references to bankruptcy law, truth-in-lending, and

corporate criminal fraud. We are thus left to address the only issue specified by

counsel, along with other matters considered in the course of our independent

examination of the record.

                  II. Sufficiency of the Evidence of Conviction

      A review of the trial transcript assures us that legally sufficient evidence

supports the jury’s verdict. The victim’s testimony recounted several incidents of

sexual abuse. The testimony was specific, consistent, and credible in its factual

detail. And text messages sent from defendant’s phone to the victim, when

defendant returned to the reservation after some time away, meshed with the

victim’s testimony in a way that clearly supported its credibility. In addition,

although no one witnessed the acts underlying the charged offenses, the victim’s

mother directly corroborated her daughter’s testimony about an earlier incident of



1
       The trial court took pains to conceal the victim’s real name. However,
counsel’s brief mentioned the victim by name without redaction, and counsel
failed to alert the court to this fact. This error appears inadvertent, and we have
ensured that the brief is not publicly accessible. But maintaining victim
confidentiality is of the utmost importance in child sexual abuse cases, and we
remind counsel that they should employ due diligence to maintain that
confidentiality in such cases at all times.

                                         -3-
sexually inappropriate conduct by defendant with the victim that presaged the

offenses later carried out with greater caution and deception. Finally, evidence of

sexual predation directed by defendant toward two other children—including

another victim identified in five counts of the instant indictment that were

ultimately dismissed for reasons not relevant here—further bolstered the

government’s case.

      As for the child pornography count, the government’s proof may at times

have been technologically complicated, but it was straightforward as a legal

matter. Evidence of defendant’s knowing possession, on his cell phone, of an

image meeting the statutory definition of child pornography sufficed to support

his conviction.

      The defendant did not testify (as was his right). The defense put on no

witnesses, relying solely on cross-examination of witnesses in the course of the

government’s case in chief. The material points of the government’s proof were

neither undermined nor opposed in any significant way.

      In short, the substantive basis for defendant’s conviction is not open to any

reasonable objection. If there is any error requiring reversal, it must relate to the

procedural aspects of the prosecution, to which we turn next.

                         III. Indictment and Instructions

      The one potential objection discussed in counsel’s Anders brief concerns

the use of a formalistic bare-bones indictment to prosecute six particularized

                                          -4-
time-specific incidents of criminal conduct. The six counts of aggravated sexual

abuse provided few actual facts and involved lengthy, partially overlapping time

frames from three to six years. 2 Thus, on its face, the indictment might well raise

concerns about the notice as to the nature of the charges. But any such concerns

were allayed by the government’s open-file discovery policy, which gave

defendant access to evidence pinpointing the time and location of each incident to

be proven at trial. Defense counsel repeatedly affirmed on the record that this

discovery policy provided ample notice of the charges.

      In his Anders brief, counsel does not focus on defendant’s pretrial notice of

charges. Instead, counsel focuses on the government’s case at trial, suggesting

the possibility of a “variance” from the indictment, in that much of the factual

basis developed at trial in support of the charged counts had not been specified in

the indictment. Nevertheless, counsel opines, and we agree, that this line of

argument is clearly foreclosed by the record.




2
       For example, compare count eight: “On or about between August 20, 2000,
and August 19, 2004, in the District of Wyoming and within Indian Country, the
Defendant, TRAVIS J. McGILL, an Indian, did knowingly engage in a sexual act,
to-wit, contact between the penis and the vulva, with ____, a person who at the
time had not yet attained the age of twelve (12) years”; with count nine: “On or
about between August 20, 2001, and August 19, 2004, in the District of Wyoming
and within Indian Country, the Defendant, TRAVIS J. McGILL, an Indian, did
knowingly engage in a sexual act, to-wit, contact between the penis and vulva,
with ____, a person who at that time had not yet attained the age of twelve (12)
years.” R. Vol. 1 at 57.

                                         -5-
      Where, as here, the new facts shown at trial do not so deviate from the

charged offense as to constructively amend the indictment by establishing a

different crime, a factual variance does not undermine the conviction unless

substantial rights of the defendant were otherwise prejudiced. United States v.

Sells, 477 F.3d 1226, 1237 (10th Cir. 2007); United States v. Hamilton, 992 F.2d

1126, 1129-30 (10th Cir. 1993). Such prejudice can occur “either because [the

defendant] cannot anticipate from the indictment what evidence will be presented

against him, or because the defendant is exposed to the risk of double

jeopardy. [3]” United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002).

      The first type of prejudice is negated here for the same reason pretrial

notice concerns were allayed: as counsel readily admitted, the government’s

cooperation in discovery left the defense fully able to anticipate and prepare for

the evidence presented in support of the charged offenses at trial. Nor is there a

risk of double jeopardy exposure: defendant cannot be mistakenly retried for the

conduct actually underlying his conviction here, given the explicit one-to-one

linkage of the charged counts with the particular incidents proven at trial (the

implementation of this linkage, through jury instructions, is discussed below).


3
       Regarding this risk, we have explained that “a variance can be so great as
to violate the defendant’s Fifth Amendment right against double jeopardy because
a conviction based on the indictment would not bar a subsequent prosecution” for
the conduct actually underlying the offense of conviction as found by the jury.
United States v. Stoner, 98 F.3d 527, 536-37 (10th Cir. 1996) (quotation omitted)
adhered to in relevant part on rh’g en banc, 139 F.3d 1343 (1998).

                                         -6-
We have repeatedly stressed that “‘it is the judgment and not the indictment alone

which acts as a bar, and the entire record may be considered in evaluating a

subsequent claim of double jeopardy.’” Hamilton, 992 F.2d at 1130 (quoting

United States v. Whitman, 665 F.2d 313, 318 (10th Cir. 1981) (further quotations

omitted)). Given the careful framing of the jury instructions here, “[t]he record in

this case eliminates any possibility that [defendant] could be reprosecuted for the

acts supporting his conviction. Accordingly, no fatal variance occurred.”

Whitman, 665 F.2d at 318.

      The use of generic, facially indistinguishable counts with broad

overlapping time frames could potentially raise additional double-jeopardy and

jury-unanimity concerns. As for double jeopardy, the jury could be misled into

convicting the defendant on more than one count for the same conduct; as for

jury-unanimity, different jurors might vote to convict on the same count on the

basis of different conduct. Both of these concerns, however, were obviated by

instructions, approved by the prosecution and defense alike, that linked specific

counts with particular incidents identified by unique factual circumstances. For

some counts, the unique identifier was a particular type of sexual act (already

specified in the indictment) that the evidence showed had occurred only once; for

others, the identifier was the particular location of the offense, which had been

associated with just one of the incidents described (in additional detail) by the

victim in her testimony. See generally R. Vol. 3 at 1515-28. And the government

                                         -7-
reinforced these instructions during closing argument by highlighting the specific

incidents linked to each count, see id. at 1454-56, and underscoring for the jury

that “[t]he important thing you must all agree on are what facts support each

count,” id. at 1454.

      Accordingly, we discern no grounds on which a non-frivolous challenge

could be made to defendant’s conviction on the basis of the indictment, variance

between the indictment and the proof at trial, or the manner in which the counts

of conviction were presented to the jury.

                IV. Trial and Sentencing Proceedings Generally

      We have reviewed the record for other potential non-frivolous issues, and

see nothing to suggest possible reversible error in the conduct of defendant’s trial.

There is no doubt concerning the admissibility of the compelling evidence of guilt

provided by the victim, which was corroborated by damning communications

from the defendant himself. And the district court’s handling of evidence of

criminal sexual conduct by the defendant directed toward other child victims

under similar circumstances, pursuant to Federal Rules of Evidence 413/414, is

not subject to any colorable challenge. The evidence clearly fell within the

compass of these rules, and the court did not abuse its discretion in balancing

relevance against unfair prejudice under Rule 403. See generally United States v.

Benally, 500 F.3d 1085, 1089-91 (10th Cir. 2007).




                                         -8-
      Finally, in his Anders brief, counsel expressly disavows any challenge to

sentencing, noting that the district court imposed a sentence below the guideline

range of life imprisonment on the sexual abuse counts. We agree that there are no

non-frivolous objections to be made in this regard. The district court correctly

calculated the guideline range, 4 properly considered the statutory sentencing

factors to reduce the guideline sentence to a limited degree, and, given the nature

and duration of the conduct involved, reasonably declined defendant’s request for

a drastic sentence reduction. Any challenge to the sentence imposed would be

frivolous.




4
       The court followed circuit precedent applying the “one book” principle in
U.S.S.G. § 1B1.11(b)(2) and (3) to reject defendant’s argument for sentencing
under the guideline manual in force at the time of his earliest sex offense. See
United States v. Sullivan, 255 F.3d 1256, 1259-60 (10th Cir. 2001). Defendant’s
perfunctory effort to circumvent our precedent by invoking a later Supreme Court
case applying the “rule of lenity” to accept a defendant’s construction of an
ambiguous criminal statute, United States v. Santos, 128 S. Ct. 2020, 2025 (2008)
(Scalia, J., plurality opinion), was patently meritless. Santos concerned an
entirely different question of statutory interpretation; and the rule of lenity itself
was clearly a part of the legal landscape when Sullivan was decided, see Santos,
128 S. Ct. at 2050 (citing line of authority dating back to 1917), so that it cannot
be invoked as a newly-minted legal principle permitting reconsideration of our
precedent. In any event, the rule applies “only when, after consulting traditional
canons of statutory construction, we are left with an ambiguous criminal statute,”
United States v. Hayes, 129 S. Ct. 1079, 1089 (2009) (quotation omitted), and, as
Sullivan reflects, the guideline provisions involved here are easily construed
without any unresolved ambiguity.

                                         -9-
     Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is

DISMISSED as frivolous.

                                              Entered for the Court



                                              Jerome A. Holmes
                                              Circuit Judge




                                    -10-
