                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                           FOR THE NINTH CIRCUIT                            AUG 10 2012

                                                                        MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 11-30278            U .S. C O U R T OF APPE ALS




              Plaintiff - Appellee,              D.C. No. 1:09-cr-00013-RFC-2

  v.
                                                 MEMORANDUM *
CHARLES WILLIAM SPOTTED ELK-
BOOTH,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                            Submitted August 8, 2012 **
                               Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

       Defendant, Charles William Spotted Elk-Booth, appeals the district court’s

denial of his motion to dismiss for double jeopardy a Superseding Indictment

charging him with attempted aggravated sexual abuse, in violation of 18 U.S.C.


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
         The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
§§ 1153(a) and 2241(a)(1). Reviewing de novo, United States v. Price, 314 F.3d

417, 420 (9th Cir. 2002), we affirm.

         1. Defendant argues that the Initial Indictment did not charge him with

attempted aggravated sexual abuse. Because Defendant failed to challenge the

sufficiency of the Initial Indictment at trial, we review for plain error. United

States v. Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002).

         The Initial Indictment charged Defendant with attempted aggravated sexual

abuse, despite failing to articulate the specific intent requirement for an attempt,

because it charged Defendant with committing aggravated sexual abuse and with

"attempt[ing] to do so." See United States v. Resendiz-Ponce, 549 U.S. 102, 107

(2007) ("[T]he word ‘attempt’ . . . encompasses both the overt act and intent

elements."); see also Fed. R. Crim. P. 31(c)(2) ("A defendant may be found guilty

of . . . an attempt to commit the offense charged[.]"). Therefore, there was no

error.

         Even if there was an error, it was not plain, nor did it affect Defendant’s

substantial rights. The Initial Indictment identified the statute that criminalized

attempted aggravated sexual abuse, and the district judge correctly instructed the

jury on the elements of attempted aggravated sexual abuse, including intent. See

Velasco-Medina, 305 F.3d at 847 (finding no prejudice because the indictment


                                             2
referred to the statute that criminalized attempted reentry and the district judge

correctly instructed the jury on the elements of attempted reentry, including

specific intent).

       2. Defendant also argues that the Initial Indictment was duplicitous. By

failing to raise that argument before trial, Defendant waived it. United States v.

McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995).

       Furthermore, even if the argument was not waived and the Initial Indictment

was duplicitous, the district court cured the defect by providing a verdict form

requiring separate determinations for each crime and by instructing the jury that its

verdict had to be unanimous. See United States v. Ramirez-Martinez, 273 F.3d

903, 915 (9th Cir. 2001) ("[A] defendant indicted pursuant to a duplicitous

indictment may be properly prosecuted and convicted if . . . the court provides an

instruction requiring all members of the jury to agree as to which of the distinct

charges the defendant actually committed."), overruled on other grounds by United

States v. Lopez, 484 F.3d 1186, 1188 & n.2 (9th Cir. 2007) (en banc).

       AFFIRMED.




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