                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-13360                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               JUNE 3, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 1:08-cr-00041-SPM-AK-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

MARCELLUS DAWSON,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Northern District of Florida
                                ________________________

                                        (June 3, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Marcellus Dawson appeals his Count Two conviction for soliciting and

accepting bribes, arguing that the district court erred in denying his motion to
dismiss the indictment on the grounds of duplicity. On appeal, Dawson argues

that the four overt acts of accepting bribes listed in the Count One conspiracy

charge and incorporated by reference to Count Two render the indictment

duplicitous, because each act of accepting a bribe constitutes a separate offense on

which the jury may have based the conviction. Thus, he contends the jury may

have convicted him under Count Two for accepting bribes without unanimously

agreeing on the elements constituting the offense.

      Under Fed.R.Crim.Pro. 12(b)(3) and (e), a defendant must raise any motion

alleging a defect in the indictment before trial, and a failure to do so waives any

alleged defect, unless good cause is shown for relief from the waiver or the

objection falls within an exception. See United States v. Seher, 562 F.3d 1344,

1359 (11th Cir. 2009) (discussing other circuits’ holdings that duplicity challenge

to an indictment can be waived if not raised before trial).

      Dawson waived his objection to the indictment on the grounds that he now

seeks to argue on appeal. Before trial, Dawson specifically argued that the

duplicity arose from ambiguity as to whether Count Two charged Dawson with

violating either 18 U.S.C. § 666(a)(1) (soliciting and accepting bribes) or

§ 666(a)(2) (giving bribes). After the district court denied the motion to dismiss,

Dawson consistently argued during the course of the trial and at charge hearings

                                          2
that Count Two was ambiguous and duplicitous on those same grounds. On

appeal, Dawson raises the entirely new argument that the multiple overt acts

alleged in Count One and incorporated by reference into Count Two render the

indictment duplicitous because the jury could have convicted Dawson under one

of four different sets of facts. However, in order to preserve an objection for

appeal, a litigant must “raise that point in such clear and simple language that the

trial court may not misunderstand it.” Zinn, 321 F.3d at 1087-88 (quoting United

States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992)). Thus, Dawson waived this

new argument by failing to raise it at the district court and failing to show good

cause for relief from the waiver.1




       1
                Furthermore, the district court did not plainly err in denying the motion to dismiss
the indictment. An error cannot be deemed plain where “there is no precedent from the Supreme
Court or this Court directly resolving” a question of statutory construction. United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Neither this Court nor the Supreme Court
has spoken on the “allowable unit of prosecution” under § 666(a)(1)(B). As a general rule, the
Supreme Court has stated that “a federal jury need not always decide unanimously which of
several possible sets of underlying brute facts make up a particular element.” Richardson v.
United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 1710, 143 L.Ed.2d 985 (1999). The unanimity
requirement applies to the jury's finding that the government has proved an element of the crime
alleged, but not to the question of “which of several possible means the defendant used to
commit an element of the crime.” Id. The requirement under § 666(a)(1)(B) that the defendant
solicit or accept “anything of value” does not, by its plain language, define the unit of
prosecution according to each individual payment solicited or accepted, as opposed to an alleged
broader scheme to solicit or accept bribes. Accordingly, we affirm the Dawson’s conviction
under Count Two for soliciting and accepting bribes.


                                                 3
AFFIRMED.2




2
    Dawson’s request for oral argument is denied.

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