          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               November 12, 2008
                               No. 05-41246
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

RICARDO TREVINO

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:05-CR-421-2


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Ricardo Trevino, federal prisoner # 23504-179, was
charged with conspiracy to possess with the intent to distribute more than 100
kilograms of marijuana and possession with the intent to distribute more than
100 kilograms of marijuana. Trevino filed a motion to dismiss the indictment,
arguing that (1) the indictment was defective because the one contained in the
record was not signed by the grand jury foreperson as required by FED. R. CRIM.
P. 6(c) and was signed by the Assistant United States Attorney rather than the

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 05-41246

United States Attorney; and (2) the United States District Court for the
Southern District of Texas lacked territorial and subject matter jurisdiction.
Trevino brought this interlocutory appeal to challenge the district court’s denial
of his motion to dismiss. We pretermit addressing the issue whether the order
denying Trevino’s motion to dismiss the indictment is a final appealable order
because Trevino’s appeal fails on the merits. See United States v. Weathersby,
958 F.2d 65, 66 (5th Cir. 1992).
      Under the Sixth Amendment, an indictment must “(1) enumerate each
prima facie element of the charged offense; (2) fairly inform the defendant of the
charges filed against him; and (3) provide the defendant with a double jeopardy
defense against future prosecutions.” United States v. Gaytan, 74 F.3d 545, 551
(5th Cir. 1996). Even if we assume Trevino’s indictment was not signed by the
grand jury foreperson, the proper test for determining the validity of the
indictment is whether the defendant has been prejudiced by the alleged
deficiency. United States v. Steen, 55 F.3d 1022, 1026 (5th Cir.1995). The
allegations charged in Trevino’s indictment satisfy the minimum constitutional
requirements. See 21 U.S.C. §§ 841, 846. Moreover, Trevino does not allege,
show, or demonstrate prejudice. He has not claimed that the omission of the
foreperson’s signature caused him to be unaware of the government’s theory of
the case or the nature of the charges against him, or that the indictment failed
to protect him from future prosecution.
      Neither was the indictment defective because it was signed by the
Assistant United States Attorney rather than the United States Attorney. RULE
7(c)(1), FED. R. CRIM. P., requires only that the indictment “be signed by an
attorney for the government.” Trevino offers nothing to show that the Assistant
United States Attorney was not “an attorney for the government.”
      Trevino’s jurisdictional challenge to the indictment is also without merit.
The district court had jurisdiction in the instant case. See 18 U.S.C. § 3231; 28
U.S.C. § 124; see also United States v. Jackson, 313 F.3d 231, 233 (5th Cir. 2002).

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                                  No. 05-41246

      Lastly, the filing of the notice of appeal from the denial of the motion to
dismiss did not divest the district court of jurisdiction to try Trevino. See United
States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980)(en banc); see also United
States v. Hitchmon, 602 F.2d 689, 691 (5th Cir. 1979) (en banc).
      AFFIRMED.




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