United States v. Erik Perez-Chavez

MEMORANDUM

Erik Perez-Chavez (“Perez”) appeals his conviction and sentence on one count of felony assault of a person assisting a federal officer in completion of the federal officer’s duties. We affirm.

1. We apply a modified form of plain error review to Perez’s challenge to the indictment, asking whether “the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.” United States v. Velasco-Medina, 805 F.3d 889 , 846-47 (9th Cir. 2002) (quoting United States v. James, 980 F.2d 1314, 1317 (9th Cir.1992)) (internal quotation marks omitted). The district court did not commit plain error by failing to dismiss sua sponte the indictment on the grounds that the indictment does not explain how the private security officer Perez assaulted is a person named in 18 U.S.C. § 1114 . The evidence was overwhelming and uncontested that the private security officer was assisting a federal officer at the time of the assault, and the indictment’s reference to the statute gave Perez “adequate knowledge of the missing element[ ]” to prepare his defense. James, 980 F.2d at 1318 . Accordingly, Perez was not prejudiced by any supposed defect in the…