United States v. Charles Spotted Elk-Booth, Jr.

MEMORANDUM

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. §§ 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 “attempting] to do so.” See United States v. Resendiz-Ponce, 549 U.S. 102, 107 , 127 S.Ct. 782, 166 L.Ed.2d 591 (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…