United States v. Trevino , 299 F. App'x 384 ( 2008 )

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should not be published and is not precedent except under the limited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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