United States v. John Lieba, II

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30155
Plaintiff-Appellee, D.C. No.
4:16-cr-00051-BMM-1
v.
JOHN WILLIAM LIEBA II, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted July 9, 2018**
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,*** District
Judge.
John William Lieba II challenges the sufficiency of the evidence supporting
his convictions for kidnapping an individual under eighteen, aggravated sexual
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
abuse, and assault resulting in serious bodily injury on an individual under
eighteen. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Viewed in the light most favorable to the government, United States v.
Nevils, 598 F.3d 1158, 1163–65 (9th Cir. 2010) (en banc), the eyewitness, medical,
and DNA evidence that Mr. Lieba abducted a four-year-old girl, penetrated her
vaginally and/or anally, and strangled her is sufficient to support Mr. Lieba’s three
convictions.
1. To prove that Mr. Lieba kidnapped an individual under eighteen in
violation of 18 U.S.C. §§ 1201(a) and 3559(f)(2), the government must show that
Mr. Lieba intentionally and unlawfully abducted a person younger than eighteen.
It is undisputed that M.L. was abducted, and that she was younger than eighteen at
the time. To prove that Mr. Lieba committed the abduction, the government
introduced the eyewitness testimony of J., the DNA evidence of M.L.’s DNA on
Mr. Lieba’s hand and of Mr. Lieba’s DNA on M.L.’s chest, the audio recording of
Mr. Lieba telling the FBI interviewer where to look for M.L., and other
circumstantial evidence, such as eyewitness testimony that Mr. Lieba had chased
other children earlier that evening. Based on this evidence, a rational trier of fact
could have found beyond a reasonable doubt that Mr. Lieba abducted M.L. Nevils,
598 F.3d at 1163–64.
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2. To prove that Mr. Lieba committed aggravated sexual abuse in violation
of 18 U.S.C. § 2241(c), the government must show that Mr. Lieba knowingly
engaged in a sexual act with a person who was younger than twelve at the time. A
“sexual act” is defined as penetrative contact between the penis and either the
vulva or the anus. 18 U.S.C. § 2246(2)(A). As noted above, it is undisputed that
M.L. was younger than twelve at the time of her abduction and assault.
On appeal, Mr. Lieba renews his argument that the government failed to
show that M.L.’s injuries were caused by a “sexual act,” as her injuries could have
been caused by penetration by a hand or some other object. Circumstantial
evidence would allow a rational trier of fact to conclude that a “sexual act”
occurred: specifically, M.L.’s DNA on Mr. Lieba’s penis, and the apparent
transmission of herpes from Mr. Lieba to M.L.’s anus. Because this court may not
ask whether a finder of fact could have construed the evidence produced at trial to
support acquittal, and instead asks whether a reasonable juror could have convicted
on the evidence viewed in the light most favorable to the government, Nevils, 598
F.3d at 1164, Mr. Lieba’s conviction for aggravated sexual abuse is supported by
sufficient record evidence.
3. To prove that Mr. Lieba committed assault resulting in serious bodily
injury on an individual under eighteen in violation of 18 U.S.C. §§ 113(a)(6) and
3559(f)(3), the government must show (1) that Mr. Lieba intentionally struck or
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wounded a person; (2) that the person was younger than eighteen at the time; and
(3) that the assault caused the person serious bodily injury. See United States v.
Loera, 923 F.2d 725, 728–29 (9th Cir. 1991). “Serious bodily injury” is defined as
injury causing “a substantial risk of death,” “extreme physical pain,” “protracted
and obvious disfigurement,” or “protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.” 18 U.S.C. §§ 113(b)(2), 1365(h)(3). As
above, M.L.’s age is undisputed.
The medical evidence demonstrates that M.L. was assaulted, and that she
suffered “serious bodily injury” as statutorily defined. Medical testimony supports
the conclusion that she was strangled, and that strangulation is an injury causing “a
substantial risk of death.” See 18 U.S.C. § 1365(h)(3)(A). The presence of M.L.’s
DNA on Mr. Lieba’s hand, combined with Mr. Lieba’s statement during the
second interview that he “doubted” whether M.L. was still alive, was sufficient
evidence from which a rational trier of fact could find beyond a reasonable doubt
that Mr. Lieba intentionally strangled M.L. Nevils, 598 F.3d at 1163–64.
AFFIRMED.
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