[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13360 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00041-SPM-AK-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MARCELLUS DAWSON,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 3, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Marcellus Dawson appeals his Count Two conviction for soliciting and
accepting bribes, arguing that the district court erred in denying his motion to
dismiss the indictment on the grounds of duplicity. On appeal, Dawson argues
that the four overt acts of accepting bribes listed in the Count One conspiracy
charge and incorporated by reference to Count Two render the indictment
duplicitous, because each act of accepting a bribe constitutes a separate offense on
which the jury may have based the conviction. Thus, he contends the jury may
have convicted him under Count Two for accepting bribes without unanimously
agreeing on the elements constituting the offense.
Under Fed.R.Crim.Pro. 12(b)(3) and (e), a defendant must raise any motion
alleging a defect in the indictment before trial, and a failure to do so waives any
alleged defect, unless good cause is shown for relief from the waiver or the
objection falls within an exception. See United States v. Seher, 562 F.3d 1344,
1359 (11th Cir. 2009) (discussing other circuits’ holdings that duplicity challenge
to an indictment can be waived if not raised before trial).
Dawson waived his objection to the indictment on the grounds that he now
seeks to argue on appeal. Before trial, Dawson specifically argued that the
duplicity arose from ambiguity as to whether Count Two charged Dawson with
violating either 18 U.S.C. § 666(a)(1) (soliciting and accepting bribes) or
§ 666(a)(2) (giving bribes). After the district court denied the motion to dismiss,
Dawson consistently argued during the course of the trial and at charge hearings
2
that Count Two was ambiguous and duplicitous on those same grounds. On
appeal, Dawson raises the entirely new argument that the multiple overt acts
alleged in Count One and incorporated by reference into Count Two render the
indictment duplicitous because the jury could have convicted Dawson under one
of four different sets of facts. However, in order to preserve an objection for
appeal, a litigant must “raise that point in such clear and simple language that the
trial court may not misunderstand it.” Zinn, 321 F.3d at 1087-88 (quoting United
States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992)). Thus, Dawson waived this
new argument by failing to raise it at the district court and failing to show good
cause for relief from the waiver.1
1
Furthermore, the district court did not plainly err in denying the motion to dismiss
the indictment. An error cannot be deemed plain where “there is no precedent from the Supreme
Court or this Court directly resolving” a question of statutory construction. United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Neither this Court nor the Supreme Court
has spoken on the “allowable unit of prosecution” under § 666(a)(1)(B). As a general rule, the
Supreme Court has stated that “a federal jury need not always decide unanimously which of
several possible sets of underlying brute facts make up a particular element.” Richardson v.
United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 1710, 143 L.Ed.2d 985 (1999). The unanimity
requirement applies to the jury's finding that the government has proved an element of the crime
alleged, but not to the question of “which of several possible means the defendant used to
commit an element of the crime.” Id. The requirement under § 666(a)(1)(B) that the defendant
solicit or accept “anything of value” does not, by its plain language, define the unit of
prosecution according to each individual payment solicited or accepted, as opposed to an alleged
broader scheme to solicit or accept bribes. Accordingly, we affirm the Dawson’s conviction
under Count Two for soliciting and accepting bribes.
3
AFFIRMED.2
2
Dawson’s request for oral argument is denied.
4