FILED
NOT FOR PUBLICATION APR 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50284
Plaintiff - Appellee, D.C. No. 3:12-cr-04924-H-1
v.
MEMORANDUM*
ERIK JOSUE PEREZ-CHAVEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 10, 2015**
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
1
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.1 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, 305 F.3d 839, 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 indictment.
1
Perez does not challenge his conviction under Count 2 for misdemeanor
assault of a federal officer.
2
2. We review Perez’s instructional error claim for plain error. United States
v. Keys, 133 F.3d 1282, 1286 (9th Cir. 1998) (en banc). Perez “did not contest”
that the private security officer was assisting a federal officer at trial, and there
was “overwhelming evidence” that the private security officer was assisting a
federal officer when he was assaulted. United States v. Tuyet Thi-Bach Nguyen,
565 F.3d 668, 677 (9th Cir. 2009). Accordingly, Perez was not prejudiced by any
defect in the instructions.
3. We review Perez’s double jeopardy claim for plain error. United States
v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008). When a jury disregards the
instructions on a verdict form and finds a criminal defendant guilty of a crime and
its lesser included offense, the “district court may treat the guilty verdict on the
lesser-included offense as surplusage.” United States v. McCaleb, 552 F.3d 1053,
1058 (9th Cir. 2009). The instructions told the jury to consider the lesser-included
offense only if the jury acquitted on the greater offense; thus, the district court did
not put Perez in double jeopardy by treating the jury’s verdict on the lesser-
included offense as surplusage.
For the foregoing reasons, Perez’s conviction and sentence are
AFFIRMED.
1
3