NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JOHN WILLIAM LIEBA II,

Defendant

- Appellant. No. 17

- 30155
D.C. No. 4:16

- cr - 00051

- BMM

- 1

MEMORANDUM *

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 a nd OWENS, Circuit Judges, and MÁ RQUEZ, *** District Judge. John William Lieba II challenges the sufficiency of the evidence supporting his convictions for kidnapping an individual under eighteen, aggravated sexual

* T his 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 Má rquez, United States District Judge for the District of Arizona, sitting by designation. 

# FILED

JUL 11 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

abuse, and assault resulting in serious bodily injury on an individual under eighteen. As the partie s 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 ey ewitness, medical, and DNA ev idence 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 ei ghteen 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
th e 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 othe r 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

– 64.3

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 conclud e 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

. Beca use 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 governm ent, 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 1 8 U.S.C. §§ 113(a)(6) and 3559(f)(3), the government must show (1) that Mr. Lieba intentionally struck or4

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 Un ited 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 abo ve, 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. M edical testimony supports the conclusion that she was strangled, and that strangulation is an i njury 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 evi dence 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.