NOT FOR PUBLICATION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 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.

FILED

JUL 11 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.